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January 26, 2022 09:37 AM UTC

BREAKING: U.S. Supreme Court Justice Stephen Breyer To Retire

  • 68 Comments
  • by: Colorado Pols

UPDATE #2: Brief statements from Colorado’s U.S. Senators betray little, though both are of course expected to support President Joe Biden’s nominee. Senator Michael Bennet:

“Justice Breyer has served with integrity and distinction for nearly three decades, protecting Americans’ civil rights, upholding the rule of law, and defending the vital independence of the judiciary. We should be profoundly grateful for his service, and I am.”

And Senator John Hickenlooper:

—–

UPDATE: Still waiting for reactions, which suggests to us that outgoing Justice Stephen Breyer caught Washington off guard with his announcement today. In the meantime,

—–

Big news breaking now via NBC News’ Josh Lederman:

Have fun trying to talk about anything else today. We’ll update with Colorado reax, etc. shortly.

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68 thoughts on “BREAKING: U.S. Supreme Court Justice Stephen Breyer To Retire”

  1. Breyer had a damn good run. Looking forward to seeing which milquetoast "moderate" Biden has to nominate to secure the approval of Joe Manchin and Kyrsten Sinema.

    2. Move Kamala to SCOTUS, bring Hillary in as VP, Biden resigns early in year 3 after passing BBB (or late in year 2 and make it a mid-term platform). The winner of the 2016 popular vote gets to be POTUS. Watch heads explode. 
       

      (Hey, a guy can dream of playing hardball with these morans.) 

          1. I'm liking this scenario more and more:

            –Justice Kamala Harris, Black woman, former district attorney, attorney general, US Senator and VP.  Check, check, check, check, check, check.

            –VP Hillary Clinton.  Let's face it: the Dems have a slim bench.  Harris has now, and will have low approval ratings.  I've been racking my brain for some unknown Dem governor, a la Carter, Bill Clinton, who has then magic and I can't think of one.  Hillary still has impressive credentials: US Senator, Secy of State, and she learned a lot from her presidential campaign.  Those who voted against Hillary or weren't too excited in 2016 have, hopefully, learned their lesson about the alternative.  Making GOP heads explode is not a bad thing.

            –VP Barack Obama after Biden resigns.  After all, isn't Fox News claiming that Biden is losing it?  I imagine Obama has very high approval ratings today in the US.

            Clinton/Obama 2024!

             

            1. As long as we are dreaming, please throw Michelle Obama into the mix. Slot her in as VP after you appoint Harris to the Supreme Court and have her appoint her husband as Secretary of State (or AG) after Biden resigns. 

            2. I realize this is all through a political lens and not bench experience but this solves/creates a number of challenges/opportunities going into a tough mid-term when we need all hands in deck and the ecosystem to build the kind of excitement to extend our runway into 2028.  
               

              I also realize that as Democrats we rarely seem to “miss an opportunity to miss an opportunity “. 

              1. "…the ecosystem to build the kind of excitement to extend our runway into 2028"

                2028??? I just want to see that our runway runs through 2024.

                1. At this point I’m really all about how we extend the runway beyond mid-terms, but if we play our cards right let’s at least put a little long-term strategy into the equation? Seems like a golden opportunity to tweak the line-up.

            3. How the dream scenario can turn into a nightmare really quickly…

              Hillary is not a young woman. Should she die or become incapacitated, and should Obama be her VEEP, he would be bypassed for president because of the 22nd Amendment, and…

              Speaker Jim Jordan would become president.

              2. Wrong.  The 22nd Amendment prevents someone from being elected more than twice to the presidency.  Your scenario would involve Obama ascending to the presidency upon Hillary's vacancy. 

                  1. Yeah, but the pundits at CNN and MSNBC are already trashing the idea because it's "political".  It's time for the Dems to bring a gun to a gun fight like the GOP does.

                    1. Yeah, who’d have thunk we’d get political?

                      Stop bringing butter knives to gun fights. 

                2. I think this would violate the 10-year rule.              
                  22nd Amendment: No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

      2. Team (D) would lose its Senate majority if Harris were to leave the VP office (either through "promotion" to the Supreme Court or because she becomes president). The new VP has to be confirmed by both houses of Congress. And, in the Senate, a 50-50 tie vote fails. I'm certain team (R) will have plenty of discipline to deny any nominated vice-presidential replacement their office.

        1. Yep. That's the real problem with the scenario.

          This exposes the incredible precariousness of our 50-50 Senate, not just for Dem control, but an orderly transition should anything befall Harris.  Today's GOP Senate would have no problem not voting for anyone to fill Harris' seat, regardless of the vacancy cause.  Yikes.

      1. His excuse:  the seat should remain until after the next election which results in a Republican President and a Republican majority in the Senate.

        That is now traditional.

    2. Long as we're doing a wish list, Judge Ketanji Brown Jackson has already been confirmed by this Senate, with Manchin and Sinema both voting in favor. She's a spring chicken by SCOTUS standards (early 50s), and would in all likelihood make a superb justice.

      2. She's got great credentials.  Clerked at each level for federal judges, ending with Justice Breyer.  Former FPD, district and circuit judge.  No brainer in my view.  

  4. Obviously a liberal will be nominated and confirmed, that's a given. But comments about getting a relatively young justice who can serve for 30 years illustrates a flaw in the selection criteria. I have long advocated term limits for Congress (if you're going to drain the swamp you need to start at the source) and I also advocate one ten year term for all federal judiciary. In my opinion a lifetime appointment is simply ridiculous. 

    The lifetime appointment criteria also leads to age discrimination because older well qualified nominees are not considered because the name of the game is to get somebody on the bench for as long as possible.

    Not a partisan issue, and of course would require a constitutional amendment, so not likely to happen. Just my opinion.

    1. I think 18 year terms for the Supreme Court (evens out appointments) and a replacement appointment (dies or resigns) is for the remainder of that term, not a fresh 18 years.

      For the rest of the judiciary, 25 or 30 years because otherwise the Senate would be way overloaded.

      1. Actually, Sen. Rick Scott (Asshole-FL) has been raising a lot of money for the Republican Senatorial Campaign Committee with his new schtick that he's heard "rumors" that Michelle Obama will be the Dem presidential candidate in 2024.

        Of course, he's heard them coming out of his own mouth.

  6. Sources close to Chuck Schumer, and familiar with his thinking on the SCOTUS vacancy, tells me that Schumer intends to push Biden's nomination through the Senate at the same rapid pace that Amy Coney Barrett was confirmed under Trump.

    Boom. 

    1. smileysmileysmiley

      They've established some precedents of which our side needs to take advantage.

      I'm sure that Lady G will have several bouts of the vapors between now and when the new justice is seated.

      One smart thing Breyer is doing is the Sandra Day O'Connor approach:  retirement is effective upon the seating of a successor.

  7. As usual, Ian Milhiser at Vox has a good take.

    Biden promised to appoint a black woman, a demographic that is extremely under-represented in the Court system. 

    Milhiser suggests either Ketani Brown Jackson or Leondra Kruger.

    Jackson will likely be a favorite of criminal justice reformers if appointed to the Supreme Court. A former public defender, Jackson served as vice chair of the United States Sentencing Commission from 2010 to 2014, a period in which the commission cut sentences significantly for many federal drug offenders.

    The commission retroactively reduced sentences for many crack cocaine offenses in 2011, allowing 12,000 inmates to seek reduced sentences and making an estimated 1,800 inmates eligible for immediate release. And it cut sentences for most federal drug offenders during Jackson’s last year on the commission.

    Though Jackson spent the bulk of her judicial career as a district judge (the federal judiciary has three levels of judges with lifetime appointments: district judges who try most cases, circuit or appellate judges who hear appeals from district court decisions, and the Supreme Court), she served on the United States District Court for the District of Columbia, which hears an unusually large number of lawsuits alleging executive overreach.

    …

    Before her elevation to the California Supreme Court, Kruger was a top Justice Department lawyer, at one point serving as acting principal deputy solicitor general — the second-highest-ranking Supreme Court advocate in the federal government. Justice Kagan, herself a former solicitor general, reportedly described Kruger as “one of the best advocates in the Department of Justice.”

    With her appointment to the bench at the young age of 38, Kruger joined a court that was still dominated by Republican appointees — justices chosen by Republican Govs. Pete Wilson and Arnold Schwarzenegger held four of the state supreme court’s seven seats when Kruger first donned her black robe, though the Court now has a solid Democratic majority.

    Kruger garnered a reputation as a moderate incrementalist. In one particularly notable opinion, People v. Buza (2018), Kruger wrote her court’s 4-3 decision rejecting a challenge to California’s Proposition 69, which required police to collect DNA samples from all individuals arrested for a felony offense. Her opinion was joined by three Republican appointees, while three Democrats dissented.

    Yet Kruger’s Buza opinion is more of a tribute to her cautious approach to judging than it is to any kind of ideological conservatism. Buza did not so much uphold Prop 69 as hold that the defendant was the wrong person to bring a challenge to the law.

  8. I’m very glad to see Breyer making this decision, but as for wishful thinking . . .

    It’s difficult for me to get too excited about the prospect of maintaining the miserable SCOTUS status quo . . .

    . . . wake me when Thomas has his embolism.

  9. It appears that one of Ketanji Jackson Brown's primary credentials is that she clerked for Breyer. Just as Kavanaugh's qualification was that he clerked for Kennedy. Is it problematic that SC seats are becoming the equivalent of endowed chairs? No one retires unless they get to pick their successor.

    2. Very problematic, Early, and yet now a part of our ossifying system. Witness all the hype above about re-installing legacy figures, rather than finding bold new leadership for the party. We need to stop fighting the last war.

      1. ^^^ this ^^^

        I have witnessed that ossification. Most recently in The Mesa County Democratic Party. It was the reason I angrily left a meeting several years ago, and never looked back.
        Perhaps things have changed, but such rigidity infects the Dems as much, or more so, as it does the Republicans.

        1. Duke, I’m with you. Recently, I’ve been a part of Morgan County and Jefferson County Dems. Of the two, Morgan was more radical and more effective – something about needing to be cohesive and visible as  a blue dot in a red sea.. Jeffco had more people and resources, but tacked  to the middle so as not to offend the sharks in its purple waters. 

          Our votes as PCPs for Trish Zornio in the last assembly caucus didn’t count, as the vote counters “lost” them. The same people, many featured prominently on this blog,  who give lip service to “embracing diversity”, and were very glad to have one black face in the sea of white faces in group photos declined to endorse a black, gay Democrat, Christopher Arlen, for Lakewood Ward 4, in favor of a white, straight anti-vaxxer, Rich Tollver, who became a “Democrat” two days after the 2020 election, after years of being unaffiliated or Republican. Democrats are quite cooperative with the Gingrich strategy of “Replacing the Left”. 

          There will always be problems with Democrats holding on to personal power and hugging the mushy middle to feel safe, marginalizing and ignoring  leftists and popular policies in search of the perfect male, gray haired, wealthy,  pink skinned, straight, moderate candidate and the milquetoast policy. This approach closes off  so many opportunities for Democrats to reach out to unenthused voters. However, they don’t see it that way. 

           Unfortunately, the Democratic party is the only way to have any political effect at all – unaffiliated does nothing , and unaffiliateds usually don’t even bother to vote. 

           

            2. Arlen and Olver were equally “unqualified”, as neither had been elected to office before running for Lakewood Ward 4. Olver, however, was Ed Perlmutter’s biking buddy, and also is dedicated to spreading COVID misinformation: Some gems from Olver’s campaign website:

              “The weather has more of an effect on covid cases than anything else. Just look at the peak last winter.

              “. They aren’t considering if we’re raising a generation of school children with PTSD.”. 

              “I have a big problem with letting any Board of Health or Health Department order us around. “

              ” If there are ALL these cases, then there are ALL these recovered cases. Why should they wear masks, or show proof of vaccination?”

              CHB, do you not have a problem with spreading misinformation? City officials will be making policy based on what they believe about COVID. Olver thinks it’s a lot of fuss over nothing. 

              Speaking of misinformation, your buddy, John Henderson, who runs the Rooney Valley News, is a fountain of it. Henderson is a contrarian who self-funds his propaganda “newsletter”- he decided that Arlen was “a tool of the developers” and nothing would change his mind on that.  Henderson actually opposes your own views – as I recall, you were opposed to initiative 200.

              As to Arlen changing his name to his middle name Arlen, he did it legally, with all the required notices, and only Henderson decided that something nefarious and evil was in the works. Henderson also made a big deal out of Arlen leading the community in peaceful “Black LIves Matter” vigils on street corners. Wonder what exactly it was about Christopher Arlen that made Henderson distrust him so? Hmmmmmm. What could it be?

              Now, the “recall issue” was a clusterf*ck” as I wrote earlier. I was opposed to Arlen being involved with it, and I think it stuck to him and sunk his campaign. But he believed he was doing the right thing – the board was not following its own rules, having secret meetings, firing the lawyer that made a fair settlement with the developers and hiring Scott Gessler at 10x the rate, for example. And it has turned out that the Green Mountain Water District has raised its rates to pay for all that pricey litigation, as the recallers had predicted. So, CHB, you lose. 

              But Lakewood lost, too. It got an opportunistic COVID denier on its city council, and it lost an opportunity to hire an inspirational leader, and to walk the walk of diversity, not just talk the talk. 

          2. Did it ever occur to you, kwtree, that Jeffco Dems actually win elections by running as center-left as opposed to those fine, ideologically pure socialists running in Morgan County?

            I'm sure the lefties in the eastern plain counties feel nice making lots of noise about all the wonderful things they would do if – and that's a big "if" – anyone ever actually elected them to any position of power. 

            Those who can, do. Those who can't make a lot of noise.

            1. Actually, R&R, Morgan County made solid inroads in the “Red Rage”, with CD4 Dem vote going from 29% in 2014 to 39% in 2018. None of those candidates was any kind of  “ideologically pure socialist”, although you might characterize them as such. In fact, Betsy Markey actually won the seat in 2008. And Markey, who worked in the Treasury and Homeland Security, is certainly no “socialist”, although she’s pretty darn progressive. It was solid grassroots work that got her elected. And luck in having  a spectacularly corrupt and inept GOP candidate, Marilyn Musgrave, as her opponent.

              Morgan County Dems did that by on the ground community organizing – parade floats, canvassing, phoning,  participating in forums, lit tables, etc. 

              While Jeffco Dems does some things well, those are not its strengths. It has not done grass roots outreach well since 2008, when we turned Jeffco blue for Obama. 

              We already know what you do – you donate money. And you make ignorant pronouncements on here about “the libs and socialists and the free stuff they all want” –  things you know very little about, but that fit your preconceptions.  And you like to get smug about “Those who can, do,” and generally trash anyone who dares to hold an opinion more progressive than you do.

              When was the last time you actually knocked on a door or made a phone call for a candidate? When was the last time you marched or staffed a lit table at a public event, or stood up publicly for what you believe? Why such contempt for “those who do”?

              It’s not ideology we’re arguing about – it’s tactics.

               

      2. Don’t disagree, M49-er.  We’re at (another) all hands on deck moment.  Maybe this is our new normal as long as the vestiges of our rich history in racism, bigotry, enslavement and a penchant for ignorance thrives amongst us. I don’t think legacy figures alone would fix it; I don’t yearn for a return of 44.  I fear this country is still not ready for a strong female leader, particularly one of color, and the Electoral College is not a friend to democracy or the popular vote.  We’re still not addressing the challenges of the millennials and how they (or the African-American community) get their bite of American pie.  I’m moving towards Dio’s camp right now: wake me up when Clarence Thomas steps down, DC and Puerto Rico get statehood (and Senate participation), and we’ve passed a voting rights package.

    3. That's a big credential, but her other credentials are US District Judge, US Circuit Judge, Federal Public Defender, and a member of the US Sentencing Commission.  She's a heavyweight.  As qualified as most people already on the court.  And let's not forget that of the 115 justices to sit on the Court, 108 were white men. 

       

      1. She is imminently qualified. My point is simply that the current system allows one individual to pick their replacement. Any healthy organization hires, promotes, and retains people based on merit, not patronage. Power and politics will always be a big part of judicial appointments, but anything that can be implemented (like term limits, staggered terms, or appointment quotas for each POTUS) that moves us closer to a merit-based system would be appreciated. 

      1. I’m just trying to help. It really doesn’t make a difference who the President selects, it will be a progressive, just as Trump chose a conservative. There is no middle or moderate stance in any branch of the government. Obama said Garland was a moderate, now we know the truth about Garland. 

        Kamala is such a drag on the Party that Joe should put her on the court in order to get someone competent to do policy. With her out of the way Joe could choose someone who might be competitive. Jared Polis.

        I’m sure Joe can make Kamala an offer she can’t refuse. You need Kamala on the Ruthless Supreme Court.

      1. It's actually both, kwtree.  Breyers has made ice cream since 1866 but now calls itself "frozen dairy desert" because it whips in more air to lower the calorie content.  Bears don't watch their waistlines so dave is grumpy about that.  But similarly named Dreyers also double churns — adds more air — to lower the fat content.

        I still like both brands but now favor Kagan's Rocky Road — because she sure faces one.

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