The Volokh Conspiracy

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WaPo Provides More Details On Breyer Retirement Timeline

"Late last fall, senior White House aides were informed Breyer was close to a decision, and they had expected him to make the announcement he would retire in early 2022."


The Washington Post published a detailed story about the timeline leading up to the Breyer nomination.

Someone, somewhere, somehow, informed the White House in the fall that Breyer planned to retire in early 2022:

Inside the White House, senior officials had known for months that Breyer's retirement was almost imminent, long before he officially announced his decision in a letter to Biden last Thursday, according to two people with knowledge of the matter.

Late last fall, senior White House aides were informed Breyer was close to a decision, and they had expected him to make the announcement he would retire in early 2022, according to the people, who spoke on the condition of anonymity to disclose private conversations.

Who was the source of this information? The article hints in that direction, noting that many former Breyer clerks work in the administration.

It is unclear how many of Biden's aides knew of Breyer's thinking, but former Breyer clerks are stocked throughout the administration. They include national security adviser Jake Sullivan; Tim Wu, who works on the National Economic Council; and Josh Geltzer, who works on the National Security Council. White House Chief of Staff Ron Klain also has a relationship with Breyer from his time working in the White House Counsel's Office when President Bill Clinton nominated the justice.

Since the White House knew a retirement was coming, they felt less of a need to pressure Breyer through surrogates.

The news of Breyer's expected retirement, a closely held matter inside the White House, reassured senior Biden aides that the president was extremely likely to have the opportunity to nominate a replacement justice before the midterm elections in November and allow him to fulfill a campaign promise to nominate the first Black woman to the Supreme Court. Once White House officials knew Breyer's retirement was likely imminent, they felt less pressure to ask emissaries to engage in conversations with the justice about stepping down at the end of this term, the people said.

We also learn one tidbit from someone very close to Breyer:

In fact, Breyer himself became alarmed last year when Sen. Pat Leahy (D-Vt.) was briefly hospitalized after Biden's inauguration, according to a person close to Breyer who spoke on the condition of anonymity to discuss a sensitive topic.

I would have thought that Justice Ginsburg's passing was sufficient to get the point across; and Justice Scalia's passing; and Chief Justice Rehnquist's passing; and so on. But Leahy's hospitalization apparently had an effect on Breyer.

Finally we get some more brotherly love from Justice Breyer's brother, Charles. Judge Breyer says that Justice Breyer was aware of the Demand Justice pressure campaign. Apparently Justice Breyer was affected by the "logic of the campaign."

Breyer's brother, U.S. District Judge Charles Breyer, said in an interview, "Of course he was aware of this campaign. I think what impressed him was not the campaign but the logic of the campaign. And he thought he should take into account the fact that this was an opportunity for a Democratic president — and he was appointed by a Democratic president — to fill his position with someone who is like-minded."  "He did not want to die on the bench," Charles Breyer added.

I don't get these comments. Justice Breyer is a smart man. Did he really need anyone to explain to him–let alone a billboard truck!–that there was a Democratic president in office, and he was appointed by a Democratic-appointed Justice? Where exactly is the impressive logic? The only effect of the campaign was to pressure Breyer. And sadly, that pressure appears to have prevailed on Breyer.