WASHINGTON (Reuters) – With Democrats securing control of the U.S. Senate, some liberal activists are calling for liberal Justice Stephen Breyer to make retirement plans so Democratic President-elect Joe Biden quickly can appoint a successor to the Supreme Court’s oldest member.
Breyer, 82, has served on the nation’s top judicial body since 1994, having been appointed by a Democratic president, Bill Clinton. Republican President Donald Trump, due to leave office on Jan. 20, appointed three justices during his four-year term, moving the court rightward with a 6-3 conservative majority.
Stung by the fact that Trump was able to replace liberal Justice Ruth Bader Ginsburg when she died in office in September at age 87 with a conservative, Amy Coney Barrett, who could serve for decades in the lifetime post, activists on the left want to ensure that Breyer is succeeded by a fellow liberal.
Biden has pledged that his first Supreme Court nominee would be a Black woman, which would be a historic first.
“Justice Breyer’s service on the court has been remarkable, and 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,” said Brian Fallon, executive director of the liberal advocacy group Demand Justice.
“Timing his retirement in the coming year would guarantee that opportunity, and it would be wise to do so because the window may prove a narrow one,” Fallon added.
Molly Coleman, executive director of the liberal group People’s Parity Project, echoed that view.
“Especially given President-elect Biden’s commitment to appointing the first Black woman to the Supreme Court at this first opportunity, this is the time for Justice Breyer to cement his legacy,” Coleman said.
Some other liberal groups have not publicly called for Breyer to retire.
Ginsburg had been urged to retire by some liberals during Democrat Barack Obama’s presidency so he could name a liberal replacement to ensure that the court did not move further to the right. She rebuffed them and remained until her death from cancer.
Biden’s party was able to grab control of the Senate from the Republicans after Democrats Raphael Warnock and Jon Ossoff won a pair of Tuesday runoff elections against Republican U.S. senators in Georgia. The Senate is given the role of confirming a president’s federal judicial nominees. Had Republicans retained control, they could have complicated confirmation efforts for Biden’s selections.
Biden himself has not publicly called on Breyer to retire. His transition team declined to comment.
A simple majority vote in the 100-seat Senate is required to confirm Supreme Court nominees. With control of the chamber, Democrats also are expected to try to swiftly confirm Biden’s nominees to other federal courts after Trump’s successes in winning confirmation of numerous appointments to the federal bench.
Naming a liberal successor to Breyer would not change the court’s current ideological balance, but could ensure his seat is held by a liberal for decades. Only conservative Clarence Thomas, one of two Black men who have served on the high court, has served longer than Breyer among the current nine justices.
Breyer did not respond to a request seeking comment.
“I mean, eventually I’ll retire – sure I will. And it’s hard to know exactly when,” Breyer said in an interview published last month by the news website Slate.
Potential Biden nominees include Leondra Kruger, who serves on the California Supreme Court, and Ketanji Brown Jackson, a federal district court judge in Washington who served as a law clerk to Breyer.
Biden is considering first appointing Jackson to replace Judge Merrick Garland, the president-elect’s pick as his attorney general nominee, on the federal appeals court in Washington, two people close to Biden’s transition team said.
Traditionally, many judges have been former prosecutors and corporate lawyers. Liberal groups want more former public defenders and civil rights lawyers named to the bench.
The incoming Biden administration “should be doing everything possible to prioritize lower-court judgeships in order to reverse the damage done to our judiciary by President Trump,” said Nan Aron, president of Alliance for Justice, a liberal advocacy group that has not called for Breyer to retire.
There are 43 current vacancies on federal district courts and two on the influential federal appeals courts.
Trump has appointed 174 district court judges and 54 appeals court judges. His tally of appeals court appointments over four years is just one less than Obama achieved in eight years in office and ranks as one of his biggest successes in office.
Senate Majority Leader Mitch McConnell, a Republican, played a crucial role in the disparity, impeding the confirmation of Obama’s picks – including refusing to consider Garland’s nomination to the Supreme Court in 2016 – while speeding the approval of Trump’s nominees.
(Reporting by Lawrence Hurley; Additional reporting by Michael Martina; Editing by Will Dunham)