Supreme Court Justice Stephen Breyer, dashing liberal hopes that his seat could soon be filled with a liberal appointed by President Joe Biden, has not decided when he will retire, according to an exclusive report released on Thursday morning.
The 82-year-old Breyer has served on the court since 1994, currently serving as the senior liberal justice among the court’s nine members.
“With Breyer’s 83rd birthday approaching in August, there are liberals – including some of his own former clerks – who would like to see him step down sooner than later, while Democrats are still in control of the White House and Senate and can easily confirm a young liberal replacement,” Fox News reported on Thursday.
The news continues to concern many on the left who desire to fill Breyer’s seat with another liberal while Biden is in office and Democrats control power in the Senate.
“Justice Ruth Bader Ginsburg was widely, and deservedly, criticized for her refusal to retire from the Supreme Court at a time when a Democratic president could have chosen her replacement,” Campos wrote.
Breyer — who is the oldest member of the court — is now making the same mistake, Campos argued.
“The evident indifference on the part of Democrats regarding the failure of Justice Breyer, 82, to announce his retirement is apparently a product of the assumption that he will do so at some point during the current Congress and that therefore whether he does so anytime soon is not particularly important,” the professor wrote.
“This is a grave mistake.”
Campos went on to point out the current 50-50 split in the Senate — meaning the balance of power could shift during the session at any moment, due to the death or departure of a Democratic senator for serious illness or other reasons.
In such a case, a GOP-controlled Senate could reject any appointment Biden might make to the Supreme Court.
Campos noted that the party composition of the Senate has changed in 27 of the 38 Congresses since World War II.
“At the moment, no fewer than six Democratic senators over the age of 70 represent states where a Republican governor would be free to replace them with a Republican, should a vacancy occur,” he wrote.
“Five other Democratic senators represent states for which a vacancy would go unfilled for months, until a special election to fill the seat was held — which would hand the G.O.P. control of the Senate,” the professor added.
Campos concluded that Breyer “should announce his retirement immediately, effective upon the confirmation of his successor.”
Senate Minority Leader Mitch McConnell pointed out in June that if a vacancy were to arise in 2024 and Republicans controlled the Senate at the time, the situation would be different from 2020, when Justice Amy Coney Barrett was confirmed to the court.
“I think it’s highly unlikely,” the Kentucky Republican said, referring to the possibility of a GOP-controlled Senate confirming a justice during the 2024 election cycle. “I don’t think either party, if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election.”
He added, “What was different in 2020 was we were of the same party as the president.”
Barrett’s addition to the court last year created a 6-3 conservative majority.
New York Democratic Rep. Alexandria Ocasio-Cortez said Sunday that she was “inclined to say yes” when asked whether Breyer should retire.
The leftist lawmaker made the remarks during an interview on CNN’s “State of the Union.”
“You know, I — it’s something that I’d think about but I, I would probably lean towards yes. But yes, you’re asking me this question so I’ve just, I would give more thought to it, but, but I’m inclined to say yes,” Ocasio-Cortez said.
“I believe Rep. Jones has a point,” she said.
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