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Supreme Court Justice Stephen Breyer should just retire already

Business Insider logo Business Insider 5/9/2021 insider@insider.com (Manny Fidel)
Stephen Breyer wearing a suit and tie: Supreme Court Associate Justice Stephen Breyer participates in a panel on 'Lessons from the Past for the Future of Human Rights: A Conversation' at the Gewirz Student Center on the campus of the Georgetown University Law Center April 21, 2014 in Washington, DC. Organized by the law center, the New York Review of Books and the Bingham Centre for the Rule of Law the forum focused on the future of human rights. Chip Somodevilla/Getty Images © Chip Somodevilla/Getty Images Supreme Court Associate Justice Stephen Breyer participates in a panel on 'Lessons from the Past for the Future of Human Rights: A Conversation' at the Gewirz Student Center on the campus of the Georgetown University Law Center April 21, 2014 in Washington, DC. Organized by the law center, the New York Review of Books and the Bingham Centre for the Rule of Law the forum focused on the future of human rights. Chip Somodevilla/Getty Images
  • Supreme Court Justice Stephen Breyer is really old.
  • Many Senators who are in charge of confirming his replacement are also really old.
  • The longer Breyer waits to retire, the more likely it is that the Supreme Court is dominated by conservatives indefinitely.
  • This is an opinion column. The thoughts expressed are those of the author.
  • See more stories on Insider's business page.

It's already ridiculous that the foundation of this country relies on who the president is when one of nine geriatric Supreme Court justices either dies or retires. It's doubly ridiculous then, that a Supreme Court justice would understand this fickle structure, see its constant abuse by one political side, and yet refuse to retire when the party that most aligns with their judicial philosophy is in power.

This was the case with Justice Ruth Bader Ginsburg, who rejected calls to retire during President Obama's administration when it appeared the Senate could slip from the Democrats' grasp. Obama - who personally tried to nudge Ginsburg into retirement - would have been responsible for choosing her replacement, and a Democratic-controlled Senate could have then confirmed someone who aligned with Ginsburg's liberal values. But Ginsburg decided to stick around, and her death years later during Trump's administration gave Republicans a stranglehold on the court.

Apparently, history really does repeat itself, as another left-leaning, 80-something year-old Supreme Court justice is refusing to retire at a time when the Democrats have a precarious hold on the Senate, and thus, a chance to replace them with an ally before midterm elections potentially screw that up.

Yes, Justice Stephen Breyer needs to retire - tomorrow. The longer he waits, the more likely it gets that the country ends up with a Supreme Court dominated by conservatives.

Dissent

It takes a simple majority in the Senate to confirm a president's nominee to the Supreme Court. Currently, the Senate is split 50/50 between Republicans and Democrats. Since Republicans did away with the filibuster for Supreme Court nominees in their push to confirm Brett Kavanaugh, Democrats could still confirm a liberal justice with this margin, as Vice President Kamala Harris would serve as the tiebreaker.

But that margin is incredibly perilous because, frankly, there are some truly ancient Democratic senators who could go at any time. 16 Democratic senators are at least 70 years old, and two of them, Patrick Leahy and Dianne Feinstein, are in their 80s. If even one of these 16 retires - or worse - then a Biden-appointed justice nominee is no longer a shoe-in via senate approval. Additionally, 19 Democratic senators belong to states with Republican governors who would appoint Republicans to replace them.


Video: Pressure builds for Justice Breyer to retire from the Supreme Court (MSNBC)

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What's even less certain is what's going to happen in the midterm elections in 2022. Republicans might not need Democratic senators to retire because they might just lose their contests anyway, reshaping the composition of the senate and potentially making it harder for Biden to get a justice nominee through the door.

That makes now the best moment for Stephen Breyer to retire, but like Ginsburg before him, he's being quite stubborn about it. Ginsburg held off on retiring because she felt that Hillary Clinton was going to win the 2016 election. I don't blame the thought process, but Breyer should learn from that mistake and not take any risks when it comes to the unknowable future. Just retire already.

Columnist Noah Feldman wrote in Bloomberg that the idea of retiring "would betray Breyer's own career-long objective of making decisions based on what is right for the country, not for one party."

But retiring is a decision based on what's right for the country. It's long past time for older politicians and judges to stop pretending the left and the right are equal in their ambitions for the country. Democrats did not march along to former President Trump's racist and hateful endeavors, Republicans did. Democrats did not utilize apathy when it came to an international pandemic that killed 500,000 Americans, Republicans did. The Republican party isn't going through a Trump phase, that's just who they are now.

Breyer was nominated for the court by President Bill Clinton in 1994. That's nearly 30 years of influential decisions he's played a role in. The things that Breyer has voted in support of - colleges promoting diversity, banning the death penalty for minors, a further separation of church and state, and more - could all be at risk of being overturned if he doesn't retire now and lower the odds for an even more conservative Court.

And the idea that the judicial nomination process, even for the Supreme Court, is divorced from politics has always been a farce, but especially after the past few years. Mitch McConnell essentially stole a pick from Obama - stopping Merrick Garland from becoming a justice, Trump was able to shove three Justices on the Court despite losing the popular vote, and Republicans had no issue rushing Amy Coney Barrett into the court just weeks before the election that resulted in a Democrat as the new president.

Breyer has seen first hand the corruption of this arbitrary process. He can reject Republican obstructionism and dominance of the Court by just simply going away and being replaced by a younger and potentially more diverse candidate, as Biden has promised to do.

If Stephen Breyer wants to do what's right for the country, then retiring is a no-brainer. Let Biden replace you with someone whose more progressive ideals can help steer the country away from moral misconduct mentioned. Go live the rest of your life on a vineyard somewhere, knowing that your replacement is upholding your values anyway. The best chance for a Senate-approved Biden nominee is right now, and the odds only worsen with the time.

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