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Justice Breyer Pressured to Retire, Make Room for Biden Pick (2)

Jan. 7, 2021, 7:35 PMUpdated: Jan. 7, 2021, 9:11 PM

Democratic control of the U.S. Senate will make it easier for President-elect Joe Biden to fulfill his campaign promise to appoint the first Black woman to a Supreme Court seat.

That’s putting pressure on Justice Stephen Breyer, 82, to step down and avoid having the three-justice liberal minority potentially shrink to two should Republicans regain control of the Senate in 2022.

This week’s election of two Democratic U.S. senators from Georgia gives Democrats razor-thin control, and the elimination of the filibuster for judicial nominees leaves Republicans with few options to block a Supreme Court confirmation.

Progressives are already eyeing the D.C. Circuit seat that Merrick Garland would vacate if he becomes Biden’s attorney general as a potential springboard for a future justice. Biden said on Thursday he’d move promptly to fill Garland’s seat following confirmation.

“Georgia results resolve the concerns about Garland’s DC circuit seat,” Brian Fallon, executive director of Demand Justice, a progressive group pushing for aggressive approach to judicial confirmations, tweeted Wednesday. “Time to elevate Ketanji Brown Jackson?”

Brown Jackson, a D.C. District Court judge and former Breyer clerk, is considered a leading candidate for a high court nomination, along with California Supreme Court Justice Leondra Kruger. Both are Black women.

The Ginsburg Example

The catch is that justices sometimes ignore outside calls for their departure.

Some progressives had called on the late Justice Ruth Bader Ginsburg to retire while Democrats had control under President Barack Obama. Her September 2020 death allowed Republicans to expand their high-court-appointed majority from 5-4 to 6-3 with the confirmation of 48-year-old Amy Coney Barrett, who could serve for decades to come.

Ginsburg, who died at 87 and had been treated repeatedly for cancer, resisted calls to step down, saying that Democrats wouldn’t be able to confirm a nominee as progressive as her.

On the other hand, justices provided the last two Democratic presidents with vacancies in their first year in office. Justice Byron White’s departure in 1993 allowed Bill Clinton to nominate Ginsburg. David Souter’s retirement in 2009 created a vacancy Obama filled with Sonia Sotomayor.

Similarly, Justice Anthony Kennedy “seems to have been more responsive to the politics of who would pick his successor,” when he announced his retirement in 2018 at a time when Republicans controlled the White House and Senate, said Stephen Wermiel, an American University constitutional law professor.

‘More Political Awareness’

Progressives were hinting Breyer should follow that precedent even before this week’s Georgia special election, which creates a 50-50 party split in the Senate, but gives Democrats control as incoming Vice President Kamala Harris can cast tie-breaking votes.

“If we get to 50, I need Justice Breyer to announce retirement at 12:01 p.m. on January 20th. And I need us to nominate and elect some federal judges,” said legal commentator Bakari Sellers in a Jan. 5 tweet.

Breyer is perfectly capable of making this decision on his own—there is no need to pressure him to retire, said former U.S. Senator Russ Feingold (D-Wis.), who now heads the progressive American Constitution Society. Replacing Breyer with a Biden nominee won’t change the balance of power, but “it will set up things in the future,” Feingold said.

Breyer once worked for the late Democratic Sen. Edward Kennedy of Massachusetts on the Senate Judiciary Committee, so he “probably has more political awareness than some others,” said Wermiel.

The fallout from Ginsburg’s death and Barrett’s confirmation could also influence Breyer.

“Breyer saw the way that her dying wish, as conveyed by her granddaughter, to wait for a new president to nominate her successor, was not only ignored but became fodder for Trump conspiracy theories,” said Easha Anand, who clerked for Justice Sonia Sotomayor and is now Supreme Court and appellate counsel for the MacArthur Justice Center.

Cardozo law professor Deborah Pearlstein, who clerked for the late Justice John Paul Stevens, said that “retiring or taking senior status is one of the least radical steps federal judges can take who are worried about the composition of the judiciary and the trajectory of the judiciary.”

“My guess would be Justice Breyer is just as horrified as the rest of us by yesterday’s events,” Pearlstein said Thursday, citing the mob attack on Capitol Hill, “and cannot help but think about his role in helping sustain and reinforce legitimate democratic institutions going forward.”

Circuit Experience

Biden’s announcement that he plans to nominate Garland for attorney general has boosted Brown Jackson’s prospects among the handful of women who have emerged as front-runners to replace Breyer, should he retire.

That’s because Biden could nominate Brown Jackson to fill Garland’s seat, giving her experience as an appellate court judge on the nation’s second most important court.

Brown Jackson has been a federal district court judge since 2013. But all of the current justices, except Justice Elena Kagan, spent some time on the federal appellate bench before being elevated to the Supreme Court.

Notably, Republicans employed a similar strategy to place Barrett on the court, appointing the longtime law professor to the Seventh Circuit in 2017. Her circuit court experience played a significant role in her 2020 confirmation hearings.

Brown Jackson, though, already has an appealing resume for progressives.

A Harvard Law graduate who clerked for Breyer during the 1999 term, Brown Jackson also served on the U.S. Sentencing Commission and worked in private practice. Most importantly, she served as an Assistant Federal Public Defender in the District of Columbia. If confirmed to the bench, she’d be the only sitting justice to have served as a public defender.

Former Speaker of the House Paul Ryan (R-Wis.) spoke in support of her nomination to the D.C. District Court. Related by marriage to Brown Jackson, Ryan noted that the two differ in their views of the law but said she had a superior intellect that would make her a great jurist.

Another Pick

Kruger, a Yale law graduate who clerked for Stevens, is still considered a leading contender as well.

Most notably, Kruger has deep experience in the DOJ, particularly in the Office of the Solicitor General—the federal government’s top lawyer at the U.S. Supreme Court.

She served as assistant to the solicitor general and as acting principal deputy solicitor general from 2007 to 2013, arguing 12 cases before the high court.

She also worked in private practice and has been a justice on the California Supreme Court since 2015.

Kruger herself has been floated for a resume-boosting position in the Biden administration—that of Solicitor General. Kagan briefly served as Obama’s Solicitor General before taking her seat on the Supreme Court.

If confirmed as Solicitor General, Kruger would be the first Black woman to hold the spot and just the third Black lawyer confirmed to the spot.

(Adds Anand and Feingold comments.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com

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