Supreme Court Justice Stephen Breyer to retire

Supreme Court Justice Stephen Breyer is expected to announce his retirement this week, after serving nearly 30 years on the bench.

Breyer's legacy: Appointed in 1994 by President Bill Clinton, Breyer has sought to focus the law on how it could work for the average citizen.

He was no firebrand and was quick to say that the Supreme Court couldn't solve all of society's problems. He often stressed that the court shouldn't be seen as part of the political branches but recognized that certain opinions could be unpopular.

"If the public sees judges as 'politicians in robes,'" he warned, "its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court's power, including its power to act as a 'check' on the other branches."

The news of Breyer's retirement comes as the court's conservative majority has flexed its muscles in a blockbuster term. The justices have already heard one case that could overturn Roe v. Wade and another that could expand gun rights.

Recently, Breyer joined his liberal colleagues, Justice Sonia Sotomayor and Elena Kagan, in a bitter dissent when the conservative majority blocked Biden's vaccine mandate for large employers. Breyer also dissented last year when the court allowed a Texas six-week abortion ban to remain in effect. The law is the strictest in the nation and bars abortion before most women even know they are pregnant.

What's next?: On the campaign trail, President Biden vowed that if he were to get a vacancy he would fill it with a Black woman, which would represent a historic first for the high court. Potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer and also worked as an assistant federal public defender and served on the US Sentencing Commission.

Senate Majority Leader Chuck Schumer is looking at a quick timeframe to confirm President Biden's nominee to the Supreme Court — and he will follow a similar timeline that Republicans employed to confirm Amy Coney Barrett to the court in 2020, according to a source familiar with this thinking.

Senate sources also say that the Senate can act on the Biden nominee before Justice Stephen Breyer officially steps down from the court. Democrats expect to hold hearings and votes before Breyer officially steps aside at the end of his term.

Senate Judiciary Chair Sen. Dick Durbin promised to move President Biden’s Supreme Court nominee to replace retiring Justice Stephen Breyer “expeditiously” through the committee.

After Biden's selection, there will be hearings in the committee. The confirmation process timeline varies, but it usually takes months.

Breyer is expected to stay on until the end of the term and until a replacement is confirmed.

Senate GOP Leader Mitch McConnell declined to weigh in on Supreme Court Justice Stephen Breyer’s plans to retire until the justice makes an official announcement.

Asked about Breyer’s plans to retire and what nominee he expects Biden to pick, McConnell said, "Well, I’m afraid to put the cart before the horse."

"Justice Breyer has not made an official announcement and he’s entitled to do that whenever he chooses to and when he does that I’ll have a response to his long and distinguished career," McConnell said.

He was also asked whether Republicans plan to try and block Biden’s Supreme Court nominee.

“We don’t even know who the nominee is yet. So that’s something the President has the opportunity to make should there be a vacancy and Justice Breyer will determine when and if there’s a vacancy," McConnell said.

White House press secretary Jen Psaki told reporters that President Biden “certainly stands by” his campaign trail promise to nominate a Black woman on the highest court in the land.

During a primary debate in February 2020, Biden pledged to appoint a Black woman to the Supreme Court if given the opportunity, calling it “long overdue.”

Psaki told reporters Wednesday the White House would “not have additional details” on news of Supreme Court Justice Stephen Breyer’s retirement until Breyer made the announcement himself.

In a follow up, Psaki declined to offer any details on what planning the White House had prepared in the event of a SCOTUS vacancy.

Earlier Wednesday, the President declined to weigh in on the news of Breyer's retirement from the court.

"Every justice has the right to decide what he or she is going to do, and announce that on their own," Biden said. "There's been no announcement from Justice Breyer. Let him make whatever statement he is going to make, and I'll be happy to talk about it later."

Appointed in 1994 by President Bill Clinton, Supreme Court Justice Stephen Breyer has sought to focus the law on how it could work for the average citizen. He was no firebrand and was quick to say that the Supreme Court couldn't solve all of society's problems. He often stressed that the court shouldn't be seen as part of the political branches but recognized that certain opinions could be unpopular.

"It is wrong to think of the court as another political institution," Breyer told an audience at Harvard Law School in 2021. "It is doubly wrong to think of its members as junior league politicians."

"If the public sees judges as 'politicians in robes,'" he warned, "its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court's power, including its power to act as a 'check' on the other branches."

The news comes as the court's conservative majority has flexed its muscles in a blockbuster term. The justices have already heard one case that could overturn Roe v. Wade and another that could expand gun rights.

Recently, Breyer joined his liberal colleagues, Justice Sonia Sotomayor and Elena Kagan, in a bitter dissent when the conservative majority blocked Biden's vaccine mandate for large employers. Breyer also dissented last year when the court allowed a Texas six-week abortion ban to remain in effect.

The law is the strictest in the nation and bars abortion before most women even know they are pregnant.

Here's a look at the current makeup of the court:

Supreme Court Justice Stephen Breyer choosing to announce his retirement in January, six months before he'll actually be leaving, "is giving the President lots of time to name a successor and to avoid getting caught up in the partisan hostilities," CNN Supreme Court analyst Joan Biskupic said.

Biskupic noted that Breyer had "struggled" with the decision to retire, but that he knew "it was time."

"He resisted the pressure last term, as you know, to leave because everybody was thinking about what happened with Ruth Bader Ginsburg who resisted pressure when a Democrat was in the White House and President Obama had a Democratic Senate then what happened is that she died and then her successor, Amy Coney Barrett, has transformed this court," Biskupic explained on CNN.

Biskupic continued, "So I know that he has been weighing this for a long time. It was just a matter of when he was going to just accept the fact that he's had a long, important tenure. Twenty eight years on the Supreme Court. He's 83. He doesn't want to leave anything more to chance. Especially since the senate hangs by one vote for a Democratic majority."

Through his long career as a member of US Congress, President Biden presided over many Supreme Court confirmations when he served as chairman of the Judiciary Committee.

Here's a list:

September 1987 — Robert Bork (failed)

December 1987 — Anthony Kennedy

September 1990 — David Souter

September/October 1991 — Clarence Thomas

July 1993 — Ruth Bader Ginsberg

July 1994 — Stephen Breyer

President Biden vowed during the campaign trail that if he were to get a vacancy he would put a Black woman on the high court.

Well before Stephen Breyer's retirement plans became public, a short list of potential nominees had been circulating Washington and officials in the White House Counsel's office built files on various candidates in anticipation of a potential vacancy. Now, those efforts will ramp up significantly and the President will likely hold one-on-one meetings before announcing his pick.

While the President nor the White House have announced a nominee, here are potential picks who have been on observers' short list:

Other names that have been floated:

Read more about the possible nominees here.

Senate Majority Leader Chuck Schumer is looking at a quick timeframe to confirm President Biden's nominee to the Supreme Court — and he will follow a similar timeline that Republicans employed to confirm Amy Coney Barrett to the court in 2020, according to a source familiar with this thinking.

Senate sources also say that the Senate can act on the Biden nominee before Justice Stephen Breyer officially steps down from the court. Democrats expect to hold hearings and votes before Breyer officially steps aside at the end of his term.

A look back at the Barrett timeframe: Justice Ruth Bader Ginsburg died on Sept. 18, 2020, and Barrett was nominated by former President Trump on Sept. 26, 2020. She was confirmed Oct. 26, 2020 — just days before the presidential election, prompting Democratic anger. In 2016, Republicans blocked the nomination of now-US Attorney General Merrick Garland, saying it was too close to the election.

In what will be one of the most monumental endeavors of Joe Biden's presidency, the retirement of Stephen Breyer sets the stage for an immensely important decision by the President.

Breyer's seat may be the only one that Biden fills on the Supreme Court — and it may not be one he fills at all if Republicans retake the Senate before the President's choice for a replacement is confirmed.

On the campaign trail, Biden vowed to put a Black woman on the high court, which would be a historic first. A short list of potential nominees had been circulating Washington well before Breyer's retirement plans became public, and officials in the White House counsel's office built files on various candidates in anticipation of a potential vacancy.

Now, those efforts will ramp up significantly and the President will likely hold one on one meetings before announcing his pick.

The White House is stacked with officials deeply familiar with the confirmation process, starting with Biden himself — who chaired the Senate Judiciary Committee — as well as White House chief of staff Ron Klain, who has experience both at the White House counsel's office and working for the Senate Judiciary Committee.

Why this matters: With Democrats holding the narrowest of majorities in the upper chamber, Biden will have to choose someone who can safely get 50 votes in the Senate (Vice President Kamala Harris could provide the tie-breaking vote if the Senate is split on the nomination). In addition to the vote count, Biden also has to keep an eye on the calendar. Senate Republicans are likely to retake the chamber in this year's midterms and have already signaled they would block a Biden nominee to the Supreme Court. It typically takes two to three months for a President to see his nominee confirmed by the Senate once he or she is named. The most recent justice, however, was confirmed in just a month and a half, as Senate Republicans rushed to get Justice Amy Coney Barrett approved before the 2020 election.

Given the disappointments that have been recently dealt to the progressives under the Biden administration — between the congressional demise of the President's Build Back Better proposal and his failure to find a way forward on voting rights legislation — Biden's choice for the Supreme Court gives him the opportunity to reinvigorate the Democratic base. If she is confirmed, Biden will secure a much-needed victory for his administration.

Read about Biden's possible nominees here.

#Analysis##