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Comment by Maeve Korengold
This Wednesday, it was revealed that Justice Stephen Breyer plans to retire after serving over twenty-seven years on the United States Supreme Court, after the end of the Court’s term. According to two sources who spoke to CNN, Justice Breyer disclosed his retirement plans to President Joe Biden sometime in the past week. Accordingly, Justice Breyer formally announced his retirement in a letter to President Biden offered on Thursday morning. “I have found the work challenging and meaningful,” he wrote. “My relations with each of my colleagues have been warm and friendly.” His coworkers followed suit in acknowledging his upcoming absence from the bench; Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas offered comments supporting him in continuing past his judicial career and reminiscing on the friendships they built with each other. Like the late Justice Ruth Bader Ginsburg, Justice Breyer has been characterized by his companionship with his coworkers on the other side of the political spectrum and his ability to reach consensus with them when discussing cases. After his departure from the Supreme Court, Justice Breyer plans to continue using his judicial skill by serving as the Chief Justice of the jury who decides the annual recipient of the Pritzker Prize, which is regarded as the highest honor a living architect can earn.
One of three liberal Justices on the Court, eighty-three-year-old Breyer worked to apply the law to how it functions for the common American and interpret it accordingly. He frequently joined Justices Elena Kagan and Sonia Sotomayor in penning dissents after cases in which the Court’s conservative majority made decisions he believed did not benefit the American people; most recently when the Court voted to block a federal vaccine and coronavirus testing mandate for large companies. Justice Breyer views the Constitution and the court as tools that should evolve as the abilities, needs, and worldviews of Americans change and has voted accordingly during his time on the bench. On the importance of representation within the courtroom, Justice Breyer wrote “I think it is terribly important to have an institution where I see every kind of American, every race, every religion, every possible point of view. And they have decided to come into a courtroom to resolve their differences rather than through violence on the street.”
During his announcement of Justice Breyer’s retirement, President Biden reiterated the promise he made on the campaign trail: that during his time in office, he would add a Black woman to the Supreme Court for the first time in American history. In addition to this, he revealed that he aims to provide a nominee by the end of February.
This announcement was met with outcry from many Republican lawmakers. In particular, Senator Mitch McConnell issued a statement warning President Biden against making an “overly ideological” choice when choosing a Judge to nominate to the Court and going through the confirmation process, and also implying that he will attempt to block President Biden’s nomination. “The president must not outsource this important decision to the radical left,” he said. “The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”
Considering that Senator McConnell and Senate Republicans successfully blocked the nomination of Judge Merrick B. Garland, the last nominee from a Democratic president, the party can expect a fight from Republican lawmakers. If all 50 Republican members of the Senate are against President Biden’s nomination, every Democrat, as well as every Independent lawmaker, would have to vote to confirm the nominee.
The likes of Senator McConnell appear to be apprehensive about the nomination of a Black, female Justice to the Supreme court. Conservative politicians and commentators frequently espouse concerns about “identity politics” ruining the United States’ political system by indoctrinating Americans into basing their vote completely off their race, gender, sexual orientation, religion, or other personal identities. However, these factors already affect the lives of minority Americans greatly. Labels that others may think are arbitrary are so central to marginalized people’s identities because of the isolation they experience when they are pushed aside as strangers and excluded from education, the workforce, the government, and other parts of American life. The politicization of minority identities is the result of the historical prejudice that continues to designate them as outsiders from institutions such as the Supreme Court. Senator McConnell and others voicing their concerns about the “radical” belief in the necessity of political representation that is reflective of the different perspectives within the United States are uncomfortable with the prospect of a Black woman Justice because they are accustomed to holding disproportionate amounts of power over the minorities that they keep voiceless through lack of representation.
With the unique lens that she views American life through because of how she and her communities have been treated, a Black woman on the Supreme Court would be more likely to consider the effects that Court decisions would have on Black and female communities than her white and male colleagues would. Along with experience, she would have the visibility to bring up issues facing Black women such as discrimination in medical settings and the extremely high Black maternal mortality rate in the public sphere, unlike people who don’t hold high government positions. This landmark in representation will pave the way for more legislation protecting Black Americans and women, and growing representation in the political arenas that the United States trusts with its future.
Some expect McConnell and other Republicans to begin pressure campaigns with the goal of intimidating Democrats and Independents to oppose Biden’s nomination on the basis of the accusation that his goal is to create more of an ideological divide, as McConnell claimed. A target that some envision is Democratic Senator Kyrsten Sinema, who has recently assisted Republican senators in blocking a progressive voting rights bill, as well as potential laws centering climate change initiatives and ensuring a social safety net.
However, Sinema has shown herself to be fairly liberal when it comes to matters of the Supreme Court, recently decrying the “inconsistent views” of Republican Justice Amy Coney Barrett, whose last-minute confirmation orchestrated by President Trump and Republican members of the Senate was a point of immense contention among the two parties, considering that a few years earlier, President Obama’s nominee was blocked due to the timing within his term of service. When asked about how she planned to go about her vote on Biden’s nomination, she assured the public that she would perform her Constitutional duty to the best of her ability by “thoughtfully examining the next nominee based on three criteria: whether the nominee is professionally qualified, believes in the role of an independent judiciary, and can be trusted to faithfully interpret and uphold the rule of law.”
In order to announce a nominee by the end of February, the Biden administration must conduct a thoughtful and thorough evaluation of each candidate. Contenders will provide writing samples and information about their experience in the law and their background. Some will be interviewed, and the Federal Bureau of Investigation will conduct background checks to ensure that the nominee is someone of excellent social and civic standing. After this, President Biden will personally interview finalists for the position. Finalists and their families will be invited to the White House when the President announces the name of his nominee, which will ostensibly be sometime in February.
Following this announcement, the nominee is questioned by the Senate Judiciary Committee, which is currently split evenly along party lines. They will be asked about their legal and educational experience as well as published writings and spoken remarks. Then, the Committee will hold a confirmation hearing, which usually lasts about four days. Throughout this period, witnesses will be invited to testify for and against the nominee, and the nominee may be asked to answer additional questions in writing for the Committee. The hearing ends in a televised debate among Committee members, after which the Committee will vote and give the rest of the Senate their recommendation for the nominee to either be confirmed or denied. All one-hundred members of the Senate will debate and eventually vote on whether or not they will consent to the appointment of the nominee. A majority, or 51 votes by Senators, is all that is needed for a decision to be reached. If the Senate is deadlocked, Vice President Kamala Harris can cast a vote as the President of the Senate.
Progressive observers have already begun speculating on who is on the President’s list of potential nominees. One of the most popular names is that of fifty-one-year-old DC Circuit Judge Ketanji Brown Jackson, who clerked for Justice Breyer after earning degrees from Harvard University and Harvard Law School. Judge Brown has ruled on many high-profile cases, including the Don McGahn congressional subpoena lawsuit; as well as signing on to the recent opinion mandating the disclosure of Trump’s White House records being sought by the House January 6 committee as an appellate judge. California Supreme Court Justice Leondra Kruger is another name in the mix; the forty-five-year-old justice was the youngest person to be appointed to the California Supreme Court when she was appointed in 2014 and has written many notable opinions, pertaining to fourth Amendment rights in particular. Before serving on the California Supreme Court, Justice Kruger was the Obama administration’s acting deputy solicitor general, arguing twelve cases on behalf of the government to the Supreme Court.
Other names that have been mentioned include South Carolina US District Court Judge J. Michelle Childs, civil rights attorney Sherrilyn Ifill, North Carolina Supreme Court Justice Anita Earls, Minnesota District Judge Wilhelmina Wright, Circuit Judge Eunice Lee, and Circuit Judge Candace Jackson-Akiwumi. While there are some contrasts in the women’s backgrounds and experience, they are united in making up the handful of Black women who have earned the kind of credentials that are considered to be qualifications for a spot on the Supreme Court in a society with barriers engineered to keep them out of higher education, advanced programs, and withhold the financial freedom needed to pursue them and the propensity to begin a legacy Black women working on the forefront of America’s politics.
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