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The Ill-Advised Progressive Push to Get Stephen Breyer Off the Supreme Court

avatar by Martin Peretz


FILE PHOTO: Associate Supreme Court Justice Stephen Breyer arrives for the swearing in ceremony of Judge Neil Gorsuch as an Associate Supreme Court Justice in the Rose Garden of the White House in Washington, U.S., April 10, 2017. REUTERS/Joshua Roberts/File Photo

If you need to have someone to censure for the current makeup of the US Supreme Court, there is no one more to chide than the late, ultraliberal, and quintessential brainy Jewish legal scholar Ruth Bader Ginsburg.

Of course, she knew she would not live forever, and she knew that long before Donald Trump ascended to the presidency. Indeed, his predecessor Barack Obama had raised the matter of her resigning long in advance of the expiration of his first term, while the Democrats still had a small but axiomatic majority in the U.S. Senate. Ginsburg dismissed this concern — she reasoned that she could do the job better than anyone else.

But now Amy Coney Barrett fills her seat, solidifying a conservative majority on the bench. And so today, with a new and narrow Senate majority, some Democrats have — both out loud and sotto voce — proposed that Stephen Breyer, who has been on the Court since 1994, leave the court. They want him out, more or less now, so that President Biden can be sure he has a Democratic majority to confirm his nominee.   

Democrats are taking no chances with their Republican counterparts. It used to be (those were the days…) when some senators deserted their president and voted against his wishes. Utah Senator Mitt Romney is the only one today willing to do so when it comes to President Trump, as a former Republican governor of Massachusetts and Republican candidate against Obama for president.  In the coming days there will be more like him; per force of political circumstance, more “independent” Republicans. But the Democrats aren’t willing to risk that independence over a precious Supreme Court seat.

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For the Democrats, there is also the matter of ideology: now president-elect Biden has pledged to designate a black women to the next open seat, a pledge made back in June before he clinched the nomination. There is one Black man on that bench — an older black man, Clarence Thomas — and, at least for Democrats and liberals, he is a standing scandal.

In any event, no other Black American has been nominated to the Court since, which President-elect Biden has pledged to remedy. I suppose one could lament there is no one sick on the bench, at the very least to talk up the various contenders, which is just what is happening now: District Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger are the two most often mentioned.

But Democrats are doing more. A political crusade has been launched both inside and outside Biden’s political circle to get a black woman justice on the Court, and fast. (Stacy Abrams has even been mentioned.)  And that pressure is on Justice Breyer…or is meant to be.

Justice Breyer has given no indication that he is actually prepared to quit. In fact, he has affirmed that he is not about to resign, although he has suggested that his intentions do not include dying on the  bench. That should be enough for the ultra-anxious; after all, his health is, if not perfect for a man of 82, pretty damn close. No one has noticed otherwise (and there are many watchers of the court and watchers of the health of the Supremes). In fact, the one malady everyone has noticed that he has had is a fractured shoulder due to a bike accident.

But establishment and progressive Democrats have recently made aging a political issue, for what may not be the purest of reasons. Dianne Feinstein, The New Yorker‘s Jane Mayer reported in a December 2020 piece that was primarily based on anonymous sources, is losing her memory. She should, progressives said after the piece was released, resign before her term is up in 2025, passing the reins to a younger, more progressive generation.

Now it is the moderate liberal Justice Breyer’s turn. In an interview with the justice a few weeks ago for a series entitled “80 over 80,” Dahlia Lithwick of Slate not too subtly opened the interview with a reference to memory loss, and closed it asking, “with all due respect,” about the notion that “justices are just sitting around too long and they’re too old to do their jobs.” Justice Breyer was witty but pointed in response, noting that he’s always admired that the Chinese respect old people. But how long can one withstand well-intentioned and not so well-intentioned duress?

The duress is the problem. Democrats seem determined to respond to Donald Trump’s self-destructive thrashings by going for broke themselves, fancying themselves hardball political players while ignoring political reality. Because the political reality is that moderation still exists, in congress and the Court, and going for broke is not at all necessary on this issue.

In the Senate, there are at least three Republican senators besides Mitt Romney who are extremely likely to grant the new president deference in a Supreme Court appointment, were the Senate to switch hands: Susan Collins of Maine, Lisa Murkowski of Alaska, and Ben Sasse of Nebraska. They are, believe it or not, genuine members of the dying moderate tribe.

And the Supreme Court itself is more moderate than the liberal caricatures would have it. Consider the landmark decision last year protecting gay and transgender people under Title VII of the Civil Rights Act. Neil Gorsuch, a Trump appointee, and John Roberts, a George W. Bush appointee, joined the more liberal justices to make up the 6-3 ruling. Or consider the momentous 7-2 ruling — with the more conservative justices joined by Obama and Clinton appointees Elena Kagan and Stephen Breyer, respectively — that reinforced ministerial exemptions for religious schools when it came to hiring and firing faculty and staff. The judges’ reasons for reaching their similar conclusions were different and specific; Justice Gorsuch’s originalist reasoning was not the same in the ministerial exemption case as Justice Kagan’s, because Kagan sees the Constitution as more adaptable over time — proof that they reached their consensus conclusions with focus and care.

These moderate senators and these careful, specific judges are still doing the work of democracy, which is about making component parts into a greater whole not by war but by suasion. They are proof that the notion of politics as inevitable war is still a fantasy. But fantasy makes reality, at least political realities, especially when it brings in fund-raising: the groups who are calling for Justice Breyer’s resignation are raising money off of it, and are advancing their own standing in a Democratic coalition hungry, after the Trump era, for blood. To slake it, they are willing to treat specific legal minds as expendable, and to make age the reason for their expendability. And so, operating on their fantasy, these groups make political war the increasing reality.

I have known Justice Breyer for many years, and, like Justice Ginsburg decided about herself, I think he can do the job better or at least as well as anyone else; it’s been proven. So it’s more than a bit obscene having “progressive” groups like Demand Justice and various media outlets lining up to throw out a Jewish justice to replace him with, as it happens, one of several female Black jurists.

It doesn’t make the Democrats a more inclusive party — quite the opposite. Tensions between the Jewish and Black communities in the liberal constellation are well known: recently, Jon Ossoff and Rafael Warnock’s twin victories in Georgia have suggested to some that these tensions are overcome, with the alliance between the black minister at Martin Luther King’s old church, Ebenezer Baptist in Atlanta, and the 33-year-old Jewish filmmaker. But even in this pair there is still lurking some tension around Israel, due to Warnock’s falling into the trap — and I give him the benefit of the doubt that it is not exactly his own formulations, although he said them — that the Jewish state has the right to exist but that “I saw non-violent Palestinian young  folk fighting for their basic dignity and humanity and they’re told to be silent and just die quietly…”  (My formulation: he did not see any of this.) Despite appearances, the alliance may be very much up in the air, and on the edge.

In this context, what does it say that, partly in the name of racial progress, a respected justice may be pressured off a Supreme Court where he has served as a moderating force? Politicizing the Court even more will only increase tensions between Democrats and Republicans, as politics becomes a zero-sum game. And it will only increase tensions within the Democratic coalition, as the progressive focus on identity above all else becomes the party’s main philosophy.

Martin Peretz was editor-in-chief of The New Republic from 1974 to 2013.

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