Many liberals are increasingly frustrated (and concerned) about Justice Stephen Breyer’s unwillingness to retire. Breyer, appointed to the Court in 1994 by Bill Clinton, is 82. The combination of the fact that two of the last three recent exits from the Court was via death and the looming 2022 mid-terms all sum to a great deal of concern about who would replace Breyer when he passes or, at least, if Biden would be allowed to replace him after the 2022 mid-terms, given the decent probability that the Republicans could regain control of the Senate.
Hence, CNN reports: Liberals struggle with Breyer’s refusal to retire.
“Especially after Justice Ruth Ginsburg lost her bet on her own longevity, with the rest of us forced to pay, it’s astonishing that Justice Stephen Breyer would court the same risk,” Samuel Moyn, a Yale Law School professor who signed a letter with several other academics calling on Breyer to retire, said by email.
Another signatory of that letter, University of Houston Law Associate Professor Daniel Morales, told CNN by email that Breyer was “playing Russian roulette.”
Look, I understand this position. The situation is straightforward. Justices are powerful and serve for life. Breyer has been on the Court for almost thirty years and his replacement could serve just as long, maybe longer. The norm of allowing a sitting president to make a nomination that gets a vote is out the window and it is quite possible that after the mid-terms the Republicans will capture the Senate and hold any vacancy open until after the 2024 elections (if not longer).
I also understand that the current make-up of the Supreme Court is a living testament to the representational flaws of our constitutional system. The notion of presidential appointment and Senate confirmation assumes, at its core, that there is significant democratic legitimacy behind the Court. But this is not what has happened.
The Court currently has a 6-3 split of Republican nominees with Democratic nominees. This despite the fact that a Republican has only won the plurality of the vote once in the last three decades, and even then only in re-election.
Of the six Republican nominees, three were appointed by a president (Trump) who failed to win the popular vote. Further, those three were confirmed by a Senate that did not represent a majority of citizens. This is, plain and simple, a failure of representativeness in a key institution.
Two more of those appointees were appointed by a president (Bush) who initially came to office without winning the popular vote (and so would likely not even have been on the ballot in 2004 and therefore be in a position to make his two appointments). At least those appointees were confirmed by Senators representing a majority of the population.
It is also worth noting that George W. Bush served two terms, as did Barack Obama and they each had two appointments. Trump served a single term, appointing three. This, beyond partisan considerations, shows a substantially arbitrary pattern.
Keep in mind, the whole notion of appointment by the president and confirmation by the Senate is supposed to ensure a connection to what Madison called “the republican principle” of popular rule. That the system creates such profound distortions between the popular will and who serves in government underscores a huge problem if one believes in that republican principle of majority rule (which, again, is how Madison defined the term and certainly how modern scholars understand democratic governance).
Having said all of that, I find Breyer’s position on the politics of the Court to be remarkable:
Regardless, Breyer has shown sensitivity to perceptions of political influence at the court. He has an upcoming book about the threat of “political intervention” eroding public trust in the court. In April he gave a speech bashing the use of “liberal” or “conservative” to describe justices on the court.
At a minimum, he cannot be ignorant of the extreme politics associated with the nomination process and he has witnessed, along with the rest of us, the actions of McConnell in regards to the Scalia and RBG vacancies, as well as the obviously strategic resignation of his colleague Anthony Kennedy.
The notion that the exercise of governmental power can somehow be apolitical, or above partisanship, is either naiveté or denial.
And while I respect the fact the Breyer may simply want to keep his job or even thinks that he is somehow fighting the tide on all of this, the reality remains that the only way that he, personally, can guarantee that his successor has a chance of being some kind of continuation of his own views is to exit office before the 2022 mid-terms. In short, he has every right to make the choice he is, and haranguing him about it is almost certainly counterproductive.
Still, all of this is just reality brought to us by the creaky constitutional design we are working with on this topic. Instead of a logical, orderly, known process, we are left to the composition of our top court of appeals/constitutional court being left to the exigencies of mortality and/or the whims of the current holders of the seats. It is manifestly a bad way to determine the content of the Supreme Court of the United States.
Until we, collectively, focus on where the real problem is, no solutions will be possible.
