U.S. Supreme Court

Some liberals suggest Justice Breyer should retire after Democratic Senate wins in Georgia

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Justice Stephen G. Breyer hasn’t indicated when he plans to retire from the U.S. Supreme Court, but some liberals say the timing should be sooner rather than later.

The focus on Breyer, 82, is more intense since Democrats won both Senate seats in runoff elections in Georgia, report MSNBC, NBC News, Law.com and Fox News. The new 50-50 split in the Senate will give the tie-breaking vote to incoming Vice President Kamala Harris.

Breyer is the oldest justice on the Supreme Court and one of its three remaining liberal justices after the death of Justice Ruth Bader Ginsburg in September.

Even before the Georgia election results were clear, the liberal group Demand Justice suggested in a statement to Politico that this year is a good time for Breyer to retire.

“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 co-founder and executive director of 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.”

President-elect Joe Biden has pledged to nominate the first Black woman to the Supreme Court if he gets a chance to make a nomination.

Fallon told Politico that one possible nominee is U.S. District Judge Ketanji Brown Jackson of Washington, D.C., a former Breyer clerk who is 50 and Black.

In an interview with Slate, Breyer said he will eventually retire, but “it’s hard to know exactly when.”

Some liberals are also suggesting that lower court judges should consider taking senior status to allow their seats to be filled while Democrats control the Senate.

Law.com points to this tweet by Stephen Vladeck, a professor at the University of Texas School of Law: “Any federal judge who is (1) at least 65 years old; and (2) for whom their age plus time in service totals at least 80 years is eligible to take ‘senior’ status—opening up their seat to be filled. There are a not-insignificant number of Clinton and Obama appointees who qualify.”

Hat tip to How Appealing.

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