Breyer, who before becoming a judge was chief counsel to the Senate Judiciary Committee, knows better than most how last week’s surprise Georgia election has transformed the prospects for Biden to fulfill a progressive agenda related to the judiciary.
Still, a Biden choice would enhance the diversity and youth of the bench and open a new chapter for justices who have the last word on issues from abortion and LGBTQ rights, religious liberties and racial remedies, to federal power and corporate regulation.
President-elect Biden has vowed to name the first Black woman to the bench. When he initially made the pledge during a February 2020 debate in Charleston, he said, “I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.”
Among such candidates could be US district court judge Ketanji Brown Jackson, 50, in Washington, DC, a former law clerk of Justice Breyer. Another possibility would be California Supreme Court justice Leondra Kruger, 44. Other Black women of varying backgrounds would no doubt be in the mix if a vacancy arises.
Breyer, named by President Bill Clinton in 1994, declined to respond to questions related to any retirement plans.
Breyer is known for many off-bench pursuits, including an enthusiasm for architecture, and he has authored several books related to law and regulation. Such outside interests, along with the new Democrat dynamic in the nation’s capital, might induce him to leave the bench, perhaps as soon as this summer when the current 2020-21 session ends.
His new book to be published this year, “Against Segregation in America’s Schools,” could be his valedictory. It explores retrenchment on school integration today and is tied to one of Breyer’s leading opinions for justices on the left.
Breyer is attuned to the politics of judicial confirmations and the dicey calculations involved in retirement decisions. He was a lead counsel in the 1970s to Massachusetts Democratic Sen. Ted Kennedy, chairman of the Senate Judiciary Committee.
A Breyer departure this year would lead to the first successful Democratic appointee since 2010, when the Senate confirmed President Barack Obama’s nominee Elena Kagan.
Justices are seated for life, and long after a president leaves office, his legacy and priorities live on in the law.
Trump’s three justices represented a significant achievement, especially for a one-term president. But Trump’s 2017 appointment of Neil Gorsuch was possible only because the Republican-led Senate refused to consider Obama’s 2016 nomination of Merrick Garland to replace the late Justice Antonin Scalia.
The Scalia/Garland fight in the Senate was the first of a series of contentious succession battles on the nine-member bench that culminated in October with Trump’s appointment of Justice Amy Coney Barrett to succeed pioneering liberal Justice Ruth Bader Ginsburg.
In addition to Barrett and Gorsuch, Trump named Justice Brett Kavanaugh in 2018. The other Republican appointees are Chief Justice Roberts and Justices Clarence Thomas and Samuel Alito. The third Democratic appointee, with Breyer and Kagan, is Justice Sonia Sotomayor.
“So tell me who the President could have nominated this spring that you would rather see on the court than me?” she said in a 2014 interview, evoking the complicated politics already underway in Obama’s second term. She died on September 18, four months before the end of the Trump tenure.
Biden will separately fill scores of lower court appointments in the next four years, including the vacancy that would occur through Garland’s departure from the DC Circuit. That bench is often called the nation’s “second highest court” because of its important docket testing government powers.
A Biden appointment would not alter the ideological or political character of the bench, but it would enhance its diversity. Thomas is currently the only Black member of the court; Justice Sotomayor was the first Latina justice named.
The average age of the current justices is 63; the three youngest and those with the potential to most influence the law in upcoming decades are Gorsuch, 53, Kavanaugh, 55, and Barrett, 48.
Biden was a member of the Senate Judiciary Committee when Breyer was a chief counsel. Biden later became the committee chairman and in 1994 oversaw Breyer’s confirmation hearing for the Supreme Court.
Biden referred to that service when he opened the session nearly 27 years ago, and Breyer responded in kind, “Working here on this committee in the 1970s, I learned a great deal about Congress, about government and about political life.”