Stop Demanding Justice Breyer’s Retirement Part 2.

If you want Stephen Breyer to retire, you should leave him alone. You read that right.

Breyer, much like Chief Justice Roberts, is an institutionalist. He reveres the high court deeply and wants Americans to share in his deference. Whenever Breyer is asked a question about divides on the court, he always takes the same approach — emphasizes the court’s frequent unanimity and extinguishes any indictment of partisanship.

Even in high-profile cases, like Bush v. Gore, where Breyer dissented, he still asked for public faith in the Supreme Court.

Unfortunately for Breyer, it seems that the court’s image is shattering. A recent poll found that a mere 37% of Americans approve of the Supreme Court — a historical low.

For Breyer, this is only the latest signal that he should jealously guard the court against charges of partisanship. To appreciate why Breyer cherishes nonpartisanship, we should start from the 1970s.

During his time as counsel to the Senate Judiciary Committee, Breyer became intertwined with the nation’s politics. Under the guide of Ted Kennedy, Breyer sought to increase collaboration across the aisle. As he chased agreement over results, he quickly became the Republicans’ favorite Democrat.

After Jimmy Carter was defeated in the 1980 election, he nominated Breyer to a vacant seat on the First Circuit. Senate Republicans only had to stall for two months before Reagan would take office (and presumably nominate someone else). Republicans did not. Instead, they passed Breyer’s nomination overwhelmingly — 90–10.

A similar story played out when Bill Clinton was deciding who to nominate for the Supreme Court. Senate Republicans told Clinton there would be a huge sparring match if Clinton nominated someone radical. Breyer, who was originally not Clinton’s top choice, was finally nominated when Senate Republicans promised Breyer’s confirmation.

Stephen Breyer is the product of bipartisanship and will do everything to prevent divisions percolating our country. In his recent lecture at Harvard, he warned the public about the perils of politics on the judiciary.

I contended before that demanding Breyer to retire is wrong on principle. I do, however, understand the frustrations most Democrats face after Mitch McConnell’s invidious decision to block Merrick Garland’s hearing. No matter how zealously you want Biden to pick the next nominee, any coercion would likely only force Breyer to abandon retirement. He is a pragmatist — I am sure he would retire at a time he feels is right. Pushing the limelight towards him, however, would only delay his decision.



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