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Stephen Breyer to Retire, Giving Biden Chance to Nominate First Black Woman Supreme Court Justice

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Liberal Supreme Court Justice Stephen Breyer is retiring after nearly three decades on the bench, giving President Biden a chance to fulfill a campaign promise to nominate the first Black woman in history to serve on the high court. Those worried that identity politics will hinder the most qualified candidate should consider that 108 of 115 justices since the nation’s founding have been white men, says Elie Mystal, justice correspondent for The Nation. Breyer’s retirement comes as Senate Minority Leader Mitch McConnell threatened to stall any nominations that Biden put forth later in the year. Breyer leaves “an institution that I think he really idealized as beyond politics, and at the same time, it’s so, so clear that politics drove him out right now,” says Dahlia Lithwick, senior editor and senior legal correspondent for Slate, who has interviewed Breyer.

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AMY GOODMAN: Liberal Supreme Court Justice Stephen Breyer is retiring after serving on the court for over 27 years. Breyer’s retirement gives President Biden his first opportunity to pick a justice for the high court, which has a 6-to-3 conservative majority. At 83, Justice Breyer is the court’s oldest justice. He had faced intense pressure to retire while Democrats still controlled the Senate.

On Wednesday, Senate Majority Leader Chuck Schumer and Biden’s nominee — said that Biden’s nominee would receive a prompt hearing. As a candidate, Biden vowed to nominate the first Black woman to the Supreme Court. In the court’s history, there have only been four female justices and two Black justices. On Wednesday, White House Press Secretary Jen Psaki was asked about Biden’s plans.

PRESS SECRETARY JEN PSAKI: Well, I’ve commented on this previously. The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court and certainly stands by that. For today, again, I’m just not going to be able to say anything about any specifics until, of course, Justice Breyer makes any announcement, should he decide to make an announcement.

AMY GOODMAN: The names of several possible nominees have already been floated, including Ketanji Brown Jackson, a U.S. appeals court judge who once served as a law clerk for Breyer; Leondra Kruger, a California Supreme Court justice; Michelle Childs, a U.S. district court judge in South Carolina; and Sherrilyn Ifill, a civil rights attorney who heads the NAACP Legal Defense and Educational Fund. Vice President Kamala Harris has also been mentioned as a possible nominee.

To talk more about the retirement of Justice Stephen Breyer and the future of the court, we’re joined by two guests. Dahlia Lithwick is senior editor and senior legal correspondent at Slate.com, where she hosts a podcast, Amicus. Her latest piece is headlined “The Deep Irony of Stephen Breyer’s Bare-Knuckled Exit from the Supreme Court.” Elie Mystal is The Nation's justice correspondent, his new piece headlined “The Supreme Court vs. the Earth.” His forthcoming book, Allow Me to Retort: A Black Guy's Guide to the Constitution.

We welcome you both to Democracy Now! Elie, let’s begin with you. Your response when you heard about Justice Breyer retiring, and the tweet that you immediately put off — oh, well, offering some suggestions?

ELIE MYSTAL: Yeah, woo! Let’s go! This is about time. Look, Breyer has had a long and distinguished career. He has served the nation with integrity. And it was time for him to leave. And I have to say that that’s not my doing. That is Mitch McConnell’s doing. Mitch McConnell has promised, essentially, to not replace a Supreme Court justice, should Republicans take back the Senate in 2023. We know he’s not bluffing, because he stole the seat from Barack Obama when Obama nominated Merrick Garland, so we have to assume that Mitch McConnell will be true to his word. And that means that the timeline for Breyer to retire was now. There was — he had to get out of the way so that his seat would not be lost to McConnell’s machinations. So, I’m glad that Breyer did the right thing.

Moving on to the replacement, as you mentioned, Biden promised to nominate a Black woman for the first time in the history of the Supreme Court. There have been 115 justices on the Supreme Court since the founding. One hundred and eight of them have been white men. So, I think that if we’re worried about identity politics, it’s actually the white guys who have been picking white guys to be confirmed by white guys, who maybe have been a little bit too focused on the race and gender of their nominees instead of looking for the most qualified candidate possible. If Biden keeps true to his campaign promise and only looks within historically disadvantaged groups, he will find a wealth of experienced qualifications and intellects, even if he limits himself to the category of Black women.

Some of the leading contenders, as you mentioned, Ketanji Brown Jackson — we’re talking about a Harvard College, Harvard Law School judge who clerked for Breyer, who was the head of the U.S. Sentencing Commission, who has been on the court for eight years — that’s longer than Amy Coney Barrett. So, she’s kind of the leader in the clubhouse right now. But there are others.

Leondra Kruger, California state Supreme Court justice, editor of the Yale Law Review, deputy solicitor general, she writes like fire. She’s one of the more eloquent advocates that you’ll ever meet.

J. Michelle Childs, a labor law expert, which seems kind of important just at the moment, given SCOTUS’s attack on labor, especially in the OSHA mandates case. J. Michelle Childs is a district court judge from South Carolina. South Carolina, your viewers might remember, saved Joe Biden’s campaign. She has the support of Jim Clyburn. She would also — she went to University of South Carolina for law school. She would be the first person on the Supreme Court with a law degree from a state school for — I can’t remember the last time that happened. So, we would have not just race and gender diversity, but professional and educational diversity, with Michelle Childs.

And those are just a few of the plethora of people who Biden could pick, even if he focuses just on Black women.

NERMEEN SHAIKH: And, Dahlia, your response to hearing that Justice Breyer will step down, that he’ll retire? He’s served for 27 years. And your piece is called, the latest piece, “The Deep Irony of Stephen Breyer’s Bare-Knuckled Exit from the Supreme Court.” Why is it deeply ironic?

DAHLIA LITHWICK: Well, because, in some sense, I think Justice Breyer is the last of a dying breed. Maybe he’s the last to know he’s the last of a dying breed. But he has really dedicated his nearly 30 years at the Supreme Court, but certainly the last five years, to the proposition that justices are not partisan, they are not political, that they are all dedicated to something much higher than bare-knuckled politics, and that he really devoted himself, as recently as this fall, when he wrote a book about it, gave a major speech about it, said that we’re not politicians in robes.

So I think the irony that I caught was that in the midst of protesting that we are not partisans, this is not a political institution, he made a very political move in stepping down when he did. He didn’t even wait 'til the spring the way most justices do. I think he's well aware that if he had waited 'til June or July, Mitch McConnell could have attempted to do something to scuttle Biden's nomination and seating of someone before the '22 midterms. And so, this act of saying simultaneously we're above all this, and justices don’t think this way, and this is not a political calculation, at the same time that I think, certainly in my career, this is the most overt flagging of the fact that he needs to go now — as Elie said, he needs to go because Mitch McConnell has made it plain that if the Senate goes to Republicans in 2022, McConnell has already said he won’t seat a Biden nominee in 2024, possibly in 2023. So this is just a sad irony. The guy is kind of closing the lights on his way out on an institution that I think he really idealized as beyond politics, and at the same time it’s so, so clear that politics drove him out right now.

NERMEEN SHAIKH: And you interviewed him, Dahlia, just last winter. Did you anticipate his decision?

DAHLIA LITHWICK: I did. I mean, he was very, very clear when I interviewed him, and, I think, folks who have interviewed him since, that he was certainly thinking about his retirement. But also it was clear to me then, and again over the course of the last year intervening, that he did not like the idea of being pushed out. And the more liberal groups tried to push him out. You may recall, there were people who interrupted his book talks to tell him to leave. There was a truck driving around the Supreme Court telling him to leave this fall. So, the more he got pressure, particularly from the left, the more he felt like he was going to make a statement and stick it out, because even though this had happened to Ruth Bader Ginsburg — she stayed on, in some sense, too long to affect who would replace her — he wasn’t going to be a sacrifice to that symbolism. And yet, clearly, he did sacrifice himself to that symbolism.

I think, in a really deep way, this goes to a pattern we’ve seen even this term at the court. We’ve got tanking poll numbers, Gallup polling showing the court at the lowest ebb of public approval. We’ve got overt battles on the court over trivial things like wearing masks at argument, but really, I think, sharp and pointed language amongst the justices. And I think, more and more, one had the sense, even this term, that Justice Breyer just is, in a profound sense, beginning to give up on his dream of a bipartisan, cooperative institution.

AMY GOODMAN: I mean, it’s an unbelievable number: 115 Supreme Court justices; of them, only seven are not — were not white men. That’s pretty amazing, seven either African American or women in all the court’s history. Now, Elie Mystal, I want to ask you about what the approval process could look like. You have the carveout of the filibuster. They don’t need a supermajority, they just need the majority. But Harvard professor Laurence Tribe has said that there is a precedent for saying that the vice president could not break the tie. Having said that, someone like Judge Ketanji Brown Jackson was just approved, including three Republicans, by Lindsey Graham, Lisa Murkowski, as well as Susan Collins. She apparently is one of the top choices that people are saying President Biden is weighing, and that approval just took place. Can you talk about what you know of this? And maybe Dahlia wants to weigh in, as well?

ELIE MYSTAL: Yeah. So, first of all, the Tribe argument that the vice president can’t break ties, I’ve actually seen a couple of right-wing people spreading that around. It’s based on an interpretation from The Federalist Papers, right? That the vice president can break ties in a legislative sense but not in an appointment sense, that theory is off the wall, wackadoodle and never been tested. But I would point out this: Who’s going to check her? So, it’s 50-50, and Harris breaks the tie. Who’s going to tell her no? Who’s going to make that stop? What? Is John Roberts going to sit there, like, “Oh, no, no, no, you can’t”? Like, look, under Obama, I would have been, like, send Merrick Garland to the court and have him sit and go to work and wait for John Roberts to kick him out, and I would say the exact same thing to anybody who tried to pull this Federalist Papers dodge to stop Biden from having a nominee.

However, I don’t think it’s going to get that contentious. And I know this could come back to bite me, because I’m going to sound very naive if I’m wrong. But I think the Biden nominee is going to get 52, 53 votes. As you pointed out, Collins, Murkowski and Graham actually already voted for Ketanji Brown Jackson in the past. They also voted for Candace Jackson-Akiwumi, who’s another possibility, who was recently confirmed to the 7th Circuit with 53 votes. So there’s precedent on that. Manchin and Sinema have been pretty good about voting for Biden judges. I don’t expect a lot of pushback from them or their handlers when it comes to this pick. You know, I think it might get Romney.

Like, I don’t — look, in part because — and I’ll just close with this. If we’re talking about the front-runners — right? — if we’re talking about a Brown Jackson or a Kruger or somebody, their credentials are so impeccable. And there is no hint of scandal, right? I do not think we’re going to find out that Brown Jackson tried to rape anybody in high school. I don’t think we’re going to find out that Brown Jackson perjured herself in congressional testimony, right? So we’ve got impeccable academic credentials, impeccable educational credentials, impeccable moral credentials. I just don’t think that there is enough for Republicans to really come at this person with that’s going to make this nomination all that difficult, even given our crazy politics. And, you know, so I’ll look like an idiot three months from now.

AMY GOODMAN: Even the former House Speaker Paul Ryan is related to Ketanji Brown Jackson, right?

ELIE MYSTAL: Through marriage, right? Like —

AMY GOODMAN: She’s married to Jackson, who is the twin brother of the husband of Paul Ryan’s sister-in-law.

ELIE MYSTAL: Right? Like, I just — look, I think, again, Republicans — you never go wrong underestimating Republicans, right? But I think that this nominee will go through with more than 50 votes. And if it comes down to 50-50, I don’t see a real constitutional way to stop her from getting onto the court with Kamala Harris breaking the tie.

NERMEEN SHAIKH: Dahlia, in 2017, then-Senate Majority Leader Mitch McConnell changed the rules so that Supreme Court nominees could be confirmed by just 51 votes. Could you talk about the significance of that? What was it before? Why was it changed? And then, second, the fact that Biden installed five African American women on federal appeals courts, and almost all recent Supreme Court nominees have been federal appeals judges, could you talk about that, both these issues?

DAHLIA LITHWICK: The first is just, we’ve seen, because there was massive, massive obstruction of Barack Obama’s nominees on the federal appeals courts, and so Harry Reid took the decision to get rid of the filibuster for those nominees. That meant that as soon as we have the obstruction that Elie talked about, where the decision was taken that even though there was nearly a year left in his term, President Obama’s pick for Antonin Scalia’s vacant seat, Merrick Garland, was going to get neither a hearing nor a vote, nor even courtesy meetings from Republican senators — and once that obstruction happened, when Democrats filibustered the Gorsuch nominee, they just got rid of the filibuster. And that’s the world we now live in. You can get a Supreme Court justice seated with a bare minority of 51 votes. And that’s what Elie is describing is likely to happen.

I think that the thing that has been really remarkable about the Biden administration and gets not nearly enough attention is his absolute zealous commitment not just to getting judges onto the federal bench, breaking numbers, doing it so quickly — and really this has been important, and, again, I don’t think we’ve surfaced how important. He has been, from day one, committed to putting judges on the federal bench who are not just diverse, extraordinarily diverse — and we have seen, again, records shattered in terms of seating jurists who come from different racial, gender, LGBTQ backgrounds; that’s been a real push — but also urgently important to him to put up the kinds of people who never got a look in prior administrations, people who come from voting rights activism, people who come from labor organizing, people who come from public defenders and other backgrounds, who never would have gotten a judicial nod. And so, it’s been really, really important to him not just to put up record-breaking numbers of women of color and other groups that don’t often get a look, but it’s been really important to put up people who are not typically prosecutors or folks who clerked on the courts.

And one of the things about Ketanji Brown Jackson is that she actually comes from a background of being a public defender. That’s the kind of person we needed for years to see much, much, much more of, because it obviously affects the quality of justice that then comes down from the federal bench. And that’s been a real priority for Biden. And I think we’re going to see, as Elie said, not just an educational diversity but a diversity of background and experience in some of the nominees, that should make us feel really sanguine about opening up the aperture to who gets to be a judge in America.

AMY GOODMAN: And what about the timing of these hearings and President Biden putting the person forward? He could even put the person forward today, when he and Breyer will be together at the White House. And also the legacy of Justice Breyer? David Sirota says Breyer has sided with positions taken by the U.S. Chamber of Commerce a majority of times. Quote, “In practice, that has meant Breyer recently voting to restrict regulators’ power to punish Wall Street criminals, to empower fossil fuel companies to brush off environmental concerns, and to oppose a state mining ban. It means Breyer voting to shield companies from liability when they face allegations of human rights abuses abroad. It means Breyer voting to limit consumer debt protections,” David Sirota wrote. He is also pro-choice, as well as fiercely anti-death penalty. Elie Mystal?

ELIE MYSTAL: Breyer has a complicated legacy, as almost all the Supreme Court justices do. He’s been a solid liberal, but a moderate version of that. And that moderation, I think we — that centrist leaning, I think we see most often — we’ve seen from him most often in issues of corporate responsibility and general kind of a laissez-faire attitude towards big business, which is problematic in certain ways. But in other ways, he has been the fiercest advocate against the death penalty, I think, on the court that we’ve had since Marshall, since Thurgood Marshall. I think that’s fair. He’s been a strong pro-choice advocate. He’s been a strong environmental advocate. So, you know, people are complicated. Breyer has a complicated legacy.

Look, you would take nine Stephen Breyers over one Neil Gorsuch. Like, let’s not get it twisted. Is he the most fire-breathing leftie that I can think of? No. But, quite frankly, I don’t think Biden is going to replace him with the most fire-breathing leftie I can think of, either, right? Like, that’s not the Biden strategy. That wasn’t the Obama strategy, quite frankly. So, I don’t anticipate — I don’t anticipate Biden’s nominee being attacked from the left too much, but I don’t anticipate Biden’s nominee being as left as you could go.

AMY GOODMAN: And finally, Elie, your headline, “Supreme Court vs. the Earth”?

ELIE MYSTAL: Yeah, we’re in a bad situation right now. So, on February 28th, the Supreme Court is going to hear a major case about the Clean Air Act, where it’s going to try to limit the EPA’s ability — the Environmental Protection Agency’s ability to regulate carbon emissions, greenhouse gases, from power plants. That’s amazing to me, because clean air is like right in the name of the law.

But if you understand where conservatives are coming from, they have a generations-long ideological crusade against the administrative state, which includes things like the EPA, which includes, as we saw last month, OSHA. And that’s why the conservatives were willing to overturn the OSHA vaccine or test mandate. That’s why they will likely stop EPA rulemaking before it’s even started, which is another kind of weird thing for them to do, because they’re on an ideological crusade.

One of the things that people have to understand is that if we let conservatives control the Supreme Court for the next 30 years, that’s the next 30 years where we get zero meaningful climate legislation, because the conservative Supreme Court will simply not allow it. So, if you care about climate and if you care about the planet, you better start caring about the Supreme Court, because if you don’t control the Supreme Court, you will get nothing on climate.

AMY GOODMAN: Eli Mystal, we want to thank you for being with us, The Nation's justice correspondent. His forthcoming book, Allow Me to Retort: A Black Guy's Guide to the Constitution. And Dahlia Lithwick, Slate.com senior editor and senior legal correspondent. We’ll link to your piece, as well, “The Deep Irony of Stephen Breyer’s Bare-Knuckled Exit from the Supreme Court.”

Next up, we talk to a top Cuban scientist about how Cuba has developed its own COVID vaccines despite the 60-year-old U.S. embargo. Stay with us.

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