To Prevent Another Merrick Garland Scenario, Justice Breyer Should Retire

In 2018, republicans took advantage of their inevitably fleeting majority by approving 66 judicial nominees, in addition to Supreme Court Justice Brett Kavanaugh.

Putting that into perspective, the second year of Barack Obama’s first term, the Democratic-controlled Senate confirmed 49, mostly due to Sen. Mitch “The Grim Reaper” McConnell’s refusal to act on nominees.

Remember what happened with Merrick Garland.

Despite Barack Obama, yet again, offering a concession to the opposition, McConnell in 2016 pretended Merrick Garland’s Supreme Court (SCOTUS) nomination to fill Antonin Scalia’s seat never happened because, McConnell claimed, it was “too close to the presidential election,” and the “American people needed to decide” who the next justice would be by electing either Democratic nominee Hillary Clinton or republican nominee Donald Trump.

It wasn’t just Garland he obstructed.

He spent the Obama presidency ignoring hundreds of federal vacancies all over the country, biding his time for a republican president.

He got one, and together they rammed through judges with the understanding Democrats would be in the majority–and the White House–in the not-too-distant future.

Just after the 2018 mid-term elections in which the Republicans lost the House of Representatives, McConnell commented at a press conference:

“You know what my top priority is? It’s the judiciary. We intend to keep confirming as many as we possibly can as long as we can do it.”

There is no reason to expect the same old republican obstruction on justices to cease now.

Why would it?

It worked for them before.

On Monday, Sen. Minority Leader Mitch “The Grim Reaper” McConnell confirmed as much when he admitted on conservative radio host Hugh Hewitt‘s show it was “highly unlikely” he would permit Joe Biden to fill a supreme court vacancy if it happened to occur in 2024.

McConnell stated:

“I think it’s highly unlikely–in fact, no, I don’t think either party, if it were different from the president, would confirm a supreme court nominee in the middle of an election.”

So it went from refusal to confirm during the final year of a presidency to refusal to confirm “in the middle of an election.”

But what about this year?

We aren’t “in the middle of an election” yet.

18 legal scholars issued a joint letter earlier this week urging SCOTUS justice Stephen Breyer to retire so President Joe Biden can nominate his successor while Democrats hold the congressional majority.

The statement reads:

“It is time for Supreme Court Justice Stephen Breyer to announce his intent to retire. Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay.”

13 groups, including Black Lives Matter, the Sunrise Movement, and the Women’s March published an advertisement reinforcing that stance:

“Supreme Court Justice Stephen Breyer should immediately announce his intent to retire from the bench.

“With future control of a closely divided Senate uncertain, President Biden must have the opportunity to nominate a successor without delay and fulfill his pledge to put the first Black woman on the Supreme Court.”

They warn:

“If Breyer were replaced by an additional ultra-conservative justice, an even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk. For the good of the country, now is the time to step aside.”

The late Justice Ruth Bader-Ginsberg, who died in September, was contemplating retiring during Barack Obama’s presidency, but anticipated Hillary Clinton succeeding him and wished to see a woman elected president before stepping down.

Her death presented Donald Trump a third SCOTUS vacancy, which he filled with Amy Coney-Barrett (whose nomination McConnell had no problem acknowledging despite it being an election year).

Co-founder and chief counsel for Demand Justice, Christopher Kang, who served in the Obama White House, explained on The Guardian’s “Politics Weekly Extra” podcast:

“I think certainly that looking back, and even at the time, a lot of people thought that the prudent thing for Justice Ginsburg to do to ensure her legacy would have been to retire.

“I think this is the same conversation that a lot of progressives are having right now with respect to Justice Breyer, who is one of those three Democratic-appointed justices on the supreme court. He’s 82 years old. He could retire and we believe he should retire now and make way for the first Black woman to serve on the supreme court.”

Justice Stephen Breyer should retire.

Mitch McConnell is counting on republican-led states’ voter suppression efforts to pay off so he can once again be Majority Leader.

While there are reasons to be optimistic Democrats will maintain their congressional majority after mid-term elections, it is not a fait accompli, especially since centrist Democrats—WV Sen. Joe Manchin and Ariz. Sen. Kyrsten Sinema paramount among them  –are perfectly fine with the current Senate rules, gridlock and all.

It might also give the White House enough time to play the long game and call out McConnell’s scheme–something Obama refused to do–before preoccupying itself on trying to stay in power for the next four years.

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Ted Millar is writer and teacher. His work has been featured in myriad literary journals, including Better Than Starbucks, The Broke Bohemian, Straight Forward Poetry, Caesura, Circle Show, Cactus Heart, Third Wednesday, and The Voices Project. He is also a contributor to The Left Place blog on Substack, and Medium.