Liberal Supreme Court judge Stephen Breyer’s exit opens way for Biden pick
Senate majority leader Chuck Schumer says Biden’s nominee to replace Breyer will receive ‘prompt hearing’
Washington — Liberal U.S. Supreme Court Justice Stephen Breyer will retire when its current term ends in June, US lawmakers said on Wednesday, giving President Joe Biden the opportunity to appoint a successor who could serve for decades.
The retirement of Breyer, who is 83 and has served on the court since 1994, gives Biden a first chance to shape the nation's top judicial body, whose 6-3 conservative majority has shown an increasing assertiveness on issues including abortion and gun rights. Biden's Republican predecessor Donald Trump was able to appoint three justices during his four years in office.
Biden’s fellow Democrats hold a razor-thin majority in the US Senate, which under the US constitution confirms Supreme Court nominees. Senate majority leader Chuck Schumer said Biden’s nominee to replace Breyer will receive a “prompt hearing” and will be considered and confirmed by the chamber with “all deliberate speed”.
The Democrats have reason for speed. Republicans are seeking to regain control of the Senate in the November 8 congressional elections. The chamber’s top Republican, Mitch McConnell, has made clear he would block any Biden nominations to the court if his party regains the majority.
Democrats aim to confirm Biden’s nominee in a time frame similar to the one-month process that McConnell and the Republicans used in 2020 to confirm Trump’s third appointee, Amy Coney Barrett, according to a source familiar with planning.
A Biden appointee would not change the court’s ideological balance, but would enable him to refresh its liberal wing with a much younger jurist in the lifetime post. Biden during the 2020 presidential election campaign pledged to nominate a black woman to fill any Supreme Court vacancy, which would be a historic first.
Schumer will not face one major hurdle to securing a confirmation. The Senate's so-called filibuster rule that requires 60 of the 100 members to agree to advance most legislation does not apply to judicial nominations, meaning Democrats could confirm a Biden pick with just their 50 members and vice-president Kamala Harris’s tiebreaking vote.
Two centrist Democrats who have blocked some Biden legislative priorities, senators Joe Manchin and Kyrsten Sinema, have so far supported most of his judicial nominees.
Breyer, the oldest member of the US Supreme Court, was appointed to his lifetime post by Democratic president Bill Clinton. He authored important rulings upholding abortion rights and healthcare access, helped advance LGBTI rights and questioned the constitutionality of the death penalty. He often found himself in dissent on a court that has moved ever rightward.
Potential Biden nominees include Ketanji Brown Jackson, a former Breyer law clerk who was confirmed by the Senate last June to serve on an influential US appellate court, and Leondra Kruger, who serves on the California Supreme Court.
Only conservative Justice Clarence Thomas, one of two Black men ever on the high court, has served longer than Breyer among the current justices, joining it in 1991. Thurgood Marshall is the only other Black justice in US history, having served from 1967 to 1991.
Trump’s three appointees all are young enough to serve for decades. The Senate, then under Republican control, speedily confirmed Barrett in 2020 after the death of liberal judge Ruth Bader Ginsburg.
After Biden defeated Trump in the 2020 election, some liberal activists urged Breyer to step aside while Democrats control the Senate, concerned that if he did not do so, Republicans could block confirmation of his successor or a future Republican president could be able to name his replacement and tilt the court even further to the right.
The Senate is split 50-50, with Democrats in control because Harris can cast a tiebreaking vote. Confirmation of a justice requires a simple majority vote rather than the 60-vote threshold under a change made by Senate Republicans in 2017 when they controlled the chamber and faced Democratic opposition to Trump’s first Supreme Court nominee.
Liberal activists are eager to avoid a repeat of what happened when Trump was able to replace Ginsburg, expanding the court’s conservative majority.
The court’s current nine-month term began in October. It is due to issue rulings by the end of June in cases giving its conservative majority a chance to curtail abortion rights and widen gun rights. The justices this week took up a case to be decided in their next term that could doom university policies considering race as a factor in student admissions and cripple affirmative action policies long despised by the American right.
Breyer in 2021 authored a ruling rejecting a Republican bid to invalidate Obamacare, preserving the landmark healthcare law formally called the Affordable Care Act for the third time since its 2010 enactment. He also wrote a ruling in 2021 in a major free speech case that sided with a cheerleader who had been punished by her high school for a profanity-laced social media post.
Breyer wrote two important abortion rulings in 2016 and 2020 that struck down restrictions on clinics in Texas and Louisiana. He also was in the majority in the landmark ruling in 2015 that legalised gay marriage. Breyer has become a persistent critic of the death penalty and wrote that it was “highly likely” that capital punishment violates the constitution’s eighth amendment prohibition on cruel and unusual punishment.
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