AMAC Exclusive – By Seamus Brennan
After months of mounting pressure from Democrats and progressive media personalities, news broke Wednesday that Supreme Court Justice Stephen Breyer intends to retire at the end of the Court’s current term. Breyer, the 83-year-old Associate Justice appointed by President Bill Clinton, is the Court’s oldest member and regularly votes with the Court’s two other liberals, Elena Kagan and Sonia Sotomayor, both Obama nominees. But while progressives have hailed the news as a chance to inch the Court in a more radical direction, that effort may not be without some serious political risks.
Breyer’s retirement comes just months before the Court is expected to release long-awaited decisions on the future of abortion rights, the Second Amendment, and religious liberty. Moreover, just two days before reports of Breyer’s retirement initially surfaced, the Court agreed to reassess affirmative action as it relates to using race as a factor in college admissions decisions—another hot-button issue conservatives have long been eager to contest. With a 6-3 majority thanks to President Donald Trump’s three nominees, conservatives are optimistic some of those decisions could go their way.
Notably, Breyer’s retirement also comes as Democrats face down what is increasingly shaping up to be a disastrous midterm election cycle for their party. With only the slimmest of majorities in the Senate, Democrats may have a narrow window to nominate and confirm a Supreme Court Justice before Republicans take control and threaten Biden’s chances of having his preferred nominee confirmed. But after a number of embarrassing legislative setbacks last year, a messy and prolonged Supreme Court fight could only add to the image of a Democratic Party that can’t govern effectively and is pushing radical and even extreme policies on the country.
Following the election of Joe Biden in 2020, progressives immediately began a pressure campaign aimed at forcing Breyer into retirement so that Biden could nominate a new justice with more progressive leanings. One group even paid to have a billboard truck park near the Supreme Court with the message “Breyer, Retire – it’s time for a Black woman Supreme Court justice.” As Carrie Severino, president of the conservative Judicial Crisis Network, put it, “The Left bullied Justice Breyer into retirement, and now it will demand a justice who rubber stamps its liberal political agenda. And that’s what the Democrats will give them.”
As Severino suggests, the prospect of an addition to the Court has given the far left hope for a new justice aligned with their political beliefs and willing to act as an agent of their agenda. Since Justice Ruth Bader Ginsburg’s death in 2020, progressives have desperately attempted to elevate Justice Sotomayor—the most outspokenly progressive justice currently serving on the Court—to the liberal icon status once held by Ginsburg, who was regularly referred to by progressives as “the Notorious RBG.” But given Sotomayor’s comparative lack of progressive credentials (Ginsburg achieved her icon status due in large part to her time as a women’s rights advocate earlier in her career) and the growing impression that she lacks the legal temperament and intellectual prowess of the true titans in Supreme Court history, progressives may push Biden to use this vacancy to appoint a figure that can more reliably be promoted as a left-wing giant in the mold of Ginsburg.
Much of the discussion will now turn to who stands the best chance of replacing Breyer. During his primary campaign, President Joe Biden pledged to fill any Supreme Court vacancy with a woman of color, a campaign promise he will now have a chance to fulfill. As such—in a typical progressive fashion—since news of Breyer’s retirement broke on Wednesday, elected Democrats and other progressives have appealed not to legal background, intellect, or even to judicial philosophy when suggesting a replacement, but have instead characteristically zeroed in on race, sex, and other identity-oriented factors.
Massachusetts Congresswoman Ayanna Pressley tweeted, for example, that “it’s time for a Black woman on the Supreme Court.” Missouri Congresswoman Cori Bush echoed that sentiment, tweeting, “It is past time for a Black woman to be named to the Supreme Court.” Washington Senator Patty Murray agreed: “The Court should reflect the diversity of our country, and it is unacceptable that we have never in our nation’s history had a Black woman sit on the Supreme Court of the United States — I want to change that.”
By comparison, each of President Trump’s three Supreme Court nominees were selected on the basis of weightier considerations like commitment to upholding the Constitution, previously authored legal opinions, and jurisprudential and interpretative methodologies. “I promised to select someone who respects our laws and is representative of our Constitution and who loves our Constitution and someone who will interpret them as written,” Trump said as he nominated Justice Neil Gorsuch to the Court in 2017. “The equal, impartial and constitutional rule of law that we enjoy every day in America is one of the crowning achievements in the history of human civilization,” he said at the swearing-in ceremony for Amy Coney Barrett.
Biden’s promise to nominate someone to the Supreme Court solely based on race and sex, on the other hand, is indicative of a vastly different approach to judicial appointments, in which it goes without saying that liberal justices are supposed to affirm Democrats’ policy preferences almost regardless of the Constitution. Democrats’ ironclad focus on identity politics is hardly a secret, but during a midterm year in which Biden is already experiencing record-low polling numbers and Republicans are expected to take back control of Congress, doubling down on race essentialism and a radical left-wing nominee may only serve to hurt the party’s electoral prospects.
Although the White House has not yet signaled any immediate plan to announce a replacement for Breyer, it is widely speculated that Judge Ketanji Brown Jackson, who has served on the U.S. Court of Appeals for the District of Columbia Circuit since last June, will be on the President’s shortlist. Jackson was confirmed to the appeals court by a 53-44 vote in the Senate, in which all 50 Democrat senators and three Republicans—Susan Collins (R-ME), Lindsey Graham (R-SC), and Lisa Murkowski (R-AK)—voted in favor of her confirmation. She previously clerked for Justice Breyer and is a graduate of Harvard Law School.
However, as Ed Whelan wrote for National Review, Jackson “is not highly regarded as a judge” and “has a striking record of reversals by the D.C. Circuit—including by liberal judges—in her high-profile rulings.” In other words, there are already serious questions about Jackson’s record as a jurist, something that could leave her vulnerable in a tough confirmation battle and might further erode voters’ confidence in Biden’s leadership.
Other names that have been floated as potential replacements for Breyer are Leondra Kruger, an Associate Justice on the Supreme Court of California, and Vice President Kamala Harris. Although Harris appears to be a long shot at this point, and such a pick would be unusual, to say the least, reports of a growing rift between Vice President Harris and President Biden have led to some speculation that Biden could tap Harris for the Supreme Court as a way to simply get her out of the White House and remove a historically unpopular Vice President as his heir-apparent.
But whether Biden ultimately selects Jackson or someone else, based on his track record as president thus far, it is likely that his nominee will excite those on the far left while alienating a large swath of the American people—including Independents, who will be key in deciding which party takes control of Congress next year. As the White House deliberates, it would serve them well to think long and hard about whether they will continue to give deference to woke extremists keen on upending the American way of life. Whichever path they choose, the American people will be watching.