OPINION: This article contains commentary which reflects the author's opinion
Democrats are having flashbacks of what happened with the late Supreme Court Justice Ruth Bader Ginsburg, but this time it is with current Supreme Court Justice Stephen Breyer.
Many Democrat politicians have been tiptoeing around his feelings and not directly asking him to retire because they are frightened that it may look too political.
But what they want is a new, young liberal justice on the court in the place of the 82-year-old justice, CNN reported.
Senior Democrats are treading carefully around Justice Stephen Breyer these days, worried that a progressive push to get him to retire could either anger him or come off as overtly political — in either case potentially dashing their hopes of getting a young new liberal on the Supreme Court in his place.
The clock is ticking for the party, because the Senate could fall into Republican hands during the midterm elections next year — or, actually, at any moment. Two members of the Democratic majority are near or just over 80 years old, and they hail from a state where a Republican governor would name their replacement if they weren’t able to serve.
But Breyer — at age 82 the senior liberal on the Supreme Court — is keen on keeping the high court free of political influence. And at a moment when a Democratic president gets to nominate any new justice, and Democrats hold the Senate’s tie-breaking vote on confirmation, an open campaign to squeeze him out could have the opposite of the intended effect.
So while many congressional Democrats admit the ticking clock is on their minds, multiple sources tell CNN, they’re almost all keeping a studiously respectful distance.
“I’m not sure that that kind of pressure on Justice Breyer is actually helpful in his decision making,” Democrat Rhode Island Sen. Sheldon Whitehouse, who is on the Senate Judiciary Committee, said. “I don’t know the man well enough, but I know plenty of people whose backs would get up when subjected to that kind of pressure. And it’s certainly plausible.”
California Democrat Sen. Dianne Feinstein said that the retirement of Justice Breyer would be a “great loss.”
“My general belief is, if a person is serving with integrity and working hard and producing for whatever the constituency is, that’s what these jobs are all about,” she said.
But not all Democrats feel the same way. Democratic Rep. Mondaire Jones said that he believes the justice should retire, citing Justice Ginsburg as an example.
“There’s no question that Justice Breyer, for whom I have great respect, should retire at the end of this term,” he said to Cheddar News in an interview in April.
“My goodness: have we not learned our lesson?” he said, referring to Ginsburg’s seat being filled by Donald Trump.
President Trump filled three Supreme Court seats between 2016 – 2020, with Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney-Barrett.
Biden’s White House Press Secretary Jen Psaki said that the White House will not interfere with Justice Breyer’s decision.
“He believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court,” Psaki said.
The statement came after Biden announced that he would be forming a commission that will perform a 180-day study of potential changes to the Supreme Court, including court-packing and setting term limits for justices.
“The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” the White House said in a statement.
“The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices,” the White House added.
Justice Breyer himself agitated some progressives this year when he spoke against the idea of court packing.
“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” the justice said.
“The court’s decision in the 2000 presidential election case, Bush v. Gore, is often referred to as an example of its favoritism of conservative causes,” he said. “But the court did not hear or decide cases that affected the political disagreements arising out of the 2020 [Trump v. Biden] election.”