Comments made by Senate Minority Leader Mitch McConnell have sparked Democrats to call for Supreme Court Justice Stephen Breyer to retire while the party still controls the House, the Senate, and the Presidency.
McConnell stated on the radio, “I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled.”
“So I think it’s highly unlikely. In fact, no, I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president.”
Political reporter for NBC Sahil Kapur posted on Twitter stating, “On Hugh Hewitt’s show, McConnell says it’s ‘highly unlikely’ he’d allow Biden to fill a Supreme Court vacancy in 2024 if he’s majority leader. He also doesn’t commit to allowing a vote on a nominee if a seat opened up in *2023*. ‘Well, we’d have to wait and see what happens.’”
Congresswoman Alexandria Ocasio-Cortez also stated to Dana Bash on CNN that she is “inclined to say yes” when asked if Justice Breyer should retire.
Articles from Slate, The Atlantic, and the New York Times have all discussed how a delayed retirement could result in another nomination from a Republican president. According to The Atlantic article titled, “Justice Breyer’s Legacy-Defining Decision” the Supreme Court needs an additional justice that is “progressive,” like Ruth Bader Ginsburg and Sonia Sotomayor.
“Now more than ever, the country needs to have another progressive justice on the Court who sees that reality and is willing to speak forthrightly to the American people in opinions, and perhaps even outside of them, about what is going on.”
“Ginsburg became a liberal icon—‘Notorious RBG’—with her passionate dissents on issues such as voting rights. Sotomayor has spoken with conviction about the impact that Court rulings have had on poor people and people of color. Breyer has not been that kind of critic.”
McConnell also pointed out to Hewitt that Justice Breyer agrees with Ruth Bader Ginsburg that nine Supreme Court Justices is the right number for the Supreme Court and think that court packing is a bad idea.
“You mentioned Justice Breyer. I do want to give him a shout-out. [H]e joined what Justice Ginsburg said in 2019 that nine is the right number for the Supreme Court. And I admire him for that. I think even the liberal justices on the Supreme Court have made it clear that court packing is a terrible idea.”
Justice Stephen Breyer was appointed to the Supreme Court in 1994 by President Bill Clinton. Breyer was an Assistant Special Prosecutor for the Watergate Special Prosecution Force in 1973, was a Judge for the United States Court of Appeals for the First Circuit from 1990-1994, has served as a Judge of the United States Sentencing Commission from 1985-1989 and much more.
He has been a professor at Harvard Law School, Harvard University Kennedy School of Government, and a Visiting Professor in Sydney Australia at the College of Law and the University of Rome.