The results of the Georgia Senate runoffs aren’t yet final. But left-wing activists are already pressuring Supreme Court Justice Stephen Breyer to take advantage of a possible Democratic majority in the Senate and retire.
Demand Justice, the group founded in 2018 as a progressive response to conservative organizing around the courts, praised Breyer in a statement to POLITICO but encouraged him to make way for a younger liberal replacement and to do it early in Joe Biden’s first term.
“Justice Breyer's service on the Court has been remarkable, and history will remember him even more fondly if he ends up playing a critical role in ensuring the appointment of the first Black woman to the Court,” said Brian Fallon, the group’s co-founder and executive director. “Timing his retirement in the coming year would guarantee that opportunity, and it would be wise to do so because the window may prove a narrow one.”
Fallon’s comments are the latest example of Democratic anxiety about the composition of the Supreme Court, where conservatives outnumber liberals six to three. And it illustrates how the left-wing of the party feels immediately emboldened to push Biden now that a Democratic Senate majority seems likely, however narrow.
Breyer, 82, is the oldest member of the court and one of the three remaining appointees by Democratic presidents. He has not signaled any intention to retire soon. “I mean, eventually I’ll retire, sure I will,” he told Slate in an interview published last month. “And it’s hard to know exactly when.”
Prior to Tuesday evening, Breyer’s future on the Court was clouded by the possibility that the Senate would remain in Republican control for at least two more years. But the political calculus has changed due to Georgia, where Democrat Raphael Warnock was declared the winner in a runoff election against Sen. Kelly Loeffler and Democrat Jon Ossoff seemed poised to knock off Republican David Perdue.
Those wins would give the party 50 votes in the Senate and, with it, the thinnest possible margin to confirm judicial nominees.
After four years of Republicans successfully filling the federal judiciary, not many vacancies remain. But liberal groups and progressive judicial advocates have been prepping plans to swiftly fill those that do. And they’re keen on ensuring that their minority stake on the Supreme Court doesn’t worsen. Breyer resisting calls to retire and then dying closer to the next presidential election would make replacing him far more difficult, they argue.
President-elect Joe Biden has committed to nominating a Black woman to the next open Justice seat, which would be the first nomination of its kind in the country’s history. And as Tuesday’s results came in, Democrats began more seriously pondering that possibility. Bakari Sellers, a former South Carolina Representative who has been involved in several presidential campaigns, tweeted Tuesday night that if Senate Democrats win the majority “I need Justice Breyer to announce retirement at 12:01pm on January 20th.”
Fallon noted that District Judge for the United States District Court for the District of Columbia, Ketanji Brown Jackson, who is 50 and Black, once clerked for Breyer and could be a potential successor. The Senate previously confirmed her by unanimous consent — twice.
Some Democrats were thinking about pressuring Breyer to step down even if Republicans had won the runoffs in Georgia, believing that a GOP Senate would have had ultimately given Biden the votes he needed to fill a Supreme Court seat — especially one vacated by a liberal justice — in his first year in office.
Some Senate staffers involved in recent confirmation battles had already been strategizing about how Breyer could announce his resignation but make it contingent on his replacement being confirmed, which Justice Sandra Day O’Connor did in 2005.
The open call for Breyer to step down stands in contrast to the last time Democrats controlled the Senate and the presidency, when many liberals were wary of and outright opposed to talk of Justice Ruth Bader Ginsburg being encouraged to leave the Court.
In July 2013, former President Barack Obama set up a lunch with Ginsburg and only obliquely brought up the topic by raising the prospect that Republicans could retake the Senate in 2014. Ginsburg, saying she felt perfectly equipped to continue handling the job and keen on retiring on her own schedule, pushed back publicly on any retirement talk.
“So tell me who the president could have nominated this spring that you would rather see on the court than me?,” she said in 2014. Ginsburg also told the Washington Post in 2013 that she felt confident another Democratic president would win in 2016 because "the Democrats do fine in presidential elections; their problem is they can't get out the vote in the midterm elections.”
Ginsburg’s tenure on the Court had made her a liberal icon. She served up until this past summer before dying of complications from metastatic cancer.
Her death further cemented the Court’s conservative turn which began when Senate Republicans blocked Obama replacing Antonin Scalia with a more liberal justice, Merrick Garland. Conservatives kept that seat in their column when Trump ultimately nominated Neil Gorsuch.
Over his time in office, Trump has had two more nominees confirmed. Brett Kavanaugh replaced swing vote Anthony Kennedy and Amy Coney Barrett replaced Ginsburg.
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