WASHINGTON (AP) — Longtime liberal Supreme Court Justice Stephen Breyer is retiring, multiple sources said Wednesday, giving President Joe Biden his first high court overture, which he pledged to be filled with the historic appointment of the court’s first black woman.
Breyer, 83, has been a pragmatic force in a court that has become increasingly conservative, trying to forge majorities with more moderate justices right and left of center. His retirement will give Biden the chance to nominate and secure confirmation of a replacement before next fall’s election, when Republicans could take over the Senate and block future candidates.
Democrats are anticipating a quick confirmation, perhaps even before Breyer formally steps down, which isn’t expected until the summer.
He has been a judge since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, he chose not to step down the last time Democrats controlled the White House and Senate during Barack Obama’s presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative judge, Amy Coney Barrett.
Breyer’s departure will not change the Conservative 6-3 on-court advantage as his replacement will almost certainly be confirmed by a Senate where Democrats have the narrowest majority. This will make Conservative Justice Clarence Thomas the oldest member of the court. Thomas will be 74 in June.
Senate Majority Leader Chuck Schumer said Biden’s nominee “will be given an expeditious hearing in the Senate Judiciary Committee and will be reviewed and confirmed by the entire U.S. Senate with deliberate speed.” A White House decision on a nominee could take several weeks, Biden aides and allies said.
Republicans who changed Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.
Senator Lindsey Graham of South Carolina, a Republican who previously chaired the Senate Judiciary Committee, said in a statement: “If all Democrats stick together — which I hope they will — they have the power to replace Judge Breyer in 2022 without a single Republican vote. in support.”
Liberal interest groups expressed relief. They are calling for Breyer’s retirement, concerned about confirmation issues if Republicans regain the Senate.
“Justice Breyer’s retirement is not too soon, but now we need to make sure our party remains united in supporting the confirmation of his successor,” said Demand Justice executive director Brian Fallon.
Among the names circulated as potential candidates are California Supreme Court Justice Leondra Kruger, US Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and US District Judge Michelle Childs, whom Biden appointed judge of the Court of Appeal. Childs is a favorite of Rep. James Clyburn, DS.C., who brought a crucial endorsement to Biden just before South Carolina’s 2020 presidential primary.
Biden’s promise to nominate the first black woman to the Supreme Court was made during the 2020 presidential campaign. Since taking office just over a year ago, he has focused on increasing racial, ethnic and experiential diversity in lower federal courts. He doubled the number of black women serving on appeals courts just below the Supreme Court, with three more appointments pending.
Democratic Rep. Joyce Beatty of Ohio, chair of the Congressional Black Caucus, said, “We know that when corporate boards, legislatures and even the Supreme Court of the United States start to look like America, we we all benefit from it.
Nominating a black woman could also help Biden politically with some of the Democratic Party’s most prominent supporters on Election Day. He has been criticized by black leaders and groups for failing so far to persuade the Senate to pass legislation strengthening voting rights that are restricted in a number of Republican-run states.
Change is slowly coming to the Supreme Court. Of the 115 judges in US history, there have only been five women, beginning with Sandra Day O’Connor in 1981. One of the five, Judge Sonia Sotomayor is a Latina. Thomas and the late Thurgood Marshall are the only two black men to have served in the field.
The president would not respond to reports of Breyer’s retirement on Wednesday.
“Each judge should have the ability to decide what he or she is going to do and announce it for themselves,” Biden said. “Let him make the statement he’s going to make and I’ll be happy to talk about it later.”
Often overshadowed by fellow liberal Ginsburg, Breyer penned two major pro-abortion-rights opinions to a narrowly divided court on the issue, and he exposed his growing unease with the death penalty in a series of op-eds. dissidents in recent years.
Breyer’s views on displaying the Ten Commandments on government property illustrate his search for common ground. He was the only member of the majority court in both cases in 2005 that banned exhibits at two Kentucky courthouses, but allowed one to remain on the grounds of the state Capitol in Austin, Texas. .
In more than 27 years on the court, Breyer has been an active and cheerful questioner in arguments, a frequent and quick public speaker with a joke, often at his own expense. He made a good-natured appearance on a National Public Radio comedy show in 2007, not answering arcane questions about pop stars.
He is known for his elaborate, sometimes far-fetched, hypothetical questions to lawyers during oral argument and he has at times come across as an absent-minded professor. He taught antitrust law at Harvard earlier in his professional career.
He also spent time working for the late Senator Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a strong believer in compromise.
Yet he could write fierce dissent, as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to send the case back to Florida courts so they could create “a constitutionally proper contest” to decide the winner.
At the end of a grueling tenure in June 2007 in which he found himself losing about two dozen 5-4 decisions, his frustrations boiled over as he summed up his disagreement with a decision that invalidated plans for integration of public schools.
“It’s not often that so little has changed so quickly,” Breyer said in a packed courtroom.
His time working in the Senate led to his appointment by President Jimmy Carter as a judge of the federal appeals court in Boston, and he served there for 14 years. His confirmation by the high court 87-9 was the last with less than 10 dissenting votes in the Senate.
Breyer’s opinions were notable for never containing footnotes. He was tipped off to such a writing device by Arthur Goldberg, the judge for whom Breyer clerked as a young lawyer.
“This is an important point to make if you believe, as I do, that the primary function of a notice is to explain to the reading public why the court made this decision,” Breyer said. “It’s not to prove you’re right. You cannot prove that you are right; there is no such evidence.
Born in San Francisco, Breyer became an Eagle Scout as a teenager and began a successful college career at Stanford, graduating with top honors. He attended Oxford, where he received first class honors in philosophy, politics and economics.
Breyer then attended Harvard Law School, where he worked on the Law Review and graduated with highest honors.
He worked in the Justice Department’s antitrust division before dividing his time as a Harvard law professor and an attorney for the Senate Judiciary Committee.
Breyer and his wife, Joanna, a psychologist and daughter of late British Conservative leader John Blakenham, have three children – daughters Chloe and Nell and a son, Michael – and six grandchildren.
Associated Press writer Colleen Long contributed to this report. Sherman reported from Bradenton Beach, Florida.