Justice Kamala? Rumors of Breyer Retirement Set Off Frenzy Among Democrats

AMAC Exclusive – By Daniel Roman

Jeffrey Toobin, the scandal-plagued “legal analyst” for CNN, caused quite a stir Monday, and this time it was not for his Zoom etiquette. Rather, Toobin managed to set off a firestorm by claiming inside knowledge about several points of Democrats’ sensitivity: The Supreme Court, Justice Stephen Breyer, their ever more nominal Senate majority, and the future of Vice President Kamala Harris.

In one stroke, Toobin provoked a reaction by liberals terrified that like Ruth Bader Ginsberg, Stephen Breyer will die on the bench, either under a Republican president following 2024 or after Republicans retake the Senate majority in the midterms, which would leave any prospective candidate subject to GOP veto. Such a veto would almost certainly be used against Kentaji Brown Jackson, an appeals court judge whose name Toobin misspelled, infamous for far-left leanings. Breyer has hitherto resisted a campaign of public pressure for his resignation, and a Supreme Court nomination would give Joe Biden a chance for a “political win” with his base, even if it would do little to alter the Court’s conservative majority.

Equally provocative was Toobin’s decision to include Vice President Harris as a long-shot. Despite that modifier, the inclusion sparked the most attention, not least because Harris’ supporters cannot fail to see a deliberate conspiracy in any mention of their idol in a derogatory sense. Toobin was charged by The Nation’s Elie Mystal of working as a stalking horse for the Biden White House, which deliberately leaked the “false” information in an effort to advance their agenda of getting rid of Harris. How spreading rumors about nominating Harris to a non-existent vacancy would advance an agenda of removing her from the Vice Presidency is unclear. That would require actually nominating her for the role, in which case the leak would have to be accurate. But expecting logic from Harris’ political operation is a fools’ errand.

They are self-aware enough at least to understand that their candidate is a liability. Her numbers have not improved, and Harris, who oversaw the Democrats’ “voting rights push” has been aggressive in insisting that blame for its failure should be spread far, wide, and preferably away from her. A long way from Harry Truman’s, “the buck stops here.”

How would a Harris nomination even work? Democrats have a mere 50 seats in the 100-member U.S. Senate, and their majority comes solely through the vote of the Vice President. Even assuming Harris could vote for her own nomination, that would leave the post of Vice President vacant, and the Senate deadlocked 50-50. While Senate rules would technically keep the Democrats in control until someone could gain a majority to change the organizational resolution, any replacement Vice President would require confirmation with 51 votes, meaning at least one Republican. And if the GOP chose to filibuster, it is hard to see any Republicans voting for a rule change, even if some would be inclined to confirm any replacement in an up or down vote. While this would leave Nancy Pelosi next-in-line for the Presidency at the moment, if the position remained vacant after January of 2023 and the GOP took control, a Speaker Kevin McCarthy would be first-in-line to succeed Biden. A situation Democrats would be unlikely to risk with the oldest president in history.

The whole controversy illustrates how small Democratic ambitions have become. “Voting Rights” legislation is dead. “Build Back Better” appears to be dead in its current form. The Supreme Court has struck down Biden’s private employer mandate, while Omicron seems likely to do what Biden could not: provide a framework for Americans to move beyond Covid. Replacing a liberal Supreme Court Justice with another liberal is what counts for a “win” these days. Getting rid of the party’s vice president and heir apparent counts as an exciting fantasy.

Democrats are only now coming to terms with the extent of Donald Trump’s most lasting achievement. While liberals allege there has been a far-right takeover of the courts, betraying a perspective from which anything other than their own control of that institution implies illegitimacy, there is truth to the claim that for the first time in almost a century, the liberals/left do not have control of the judicial branch of government. There is a split among the conservatives, between ideological conservatives who wish to use the courts aggressively and those who oppose any involvement of the courts in controversial political issues—and this split is on display between, say Brett Kavanaugh and Sam Alito. Nonetheless, for the first time in decades, there is a clear majority that will not consider using the Court as a cavalry for liberal policies that cannot muster sufficient support to pass them within the elected branches of government.

Half of the liberal panic, as evidenced by the obsession with Breyer’s retirement, is driven by a recognition of what this means, and half by projection in which liberals assume that conservatives will use the courts as they would have, only to advance conservative policies without majority support, much as liberals did for years. Hence the need to stop it.

In the long range, this debate is futile for them. Ultimately, the only path forward for anyone, but especially for Democrats, is to abandon their support for policies that turn off voters, and win elections, implementing their agenda the old-fashioned way. This is what Joe Manchin told them when he reminded them if they wanted to not have to rely on his vote, they should have elected more Democratic senators. The panic over Breyer shows they expect to elect a whole lot less. And would quite like to be rid of their VP while they are at it.

Daniel Roman is the pen name of a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics.