Breyer’s retirement under pressure means Biden will get his justice

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Howard Kurtz: Biden has been on a ‘spectacular losing streak’ since Afghanistan

The ‘MediaBuzz’ host reacts to President Biden’s week of administrative failures.

There is already a major effort underway to convince people that Stephen Breyer decided to step down from the Supreme Court completely on his own.

The reality is he was under enormous political pressure–from the Democrats and media liberals–to surrender his seat. The 83-year-old justice was fully aware of that pressure, even if the Biden White House was smart enough not to push him directly.

FILE PHOTO: Associate Justice Stephen Breyer poses during a group photo of the Justices at the Supreme Court in Washington, U.S., April 23, 2021. Erin Schaff/Pool via REUTERS/File Photo (Reuters)

And while no one can force a justice with lifetime tenure to call it quits, the Bill Clinton appointee knew he’d be blamed by history if the Democrats were unable to replace him with a suitable liberal, tilting the court to a 7-2 conservative majority.

That’s why he had approvingly quoted the late Antonin Scalia to the New York Times as saying: "I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years."

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Biden said yesterday in response to a shouted question that "every justice has the right to decide what he or she is going to do and announce it on their own"--echoing an earlier tweet by Jen Psaki right after NBC broke the story.

Biden, who presided over the hugely controversial Clarence Thomas hearings as Senate Judiciary chairman, didn’t need any reminder of the importance of a potential vacancy. He was vice president when Mitch McConnell denied Merrick Garland so much as a hearing after Antonin Scalia’s death, on the theory that it was Barack Obama’s final year. And that theory got tossed when McConnell pushed through Amy Coney Barrett in the final weeks of Donald Trump’s term.

And that led to recriminations that Ruth Bader Ginsburg should have retired a few years earlier, when Obama could have named her successor.

Keep in mind that any replacement confirmed under Biden would simply preserve the ideological status quo, rather than tip the balance as Barrett did. 

There is virtually no doubt that the vote, in these hyperpolarized times, will be very close. Gone are the days when Scalia was confirmed 98-0, a vote that I covered.

(AP Photo/Andrew Harnik)

But the Biden nominee will be confirmed, even if it’s 51-50, as Joe Manchin and Kyrsten Sinema have been voting for the president’s judges. Besides, Republicans already scrapped the filibuster for Supreme Court confirmations in 2017. Even Lindsey Graham admitted yesterday that it’s a done deal.

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The media’s short list will be shorter than usual this time around, since candidate Biden promised to nominate the first black woman to serve on the high court. 

The judge often described as the front-runner is Ketanji Brown Jackson, who Biden put on the D.C. Court of Appeals last year (confirmed with three Republican votes, including Graham’s). When Sen. John Cornyn asked how race would affect her rulings, Jackson said: "I don’t think that race plays a role in the kind of judge that I have been and would be."

The other frequently mentioned contender is Leondra Kruger, now on California’s Supreme Court, who worked in the solicitor general’s office under Obama and George W. Bush.

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Breyer, a former Ted Kennedy aide who was not always a reliable left-wing vote, was looking at a window that would soon close because of the midterms. He’ll finish the current term.

Associate Supreme Court Justice Stephen Breyer arrives for the swearing in ceremony of Judge Neil Gorsuch as an Associate Supreme Court Justice in the Rose Garden of the White House in Washington, U.S., April 10, 2017. REUTERS/Joshua Roberts/File Photo (Reuters)

Make no mistake, this is a political gift for Biden. After a string of defeats on the Hill, it’s a fight he can win. He will please black voters, who are frustrated with him over his failure on voting rights legislation, by naming a trailblazer who can sit on the bench for decades. And it changes the Washington narrative, which has been focused on the president’s missteps and sinking polls.

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There will be the usual sound and fury that surrounds any SCOTUS battle once Biden announces his pick. But with one-third of the court having been named by Trump, this will be the latest evidence that elections have consequences.