Legal Experts Say Stephen Breyer's Retirement Would Be 'Huge' For Joe Biden - Exclusive
On Wednesday, sources close to Supreme Court Justice Stephen Breyer revealed that he would be retiring from his position at the end of the current term this summer. NBC News reports that Breyer, who was initially appointed to the Supreme Court by former President Bill Clinton in 1994, has not officially announced his retirement. Currently, Breyer is only one of three remaining liberal justices on the Supreme Court.
Breyer's retirement could be crucial for President Joe Biden, who will be able to appoint a new Supreme Court Justice when Breyer officially hands in his resignation. "Breyer's retirement means that President Biden would be able to select Justice Breyer's replacement during his presidency and immediately upon receiving notice of Justice Breyer's retirement," trial attorney and founding partner of Austin-based Kirker Davis LLP, Holly R. Davis, told The List. "Justice Breyer has not officially submitted that notice but is expected to this Thursday."
Biden's impending appointment of a brand new justice could also allow Democrats more time to address social issues. "Politically, this helps the Biden administration and Democrats focus the country's attention to social issues like abortion and affirmative action, which are front and center before the Supreme Court, and away from political problems like inflation and Ukraine," Neama Rahmani, a former federal prosecutor and president of the West Coast Trial Lawyers, told The List. "Conventional wisdom is that Democrats do better on race and gender issues, and more poorly on the economy and international relations. Breyer's retirement and the inevitable fight over his replacement may mobilize progressive and allow Democrats to keep control of Congress after the midterms."
Breyer's retirement could give Biden a chance to preserve Roe v. Wade
As a Supreme Court Justice, Stephen Breyer has been an active proponent for protecting abortion rights and upholding the historic Roe v. Wade court case that established protections for those seeking out abortions, per Reuters. Now, as the Supreme Court is preparing to oversee other abortion rights cases, President Joe Biden will have a chance to appoint another liberal Supreme Court Justice who will also work to uphold the Roe v. Wade decision before the presidential election in 2024. "Breyer's retirement is huge for President Biden, both legally and politically," trial lawyer Neama Rahmani told The List. "The Democrats' fragile majority in the Senate may not last past the midterm elections, and 2022 may be his only opportunity to nominate a Justice who will be confirmed. The current Court appears to have no issues chipping away at or even gutting precedent like Roe v. Wade, so progressives need to preserve the three liberal Justices along with Chief Justice John Roberts to have any hope of maintaining a woman's right to choose."
Trial attorney Holly R. Davis told The List that the timing of Breyer's retirement announcement is key. "Because Supreme Court nominees are not subject to filibuster, the Democrats if voting all together, can confirm this Supreme Court nominee without Republican interference. The timing is important for the nominee to be confirmed soon, because the mid-term elections could block the president from filling any vacancies if Republicans win the Senate in the mid-terms," Davis told The List.
Breyer's retirement could also elevate tensions between Democrats and Republicans
With the 2022 midterm elections around the corner, Los Angeles-based civil rights attorney DeWitt M. Lacy tells The List that the idea of having to vote in a brand new Supreme Court Justice could frustrate lawmakers. "It certainly may frustrate some of the current playbook around the midterms: all of a sudden, the Supreme Court is thrust into being a voting issue," Lacy told The List. "It should not be political, but it is, and the Biden administration is going to have to capitalize on this moment and hold Republicans' feet to the fire. Breyer has been a fair and considerate jurist, but with the divisions as they have been, politically I think it will make for an even more difficult go for the Biden administration."
While the ability to appoint a brand new justice to the Supreme Court presents a huge win for Biden, it could also elevate the tensions that are already building between Democrats and Republicans. "The prospect of Biden appointing a Supreme Court justice will only inflame the Republican base and give them another talking point," Lacy told The List. "I'm hoping the administration will have a thoughtful candidate that will get the Democratic base excited, and what will excite the base will be a more progressive justice. ... This is not the time to kowtow to right-wing extremists in order to get a vote on the bench. We want it to be a meaningful vote that's going to be there for a long time."