Supreme Court Justice Stephen Breyer is conditioning his retirement on the confirmation of a successor and has taken a page from individual justices who have given presidents several months to move their choices into place.
But Breyer chose an even earlier point than any past retiree to alert the White House, by nearly two months.
Such early word and the successor proviso no doubt reflect today’s backdrop of Senate obstruction and partisan hostility. In recent public appearances, Breyer has lamented the highly partisan state of the current Supreme Court confirmation process and watched as it has spiraled out of control.
The 83-year-old Breyer, who resisted liberal pressure to step down last year, is now taking no chances with the politics of the situation.
His announcement appears designed to ensure that President Joe Biden can win Senate confirmation for a successor in an orderly fashion and absolutely by the time the court reconvenes for its next session in October.
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Breyer, a 1994 appointee of Democratic President Bill Clinton, would remain on the bench through this current session, expected to end in June, as the justices finish writing opinions in a slate that includes abortion rights, gun control and religious liberty.
Not since 2005 and Justice Sandra Day O’Connor has a justice included as a condition of retirement that a successor be seated.
Breyer has not yet made any public comment on the conditions of his announcement. He said last year that he had “looked through the various practices” of retiring justices as they notified the president. Breyer also earlier told CNN that, as he considered when to step down, he was weighing his health and what he thought best for the court itself.
By attaching the caveat that he will not leave the bench until a new justice is confirmed, Breyer is ensuring that the nine-member court will avoid being left short, as happened in 2016 when then-Senate Majority Leader Mitch McConnell blocked all action on President Barack Obama’s nomination of then-Judge Merrick Garland to succeed the late Antonin Scalia.
The Republican tactics against the Democratic nominee left the Supreme Court with only eight justices for more than a year – a scenario Breyer wants to head off.
More significantly in the annals of lifetime appointments, Senate Republicans deprived the Democratic president of a chance to deepen his mark on the bench. In his first term, Obama had named Justices Sonia Sotomayor, in 2009, and Elena Kagan, in 2010.
As a result, Breyer’s retirement gives Biden the opportunity to place the first new Democratic appointee in 12 years.
Biden has pledged to appoint the first African American woman to the bench. The choice would presumably leave intact the current ideological makeup of the nine-member bench, dominated by six Republican-appointed conservatives.
Pressure to quit
Since Democrats captured the Senate majority – by a single vote – in January 2021, liberal advocates had been engaged in a high-profile pressure campaign to persuade Breyer to step down and allow Biden to name a younger successor. The liberal group Demand Justice hired a billboard truck last year to circle Capitol Hill and urge Breyer to retire.
But Breyer plainly thought he could wait until this year without risking any change in the Democratic-led Senate. The midterm elections are not until November, and a new Senate would be seated in January 2023.
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Critics, including law professors who penned opinion pieces urging retirement, said that was a gamble. The death or defection of just one Democrat could have returned former Senate leader McConnell to power.
McConnell said last year that if the Republicans regain a Senate majority after the 2022 elections, it is “highly unlikely” the Senate would confirm a Biden appointee in 2024, which would be Biden’s last full year in office before the next presidential election. McConnell would not commit to any Senate action in 2023, if a Supreme Court vacancy were to arise then.
New emphasis on ensuring a successor
Breyer, who has expressed dismay at the deeper divisions along party lines, has triggered a timeline that should ensure a Democratic-led Senate will control the fate of Biden’s choice.
When Justice Anthony Kennedy, the most recent justice to leave the bench before death or serious illness, stepped down in 2018, he chose July 31 as his official departure date, just weeks after the annual session closed.
Kennedy made no provision to stay on the court in case his replacement had not gotten through the confirmation process by the October start of the new session. Brett Kavanaugh, in fact, was not confirmed and able to take his seat until the second week of arguments in the 2018-19 session, after a bruising confirmation battle.
Justices David Souter and John Paul Stevens, in 2009 and 2010, respectively, also shunned conditions timed to the confirmation of successors. They chose for retirement dates the start of the court’s summer recess, traditionally at the end of June. The Senate confirmed Sotomayor in August 2009 and Kagan the following August.
In 2005, O’Connor’s July 1 retirement letter surprised the White House and even some fellow justices, who had been expecting then-Chief Justice William Rehnquist to be the one to retire. He was battling serious thyroid cancer.
Perhaps because of that uncertainty, and O’Connor’s own relative last-minute decision, she wrote that her retirement would be “effective upon the nomination and confirmation of my successor.”
The first female justice, now age 91 and living in Arizona, was farsighted. President George W. Bush first selected John Roberts to succeed O’Connor as an associate justice, but before Roberts was subject to Senate hearings, Rehnquist died, on September 3. Bush switched Roberts’ nomination to the chief’s vacancy.
Bush then selected White House counsel Harriet Miers for the O’Connor seat. Miers withdrew because of criticism, largely from fellow Republicans, that she was ill-prepared for the post. Bush then nominated federal appellate Judge Samuel Alito, who was confirmed on January 31, 2006.
O’Connor finally retired that day.
Breyer’s choice of late January for the formal letter contrasts with the practices of other recent retirees. Kennedy delivered his news to President Donald Trump on June 27, 2018. Souter sent a letter revealing his impending retirement on May 1. Stevens chose April 9.
The only justice to choose an earlier date for official word in recent decades was Byron White, who sent a letter to Clinton on March 19, 1993.