It is "absurd" to think that President Joe Biden would nominate his vice president, Kamala Harris, to replace retiring Supreme Court Justice Stephen Breyer, considering her vote would likely be needed to break a tied confirmation ballot, Harvard Law professor Alan Dershowitz tells Newsmax.
"There's a question of whether or not she could be confirmed," Dershowitz told Newsmax's "American Agenda" Wednesday. "Remember, she has to cast the deciding vote. If all the Republicans and all the Democrats stay together, it'll be a 50-50 tie, and you can't confirm a justice with the 50-50 tie. Vice President Harris can't vote to confirm herself."
Dershowitz said he and Breyer have been close personal friends for years, and that he "lobbied hard" with former President Bill Clinton to nominate him for his Supreme Court seat, which he assumed in 1994.
"I've known Steve for nearly 60 years," said Dershowitz. "We were both law clerks for the same justice, Arthur Goldberg."
Dershowitz recalled that the night Breyer was nominated, "he came to our house in Cambridge to celebrate," and he considers the retirement announcement a "personal loss."
"I'd love to see Steve on the Supreme Court," said Dershowitz. "He was up a great justice, but I knew he would retire."
Breyer has said he does not want to be replaced by someone who would destroy his legacy of 30 years on the bench, so he does want to be replaced by someone who would vote in similar patterns, said Dershowitz.
"I knew he was going to retire inevitably, while he could be replaced by a Democrat president," said Dershowitz. "Steve is a very brilliant and very fair and very honorable guy. But remember, he comes from a political background. He got his judicial appointments because he was Ted Kennedy's chief counsel."
But Breyer also went across party lines and had good friends who were conservatives, including late Sen. Strom Thurmond, R-S.C., said Dershowitz.
As Breyer understands Washington Politics, he would never "pull a Justice Ginsburg," said Dershowitz, referring to late Justice Ruth Bader Ginsberg, who refused to retire and died while former President Donald Trump was in office, which allowed a Republican president to replace her.
Meanwhile, Dershowitz said he thinks it was a "serious mistake" for Biden to announce during his campaign that he would nominate a Black woman to the Supreme Court, as he pledged for his vice president pick, rather than simply saying he would pick the best candidate.
"We live in an age of identity politics and the president should not be exemplifying that," said Dershowitz, adding that there are "very, very qualified African-Amerian women who he can pick."
"He ought to be picking the most qualified person to replace Justice Breyer, whether that person is Black or white or Asian or Latino or male or female, and I hope he does that, though I think he's probably going to stick to his pledge," said Dershowitz.
Dershowitz also commented that there are times justices are picked who turn out not to be as conservative or liberal as they would have seemed, even with Breyer.
"He became quite conservative when it came to most criminal justice issues," he said. "He was not a liberal when it came to criminal justice."
However, justices now tend to "move more likely to extremes and we can predict with absolute certainty six or seven votes in almost every major case," said Dershowitz.
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