By Lawrence Hurley. Republican President Donald Trump, due to leave office on Jan. Stung by the fact that Trump was able to replace liberal Justice Ruth Bader Ginsburg when she died in office in September at age 87 with a conservative, Amy Coney Barrett, who could serve for decades in the lifetime post, activists on the left want to ensure that Breyer is succeeded by a fellow liberal.
Biden has pledged that his first Supreme Court nominee would be a Black woman, which would be a historic first. Some other liberal groups have not publicly called for Breyer to retire. She rebuffed them and remained until her death from cancer. Supreme Court, said he has not decided whether to retire, telling CNN in an interview published on Thursday his health and the court's future are the main factors he is weighing. Some liberal activists have urged Breyer to retire soon so President Joe Biden can appoint a younger successor who could serve for decades in the lifetime post.
Biden's fellow Democrats narrowly control the U. Senate, which has confirmation power for nominees to the federal judiciary. Breyer, speaking from his summer retreat in Plainfield, New Hampshire, cited two top considerations.
Breyer, who has served as a justice since and will turn 83 in August, has remained mum about his plans since the court finished its latest nine-month term this month. Well, that raises a different question, because those are members of a different branch of the government. But I was talking about law professors and people like that, some of whom wrote pieces saying that Justice Ginsburg should retire, and some of whom have written pieces saying that Justice Breyer should retire.
Do you think it is? First, you have the personal considerations that anyone has when retiring from a position that he or she has been in for a long time. To retire the moment that you have a Democratic President and a Democratic-controlled Senate might, to some people, look like you were saying that the institution is in some sense partisan, and Justice Breyer strongly rejects that idea. So he has a vested interest in not sending that message. He thinks that reality has weight in the world and one should take account of it.
Among other things, Justice Breyer has a concern for the Supreme Court to function well. If the future of the Court hinged on who was going to win the election, then it seems like whoever won should have a chance to appoint as many Justices as possible.
Right now, the Court has a 6—3 conservative majority. So, from my perspective—of someone who favors a Supreme Court that has as many Justices as possible who believe in the living Constitution—that would be a devastating consequence.
That said, the current 6—3 conservative majority can already potentially reach decisions that will themselves be devastating from the standpoint of protecting fundamental rights.
That could happen even if the Court remained at 6—3. Did I write that before or after Ginsburg died? I wrote that under those conditions when it was a 5—4 Supreme Court.
Things do look a little different once the Court goes to 6—3. So then how do you view her decision not to retire when there was a Democratic President? Her health had not been good at all, and that was known to the world, and of course known to her. I am deeply saddened that she did not. When should Thurgood Marshall have stepped down? He tried really hard to make it through eight years of Reagan and four years of George H.
He was in his seventies, not his eighties, in the Carter years, right? Yeah, there was a big difference of age. I have a pragmatist view of it. I understand why in theory perhaps its not being a political institution would be a valuable thing for our country. But it seems clear to me that it is a political institution and that denying that reality seems to get us not necessarily in a better place.
Do you agree? I would like to draw a sharp distinction between the Supreme Court as a political institution and the Supreme Court as a partisan institution. When the Supreme Court decides those close cases, politics unquestionably come into its decision-making process, and, in that sense, the Supreme Court is a political institution. Look, the Justices are appointed by the Presidents of different parties and confirmed by the Senate, so therefore the Justices are appointed through a political process, and, in that sense also, the Supreme Court is a political institution.
But the Supreme Court ideally should not function as a partisan institution in the sense that the Justices should not be deciding cases based on what outcome would benefit one political party or the other.
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