In the latest sign that retirement isn’t in the immediate future for the long-serving jurist, the U.S. Supreme Court has confirmed that Justice Stephen Breyer hired a full slate of law clerks to assist him in the upcoming term, Bloomberg reported Friday.
The news comes as a blow to progressive Democrats like New York Reps. Alexandria Ocasio-Cortez and Mondaire Jones who have suggested that Breyer should step down while Democrats still hold both the White House and the Senate. Such a move would give President Joe Biden a chance to appoint a similarly left-leaning judge to the court that would be easily confirmed by Congress’ upper chamber.
If Republicans take back the Senate in the 2022 midterms, they could move to block a potential SCOTUS pick from Biden — a possibility those on the left are all too aware of.
“Inclined to say yes”
According to Ballotpedia, Breyer was first nominated to the high court in the early 1990s by then-President Bill Clinton. He’d previously served on the U.S. Court of Appeals for the 1st Circuit after being nominated to the position by former President Jimmy Carter.
Since his confirmation to the high court, the left-leaning jurist has sided with liberals roughly as often as fellow Justice Elena Kagan, according to Ballotpedia, and “[i]n the 2019 term, Breyer agreed in full, part, or judgment only the most often with Ruth Bader Ginsburg and Samuel Alito,” the outlet said. “He disagreed most often with Clarence Thomas,” Ballotpedia reported.
Worried that a Republican Senate might block President Biden from naming a similarly liberal replacement, some are suggesting Breyer, who is now 82, should leave his legacy at that.
Asked directly if Breyer should retire, Ocasio-Cortez told CNN’s Dana Bash last month, “I’m inclined to say yes.”
“You know, I — it’s something that I’d think about, but I would probably lean towards yes. But yes, you’re asking me this question, so I’ve just — I would give more thought to it but, but I’m inclined to say yes,” the congresswoman clarified, according to The Hill.
“Politicians in robes”
As early as April, AOC ally Mondaire Jones had expressed a similar sentiment. The congressman hearkened back to last fall, when the sudden death of Justice Ruth Bader Ginsburg gave then-President Donald Trump the chance to appoint a third justice to the high court, cementing its conservative tilt for potentially decades to come.
“There’s no question that Justice Breyer, for whom I have great respect, should retire at the end of this term. My goodness, have we not learned our lesson?” Rep. Jones said in April, as The Hill reported.
But Breyer didn’t heed those calls, and as Bloomberg reports, there’s little sign he’ll change his mind anytime soon. Breyer had suggested earlier this year that he had “little interest in timing his retirement to meet Democrats’ political needs,” Bloomberg said Friday.
“If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law itself can only diminish,” the justice said in April.