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Democrats concerned about future of Supreme Court pressure Justice Stephen Breyer to retire

Justice Stephen Breyer
Posted at 8:48 AM, Jun 18, 2021
and last updated 2021-06-18 09:48:30-04

Democrats who are still reeling from two significant blows on the Supreme Court bench in recent years are trying to make sure they don't suffer a third lost seat.

Justice Stephen Breyer — one of just three justices on the court nominated by a Democratic president — will turn 83 later this summer. He is the oldest Supreme Court justice by more than a decade.

As the Supreme Court reaches the end of its term, progressive groups and at least one Democrat in Congress are pressuring the longtime justice to retire.

"Justice Breyer, for whom I have great respect, should retire at the end of this term," Rep. Mondaire Jones, D-New York, told Cheddar News in April. "My goodness, have we not learned our lesson?"

In recent years, two justices have passed away while serving, leaving it up to Congress whether a nominee would get through.

In 2016, citing the upcoming presidential election, then-Senate Majority Leader Mitch McConnell kept President Obama from getting his nominee across the finish line following the death of Justice Antonin Scalia. However, McConnell quickly confirmed President Donald Trump's pick just weeks before Election Day 2020 following the death of Justice Ruth Bader Ginsburg.

Those decisions shifted the balance of the court to a 6-3 conservative majority. Now McConnell says, should Republicans win back the Senate in 2022, and should a seat on the court become available, he'll prevent President Joe Biden from seating his pick, too.

"I think it's highly unlikely," McConnell recently told radio host Hugh Hewitt. "In fact, no, I don't think either party, if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election."

Elliot Slotnick studies judicial politics at Ohio State University and says the GOP has done a better job of gaming out the seats on the court in recent years.

"(Justice Anthony) Kennedy stepped down when he was still in good health," Slotnick said. "The Kennedy example is the most recent example of somebody, I think, leaving the court when they still had time in front of them to serve."

Kennedy's resignation in 2018 paved the way for his own clerk, 53-year-old Judge Brett Kavanaugh, to get on the bench.

Democrats, on the other hand, haven't had success in convincing liberal justices to step down.

Ginsburg refused to retire during the Obama administration, despite her age and health struggles. She died in 2020, and her seat was filled by conservative Justice Amy Coney Barrett.

Progressives are also pushing for legislation to expand the Supreme Court as a way to offset Republican-led confirmations that they say broke longstanding precedents.

"(Republicans) are being quite clear that they will never, when they control the Senate, allow Democrats to fill vacancies on the Supreme Court," said Aaron Belkin, director of Take Back The Court. "And you just can't have a democracy when one party disregards norms like that."

Court watchers have been looking to see whether Breyer hires law clerks for the fall to decipher if he's planning a retirement. Those hoping for a vacancy will be disappointed to know he's hired a full roster for next term.