Among the 115 justices who have served on the Supreme Court, none have been Black women. If President Biden intends to keep a pledge made during his campaign — to nominate a Black woman for the nation’s high court — he’ll likely need to get it done before the 2022 midterm elections.
That’s because if Republicans reclaim a Senate majority next year, Senator Mitch McConnell will likely resurrect the same old obstructionist tricks he pulled after Justice Antonin Scalia died in 2016. He wouldn’t even give President Obama’s pick, Merrick Garland, now attorney general, a confirmation hearing. Instead, he kept the seat open for the next president to fill. And we all know how that worked out.
So with an impossibly small Democratic margin in the Senate, Biden may now have his best chance to make history, diversify the court, and hold onto a liberal seat — except there are no openings on the court.
This is where things get tricky.
At 82, Stephen Breyer is now the high court’s oldest justice. By all indications, he remains healthy, sharp, and a vital liberal member of the bench where he has served since 1994. Breyer, who lives in Cambridge, has said nothing publicly about retirement. Of course, that’s not stopping chatter over whether he should step down to allow Biden an opportunity to become the first Democratic president in more than a decade to fill a Supreme Court vacancy.
That chatter started in January when Rev. Raphael Warnock and Jon Ossoff’s wins in Georgia secured a Senate majority for Democrats. In a statement to Politico, Brian Fallon, executive director of Demand Justice, a progressive organization, praised Breyer but added, “history will remember him even more fondly if he ends up playing a critical role in ensuring the appointment of the first Black woman to the Court.”
By any measure, this is an inelegant, ageist conversation. Biden is the oldest president in this nation’s history, and there’s something almost comical about a 78-year-old pushing an 82-year-old to retire. Yet liberals and progressives remain raw over what happened when Justice Ruth Bader Ginsburg died last September, and McConnell fast forwarded the confirmation of conservative Amy Coney Barrett just weeks before the election.
For all the veneration of “The Notorious RBG,” people forget that many wanted her to retire during Obama’s term to protect that seat. After Ginsburg died, it was reported that Obama, during a 2013 lunch with Ginsburg, emphasized that Democrats could lose control of the Senate in the 2014 midterms and chill his chances of getting a nominee confirmed.
In an interview a few months before the midterms, Ginsburg made it clear she would leave on her own time line. “I think [Obama] would agree with me that [retirement]” is “a question for my own good judgment.”
Ginsburg was right. Yet that doesn’t mean those who advocated for her retirement were wrong.
As a nation, we are again in a very perilous moment. Less than three months after the deadly Capitol insurrection, the attempted coup by white supremacists and their GOP co-conspirators continues unabated. Propagating lies about voter fraud, Republican legislators have introduced more than 250 bills in 43 states to codify voter suppression and disenfranchise voters of color. If the 2020 election was “the most secure in history,” there’s an aggressive effort to make future elections into what Stacey Abrams has called “Jim Crow in a suit and tie.”
Contrast these regressive measures with an opportunity to move forward with a Black woman on the Supreme Court. Among those being mentioned are Ketanji Brown Jackson, a US district court judge in Washington and a former Breyer law clerk; and California Supreme Court justice Leondra Kruger, who served as a deputy attorney general in the Obama administration. A Biden nominee would not change the court’s 6-3 conservative tilt.
Next year, 34 Senate seats will be on the ballot — 14 seats currently held by Democrats, 20 by Republicans. As the midterms approach, the debate about whether Breyer should retire will only intensify, as will broader conversations about abandoning lifetime tenure for justices.
That’s something Breyer himself considered when asked during a 2016 interview. “I do think that if there were a long term [of] 18, 20 years, something like that, and it was fixed — I would say that was fine,” he said. “In fact, it’d make my life a lot simpler, to tell you the truth. It would.”
When the interviewer said, “No one would ask you when you’re going to retire, right?” Breyer quickly responded, “Correct.”
For one of the most important decisions he will make as a justice, Breyer only needs one vote — his own and preferably before November 2022 — to ensure that no one will ever ask him that pesky question again.