Retire, Justice Breyer? It’s Complicated.

Back in 2013I defended the Supreme Court’s refusal, Ruth Bader Ginsburg, to listen to liberal leaders who said she should retire so President Obama could appoint her successor. For one thing, I knew how she argued that Obama would never appoint someone as liberal as Ginsburg, a former ACLU attorney. But I also shared their political analysis. As she said The Washington Post at the time: “I think there will be another Democratic President [in 2016]. The Democrats are doing well in presidential elections; Their problem is that they cannot vote in the midterm elections. ”

Well, we were both very wrong. Unfortunately, President Hillary Clinton was unable to appoint her successor when Ginsburg died last year, just seven weeks before election day. Instead, Donald Trump and Mitch McConnell rammed through the ultimate un-Ginsburg, patriarchal conservative anti-election conservative Amy Coney Barrett. I will not question Ginsburg’s reasoning in 2013, but I do mine. At least in retrospect, I was wrong. Part of my loyalty to Ginsburg sprang from feminist solidarity: in our long history we have only had four female judges (two were recently appointed by Obama), and in my adult life I had not seen a liberal crusade to seek male justice to step down.

Now I have. A growing number of liberal writers call on Liberal Justice Steven Breyer to back out to ensure President Biden can choose his replacement. They play the actuarial lottery, but this time more with Democratic senators than with Breyer, who is apparently healthy 82. But if Democrats lose even one of their 80 stalwarts – Senators Dianne Feinstein or Pat Leahy – they lose their majority. And as Paul Campos argued The New York TimesSix Democrats over 70 come from states where a Republican could appoint his Senate replacement. Too often, to borrow from Ginsburg, Democrats “cannot vote in mid-term elections”. Twenty-eight was different, and I hope it will be in 2022 as well, but the President’s Party has consistently lost halftime in my adult life, with the exception of 1998 and 2002. If Biden has to make an appointment in 2023, McConnell will bottle it up forever .

So should Breyer go? It’s complicated. The judiciary of the Supreme Court was typically a lifelong appointment. If we don’t change the rules for everyone, it will be difficult (informally) to change them for a Democrat. Yet the current Conservative Majority of the 6-3 Court is an anti-democratic (minor democratic) disaster. McConnell stole a nomination from Barack Obama and refused to hold hearings at all on (now Attorney General) Merrick Garland. This was a nonsense rule according to which a SCOTUS candidate should not be confirmed during an ongoing presidential election. Then he stole Ginsburg’s seat seven weeks before Joe Biden’s election while the Americans were voting. Democrats have to play harder. Much harder.

It’s also worth noting that Biden has promised to nominate a black woman for the next vacant seat (something civil rights activists urged Obama to do when he named Garland). And this promise also hangs in the balance if, God forbid, he cannot confirm a candidate. There are some excellent options available from Federal District Court justices, J. Michelle Childs of South Carolina, Leslie Abrams Gardner of Georgia, and Katenji Brown Jackson of Washington, DC. California Supreme Court Justice Leondra Kruger might be an interesting choice. Then there are women outside the confines of the courts, like Sherilynn Ifill, president of the NAACP Legal Defense Fund – she’s only the seventh president since Thurgood Marshall, the first female judge on the Black Supreme Court, a symmetry that moves – and Melissa Murray of the NYU. Of course there is a lot more.

One problem Biden will face in his decision is the shortage of black women at the Bundesbank, both at the appeal level and at the district court level. There are currently only five black women before US appeals courts, 11 of the last 12 SCOTUS nominees. NBC reported last weekand everyone will be 68 years or older this year. (The next Democratic nominee should sit on the bench at least as long as 49-year-old Coney Barrett.) At the district court level, there are only nine Democrat-appointed black women under 55, all of whom were appointed by Obama. “African American women make up only 5 percent of federal justice – a proportion that was even lower prior to Obama’s presidency.” writes Sahil Kapur of NBC.

Biden urgently needs to address this as he occupies vacant federal court seats. In this case, black women will be on the shortlist of all Supreme Court presidents – unless they are racist sexists. Or a Trump Republican, the base of the party.

The President can and will find an innovative and inspiring black woman for the Supreme Court. The question is, will he get the chance? Twenty-two twenty-two looms tall; I hate to say it, but our senate gerontocracy also plays a big part. History tells us that older senators get sick and die (Ted Kennedy was a sad example with great political ramifications; so was John McCain); Younger Senators die in unexpected tragedies (who knows where Paul Wellstone would be in the Senate leadership today?). I hate being morbid, but a 50:50 tie only broken by Vice President Kamala Harris is a fragile deal. Dianne Feinstein is 87, Pat Leahy 86, Bernie Sanders 79; Another dozen Democrats are over 70 years old. Nothing is promised to any of us. However, this is all the more true of the weak majority of Democrats.

So I come gently to the side of: Please back off, Justice Breyer. It is a heroic thing now. But also, please senior senators find some hobbies and retire ASAP or just don’t run again. We can’t have the government we voted for to keep a handful of people healthy. And in case you haven’t already noticed, there are some inspiring young folks who need to step out from under that gray blanket.

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