After Stephen Breyer, who?

What to expect from Biden's first appointment and the Senate's confirmation

I first met Stephen Breyer in the 1980s when he taught at Harvard Law School and I at Harvard’s Kennedy School. He has always been witty, intelligent, thoughtful, curious, and careful in all he does. His decision today to retire from the Supreme Court reflects most of these qualities (I expect some witticisms from him later this week when he makes it official).

Breyer is well aware that Justice Ruth Bader Ginsburg’s refusal to step down gave Trump his third opportunity to nominate a Justice when the Senate was still under the firm control of Mitch McConnell (resulting in the confirmation of Amy Coney Barrett in record time). Breyer doesn’t want to make the same mistake, should the Senate turn Republican next year.

Breyer was appointed to the Supreme Court by Bill Clinton in 1994, largely because Ted Kennedy – a liberal lion in that chamber – pushed Clinton to appoint him. (Joe Biden was chair of the Senate Judiciary Committee at the time.)

But Breyer was and is no leftie. He had worked with Kennedy on deregulating airlines, trucking, and other industries where the cost of regulation (in terms of higher consumer prices and worse services) exceeded the public benefits of regulation – a sensible but hardly “left” position. On the Court he has continued to think largely in cost-benefit terms, making him the most conservative of the three Democratic appointees now on the Court. And he has also been more likely to vote against criminal defendants than other liberal justices.

With six Republican conservatives now in full control of the Court, replacing Breyer with another liberal would not change the Court’s balance or its rightward trajectory on abortion, gun rights, religion and affirmative action. But if Biden were to choose a justice to the left of Breyer on other issues -- racial and economic inequality, criminal justice, abortion, and the role of big money in politics -- that new justice could help lay the groundwork for an ideological shift in the Court at some point in the future.

But here’s where the conservative Democrats (Manchin, Sinema, and a few others) will have disproportionate say once again, since Democrats still control the Senate by the narrowest of margins. No Republican will vote for a Biden nominee, whomever Biden chooses — thereby putting conservative Democrats in the drivers’ seat.

As a candidate for the Democratic nomination, Biden vowed to appoint a Black woman to the court if he were elected president. (He made the promise at a debate in February 2020, just days before winning the South Carolina primary that helped jump-start his flagging campaign.) The two most likely candidates are Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit (who graduated from Harvard Law School and served as a law clerk to Breyer), and Justice Leondra R. Kruger of the California Supreme Court, who graduated from Yale Law School and served as a law clerk to Justice John Paul Stevens.

But this doesn’t rule out someone else — Kamala Harris? Stacey Abrams? Anita Hill? Oh, and don’t rule out Barack Obama (who taught constitutional law at Harvard Law School). There’s a precedent: William Howard Taft was elected the 27th President of the United States (1909-1913) and later became the tenth Chief Justice of the United States (1921-1930).

Regardless of whom Biden nominates, expect the right to attack with everything it has. America hasn’t been this divided since the Civil War. And ever since Robert Bork’s nomination, Supreme Court appointments have provided a vehicle for the most extreme and bitter forms of partisan warfare. As Lindsey Graham noted today, “If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support. Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”

Buckle up.