Dana Perino of Fox News asked Jonathan Turley about how some Democrats are urging 82-year-old Justice Stephen Breyer to retire while Democrats have a majority in the Senate. Perino specifically cited Rep. Alexandria Ocasio-Cortez, who earlier agreed that Breyer should retire from the court after this current term, which ends this month.
“I believe that we should protect our Supreme Court, and that that should absolutely be a consideration,” she told CNN.
“Just to be clear, you do think justice Stephen Breyer should retire at the end of this term,” pressed Dana Bash.
“It’s something I think about, but, but, I would probably lean towards ‘yes.’ I would give more thought to it, but I’m inclined to say yes,” she said.
Turley, however, notes that it’s ultimately up to Breyer, and that he’s “not given any indication that he is retiring. But there is a real question here, whether Breyer and others on the court will push back a bit on this type of concerted campaign of saying ‘you need to retire’ or as the billboard said, ‘you put your legacy at risk.'”
Turley was referring to billboards in D.C. urging Breyer to step down from the court.
AOC is hardly the only Democrat who thinks Breyer should retire while Democrats have their slim majority in the Senate. Those calls have gotten louder since Senate Minority Leader Mitch McConnell said that if he becomes majority leader again in 2022 he will likely block Joe Biden from filling a Supreme Court vacancy if one occurs in 2024.
The Senate is split 50-50, meaning that any nominee would have to have 100 percent support from the Democratic caucus, which, former Obama speechwriter Jon Favreau notes, may not be as easy as it sounds.
Certainly feels good to yell online about this, but the only audience that really matters is Stephen Breyer, @JoeManchinWV, @kyrstensinema, and a handful of other Senate Dems who are hiding behind them.
Anyone got a plan to persuade that crew? https://t.co/JDx1P13yZs
— Jon Favreau (@jonfavs) June 14, 2021
But the apparent urgency Democrats feel about the Supreme Court is very telling, and suggests that they aren’t confident that they can build their majority in 2022. And that’s justifiable. Historically speaking, midterms are not great for the party in power, and given the mess that Joe Biden has created, my money is on Democrats having a terrible year in 2022. This means, at the very least, shoud a vacancy occur in 2023 or 2024, Joe Biden would not be able to put a hardcore liberal on the court, if anyone at all, depending on when and if a vacancy should occur.
This concerted campaign (as Turley put it) to pressure justices to retire now seems like a recognition that a bloodbath is coming. And the Clinton-nominated Breyer is definitely a likely candidate for retirement in the near future, given his age. Should Breyer retire and Biden nominates his replacement, it would not change the balance of the court. But if Biden is denied the opportunity to fill a Supreme Court vacancy, and a Republican wins in 2024, it is likely that multiple justices, Breyer included, may retire, potentially securing a conservative majority on the highest court in the country for a generation.
