The sound heard across the nation on Wednesday was America’s liberals heaving a sigh of relief.
Stephen Breyer is understood to be about to retire from the Supreme Court, where he has served nearly three decades. That means that President Biden will be able to replace him while the Democrats have control of the Senate.
Breyer, 83, is one of just three liberal justices currently on the Supreme Court. By retiring now and giving Biden a chance to replace him, Breyer is ensuring that Biden will get to pick the nominee. Mitch McConnell, the Senate minority leader, has suggested that were a justice to retire or die and Biden did not control the Senate, a Republican-controlled Senate would not confirm whoever he nominated to replace them.
There is no reason not to believe him. When Justice Antonin Scalia died in 2016 in the final year of Barack Obama’s second term as president, McConnell’s Senate refused to give Obama’s nominee, Merrick Garland, a hearing (Garland is now Biden’s attorney-general). Instead, Donald Trump got to fill that seat with Neil Gorsuch, a conservative. Then Justice Anthony Kennedy stepped down and he was replaced by Brett Kavanaugh, a conservative whose hearing was marred by accusations of sexual assault, and who was nevertheless confirmed to a lifetime appointment.
And when Ruth Bader Ginsburg died with weeks to go before the 2020 presidential elections, the Republicans who had refused to give Garland a hearing in the last year of Obama’s term rushed through the confirmation of Amy Coney Barrett in the last year of Trump’s. “Fairness,” the Republican Senator Mitt Romney said at the time, “is in the eye of the beholder.”
If Biden is indeed able to get his nominee through, the Supreme Court will still remain largely conservative. There are nine seats on the court, and still only three will be held by more liberal-minded justices. But three is more than two, and these are lifetime appointments — the court may undergo significant changes during that nominee’s term.
Eyes now turn to Biden to see who he will nominate and what their judicial record on issues from abortion rights to antitrust policy has been. He had pledged to put a black woman on the court. Ketanji Brown Jackson of the DC Circuit Court is one likely candidate, though not the only possibility. Biden’s announcement will be preceded by intense vetting and followed by what will almost certainly be contentious and politicised confirmation hearings.
After it all there will, probably, be another liberal justice on the Supreme Court. And that is because Breyer seems to have figured out what too many elder statesmen and women in Washington have not: sometimes, the best way to serve the country and cause is to step down.