by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Politico reports that Democratic activists are ramping up pressure on liberal 82-year-old Supreme Court justice Stephen Breyer to retire while Democrats control the Senate.
The campaign from Demand Justice is taking on a particularly aggressive tone, demanding that Breyer step down so that a black woman may take his seat:
Many observers expect Breyer to make way for a younger liberal justice to take his seat before the 2022 midterm elections, but Politico notes the pressure campaign may not work:
“[The late Justice] Ginsburg acknowledged the pressure she faced to retire, particularly during Barack Obama’s second White House term — and even had lunch with the then-president in 2013, when he reportedly raised concerns that Democrats could lose the Senate. But in an 2014 interview with Reuters, Ginsburg asked: ‘Tell me who the president could have nominated this spring that you would rather see on the court than me?’”
One reason that Democrats launched the campaign against Breyer now may be news that he hired a full slate of law clerks for the fall 2021 Supreme Court term.
Justice Kennedy also hired clerks for the fall 2018 term (and went on to retire that summer), but David Lat points out Kennedy is an outlier among recent retiring justices: “Of the last four justices to retire, three engaged in abnormal law clerk hiring activity prior to stepping down. This suggests that law clerk hiring, while not infallible, is often a decent indicator of a justice’s retirement plans.”
Given the current 50-50 split between Democrats and Republicans within the U.S. Senate, a Supreme Court vacancy in the next two years would be likely to generate plenty of political heat. A vacancy and confirmation process also would remind voters about the importance of Senate elections in 2022.