Call this a very special form of a be careful what you wish for story. Now that it appears that Joe Biden will have the narrowest of Senate majorities for the next two years, progressives have begun a campaign to claim the best spoils possible. Having gotten burned by the refusal of late Justice Ruth Bader Ginsburg to retire so that Barack Obama could appoint her replacement, the hard Left is organizing to push Justice Stephen Breyer out to pasture:
The results of the Georgia Senate runoffs aren’t yet final. But left-wing activists are already pressuring Supreme Court Justice Stephen Breyer to take advantage of a possible Democratic majority in the Senate and retire.
Demand Justice, the group founded in 2018 as a progressive response to conservative organizing around the courts, praised Breyer in a statement to POLITICO but encouraged him to make way for a younger liberal replacement and to do it early in Joe Biden’s first term.
“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, the group’s co-founder and executive director. “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’s comments are the latest example of Democratic anxiety about the composition of the Supreme Court, where conservatives outnumber liberals six to three. And it illustrates how the left-wing of the party feels immediately emboldened to push Biden now that a Democratic Senate majority seems likely, however narrow.
There is a big difference between Ginsburg’s situation and Breyer’s at this stage — as well as between Biden’s and Obama’s. No, it doesn’t have anything to do with Donald Trump either. Instead, it has to do with the number 50 and a very touchy Senate minority after two attempts to conduct character assassination on conservative Supreme Court nominees.
It should be relatively easy for a Joe Biden SCOTUS nominee to get through the Senate. Chuck Schumer won’t restore the filibuster for presidential appointments that he and Harry Reid destroyed in 2013, so all it will take to confirm any nominee would be to get all 50 Democrats on board and have Kamala Harris cast the tie-breaking vote. However, one very big fly in that ointment will be Joe Manchin, whose deep-red constituents already have him under scrutiny and who will almost certainly not survive another challenge in 2024 if he greenlights progressives to the Supreme Court. And that assumes that Manchin stays a Democrat, which frankly is a lot more likely than it might have been before Trump’s demagoguery led to the storming of the capitol today.
Right now, Stephen Breyer is a very reliable liberal-to-progressive voice on the court. Sonia Sotomayor is arguably more progressive, but Breyer can occasionally be wooed by the center. Do progressives think that Biden can get another Sonia Sotomayor past the goalie in a 50/50 Senate, especially with Senate Republicans still angry over the treatment given to Brett Kavanaugh and to a lesser extent Amy Coney Barrett? Maaaybe, but I doubt Biden would be convinced of that. He’d be more likely to appoint a more center-liberal jurist, especially in the first slot that opens up after his unity talk.
That means progressives will have forced out Breyer just to get a slightly less hardline justice on the court — or at least, that’s what they would be risking. And for what? A 6-3 court would remain 6-3. Breyer’s been pretty good to progressives, and no Republican will be making these appointments for the next four years. What’s the rush? Maybe progressives should just leave well enough alone.