Biden to nominate Supreme Court Justice as Stephen Breyer retires

Justice Stephen G. Breyer will retire at the end of the current Supreme Court term, giving President Joe Biden the chance to make his mark on the Supreme Court by nominating the first African-American female justice and reinforcing the court’s liberal minority.

The decision by the 83-year-old justice, who was nominated by President Bill Clinton in 1994, would give President Joe Biden his first chance to nominate a member of the Supreme Court, though the evenly divided Senate could significantly affect that choice.

Breyer is the court’s oldest justice and he has been under unprecedented pressure to retire while Democrats have control of the Senate, which must confirm Supreme Court nominees. Republicans refused to even consider President Barack Obama’s nomination of Merrick Garland to succeed Justice Antonin Scalia, who died in February 2016.

Thirteen progressive organizations called on Breyer to retire in June 2021, hoping to avoid a repeat of that travesty.

Obama quickly named Garland, then 63, to fill the seat. Garland had long been considered a prime prospect for the high court, serving as chief judge on the U.S. Court of Appeals for the District of Columbia Circuit — a frequent source of justices that is sometimes called the “little Supreme Court.”

Widely regarded as a moderate, Garland had been praised in the past by many Republicans, including influential senators such as Orrin Hatch of Utah.

But even before Obama had named Garland, and in fact only hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected later that year.

“With future control of the closely divided Senate uncertain, President Biden must have the opportunity to nominate a successor without delay and fulfill his pledge to put the first Black woman on the Supreme Court,” said the June 15, 2021, statement signed by Battle Born Collective, Black Lives Matter, Common Defense, Demand Justice, Justice Democrats, People’s Parity Project, Sunrise Movement, Take Back The Court Action Fund, Ultraviolet, We Testify, Women’s March, and Working Families Party. “If Breyer were replaced by an additional ultra-conservative justice, an even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk.”

Biden pledged during a presidential primary debate in February 2020 to nominate a Black woman to the court — a potential history-making move that could spoil his chance of winning confirmation.

“Of course,” said McConnell in 2016, “the American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.”

“We talked about the Supreme Court. I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation,” Biden said in response to a question about a personal motto, personal belief, or favorite quote that candidates believe represented them.

The current term ends at the end of June, and Breyer’s retirement has been expected.

A replacement chosen by Biden would not change the conservative supermajority on the court; Breyer is one of only three liberals but it would give the White House a chance to have a nominee considered by the Senate.

Biden is expected to choose a nominee who is younger than the court’s other liberals, Sonia Sotomayor, 67, and Elena Kagan, 61.

So far, the president has nominated eight Black women to the 13 U.S. Courts of Appeals, and if they are all confirmed, it would double the number of Black women confirmed to federal appellate courts to 16.

While Biden has not released an official short list of picks for the Supreme Court, a list of possible contenders includes Georgia U.S. District Court Judge Leslie Abrams Gardner, who is 47 and the sister of Stacey Abrams, who is running for governor in Georgia.

Another potential nominee is D.C. U.S. District Court Judge Ketanji Brown Jackson, who is 51 and was confirmed by 50 Senate Democrats and three Republicans last year. Jackson was also on Obama’s shortlist for a Supreme Court pick in 2016.