- Democratic Senators have demurred on calling on Stephen Breyer to retire from the Supreme Court.
- Trump was able to install three conservatives during his presidency, tilting the court rightward.
- The 82-year-old Breyer has not indicated when or if he will retire from the bench.
- See more stories on Insider’s business page.
The Supreme Court has been a difficult subject for Democrats over the past five years.
Following the death of Justice Antonin Scalia in 2016, the party saw Senate Republicans, led by then-Majority Leader Mitch McConnell of Kentucky, block then-President Barack Obama’s nomination of Judge (and now-US Attorney General) Merrick Garland.
Once President Donald Trump took office, they saw him fill the vacancy with conservative jurist Neil Gorsuch.
In 2018, Justice Anthony Kennedy retired, paving the way for the installation of Brett Kavanaugh to the bench.
And in September 2020, Justice Ruth Bader Ginsburg passed away, allowing Trump to dramatically change the balance of power on the court with conservative Judge Amy Coney Barrett, who was confirmed just days before the general election that he lost to now-President Joe Biden.
All eyes are now on Stephen Breyer, the 82-year-old liberal jurist who has served on the court since 1994.
Freshman Democratic Rep. Mondaire Jones of New York has also called on the 82-year-old jurist to retire.
“I’m really excited about the opportunity for President Biden to appoint and for the Senate to confirm jurists on the Supreme Court who are not hostile to our democracy and will adjudicate cases that will protect and preserve voting rights and will respect the will of Congress, frankly,” Jones said.
However, Democrats in the Senate, who would vote on a potential vacancy and only narrowly control the chamber due to Vice President Kamala Harris’s tiebreaking vote, have been largely mum on pressuring Breyer to step down, based on a Huffington Post report.
Sen. Tim Kaine of Virginia, the party’s 2016 vice presidential nominee, was not inclined to pressure the justice to step down.
“I don’t feel like an Article I branch should tell an Article III judge with lifetime tenure what he should do,” he told the Huffington Post.
Sen. Sherrod Brown of Ohio echoed similar sentiments.
“I don’t have any opinion on that,” he told the publication. “That’s up to him.”
Independent Sen. Bernie Sanders of Vermont, a Democratic presidential candidate in 2016 and 2020, simply declined to answer when asked.
However, Sen. Richard Blumenthal of Connecticut weighed in.
“I wouldn’t presume to tell a Supreme Court justice to retire but he, more than anyone, knows the political reality,” Blumenthal told the Huffington Post. “He’s worked here in the Senate. He knows the risk of staying on the court. He’s been a jurist of extraordinary distinction and intellect.
During his presidential campaign, Biden pledged to nominate the first Black woman to sit on the Supreme Court, with speculation centered on Judge Ketanji Brown Jackson, who is slated to join the US Court of Appeals for the District of Columbia Circuit in the coming weeks.
While the politics of judicial appointments have roiled Capitol Hill for decades, many members of Congress and advisors still prefer to send quiet signals to potential retirees, similar to the approach that the Trump White House took with Kennedy.
During a recent lecture at Harvard Law School, Breyer, who has long heralded judicial independence from politics, suggested that such influence should not drive a potential retirement.
“My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”