UPDATE: Biden affirms commitment to Black woman; McConnell warns of ‘radical left’

Appointed in 1994, Breyer, 83, has grown more conservative trying to forge majorities with more moderate justices right and left of center.

January 27, 2022

Steve Rogers,

Breyer joined Biden at the White House, a day after news broke of the 83-year-old’s upcoming retirement.

Since Biden took office in January 2021, he has focused on nominating a diverse group of judges to the federal bench, not just in race but also in professional expertise. He installed five Black women on federal appeals courts, with three more nominations pending before the Senate.

“I’ve made no decision except the one person I will nominate will be someone with extraordinary qualifications, character, experience and integrity,” Biden said as Breyer stood by. “And that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue.”

Breyer’s replacement by another liberal justice would not change the ideological makeup of the court. Conservatives outnumber liberals by 6-3, and Donald Trump’s three nominees pushed the court even further to the right.

In a formal statement Thursday, Kentucky Republican U.S. Sen. Mitch McConnell, the Senate minority leader, praised Breyer’s service but warned Biden against the “radical left,” a popular term among McConnell and most other Republicans.

“I congratulate Justice Breyer on nearly three decades of thoughtful and consequential service on the Supreme Court, capping forty-plus years of total service on the federal bench. Justice Breyer commands respect and affection across the legal world, including from those who disagree with his judicial philosophy and conclusions in cases. This respect is rooted in Justice Breyer’s intelligence, rigor, and good-faith scholarly engagement. By all accounts, both personally and professionally, he has rendered exemplary service on our nation’s highest Court,” McConnell said.

“Justice Breyer’s commitment to the importance of a nonpartisan, non-politicized judiciary has been especially admirable. Even in the face of undue criticism from the modern political left, Justice Breyer has remained a principled voice against destructive proposals such as partisan court-packing that would shatter public trust in the rule of law “I congratulate Justice Breyer, his wife Joanna, their children, and their entire family as the Breyers prepare to close this remarkable chapter and begin the next.

“Looking ahead — the American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America. The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution,: said McConnell, who helped push through Trump’s three nominees despite objections from Democrats.

Biden has already met personally with at least one top nominee, Ketanji Brown Jackson, 51. Breyer’s former clerk worked at the U.S. Sentencing Commission and has been a federal trial court judge since 2013 in the District of Columbia. The two met when Biden interviewed her for her current post as an appeals court judge in the D.C. circuit, where she has served since last June.

“He has a strong pool to select a candidate from, in addition to other sources. This is an historic opportunity to appoint someone with a strong record on civil and human rights,” said Derrick Johnson, the NAACP’s president.

Jackson, 51, was nominated by President Barack Obama to be a district court judge. Biden elevated her to the U.S. Court of Appeals for the District of Columbia Circuit.

Childs, a federal judge in South Carolina, has been nominated but not yet confirmed to serve on the same circuit court. Her name has surfaced partly because she is a favorite among some high-profile lawmakers, including Rep. James Clyburn, D-S.C.

Breyer, 83, will retire at the end of the summer, according to sources who confirmed the news to The Associated Press on Wednesday. They spoke on condition of anonymity so as not to preempt Breyer’s formal announcement.

But the Senate can confirm a successor before there is a formal vacancy, so the White House is getting to work. It is expected to take at least a few weeks before a nomination is formalized.

When Biden was running for the White House, he said that if he had the chance to nominate someone to the court, he would make history by choosing a Black woman. And he’s reiterated that pledge since.

Adding a Black woman to the court would mean a series of firsts — four female justices and two Black justices serving at the same time on the nine-member court. Justice Clarence Thomas is the court’s only Black justice and just the second ever, after Thurgood Marshall.

And Biden would have the chance to show Black voters increasingly frustrated with a president they helped to elect that he is serious about their concerns, particularly after he has been unable to push through voting rights legislation.

Republicans remain upset about Justice Brett Kavanaugh’s contentious 2018 hearing. Still, Democrats have the 50 votes plus a tiebreaker in Vice President Kamala Harris that they need to confirm a nominee.

Republicans who changed the Senate rules during the Trump-era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome. Sen. Lindsey Graham of South Carolina, an influential Republican on the Senate Judiciary Committee, said in a statement, “If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”

Nonetheless, Democrats have also been unable to get all their members on board for Biden’s social and environmental spending agenda or to move forward with a voting rights bill.

And one person who will be central to Biden’s process is chief of staff Ron Klain, a former Supreme Court law clerk and chief counsel to the Judiciary Committee.

Biden could also choose someone who is not currently a judge, though that seems less likely. One contender would be the head of the NAACP Legal Defense and Educational Fund, Sherrilyn Ifill, 59. She has headed the fund since 2013 and has announced she is stepping down in the spring.

The Supreme Court has had three women on it for more than a decade, since 2010, when Obama named Justice Elena Kagan to replace the retiring John Paul Stevens. Kagan joined Obama’s other nominee, Justice Sonia Sotomayor, the court’s first Latina justice, and Justice Ruth Bader Ginsburg. When Ginsburg died in September 2020, Trump announced his choice of Amy Coney Barrett eight days later.

ORIGINAL STORY POSTED JAN. 26, 2022

WASHINGTON (AP) — Liberal Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press Wednesday.

Breyer, 83, has been a pragmatic force on a court that has grown increasingly conservative in recent years, trying to forge majorities with more moderate justices right and left of center.

The sources spoke on condition of anonymity so as not to preempt Breyer’s eventual announcement. NBC first reported the justice’s plans.

Breyer has been a justice since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama’s presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.

Breyer’s departure, expected over the summer, won’t change the 6-3 conservative advantage on the court because his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the slimmest majority. It also will make conservative Justice Clarence Thomas the oldest member of the court. Thomas turns 74 in June.

Senate Majority Leader Chuck Schumer said Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”

Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court judge. Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before South Carolina’s presidential primary in 2020.

Biden has been focused on filling federal judicial nominations with a more diverse group of judges, and the Supreme Court has not been top of mind during his first year in office, according to White House aides and allies. A decision on a nominee has not been made yet, they said, and is expected to take a few weeks. But Biden has expanded his pool of applicants by naming more Black women to the bench.

White House press secretary Jen Psaki said on Twitter: “It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today. We have no additional details or information to share from @WhiteHouse.”

Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion rights on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.

Breyer’s views on displaying the Ten Commandments on government property illustrate his search for a middle ground. He was the only member of the court in the majority in both cases in 2005 that barred Ten Commandments displays in 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 during arguments, a frequent public speaker and quick with a joke, often at his own expense. He made a good natured appearance on a humorous National Public Radio program in 2007, failing to answer obscure questions about pop stars.

He is known for his elaborate, at times far-fetched, hypothetical questions to lawyers during arguments and he sometimes has had the air of an absent-minded professor. He taught antitrust law at Harvard earlier in his professional career.

He also spent time working for the late Sen. Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a firm believer in compromise.

Still, he could write fierce dissents, 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 return the case to the Florida courts so they could create “a constitutionally proper contest” by which to decide the winner.

And at the end of a trying term in June 2007 in which he found himself on the losing end of roughly two dozen 5-4 rulings, his frustrations bubbled over as he summarized his dissent from a decision that invalidated public school integration plans.

“It is not often that so few have so quickly changed so much,” Breyer said in a packed courtroom, an ad-libbed line that was not part of his opinion.

His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals court judge in Boston, and he was confirmed with bipartisan support even after Carter’s defeat for reelection in 1980. Breyer served for 14 years on the 1st U.S. Circuit Court of Appeals before moving up to the Supreme Court.

His 87-9 high-court confirmation was the last with fewer than 10 dissenting votes.

Breyer’s opinions were notable because they never contained footnotes. He was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.

“It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision,” Breyer once said. “It’s not to prove that you’re right. You can’t prove that you’re right; there is no such proof.”

Born in San Francisco, Breyer became an Eagle Scout as a teenager and began a stellar academic career at Stanford, graduating with highest 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.

Breyer’s first job after law school was as a law clerk to Goldberg. He then worked in the Justice Department’s antitrust division before splitting time as a Harvard law professor and a lawyer for the Senate Judiciary Committee.

Breyer and his wife, Joanna, a psychologist and daughter of the late British Conservative leader John Blakenham, have three children — daughters Chloe and Nell and a son, Michael — and six grandchildren.