Lawmakers on Capitol Hill are buzzing at the idea of Justice Stephen Breyer's potential retirement as Democrats hang on to a marginal lead in the Senate.
"I'm sure Breyer realizes what a blow Justice Ginsburg's non-retirement was to the possibility of ever having an even mildly progressive Court in our lifetime. And that describes Breyer — mildly progressive. So I think he would not want to double down on what many view as her miscalculation," said Dan Kobil, a law professor at Capital University, according to The Hill.
Many court watchers anticipate Breyer to retire this summer, which would clear a path for Biden to nominate a new justice. Many think the president will choose Ketanji Brown Jackson, 50, a former clerk of Breyer's and a federal district court judge in D.C. If nominated, she would be the youngest justice serving on the court.
Generally speaking, over the last 50 years justices have stepped down when the White House is held by the same party as the president who appointed them. If Breyer stepped down now he would be following the trend those before him have, a favorable move for the Democrats who control the senate with Vice President Kamala Harris's tie-breaking vote.
But “if one Democrat leaves for whatever reason, the Democrats could lose the Senate. For Breyer to have someone with his values and views replace him, retiring this summer could be crucial. If the Republicans take the Senate, they will not confirm a Biden nominee," said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law.
The Biden administration made a point earlier this month to leave the decision up to Breyer.
“[President Joe Biden] believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court,” said White House press secretary Jen Psaki.
Some. however believe Breyer could stay on for another year since he already hired a full set of clerks for the next term. And Democrats would still control the senate in the summer of 2022.
Ben Johnson, a law professor at Penn State University said, “If Breyer thinks he can still do the job well and he enjoys it, why leave? It’s every lawyer’s dream gig!”
Harvard Law professor Mark Tushnet sees things differently.
“I’d assume that he’ll make the decision in his own mind fairly soon, and might have done so already...then inform the White House roughly in early June, and release his letter to the president shortly after the term ends.”
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