United States Supreme Court Justice Stephen Breyer, one of the left leaning Justices, hired four new law clerks which quietly communicates he has no intention to retire before the next term starting September 27 later this year. The news upset many Democrats who fear losing an opportunity to replace the jurist with a liberal judge while they still hold a majority in the Senate.
Justice Breyer, 82, is only one of three sitting Justices nominated by a Democrat President. Justice Breyer was nominated by President Bill Clinton and confirmed in 1994. Associate Justices Sonia Sotomayor and Elena Kagan round out the remaining left-leaning judges. Both were nominated by President Obama in 2009 and 2010 respectively.
Democrats worry the super-thin majority they enjoy in the Senate is only a heartbeat away from being lost. There are 2 independent senators who caucus with the 48 Democrats, and 50 Republican Senators. Any 50-50 partisan voting tie would be broken by the President of the Senate, a role constitutionally filled by the Vice President.
If a Democrat Senator dies or needs to retire from a state with a conservative governor the seat might be filled by a Republican. The governor of the state with an empty senate seat has the prerogative to choose the replacement until an election is held.
Democrats are also keen to replace an old white male with a black woman on the highest court in the nation. Prior to the March 2020 South Carolina primary then candidate and former Vice President Joe Biden pledged, “I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we, in fact, get every representation.”
Mitch McConnell did not alleviate any of the Democrats fears when he was interviewed last month and said he would block any Supreme Court nominations by President Biden if Republicans win back the Senate in the midterm elections. It was during a radio interview on the Hugh Hewitt Show when Sen. McConnell said, “I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled.”
After blocking President Obama’s nomination, Merrick Garland, to the high court Mr. McConnell remarked act was, “the single most consequential thing I’ve done in my time as majority leader of the Senate.”
There have been 115 Justices on the Supreme Court since the first five were confirmed in 1789. Most have retired or resigned, but 54 died while still holding the position. The latest sitting Justice to die was Associate Justice Ruth Bader-Ginsburg on September 18, 2020. Justice Breyer is currently 82 years old, and will have served on the court 27 years as of August 3rd.
Justice Breyer would still have time to retire after the next Supreme Court term and before the midterm elections. The 2021 Supreme Court calendar currently is slated to end in June of 2022.