Justice Stephen Breyer will step down from the Supreme Court, clearing the way for Biden’s nomination.
According to those acquainted with Justice Stephen Breyer‘s thinking, he will leave the Supreme Court at the conclusion of the current term.
A source familiar with the situation confirmed to NBC News that President Joe Biden and Supreme Court Justice Stephen Breyer will appear together at the White House on Thursday to announce Breyer’s retirement.
Breyer is one of the three surviving liberal justices on the court, and his decision to retire after more than 27 years on the bench enables Biden to pick a replacement who may stay for decades while keeping the existing 6-3 split between conservative and liberal justices in the near term.
At the age of 83, Breyer is the court’s oldest member. For months, liberal activists have pressured him to step down while Democrats control both the White House and the Senate, a situation that might change after the November midterm elections. They said that despite her history of health issues, Justice Ruth Bader Ginsburg lingered on too long and should have resigned during the Obama administration.
Ginsburg’s death from cancer at the age of 87 allowed then-President Donald Trump to appoint Amy Coney Barrett as her replacement, bringing the Supreme Court even further to the right. Breyer’s place on the liberal wing of the court may be secured by a Biden nomination for years or decades.
In short comments to the press on Wednesday, Biden said that he would defer to Breyer in announcing his resignation.
He responded, “Let him make whatever comment he wants, and I’ll be delighted to speak about it afterwards.”
“It has always been the prerogative of any Supreme Court Justice to decide to retire and how they choose to announce it, and that remains the case today,” White House press secretary Jen Psaki had earlier tweeted.She noted that the White House has no new data or information to provide.
In a Washington Post op-ed piece published in May, Erwin Chemerinsky, dean of the University of California Berkeley School of Law, asked Breyer to step down “when the custodians of our system must choose the benefit of an institution and a nation they love above their personal interests.” They must accept that no one, not even a great judge, is irreplaceable, and that the dangers of staying are more than theoretical.
On the campaign trail, Biden said that he would appoint a black woman to the Supreme Court. Following Breyer’s pronouncement, there was an outpouring of remarks urging him to go through with it. Last year, the progressive organisation Demand Justice leased a truck to drive through Washington with a billboard that read: “Breyer is stepping down. It’s past time for a black woman to be appointed to the Supreme Court.”
Former Breyer legal clerk U.S. Circuit Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia and Leondra Kruger, a judge on California’s Supreme Court, are among the probable candidates.
Jackson was nominated to the United States Circuit Court by Biden and confirmed by the Senate in mid-June on a 53-44 vote that included three Republicans.She took over for Merrick Garland, who left the appeals court to become Vice President Joe Biden’s attorney general.
Sen. Patty Murray, D-Washington, was one of the first to release a statement on the announcement of Breyer’s imminent retirement, urging Biden to keep his promise to pick a black woman as the next justice.
“The court should represent the diversity of our society, and it is unacceptable that no black woman has ever served on the Supreme Court of the United States—that is something I want to change,” she stated.
In a tweet, Senate Majority Whip Dick Durbin, D-Illinois, echoed similar thoughts, saying Biden had the chance to offer “diversity, experience, and an evenhanded approach to the administration of justice.”
According to Senate Majority Leader Chuck Schumer, D-N.Y., Biden’s nomination would “get a speedy hearing in the Senate Judiciary Committee, and will be reviewed and approved by the entire United States Senate with all deliberate haste.”
Schumer continued, “Justice Breyer owes America a huge debt of gratitude.”
Sen. Lindsey Graham of South Carolina, a Republican who voted for Justices Sonia Sotomayor and Elena Kagan, predicted that if Democrats “stick together,” as he expected, they would be able to replace Breyer without the need for a single Republican vote.
“Elections have consequences,” Graham said in a statement. “This is especially obvious when it comes to filling Supreme Court vacancies.”
Despite appeals from some Biden supporters to increase the number of Supreme Court seats to counteract the court’s current conservative tilt, Breyer indicated in March that doing so would jeopardise public trust in the court. He advised supporters of court cramming to “consider long and hard before enacting such modifications in legislation.”
Breyer was appointed to the Supreme Court by President Bill Clinton in 1994 and became one of the court’s moderate-to-liberal members, but he has said that such labels are unhelpful.
Breyer felt that constitutional interpretation should be based on practical issues that change with time. This placed him in conflict with conservative justices who believe the court should be guided by the founders’ original purpose.
“I do it because I believe the law, in general, emerges out of communities of people who have issues they want to address,” he said in an interview.
In 2000, Breyer authored the court’s ruling overturning a state law prohibiting certain late-term abortions, yet seven years later, he dissented when the Supreme Court upheld similar federal legislation established by Congress. Affirmative action and other civil rights initiatives were important to him. In a well-publicised dissent in 2015, he said that the death sentence in the United States had grown so arbitrary that it was likely unconstitutional.
It is anticipated that Biden will move swiftly to choose a replacement who will be ready to take over when the new session of the Supreme Court starts on Oct. 3. Biden, a former head of the Senate Judiciary Committee, has direct experience with the confirmation process.