A terror attack at the Kabul airport, which left 13 American military members dead, served as a morbid sort of punctuation on the chaos in Afghanistan ahead of Biden’s self-imposed August 31 deadline.
But on Friday morning, Biden got a piece of (potentially) very good news when The New York Times published an interview with Supreme Court Justice Stephen Breyer in which he openly discussed the factors he is considering as he decides whether or not to stay on the bench beyond next year.
“I don’t think I’m going to stay there till I die — hope not,” Breyer, who turned 83 earlier this month, told the Times. Breyer recounted a conversation he had with the late Justice Antonin Scalia: “He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.'” Breyer noted that Scalia’s point would “inevitably be in the psychology” of his final decision.
While all predictions about what a Supreme Court justice will do in terms of their future is always something of a guessing game, Biden and his fellow Democrats have to feel good about Breyer’s decision to speak openly about how the party of the president matters.
Especially considering that Breyer had, in a July interview with CNN’s Joan Biskupic, made clear that he relished his new role as the senior most liberal on the court (Breyer stepped into that role following the death of Ruth Bader Ginsberg in 2020). The new role “has made a difference to me. … It is not a fight,” Breyer told Biskupic. “It is not sarcasm. It is deliberation.”
(Sidebar: In that July interview, Breyer said his retirement decision would be based “primarily, of course, health. Second, the court.”)
All of this Sturm und Drang is built on Democrats’ concern that if Breyer decides to stay on the court beyond its next term, which will conclude in early July 2022, that he will make it much, much harder for Biden to appoint another liberal justice to take his place.
Why? The Senate, is currently split 50-50 but controlled by Democrats, thanks to Vice President Kamala Harris’ ability to break ties. The Democratic majority is very much imperiled in the 2022 midterm election and if Democrats lose that majority, Biden’s ability to pick a Supreme Court nominee of his choosing goes way down. He would be forced, depending on how big the Republican Senate majority is, to find a nominee that could win some chunk of GOP votes.
If Breyer announces at the conclusion of the 2022 session — usually sometime in late June or early July — that would, presumably, give Biden ample time to nominate a replacement and Senate Majority Leader Chuck Schumer a chance to get that nomination through the Senate. (Worth noting: Biden would need to make a pick that had the approval of high-profile moderates like Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — or run the risk of the nominee not getting the 50 votes he or she would need to be confirmed.)
By the way: Breyer holding off on announcing his retirement until at least 2022 could also imperil Biden’s chances of making the court pick he wants. If, say, a Democratic senator in a state with a Republican governor dies between now and then, the Senate would flip control to Republicans (assuming that the Republican governor chooses someone of his or her own party to fill the replacement.
The stakes are, of course, massive — as demonstrated by Ginsberg’s death in the fall of 2020. Then-President Donald Trump nominated Amy Coney Barrett, a conservative, to fill the opening left by RBG. Despite Democrats’ strenuous objections, then Senate Majority Leader Mitch McConnell pushed the nomination through — handing Republicans not just a 6-3 conservative majority on the nation’s highest court but also one that could extend for a generation.
Democrats want Biden to protect those three liberal seats — at all costs. Breyer, at least as of today, seems to understand that political calculation and — Democrats would argue — necessity. The question remains whether or not it will influence the justice’s final decision.