A progressive group has started a campaign to pressure a sitting Supreme Court justice to retire so a Democratic president can replace him, the first step in a broader effort to focus the party’s attention on the judiciary -- the way Republicans have for decades.
Yet so far, few Democratic lawmakers are joining the calls for 82-year-old Justice
The group, Demand Justice, is using social-media hashtags to get its point across, and also drove a truck-mounted electronic billboard around Capitol Hill last month, urging Breyer to retire.
The group’s co-founder and chief counsel Christopher Kang, an Obama White House veteran, said the tactics were two-fold.
“I don’t suspect that Justice Breyer is going to look out the window of the Supreme Court and see one of our trucks driving by and say, ‘They’re right! I should retire now!’”
Instead, Kang said he and co-founder
To that end, they launched a $2 million campaign in 2020 to engage progressive activists on high-court vacancies. They also ran ads and held organizing events after then-President
Since the Reagan administration, Republicans have made GOP voters care about building and maintaining a conservative judiciary. The
Democrats had no such grass-roots effort with voters or with judicial-minded think tanks before 2020, except to sound the alarm when a confirmation fight was brewing, like after Ginsburg’s death in September.
“It’s about reminding people that the Supreme Court is an inherently political institution. And in this moment, when we have a 50-50 Senate, part of this is about preserving Justice Breyer’s legacy and making sure that he’s succeeded by a like-minded justice,” Kang said.
The court may have helped focus those efforts by agreeing to consider a Mississippi law that bans most abortions after 15 weeks of pregnancy, sparking concern about the future of legal abortions under the landmark 1973 Roe v. Wade case. A decision would likely come just months before the 2022 elections, and could upset both parties’ calculations that the midterms would focus on President
The Breyer push is intensifying as the Supreme Court nears the close of its term, scheduled for late June. Retiring justices in recent decades have tended to make their announcements once the court has recessed for the summer.
Ginsburg resisted public entreaties to retire while Democrat
Progressives hope Breyer can be persuaded to step down so Biden can appoint his successor while he still has a Democratic majority in the Senate, an advantage he may lose after the November 2022 elections.
If Breyer were to retire or die under a Republican-led Senate, Republican leadership could leave the seat open rather than let a Democratic president fill it, as they did in 2016 after Scalia’s death.
Rare Public Push
The outside pressure campaign is unusually high-profile for the judicial branch, an arena of U.S. politics where hardball tactics have been rare.
To date, only two Democrats in Congress -- freshman New York Representative
“Justice Breyer is wonderful,” Huffman wrote on Twitter in early May. “But for goodness’ sake HE SHOULD RETIRE NOW.”
Connecticut Democratic Senator
“Elections always have risks, so hopefully he’s aware of that risk and he sees it accordingly,”
Republican judicial advocates said the effort was unseemly.
“It’s such a ham-fisted attempt at strong-arming a justice,” said
Molly Coleman, executive director of the People’s Parity Project, a group pushing for a more diverse judiciary, said the most effective lobbying probably happens behind the scenes, with former clerks or other friends gently raising the issue with Breyer directly.
“It’s an important role that former clerks can play, talking to justices about the political environment outside the courthouse,” she said. “But you’re not going to find a bunch of Justice Breyer’s former clerks screaming from the rooftops that they want him to retire.”
White House Press Secretary
Yet some court observers see an indirect effort afoot in Biden’s pick of former Breyer clerk
Biden pledged during the 2020 campaign to name a Black woman to the Supreme Court, and Jackson, currently a U.S. District Court judge, is widely considered a top pick. Her nomination would echo recent choices of former clerks. Gorsuch clerked for Justice
When Kennedy did step down he was replaced by another of his clerks, Kavanaugh. A 2019 book by Washington Post reporter
But Coleman said Breyer, who often argues that the court shouldn’t be viewed as a political institution, would bristle at anything too overt.
In a speech in early April sponsored by Harvard Law School, Breyer argued that judges shouldn’t be classified as “liberal” or conservative.” He also warned against changes to the court that would further polarize public opinion.
Nominated by President
He usually sides with the court’s liberal wing in divisive cases. Breyer wrote the two biggest abortion rights rulings of his tenure and voted to legalize gay marriage, uphold Obamacare, and limit gun rights. He’s said the death penalty is probably unconstitutional.
But Breyer is also a pragmatist and consensus-builder willing to join his conservative colleagues at times in narrowly crafted opinions. His dissents tend to be less pointed than those of his liberal colleagues
History suggests that any lobbying effort is unlikely to work.
Loyola University law professor Christine Chabot, who’s researched Supreme Court retirements, said that in 10 of the last 17 times a justice had an opportunity to step down and ensure they would be replaced by a like-minded successor, they declined.
“Justices are human,” she said. “It’s difficult for them to project what might happen when they die. Until then, they have a very powerful and rewarding position.”
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