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Biden didn’t push Supreme Court Justice Stephen Breyer to retire, felt an aggressive campaign would misfire: report

President Joe Biden, with retiring US Supreme Court Justice Stephen Breyer, speaks in the Roosevelt Room of the White House in Washington, DC, on January 27, 2022.

Saul Loeb/AFP via Getty Images

  • President Biden did not personally push for Breyer to retire from the Supreme Court, per The NYT.
  • Biden told his advisors that an attempt to force Breyer’s hand could misfire, per the report.
  • Many progressives for had called on Breyer to step down, fearful of a more conservative court.

When President Joe Biden formally announced on Thursday that Justice Stephen Breyer would retire from the Supreme Court at the end of his term later this year, it was a full-circle moment for both men.

After Breyer was nominated by President Bill Clinton to succeed retiring Justice Harry Blackmun in 1994, Biden — in his capacity as the chairman of the Senate Judiciary Committee — led the confirmation process of the then-appeals court judge.

This week, the president — nearly 28 years removed from Breyer’s successful confirmation to the court — ruminated on the unique moment in the Roosevelt Room at the White House before the jurist delivered his remarks.

“We were joking with one another when he walked in: Did we ever think that he would have served decades on the Court and I’d be President of the United States on the day he came in to retire?” Biden said. “And he looked at it — anyway, I won’t tell you what he said. I’m joking.”

The president quipped about the rather unusual circumstance, but his high regard for Breyer remained steadfast over the years — a major factor in his refusal to pressure the justice to retire from the bench, according to The New York Times.

Breyer — who will leave behind a highly consequential legacy as a moderate liberal on the court — in recent months faced intense calls by liberal groups to step down from the bench to clear the way for Biden to appoint a younger justice.

With conservatives holding a 6-3 edge on the court and a Democratic-controlled Senate that could potentially flip to the Republican Party after the 2022 midterm elections, activists were worried that a GOP majority would block a potential Biden nominee and hold open any vacancies through the 2024 presidential election if a replacement for Breyer isn’t appointed within coming months. 

The death of Ruth Bader Ginsburg just weeks before the 2020 election allowed then-President Donald Trump to install Amy Coney Barrett to the court, quickly shifting the late justice’s seat from one led by a liberal icon to that of a jurist championed by the conservative movement. 

And the prospect of a 7-2 conservative court sent progressives into overdrive, with activists determined to prioritize the judiciary in the way that Republicans had done so over the last few decades.

Joe Biden Stephen Breyer Ted KennedyThen-Senate Judiciary Committee Chairman Joe Biden, right, talks to then-Supreme Court nominee Stephen Breyer, center, and then-Sen. Edward Kennedy of Massachusetts on May 17, 1994. Kennedy escorted Breyer around Capitol Hill to meet with lawmakers.

AP Photo/John Duricka, File

‘A judge’s loyalty is to the rule of law’

Biden — who represented Delaware in the Senate for 36 years — wanted Breyer to step down so that he could make an appointment, but he wasn’t willing to force the justice’s hand and directed his advisors not to engage in any sort of pressure campaign, according to the Times report.

In addition to his respect for Breyer as an individual, the president also has reverence for the role of a Supreme Court justice and felt that pleas for the jurist’s retirement might misfire, especially in light of liberal groups already asking for him to step down, per the Times.

Last August, Breyer told The New York Times that he was still pondering when he’d retire.

“I don’t like making decisions about myself,” Breyer said at the time.

In his book released last year, “The Authority of the Court and the Peril of Politics,” the justice spoke of the more surprising rulings that have come from the court, pointing out that the jurists often seek consensus on a range of issues despite perceived ideological fissures.

“My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote in the book. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

Despite Breyer’s feelings, many on the left have referenced a 2013 White House lunch featuring then-President Barack Obama and Ginsburg, where the then-president spoke of the upcoming 2014 midterm elections and the possibility of Democrats losing their majority and imperiling the chance to make a potential replacement, per The New York Times.

The Times also reported that Biden didn’t directly ask Ginsburg to retire, but the implications of major changes in the makeup of the Senate were apparent. However, Ginsburg remained on the court until her death in September 2020 at age 87.

Biden didn’t entertain Breyer in any such way, according to The Times.

When Breyer hand-delivered his resignation letter to the White House this week, it was the first time that the two men had spoken since Biden took office in January 2021, per The Times.

The justice’s announcement was received well by Demand Justice, a liberal advocacy that had been aggressive in its campaign calling for Breyer to step down so Biden could nominate a successor.

Brian Fallon, the executive director of the group, told The Times that they were “relieved that he made the decision that he did,” while also noting that the gentlemanly posture regarding judicial retirements was too mired in the past.

“I think that the idea of remaining silent in a situation like this is characteristic of a hands-off approach that Democrats have taken with the court in general that is very much outdated now,” he told the newspaper.

Biden this week recommitted to an earlier campaign pledge of nominating the first Black woman to the Supreme Court, a historic appointment that will likely not shift the ideological balance of the court but will allow the president to replace Breyer with a jurist that could serve for decades.

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