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With Breyer to retire and Biden promising to nominate a Black woman, a Supreme Court confirmation fight could be coming

Supreme Court Associate Justice Stephen Breyer.Manuel Balce Ceneta/Associated Press

WASHINGTON — Supreme Court Justice Stephen G. Breyer reportedly plans to retire in June, ending nearly three decades as a pragmatic liberal voice on the nation’s highest court and giving Democrats the chance to confirm a replacement while they still hold narrow control of the Senate.

His decision, after months of speculation, allows President Biden to make good on a 2020 campaign promise to nominate the first Black woman to the Supreme Court and sets up what could be a fierce partisan fight over his pick.

Breyer, 83, a former Harvard Law professor and Boston federal judge, is the court’s oldest justice and has been under pressure from many liberals to step down so that Biden could replace him before Republicans potentially win back the Senate in this fall’s midterm elections. The court has shifted sharply to the right in recent years after Republicans blocked former President Barack Obama’s Supreme Court nominee in 2016 and then quickly replaced liberal Justice Ruth Bader Ginsburg when she died shortly before the 2020 election.

“The sound you heard earlier today was Democrats on Capitol Hill breathing a sigh of relief that Justice Breyer finally announced he was stepping down,” said Jim Manley, a former top Senate Democratic leadership aide. “Democrats know two things: Number 1, Senate Republicans will never confirm someone nominated by a Democratic president, and Number 2, that they needed to get this done sooner rather than later.”


Even before Breyer has officially announced his retirement, Senate Democrats stressed on Wednesday that they would move fast to replace him. Senate majority leader Chuck Schumer promised a “prompt” hearing in the Senate Judiciary Committee, and a confirmation following that “with all deliberate speed.” Senate Judiciary Committee Chair Dick Durbin said in a statement that he plans to move Biden’s future nominee “expeditiously” through his committee.


“The good news is that Justice Breyer’s successor will be confirmed well before the midterms,” said Massachusetts Senator Ed Markey. “There will be time.”

Senate Republicans eliminated the filibuster for Supreme Court nominees in 2017, paving the way for three of then-president Donald Trump’s nominees to be confirmed and shifting the court to a solid conservative majority. Democrats now can benefit from that change, confirming a nominee with their slim 50-seat majority — as long as all their members, including moderate Joe Manchin of West Virginia, are on board. Democrats are also mindful that with such a narrow majority and the age of some of its senators, a death or illness could tip the balance of power the other way.

“Every single Democrat needs to understand that this is a very big moment, and they cannot blow it,” said Rebecca Katz, a Democratic strategist who has worked on multiple Supreme Court confirmations.

If Biden makes history by nominating a Black woman, it could serve to energize a Democratic base that has been disappointed by recent legislative failures on voting rights and climate change. Democratic members of Congress were quick to remind Biden of his campaign pledge, and they urged him to stick by it.

Biden “promised he would nominate a Black woman to the Supreme Court. Time to make good on that promise and make history,” tweeted Representative Ayanna Pressley, a Massachusetts Democrat.

Biden declined to comment on news of Breyer’s retirement on Wednesday, but the White House said he remained committed to picking a Black woman. “The president has stated and reiterated his commitment to nominating a Black woman to the Supreme Court and certainly stands by that,” said White House press secretary Jen Psaki.


Among Biden’s potential choices are Ketanji Brown Jackson, 51, a Harvard Law graduate and former Breyer clerk who sits on the US Court of Appeals for the District of Columbia, and Leondra R. Kruger, 45, an associate justice on the California state Supreme Court.

LaTosha Brown, the cofounder of Black Voters Matter, said the news of Breyer’s retirement — combined with Biden’s promise to nominate a Black woman — had given her “tremendous hope” that the Supreme Court would soon be more reflective of the country.

“I want to see someone who has a strong, strong civil rights background and voting rights background based on what we are up against right now,” Brown said. “We need someone who has the scholarship and of course the legal background, but also has an acute understanding of how our democracy is being unraveled.”

If he does nominate a Black woman, Brown said, Biden and Senate Democrats should be prepared to defend her against racial and sexist attacks. Senate Republicans have mounted strong opposition to some Biden nominees who are women of color, including Rachael Rollins’s nomination to be US attorney for Massachusetts.

“There’s never been a Black woman even nominated to the Supreme Court,” Brown said. “They’re going to have to demonstrate some courage, and they’re going to have to be able to move beyond the noise of sexist and racist standards that I think are going to be here.”


Jackson was confirmed to the appellate position, which is seen as a steppingstone to the Supreme Court, in June by a 53-47 vote, with three Republicans supporting her: Susan Collins of Maine, Lindsey Graham of South Carolina, and Lisa Murkowski of Alaska. That recent bipartisan support could make her a strong nominee.

Because replacing Breyer won’t change the Supreme Court’s ideological balance, Senate Republicans might choose not to fight Biden’s nominee too hard to avoid distracting from other issues, such as high inflation, heading into the midterms, said Rory Cooper, a longtime Republican strategist. A Biden nominee could even win some Republican votes, he predicted.

“If we were talking about a replacement for Clarence Thomas, you wouldn’t get one Republican vote,” Cooper said, referencing the 73-year-old conservative justice. “But you’re replacing a progressive justice with a progressive justice. That seems like the perfect opportunity for Republicans to look like they’re the adults in the room.”

He added, “Now, they often fail to seize those opportunities.”

Some Republicans didn’t sound like they planned to skip the chance for a partisan brawl. Senator Josh Hawley of Missouri wrote on Twitter that Biden should “expect a major battle in the Senate” if he nominates a “left wing activist.” And Carrie Severino, president of the Judicial Crisis Network, an advocacy group that supports conservative judges, laid out several lines of attack against Jackson, should she be the pick.


Severino expressed “concerns” about some of Jackson’s rulings in the D.C. District Court that were reversed by a higher court. She said Jackson, who wrote “presidents are not kings” in a ruling about an attempt to obstruct the investigation into Russian meddling in the 2016 election, had used “intemperate language” to describe Trump.

Breyer had seemed to balk at the pressure to step down after the end of the court’s session last June. He expressed concern that the Supreme Court could lose public trust if justices seemed to be acting politically.

“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” Breyer said during a lecture at Harvard Law School in April.

Breyer arrived at the court with a political background. Born in San Francisco and a graduate of Stanford University, he headed east to attend Harvard Law School and later went to Washington as an assistant special prosecutor in the Watergate case. He then was confirmed in 1980 to a seat on the US Court of Appeals for the First Circuit in Boston, where he served until President Bill Clinton nominated him to the Supreme Court in 1994. He was confirmed by the Senate, 87-9, in a time when nominations were far less polarized.

As a justice, Breyer sought common ground with his more conservative colleagues, and avoided biting language in his dissents, even when he strongly disagreed with the court’s right-wing majority. Even so, he consistently voted in favor of strong environmental protections, abortion rights, and voting rights in some of the court’s most controversial cases. Later in his career, he questioned the constitutionality of the death penalty, writing in a 2015 dissent in Glossip v. Gross that the punishment is arbitrarily administered and dogged by cruel delays — ”legal wounds” that could not be healed.

As a young congressman, Markey got to know Breyer in the 1970s and praised him on Wednesday.

“From the time he served on Ted Kennedy’s Judiciary Committee staff to his service on the Supreme Court, he has been a brilliant public servant who has brought grace, expertise, humility, and an unwavering dedication to justice to everything he has done,” Markey said. “He has always kept in mind the real world impact of the court’s decisions on real people.”

Jazmine Ulloa of the Globe staff contributed to this report.

Jim Puzzanghera can be reached at jim.puzzanghera@globe.com. Follow him on Twitter: @JimPuzzanghera. Jess Bidgood can be reached at Jess.Bidgood@globe.com. Follow her on Twitter @jessbidgood.