A terror attack at the Kabul airport, which left 13 American military members dead, served as a morbid sort of punctuation on the chaos in Afghanistan ahead of Biden’s self-imposed August 31 deadline
But on Friday morning, Biden got a piece of (potentially) very good news when published an interview with Supreme Court Justice Stephen Breyer in which he openly discussed the factors he is considering as he decides whether or not to stay on the bench beyond next year.
“I don’t think I’m going to stay there till I die — hope not,” Breyer, who turned 83 earlier this month, told. Breyer recalled a conversation with Justice Antonin Scalia. “He said that he didn’t want someone appointed who would just reverse all the things I have done over the past 25 years.” Breyer pointed out that Scalia’s point would be “inevitably in the psychology” his final decision.
Although it is difficult to predict what a Supreme Court justice might do in the future, Biden and his fellow Democrats should feel good about Breyer’s openness about the importance of the party of President.
Breyer made it clear in a July interview that he loved his new role of senior most liberal court judge (Breyer assumed that role in 2020 after the passing of Ruth Bader Ginsberg). I feel that the new role has made a significant difference. … “It is not a fight,” Breyer said to Biskupic. It is not sarcasm. It is deliberation.
(Sidebar: In that July interview, Breyer said his retirement decision would be based “primarily, of course, health. The court is second.
This Sturm und Drang comes from Democrats’ concern about Breyer staying on the court past its next term which ends in early July 2022. If Breyer does so, it will be much more difficult for Biden and his staff to appoint another liberal justice.
Why? Because Vice President Kamala Harris was able to break the ties, the Senate is split 50-50. However, it is controlled by Democrats. The Democratic majority is in serious danger in the 2022 midterm elections. If Democrats lose this majority, Biden will be unable to choose a Supreme Court nominee. He may have to look for a candidate that could win some GOP votes, depending on the size of the Republican Senate majority.
Breyer could announce at the end of the 2022 session — typically sometime in the late June or early juillet — which would give Biden plenty of time to nominate a replacement, and Senate Majority Leader Chuck Schumer an opportunity to get that nomination through Congress. It is worth noting that Biden would have to nominate a nominee with the support of moderates such as Sens. Or, Joe Manchin from West Virginia and Kyrsten Silena from Arizona could risk the nominee not getting 50 votes.
Breyer’s delay in announcing his retirement to at least 2022 could make Biden less likely to get the court selection he wants. The Senate would be in control if a Democratic senator from a state that has a Republican governor died between now and then (assuming the Republican governor picks someone from his or her party to replace him).
Ginsberg’s sudden death in 2020 demonstrates how high the stakes are. To fill RBG’s vacancy, then-President Donald Trump appointed Amy Coney Barrett (a conservative). Despite the opposition of Democrats, the then Senate Majority Leader Mitch McConnell was able to push the nomination through. This gave Republicans a 6-3 majority and a potential extension for a generation.
Democrats want Biden, at all cost, to keep those three liberal seats. At least, Breyer seems to have understood that political calculation, and — Democrats would argue — necessity. It remains to be seen if it will have an impact on the final decision of the justice.