Supreme Court Justice Stephen Breyer will retire, according to multiple reports. Some liberals have been urging him to do so since Joe Biden was elected. Many more, I suspect, were hoping he would, so that Biden could appoint a relatively young left-liberal to replace him. Breyer is 83 years old.
I suspect that Breyer would like to have stayed on the Court for a few more years. However, it now looks at least as likely as not that Republicans will regain control of the Senate in 2023.
Thus, if Breyer hopes to be replaced by someone at least as liberal as he is, stepping down now is the right play. It gives Biden what may be his last opportunity to appoint a Justice.
I have no doubt that Biden will nominate someone at least as liberal as Breyer. In all likelihood, his nominee will be even further to the left. And it probably will be a “person of color” — most likely a black female.
Senate Republicans should fight hard to prevent any liberal Biden nominee from being confirmed. That’s the way the game is played these days, whether one likes it or not. However, unless Team Biden screws up its vetting, the nominee will almost certainly be confirmed.
Elections have consequences, and one consequence of the 2020 election — including losing those two Georgia seats in early 2021 thanks in considerable part to Donald Trump — is that Joe Biden will be able to replace an 83 year-old liberal Justice, with an even more liberal jurist who likely will be about 30 years younger.
STEVE adds: I think there is a non-trivial chance that Biden surprises us with an Asian nominee. There hasn’t been an Asian on the Supreme Court, so it would be a first, and politically important to shore up a constituency that is slipping away from Democrats. Also useful to have an Asian justice to participate in the oral arguments and potentially dissent on the Harvard admissions case that will be heard next term.
JOHN adds: Steve Breyer was my antitrust professor in law school, and also my third-year paper adviser. He was no raving lefty at that time. In fact, a lot of what I know about free market economics I learned from Breyer. Paul is right, whoever succeeds him will be much, much worse.
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