Supreme Court

Pressuring Justice Breyer to Retire

More and more progressive commentators want to see a Supreme Court vacancy this year.

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Progressive legal scholars and commentators are ramping up their efforts to encourage Justice Stephen Breyer to retire from the Supreme Court. Liberal law professor twitter feeds and episodes of the popular progressive legal podcast Strict Scrutiny are filled with calls for a 2021 departure from One First Street. The repeated concern is that if Breyer does not retire with Democratic control of the White House and Senate, it will be difficult to replace him with a young progressive justice.

As the #RetireBreyer campaign heats up, Saturday's Washington Post features an op-ed by UC Berkeley Dean Erwin Chemerinsky, making the case for Breyer to retire at the end of the Supreme Court term so as to ensure he is replaced by someone suitably progressive. It begins:

Justice Stephen G. Breyer, who turns 83 this year, is a stalwart who likely could continue to serve on the Supreme Court with distinction for many years.

But if he doesn't want to risk having his seat go to someone with an opposing judicial philosophy — which just happened to the late Justice Ruth Bader Ginsburg — and if he wants to give President Biden the best opportunity to choose a successor who shares his values, Breyer should step down as soon as possible.

Chemerinsky warns that should Breyer wait, even until next year, it's possible that Democrats will no longer control the Senate.

Breyer shouldn't even wait for the 2022 midterms to retire. With a 50-50 Senate, anything is possible: Something could happen to a Democratic Senator in a state with a Republican governor, who would then pick the replacement and throw the majority back to Republicans.

He also addresses the concern that a timed retirement would look unduly political

Some suggest that a justice retiring in this way would be inappropriately partisan. But partisanship is how we got here: Everyone knows that a justice's legal philosophy matters enormously in the way cases are decided. Republicans blocked Garland's confirmation and fast-tracked Barrett's precisely because they wanted conservative justices in their seats. Though he can't predict the future, Breyer's best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook.

Chemerinsky concludes:

He is the author of major opinions protecting abortion rightscalling for an end to the death penalty and urging empowering the government with the ability to end de facto school segregation. He has a pragmatic approach to judging that looks more to real-world effects than abstract ideology. And there is no dispute that he is serving with integrity and dedication.

His successor could accomplish all of those things, too. And the person in the best position to ensure that is Breyer himself.

[Note: The Chemerinsky op-ed was published Saturday, not today. I've corrected the post above accordingly.]

NEXT: Today in Supreme Court History: May 10, 1886

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  1. My preference would be that Clarence Thomas retire. Or Samuel Alito; either one would be fine. Both would be better.

    1. Wishful thinking.

    2. Thomas? Why?

      Too much respect for the Constitution? Thinking the Commerce Clause has limits?

      1. He’s under the illusion that nothing, including the Civil War, has happened since 1789. It’s almost as if the last 225 years never took place.

        1. Last I looked, he was aware various constitutional amendments were ratified. Has anything else constitutionally relevant happened since 1789?

          1. Yes. We understand the Constitution differently than they did back then.

            1. Such self-serving ‘understandings’ are nothing I would hope a Justice to pay any attention to.

              1. Brett, you are stuck on the idea that originalism is the only way to interpret the Constitution. It isn’t. You’re entitled to your opinion on constitutionalism, but you are not entitled to claim it’s the only opinion, or that yours is better than anyone else’s.

                And yes, most justices do pay attention.

                1. Actually, he’s perfectly entitled to claim both of those things.

                  Personally, I prefer a judge who sticks to what the law says, than a judge who bends the law to suit his or her personal preference. Perhaps you think differently.

                  1. Just because a judge disagrees with you on what the law says down not mean he’s bending the law to suit his personal preferences. Originalism is one school of thought. There are other, equally valid ones.

                    1. Uh huh….

                      Ever read the decision for Bolling v Sharp?

                      The judges really, really, really wanted to desegregate DC schools, and they’d find SOME way to justify it with the Constitution, no matter how absurd. The 5th amendment used as justification? Why not!

                    2. Almost any other type of constitutional interpretation is more valid than originalism.

                    3. Are you claiming school segregation is constitutional?

                    4. You’ve missed the point Krychek,

                      Why CONSTITUTIONALLY is school segregation illegal? Under which provision of the Constitution?

                    5. The Fourteenth Amendment, if it’s a state that’s doing it.

                      The Fifth Amendment, if it’s the federal government (as in the case of DC at the time) is doing it.

                  2. Now Krycheck,

                    Since the 5th amendment applies to the states…… Why mention the 14th amendment?

                    1. Because the Fifth Amendment only applies to the states through the 14th Amendment.

                    2. Close but no cigar,

                      The relevant court case…Brown v Board of Education…never mentions the 5th amendment.

                      Care to try again?

                2. ” You’re entitled to your opinion on constitutionalism, but you are not entitled to claim it’s the only opinion, or that yours is better than anyone else’s.”

                  1) Yes, I’m entitled to my own opinion on constitutionalism.

                  2) I’d never claim it’s the only “opinion”, as opposed to the only correct opinion.

                  3) If I thought somebody else’s opinion was better than mine, I’d adopt it. Wouldn’t you? Perhaps by “better” you mean “privileged”, or something of that nature?

                  1. I shall rephrase. You are entitled to your opinion, keeping in mind that it is only your opinion.

        2. Krychek_2 obviously does not know how to read. Instead, he relies on the lies spewed out by the mainstream media. If Krycheck_2 knew how to read, he would have read Justice Thomas’ monumental concurrence in McDonald v. Chicago, 561 U.S. 742 (2010). There, he would have found a extensive discussion of the history of the 14th Amendment and post Civil War history. This document totally refutes Krycheck_2’s Theory.

  2. Perhaps Breyer isn’t enough of an ideologue to want to predictably be replaced by the sort of ideologue this administration would nominate?

    1. When you look at who Barrack O’Biden has been nominating for other things (e.g. Civil Rights at both Justice & Education), one can only shudder at the thought of whom he would pick for this…

  3. I will be amused if he retires and then Manchin flips and Biden is forced to nominate a compromise candidate to get through the Senate.

    1. A compromise nomination? I will be more than amused. I will be ecstatic.

      -dk

  4. I think that Justice Breyer may also want to consider the Court itself. In this charged political atmosphere an opposition Senate may well leave a seat vacant rather than allow an opposition President the fill that seat. I would not be surprise to see SCOTUS seats open for 2 to 4 years if the Senate and President are in opposite parties.

    1. Although Manchin is the least left-wing Democrat in the Senate, that doesn’t make him any sort of conservative. Biden is reasonably assured of his vote so long as he don’t nominate a publicly fire breathing gun banner.

      His vote for Garland indicates that, so long as the nominee is at least a bit coy about it, they’ll get his vote.

      My expectation is that almost anybody Biden nominated to the Supreme court would get at least 1-2 Republican votes, given how many NeverTrump Senators are looking at retirement when their terms end.

      1. COULD Biden nominate someone who wasn’t a *known* gun banner? He doesn’t have control over his own party and I could see some Dem Senators voting against anyone who wasn’t vocally anti-gun.

        1. Sure, he could. Biden himself is a known gun banner, so they’d be prepared to trust he would nominate somebody who was at least secretly one, the nominee wouldn’t have to admit it.

      2. They’ll get more R votes because it won’t change the balance of the Court and I assume several, deep in their souls, feel the moral guilt of Garland/Barrett performance.

        Remember: in Febrarury 2016 US Senators got on the floor of the Senate, and in public statements announced that the American people deserved a voice in the selection of the next Supreme Court Justice. They indicated how much they valued the American voter in this decision.

        This was a lie. A grave one. We know it was a lie because they moved to confirm Barrett without a second though AFTER votes for President had been cast! If they truly believed about the value of the American voter they would have paused instead of grave dancing within an hour of Ginsburg’s death. It was a disgusting lie that degraded themselves, the Senate, and most of all Republican voters who were forced to parrot the bullshit of American’s having a choice, only to be forced to backtrack.

        I assume, some feel the moral weight of lies and degradation. Maybe not nihilists like McConnell and Cruz, or proto-fascists like Hawley and Cotton. But I assume some still have a moral center that causes them to do the right thing on occasion and make amends.

        1. That is a delicious comment. So many tears.

          1. Yes. Bob the amoral sadist enjoys agony and lies. What’s new in the world.

          2. Seriously, I assume you’ll mute me, but has it ever occurred to you that you really need better morals? Lies aren’t good. Being happy that other people are upset isn’t good. These are marks of poor human character. Why don’t you want to be a better person? Why does the pain of others bring you joy? Why do you see no problem with lies, cruelty, hypocrisy, and dishonesty?

            Seriously. Be a better person. You can do it!

            1. What’s the moral problem here? You can look at over two centuries of history, and when Presidents have vacancies, they nominate to fill them. So, nothing odd about Obama nominating Garland, or Trump nominating Kavanaugh.

              But history says that when they do it in an election year, and the Senate is controlled by the opposing party, those nominees are basically never confirmed, and are usually just ignored. So what happened to Garland, as unfortunate as it was, was actually SOP.

              1. Lying. Telling lies. Telling lies about the value of the American voter. Going on the Senate floor, saying the American people deserve a voice and not believing that. They threw out all the historical arguments as soon as McConnell said on the Senate floor and in public statements that the American people were perfectly capable of weighing in. When McConnell said that, it was a lie. You understand lying is wrong, right? Please tell me you understand it is wrong to say you value the American voter and not actually believe that? Lying is bad. Just say lying is bad.

                1. McConnell was and is a lying snake. Have I ever been known to say anything nice about McConnell?

                  But the fact is that what happened to Garland was SOP, as confirmed by a couple centuries of precedent. Nor was Barrett contrary to precedent.

                  1. I don’t care about the history. I care about the lies. The lies were the problem. You asked what the moral problem is, I said it was the lying, but you keep coming back to the history. The moral problem is lying. Not telling the truth. Saying one thing you don’t believe at the time you say it. That’s the moral problem with the Republican Senates behavior regarding Garland and Barrett.

                    1. If you care about the lies, don’t you care about Democrats lying about the history, telling everybody that it was unprecedented what was done with Garland and Barrett, when it was actually SOP?

                    2. Your reading of history is flawed. Garland was an unprecedented block, and it was certainly an unprecedented excuse: the American people deserve a voice (a lie). Barrett is bad because Republican’s didn’t hold themselves to the standard they set: American voters matter for Supreme Court nominations and confirmations.

                    3. Here’s your precedent, with an opposition Senate.

                      8 nominations in an election year with an opposition Senate. 1 success, 7 not acted on.

                    4. And here’s your precedent for election year nominations, with a Senate of the same party.

                      9 out of ten pre-election nominations successful, 8 out of 9 post-election nominations successful, including multiple nominees by lame duck Presidents.

                    5. “Here’s your precedent, with an opposition Senate”

                      1844 looked like a fun year, with Tyler renominating the same people after the Senate turned them down, if I’m reading the chart right.

                    6. Yup, that Tyler was a real pip.

                    7. Barrett was the first nominee to be approved when the vacancy occurred within 150 days of the election. The five previous cases had two with the President’s party matching the majority party in the Senate.

                    8. 8 nominations in an election year with an opposition Senate. 1 success, 7 not acted on.

                      No. A weak effort (both graphically and historically) from Baseball Crank.

                      Setting aside that the most recent example it relies on of a non-lame duck nominee being rejected was 164 years earlier, it conflates rejecting a nominee (or the nominee withdrawing!) with refusing to vote on the nominee.

                    9. Most nominees were rejected by not voting on them.

                      You can’t expect a lot of recent examples, there have only been a bit over 100 Justices in the entire history of the country, the statistical universe is small.

              2. Same thing would have happened if situation was reversed. GOP played by the established rules of the game.

                1. You can’t justify moral failures like telling lies by what someone might do in a situation that hasn’t happened yet.

                  1. Ok, mr honest, tell me they would not have done it. The whole system is run by crooks and liars, Democrats are the top of the list. I fully support the GOP not unilaterally disarming on this issue. As bad as GOP their SC picks are preferable to the Dems. At least with them we have a small chance of getting a judge that will follow original meaning.

                    1. I don’t know. I only know what the GOP did. Own it.

                  2. What lies? Be specific.

                    1. https://www.youtube.com/watch?v=w_ucmWVYDfc

                      Here is Mitch McConnell saying on the Senate floor that the American people deserve a voice in the next Supreme Court justice.

                      This was a lie. He did not believe it at the time he said it. It was convenient justification for his actions that sounded politically high-minded.

                      How do we know he didn’t believe it? He said so prior to Ginsburg’s death. He announced within in hours of Ginsburg’s death his intent to confirm a successor, during an election in which people were already casting votes. He ignored their voices and their votes. If he ever believed that American voters deserved a say in SCOTUS nominations he would not have acted the way he did with Ginsburg. Saying something you don’t believe to be true at the time you say it is called lying. Therefore he lied. So did everyone who repeated that line and then moved to confirm Barrett.

                    2. Same thing would have happened if situation was reversed.

                      Dunno if I’d call it a lie, but it sure is unsupported.

                      Raising the level of the opposition’s imaginary counterfactual villainy to justify your own actual for reals actions is the go-to move of zealots, not serious people.

                    3. Sarcastr0,

                      It is a lie because he said something he didn’t believe to be true at the time he said it.

                    4. LTG…you do not actually know this = It is a lie because he said something he didn’t believe to be true at the time he said it.

                    5. Commenter_XY,

                      We do know this, because he never ever acted like it was an important consideration ever again. Only someone who never ever believed what he was saying could immediately pivot like that and not acknowledge what he said in the past at all.

                    6. LTG, it is an objective fact that you cannot know with any certainty what is in the mind of another. You can strongly suspect. But knowing is different.

                      Personally, I don’t care if Senator McConnell actually believed it or not. It came down to: Is this person qualified to do the job, and is this person acceptable to a majority of the Senate.

                      Garland was a ‘Yes’ to qualification and ‘No’ to acceptability of a majority of the Senate. Therefore, a vote was never held, and he was spared the indignity of a prolonged hearing and gutter-trash being strewn all over the place about him.

                    7. “It is an objective fact that you cannot know with any certainty what is in the mind of another.”

                      Man, every defense attorney must want you on their jury. There would never be convictions.

                      “Personally, I don’t care if Senator McConnell actually believed it or not.”

                      You don’t care about lying. Got it.

                    8. LTG….Politicians will lie. Every single one. Do I care? Sure I do. I know you do as well.

                      We are not governed by angels, we are governed by imperfect men (and women).

                      WRT defense attorneys….Nah, I don’t think they want me on their juries. I’d probably want to give their clients the needle. I tend to be a hard-ass on law and order issues. 😉

                    9. “Garland was a ‘Yes’ to qualification and ‘No’ to acceptability of a majority of the Senate.”

                      I’m not so sure I’d go that far. In fact, I suspect McConnell refused to schedule a vote because he was afraid Garland WAS acceptable to a majority of the Senate.

                      My assertion that what happened was perfectly in keeping with precedent doesn’t imply that I approve of refusing to hold a vote. Voting is how we confirm what the Senate as a body actually does will. We do not actually know that the Senate would have rejected Garland, if the Senate, as opposed to McConnell, had ever expressed its opinion.

                      I’m not very fond of the way Congressional leadership have centralized most of the power of the legislature as a whole in their own hands.

                    10. Garland was a ‘Yes’ to qualification and ‘No’ to acceptability of a majority of the Senate. Therefore, a vote was never held,

                      Your “therefore” is laughable. If he wasn’t acceptable to a majority of the senate, then McConnell would have held the vote. The fact that he didn’t is proof that McConnell believed he’d have lost the vote if it were cast.

                  3. LTG,

                    You ever look at the flip flops Democrats made on the fillibuster?

                    If you’re going to look at “moral failures” you may want to look there.

                2. Same thing would have happened if situation was reversed. GOP played by the established rules of the game.

                  You’re confused. Even if your prediction about what the Democrats “would have” done is correct — something you by definition cannot prove — that prediction does not make something “established.” It has to actually have happened for it to be established.

              3. Anthony Kennedy was confirmed in 1988,

                1. After Bork was rejected along (mostly) partisan lines.

                  40 Republicans for, 42 Democrats against.

                  1. 52 dems against. sigh.

            2. Mute you?

              Its too much fun to see you in such indignation.

              1. “Its too much fun to see you in such indignation.“

                Can you at least admit that seeing people upset is a character flaw? Please tell me you understand that. I mean what would your spiritual advisors say to this attitude of yours? Or are they as morally bankrupt as you?

                1. Wait’ll he tells you about the chili…

                  1. So Bob has the same morals as Eric Cartman. That checks out. But what’s funny on TV is actually incredibly disturbing in real life.

                2. “seeing people upset is a character flaw? ”

                  You are not suffering. No personal trauma.

                  You are so upset about normal politics in such an over the top way. Its so out of proportion as to be quite funny.

                  1. How do you know? I have pre-existing medical conditions Bob. My healthcare is at stake. I’m glad that you’re so comfortable that politics has zero personal impact and is just a game to you. But for me and millions of others it isn’t a game. This is real life and has real world impacts. That’s why lying about it upsets me, okay. Seriously, put yourself in other people’s shoes for once. Be a good person.

                    1. Your healthcare is not at stake.

                      You are upset about lying in politics. That is funny.

                    2. And you are an amoral prick. That is not funny, that is sad.

                    3. Your healthcare is not at stake.

                      There is currently a case pending to eliminate the ACA as unconstitutional. It is. So are millions of others healthcare. Please understand that these decisions affect real people, their lives and livelihoods. They affect you too. Get serious for once, and stop thinking bad things are funny.

                    4. LTG….The passage of ACA affected people too. In fact, millions lost their coverage. And the American people were lied to….remember this one: If you like your plan, you may keep your plan.

                      Put yourself in their shoes.

                    5. They also gained subsidies, guaranteed coverage, Medicaid expansion, etc.

                      Obama told a lie. But ultimately millions more gained coverage and were protected from losing the coverage they had.

                      https://www.factcheck.org/2014/04/millions-lost-insurance/

                      So while I certainly empathize with people who were the victims of a bait and switch by Obama, the ACA ultimately gave them paths to coverage.

                    6. “Obama told a lie.”

                      Yes, this was a lie. He did not believe it at the time he said it. It was convenient justification for his actions that sounded politically high-minded.

                    7. Yeah. Bob. It was a lie and was bad and he shouldn’t have said it. He should have been honest about how the ACA would work, and its benefits and drawbacks.

                      Your turn to admit McConnell lied and that lying is bad.

                    8. LTG, so you got most of the way there. There is another aspect you did not address. The fact is, even with the passage of ACA, the bill miserably failed on achieving the goal. Post PPACA passage, there were still over 20MM uninsured. And the majority of those ‘millions’ who did get coverage, they enrolled in medicaid, which already existed.

                      My issue with PPACA philosophically is it was focused on the money, when I felt it should have been focused on patient outcomes. But that is just my pet peeve.

                    9. Commenter, no one said the ACA would cover everyone.

                    10. Uh Sarcastr0….That is not what we were told back in 2010.

                    11. Your healthcare is not at stake. Please stop catastrophizing. Your health insurance might be at stake but that’s a very different thing. Your actual standard of care under the ACA or any other system used in the US is fundamentally the same.

                    12. “They also gained subsidies, guaranteed coverage, Medicaid expansion, etc.”

                      My pre-ACA health insurance covered all the cost of treatment for two simultaneous cancers, (It was NOT a good year for me!) as well as treatment for the side effects of the treatment, cataracts, and all I was out was a $6K deductible, because I had 100% coverage after it. Cost as much as a small house to save my life.

                      If that happens again, I’ll be bankrupt, thanks to the ACA rendering my former insurance illegal, my new insurance will only cover a percentage after the deductible. I’ll have to decide whether it’s better to just die, so my family won’t be impoverished.

                  2. One of the few people I’ve immediately muted.

                    Goodbye forever, Bob.

                3. Can you at least admit that seeing people upset is a character flaw?

                  What does that say about the “Kennedy Rule” of politics, reward your friends, but make sure to punish your friends?

                  1. Punish your enemies.

            3. You are a Democrat — you have no morals.

              1. My morals are about our duties to others and not taking pleasure in others harm. I follow Shklar and Montaigne in believing that cruelty should be put first, that is to say, cruelty is the worst human sin and all of our efforts should be focused on reducing it.

                Can you claim an equivalent level of moral principle?

                1. “focused on reducing it.”

                  First order or second order effects?

              2. Neither side has morals, and engages in situational ethics constantly — valuing certain principles when it supports your already-decided goals, then crapping it when it doesn’t for the next issue.

                Thesr lying, fraudulent sophistry slingers should be recognized as such.

                In science, it’s bad form to question the speaker. Rather, address the arguments.

                In politics, the opposite is true. Enunciated reasons are lying cover stories for rube voters. You presume the tale is irrelevant, and the speaker is up to no good.

          3. “That is a delicious comment. So many tears.”

            Tears?

            How have clingers enjoyed the culture war throughout the backwater life of our vestigial Bobs from Ohio?

        2. I think they would have been better off acknowledging that Garland was a perfectly qualified candidate but they wanted someone with a more conservative philosophy given the close balance of the court, and were willing to take a gamble the next president would be a Republican.

          It’s not like the Democrats never did anything similar. After all, Kennedy got on the court because the Democrats refused to confirm Bork, for analogous reasons.

          To have fraud you need reasonable reliance. Did any reasonable party actually believe what the Republicans were saying in 2016? My impression is they themselves didn’t take the argument seriously at the time.

      3. “His vote for Garland indicates that, so long as the nominee is at least a bit coy about it, they’ll get his vote.”

        Wait are we now in some bizarre alternative reality where Garland is some crazy left-wing pick?

        Biden has appointed a fair number of fairly left folks in this administration, but…Garland?

        1. The topic was gun control. Manchin is NRA A rated. Even with the NRA’s tendency to grade on a curve for incumbents, (No point in pissing off somebody who’s probably going to be reelected anyway.) that’s not meaningless. Garland’s made it pretty clear he’s on board with Biden’s gun control ambitions. But he still got Manchin’s vote, because he was coy about it until he’d already been confirmed.

          If he’d come out of the closet on gun control prior to that vote, it would have been tougher for Manchin to vote for him.

        2. Garland is hardly crazy. But the Court, and public and political opinion, is divided so that even someone on the moderate left is pretty much unacceptable by the standards of the right, And vice versa.

          After all, a substantial undercurrent about Breyer is that he’s too moderate and it’s time for someone further to the left.

      4. His vote for Garland indicates that, so long as the nominee is at least a bit coy about it, they’ll get his vote.

        I’m pretty sure that McConnell did not let them hold a vote on Garland.

        1. Garland is currently AG, a post that requires Senate confirmation. It was that vote I was referring to.

          1. Why would you be referring to an appointment to AG when we are discussing a supreme court nomination, an entirely different position with different standards?

  5. Why not? You know Rs are gonna ram through anyone they can whenever and Kennedy with all the dubious bullshit with his son and Deutsche Bank chose to retire under Trump.

    Better yet, they should pack the hell out of it. Rs have shown there are no rules other than win at all costs. Maybe the Dems would be better off if they actually started acknowledging that instead of acting like Rs ever operate in good faith.

    1. Keep dreaming on that court packing deal it’s never gonna happen.

      1. I’d put it at about a 30% chance, this time around. If they’d had a couple more Senators, they’d have been almost certain to do it, but with a 50-50 Senate the sort of parliamentary tricks they’d have to pull to accomplish it would piss off too many of their own members.

        If they DO pack the Court, though, it won’t stop at that. They’ll have burned too many bridges doing it, no turning back.

        1. I should say, 30% and dropping fast. If they pack the Court, they’ll have to shove through a bunch of entrenchment legislation to survive the next election, and they’re running out of time to get everything done before the 22 elections start.

          That’s the sort of thing you do right at the start of a session, so you have time to make use of it before you have to face the voters again.

    2. “dubious bullshit with his son and Deutsche Bank”

      Conspiracy theory alert!

    3. Why not? You know Rs are gonna ram through anyone they can whenever and Kennedy with all the dubious bullshit with his son and Deutsche Bank chose to retire under Trump.

      This is loony tunes.

  6. It does not matter who is appointed to the Court. All become Beltway, rent seeking, big government biased, self dealing, lawyer quackery, fiction writers. That includes the most conservative nominees. The 220 year track record of the Supreme Court has been horrifying to anyone who cares about people and nation.

    That is why the Supreme Court must be moved to a small government, freedom loving, empiricism based, real world jurisdiction.

    1. I might make a limited exception for Thomas, but, yeah, pretty much.

  7. They’re going to nominate a healthy 21-year-old from Norfolk, Virginia.

    He doesn’t drink.

    He doesn’t smoke.

    Norfolk, Norfolk!

  8. Tactically they are correct. Absent a naked power grab, the Dems have a good chance of not holding their bare majority into 2023. That means if Breyer steps down in the last two years of a Harris Presidency the most they are going to get on the court is a consensus candidate. But, those usually work out pretty well for the Left. When is the last time the Dems put a Souter type person on the court? Seriously, I can’t remember one instance.

    1. Bryon White by JFK

      1. Merrill Garland was a consensus candidate.

        1. Uhm, no, not even close. Garland only looks like a consensus candidate now because you are assuming the shifting that has occurred since in the Overton window. As viewed at the time, Garland was anything but a consensus candidate.

          1. The Republican chairman of the Judiciary Committee specifically named him as someone who would be acceptable. So Obama nominated him. If that’s not consensus, I don’t know what is.

            1. A year or two earlier he likely would have been viewed as the best they were likely to get; Hatch said that in 2010, not 2016. But you simply don’t get Supreme court nominees through an opposition Senate in an election year. It’s just not something that happens, no matter how much Democrats demand that a couple centuries of history be ignored. And history says they usually don’t get votes, either.

              It would have been unprecedented if Garland HAD been confirmed.

              1. “But you simply don’t get Supreme court nominees through an opposition Senate in an election year.”

                Kennedy 1988

                1. Fair enough. Ronald Reagan, pulled it off with a compromise candidate. So it merely virtually never happens.

            2. That is one person. Apparently you have no idea what consensus is.

        2. Was consensus candidate because that is what Obama told the media how to describe him. “I could have picked a raging liberal, but instead I only picked this sort of crackpot liberal….that is consensus…”

      2. That was quite some time ago, no?

    2. Consensus candidates tend to work out well for the Democrats, because of the existence of “RINOs”. A fair portion of Republican office holders don’t really have any strong disagreement with the Democrats on most of this stuff, it’s just a shirts vs skins game to them, and they drew the short straw, ended up the skins.

      The politicians who might have been Democrats otherwise started their careers in areas where you had to be a ‘Republican’ to get ahead, and they’re saddled with Republican voters they have to humor. They’ll still help out the Democrats whenever they think they can put one over on their voters.

      1. Consensus candidates tend to work out well for the Democrats, because of the existence of “RINOs”.

        Or maybe it’s that the GOP is radicalizing, and as such moves away from candidates they would once have treated as acceptible.

        The Dems are not currently doing that.

        1. Are you completely blind to the entire regressive and woke movement on the left? I know you aren’t stupid, but boy do you like to gaslight…

        2. “GOP is radicalizing”

          The never ending story. He’s talking about a pattern starting with Stevens and then Souter. GOP is ALWAYS radicalizing in your world view.

          1. Has been since Goldwater, yeah.

            1. Yeah, every since Goldwater the Democratic party has been headed left, and the Republican party hasn’t followed them fast enough to satisfy you.

              1. FDR’s politics would fit fine into today’s Dems. So would Carter and Clinton.

                The GOP has repudiated Ford, Nixon, McCain, both Bushes.

                And you bring in ringers like MTG.

                Yeah, not the Dems who are radicalizing.

                1. I put this into the Sarcastro to English Translator:

                  “Why won’t the Republicans roll over and play dead like they used to back in the day. I don’t get it. This would be a lot easier if they just let the Dems walk all over them. I want the Republican party of old where this happened all the time!”

                2. Clinton signed welfare reform, dont ask dont tell, and DOMA

                  All fit fine into today’s Dems views.

                  1. I mean, Obama professed to be against gay marriage for the vast majority of his Presidency. Biden did as well.

                    And the party has not repudiated Obama.

                    Hard to figure Clinton, what with his personal life making him pretty toxic independent of his politics. But Hillary was the candidate in 2016, sooo…

                  2. And the party has not repudiated Obama.

                    Unlike y’all and Romney.

                    I know you think the Dems are moving left, but I think that may just be relative motion.

                3. “FDR’s politics would fit fine into today’s Dems.”

                  Even I don’t think that badly of the Democratic party! What a thing to say.

                  1. Don’t be cute. Japanese internment wasn’t really the politics he ran on.

                    The New Deal is right in keeping with where Dems are. As is joining WW2.
                    The isolationist have all alighted on the right, mostly to urge we let Russia do what it will.

      2. because of the existence of “RINOs”. A fair portion of Republican office holders don’t really have any strong disagreement with the Democrats on most of this stuff, it’s just a shirts vs skins game to them, and they drew the short straw, ended up the skins.

        You’re being stupid as usual, and worse: evil. Moderate does not mean “RINO,” despite the desperate attempt of the Trumpkin loons to engage in Stalinist purges of the party.

    3. If the GOP takes the House, they get the Speakership. Hence if they then impeach both Biden & Harris, they get the Presidency.

      This is how Liz Cheney thought she’d become POTUS, and she well might have been if she hadn’t become a virulent Never-Trumper.

      You know that the Dems have their internal polling numbers, which they are not going to release. It also doesn’t take a rocket scientist to understand that we are on the cusp of double-digit inflation. Throw in a jet fuel shortage if that pipeline remains shut down much longer, and…..

      1. ” Hence if they then impeach both Biden & Harris, they get the Presidency.”

        Sheesh. Make that impeach and convict. You’d think by now you’d understand that impeachment doesn’t mean squat without a conviction, and convicting requires a supermajority, so you can’t pull it off without a lot of support from the opposing party.

        1. Dr. Ed 2 has been slipping a little lately.

          I guess it’s hard to maintain his high level of conspiracy thinking without slipping a little now and then.

        2. I know — and it will take 16 more Republican Senators — likely 20 — but stranger things have happened.

          1. The requirement for conviction in the Senate on an impeachment is 2/3rds. That’s 67 Senators if all are present.

            Mathematically 2/3rds of 100 is 66.66667

            So you need a minimum of 17 additional Republican Senators. And the few Republican Senators who voted to convict Trump would probably vote against an impeachment of Biden and/or Harris.

          2. There are only 14 Democratic Senators up for reelection in 2022. So even a clean sweep wouldn’t get you enough Republican Senators to convict, and if things were looking so bad by next year that a clean sweep was in the cards, Biden and Harris would probably resign after fleeing to a country without an extradition treaty.

            If Republicans did really well in 2022 AND 2024, you might see a supermajority of Republican Senators, but it’s pretty implausible that that scenario wouldn’t also result in a Republican President.

            So, no, basically no prospect of a conviction.

      2. “This is how Liz Cheney thought she’d become POTUS, and she well might have been if she hadn’t become a virulent Never-Trumper.”

        Liz Cheney had more chance of becoming Empress of China than becoming President of the United States that way.

      3. ” You know that the Dems have their internal polling numbers, which they are not going to release. It also doesn’t take a rocket scientist to understand that we are on the cusp of double-digit inflation. Throw in a jet fuel shortage if that pipeline remains shut down much longer, and….. ”

        How would any or all of that incline a substantial number of Americans to turn into half-educated, superstitious, delusional, disaffected bigots?

        The future will belong to the Democrats. Just chart the improvement in America’s electorate.

      4. It also doesn’t take a rocket scientist to understand that we are on the cusp of double-digit inflation.

        No, it takes Special Ed for that.

  9. Breyer is such an important justice that two of his “major” opinions are forgotten dissents and one is a soon to be gutted abortion case.

    1. He also changed the entire structure of federal sentencing that one time.

      1. Well, talk to Chiminsky about that. He mentioned those cases.

        1. I didn’t realize that one statement by Erwin Chemerinsky is your lodestar for what’s important about a Justice’s career.

          1. I was commenting about a statement in the op ed.

            “what’s important about a Justice’s career”

            There is nothing important about his career.

            Breyer is a non entity, like those obscure justices Blackmon mentions in those daily history posts.

            I guess he is a big shot in IP law for those few who care. Otherwise, he has left very few tracks.

            1. Congrats on managing to out-asshole Blackman.

              1. Well one thing is for sure, Ginsburg and Breyer actually affected the law and American society in ways that Bob and Blackman certainly never will even come close to approaching.

                1. Duh. Any supreme court justice has more impact on the supreme court than a non justice.

                  William Henry Harrison had more impact on the presidency than me too.

                  Maybe Blackman gets on the Supreme Court though.

                  1. Yeah. So maybe you shouldn’t be so smugly assured of his lack of importance just because he made contributions to things you don’t care about.

                    1. Breyer stans are such an unexpected group.

                    2. Not a stan so much as confused as to why what you personally care about at the moment is the measure of someone’s importance. I mean, I don’t care about the minutiae of IP law but I’m not so arrogant to think that that doesn’t mean it isn’t hugely important to a lot of people and our way of life.

            2. “There is nothing important about his career.”

              Booker changed all of federal sentencing. That’s a big deal to countless people. I know you don’t see criminal defendants as humans, but to non-sociopaths they are and it matters.

              “I guess he is a big shot in IP law for those few who care.”

              You mean our entire innovation based economy?

              Seriously, how do you have such an inability to put yourself into the shoes of others and realize that what you don’t find important is immensely important to others? Like I just don’t get it. How can someone be so freaking callous and unfeeling?

              1. i regret being such a disappointment to you.

                1. No worries, there is always time to improve. Would you like my Netflix password so you can watch The Good Place and maybe take some lessons about self-improvement to heart?

                  1. I don’t have Netflix…send me your password? (just teasing!)

                    (but I really do not have Netflix)

  10. This campaign is public masturbation. Breyer is extremely smart and doesn’t need anyone to tell him the arguments for and against retirement.

    1. It’s not a matter of educating him, but rather convincing him.

      1. That’s also masturbation, and arrogant masturbation.

        This isn’t a court case where he’s undecided. He’s smart, he knows exactly the factors that go into his decision, and there’s literally nothing Prof. Chemerinsky or anyone else can say that will or should convince him otherwise.

        I have it on good authority that when some of the same folks approached Justice Ginsburg, she told them, in a nice way, to go screw themselves. If anything, these pressure campaigns are counterproductive.

  11. There is no shame in timing retirement so as to get a like-minded successor. It’s why Potter Stewart waited until Reagan was in office. It’s why Blackmun waited until a Democrat was in the White House. It’s why Sandra Day O’Connor waited until Bill Clinton was gone. Conversely, it’s why William O. Douglas fiercely resisted retiring while Ford was President, despite being debilitated.

    1. I agree….that has been happening since the early 1800’s = strategic retirement so your party gets dibs on nominating a successor.

  12. Douglas really lucked out that one, huh? (Although I don’t believe that Stevens was overly fond of his predecessor in terms of jurisprudential approach or personality).

    1. Douglas was a bad man and (for the last 20 years or so) a lazy Justice. Stevens at the time was what would be expected: a mainstream Republican.

  13. Some suggest that a justice retiring in this way would be inappropriately partisan. But partisanship is how we got here: Everyone knows that a justice’s legal philosophy matters enormously in the way cases are decided. Republicans blocked Garland’s confirmation and fast-tracked Barrett’s precisely because they wanted conservative justices in their seats. Though he can’t predict the future, Breyer’s best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook.

    It appears the argument is, yeah it’s partisan, but the other side started it, so it is not “inappropriate.”
    Which basically means all pretense of non-partisanship is gone. Maybe not a bad thing, but when the shoe is on the foot (or when the goose becomes a gander, to mix some metaphors), don’t complain about “partisanship.”

    1. The comparison between strategic retirement and the games played around Scalia’s and Ginsburg’s deaths seem inapt. I don’t recall Kennedy’s retirement being seen as overtly partisan and damaging in nearly the same way, and as others have pointed out strategic retirements have been a think on both sides of the political spectrum for a long time.

  14. Justice Breyer should be sure to stay away from Hillary Clinton. She might have asperations of a seat on the Court.

    1. “asperations” — you mean when she gasps for air after a drunken binge?

    2. Put on suicide watch if he meets with Clinton.

    3. You mean get the Scalia treatment?

      1. Be overweight, enjoy the good life, and then die at age 79 while performing strenuous activity? We should all be so lucky.

        1. He was a culture war loser and he knew it. And he died while sleeping — how many people are fat enough to make sleeping a strenuous activity?

        2. Pretty sure Scalia died in bed, and I heard no rumors that there was anything strenuous going on in the bed at the time.

  15. Even beyond partisanship, the fact that government policy can radically shift based on when someone dies is a major flaw in our system. The modern party system and method of nominating vice presidents has somewhat blunted the impact of Presidential deaths. Tyler and Andrew Johnson were much different than their predecessors, but Lyndon Johnson was relatively similar ideologically to Kennedy if much more aggressive and effective than Kennedy might have been. But we haven’t solved this problem with SCOTUS.

    1. What is the ‘problem’ with SCoTUS? Lack of ideological agreement? I thought we wanted intellectual diversity.

      1. The problem I’m identifying is that government policy can experience massive change by sheer luck of one person living or dying at a certain time.

        1. LTG, that is true, I agree = government policy can experience massive change by sheer luck of one person living or dying at a certain time

          I mean, just consider the ‘switch in time’. 🙂

    2. But we haven’t solved this problem with SCOTUS.

      The proposal for 18-year terms for SCOTUS justice would mostly solve the problem. And therefore, I assume it has virtually no chance of ever being enacted.

      1. No, it wouldn’t particularly change the situation, you’d still have cases where the Supreme court was closely balanced, and Justices would still be mortal.

        1. Yes, but (a) they would be younger and thus less likely to die, and (b) there would be guaranteed to be another nomination in no more than two years anyway, so the closely balanced nature of the court would always be in flux. (And the one who died would most likely be one who was leaving the court soon through expiration of his term anyway.)

  16. Remember when Biden got accused of sexual assault and the media refused to cover it? Nothing more has happened there. Just your occasional reminder on how things actually work…

    1. Remember when Biden got accused of sexual assault and the media refused to cover it?

      No. And you don’t either, since if the media refused to cover a story you wouldn’t know about it.

  17. Justice Breyer is healthy, robust, and sharp-witted, as usual. If he wants my advice, I’d suggest he tell all these officious meddlers to “Leave me the hell alone!”

    1. I doubt Justice Breyer is much in the market for pointers from Volokh-following clingers.

  18. Am I they only one who suspects that the “suggestions” the RBG retire for the good of the “cause” motivated her to stay?

    1. She said a bunch of times she liked the job and wanted to keep doing it as long as possible. I don’t think we need more motivation than that to explain it.

  19. Have we really learned nothing over the past year about how well it works to hector people into doing stuff? Like, c’mon, people.

    This is the sort of thing that pushes people to act exactly the opposite way. Is Breyer better than that? Probably. Does this make it easier for him to feel like he’s making his own decision? Not at all.

    You can’t force this stuff on people, it’s gross when you try, and it runs serious risk of backfiring. Breyer is not ignorant of the political and legal situation. Try to force things, tho, and he might get aggravated enough to put a foot down.

    1. I refer the gentleman to my comment immediately above.

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