WASHINGTON (AP) — Liberal Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by appointing the first black woman to the High Court.
Breyer, 83, has been a pragmatic force in a court that has become increasingly conservative in recent years, trying to forge majorities with more moderate justices right and left of center.
Two sources confirmed the news to The Associated Press on Wednesday, speaking on condition of anonymity so as not to anticipate Breyer’s official announcement.
Breyer has served as a judge since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer chose not to resign the last time Democrats controlled the White House and Senate during Barack Obama’s presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative judge, Amy Coney Barrett.
Breyer’s departure, expected over the summer, will not change the Conservative 6-3 on-court advantage as his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the narrowest majority. It will also make Conservative Justice Clarence Thomas the oldest member of the court. Thomas will be 74 in June.
Senate Majority Leader Chuck Schumer said Biden’s nominee “will be given an expeditious hearing in the Senate Judiciary Committee and will be reviewed and confirmed by the entire U.S. Senate with deliberate speed.”
Republicans who changed Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.
Senator Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee, said in a statement: “If all Democrats stick together – which I hope they will – they have the power to replace Judge Breyer in 2022 without a single Republican vote in Support.”
Liberal interest groups expressed relief. They had been calling for Breyer’s retirement for a year, concerned about confirmation issues if Republicans regained the Senate.
“Justice Breyer’s retirement is not too soon, but now we need to make sure our party remains united in supporting the confirmation of his successor,” said Demand Justice executive director Brian Fallon.
Among the names circulated as potential candidates are California Supreme Court Justice Leondra Kruger, US Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and US District Judge Michelle Childs, whom Biden appointed judge of the Court of Appeal. Childs is a favorite of Rep. James Clyburn, DS.C., who brought a crucial endorsement to Biden just before South Carolina’s 2020 presidential primary.
Biden has been focused on filling federal judicial appointments with a more diverse group of justices, and the Supreme Court has not been a priority in his first year in office, according to House aides and allies. White. A decision on a candidate has yet to be made, they said, and is expected to take a few weeks. But Biden has expanded his candidate pool by naming more black women to the bench.
White House press secretary Jen Psaki said on Twitter: “It has always been the decision of any Supreme Court justice if and when they decide to retire, and how they want to announce it, and that remains the case today. We have no further details or information to share from @WhiteHouse.
Often overshadowed by fellow liberal Ginsburg, Breyer penned two major pro-abortion-rights opinions to a narrowly divided court on the issue, and he exposed his growing unease with the death penalty in a series of op-eds. dissidents in recent years.
Breyer’s views on displaying the Ten Commandments on government property illustrate his search for common ground. He was the only member of the majority court in both cases in 2005 that banned displays of the Ten Commandments at two Kentucky courthouses, but allowed one to remain on the grounds of the state Capitol in Austin. , in Texas.
In more than 27 years on the court, Breyer has been an active and cheerful questioner in arguments, a frequent and quick public speaker with a joke, often at his own expense. He made a good-natured appearance on a National Public Radio comedy show in 2007, not answering arcane questions about pop stars.
He is known for his elaborate, sometimes outlandish, hypothetical questions to lawyers during oral argument and he has at times come across as an absent-minded professor. He taught antitrust law at Harvard earlier in his professional career.
He also spent time working for the late Senator Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a strong believer in compromise.
Yet he could write fierce dissent, as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to send the case back to Florida courts so they could create “a constitutionally proper contest” to decide the winner.
And at the end of a grueling tenure in June 2007 in which he found himself losing by around two dozen 5-4 decisions, his frustrations boiled over as he summed up his disagreement with a decision that invalidated plans integration of public schools.
“It’s not often that so little has changed so quickly,” Breyer said in a packed courtroom, an off-the-cuff line that was not part of his opinion.
His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals judge in Boston, and he was confirmed with bipartisan support even after Carter lost for re-election in 1980. Breyer served 14 years at the 1st US Circuit Court. appeal before going to the Supreme Court.
His confirmation by the high court 87-9 was the last with less than 10 dissenting votes.
Breyer’s opinions were notable for never containing footnotes. He was warned against such a writing device by Arthur Goldberg, the Supreme Court Justice for whom Breyer clerked as a young attorney.
“This is an important point to make if you believe, as I do, that the primary function of a notice is to explain to the reading public why the court made this decision,” Breyer said. “It’s not to prove you’re right. You cannot prove that you are right; there is no such evidence.
Born in San Francisco, Breyer became an Eagle Scout as a teenager and began a successful college career at Stanford, graduating with top honors. He attended Oxford, where he received first class honors in philosophy, politics and economics.
Breyer then attended Harvard Law School, where he worked on the Law Review and graduated with highest honors.
Breyer’s first job after law school was as a law clerk at Goldberg. He then worked in the Justice Department’s antitrust division before dividing his time as a Harvard law professor and an attorney for the Senate Judiciary Committee.
Breyer and his wife, Joanna, a psychologist and daughter of late British Conservative leader John Blakenham, have three children – daughters Chloe and Nell and a son, Michael – and six grandchildren.
Associated Press writer Colleen Long contributed to this report. Sherman reported from Bradenton Beach, Florida.