WASHINGTON – Longtime liberal Supreme Court Justice Stephen Breyer is retiring, numerous sources said Wednesday, giving President Joe Biden his first high court opening, which he has pledged to fill with the historic naming of the court's first Black woman.
Breyer, 83, has been a pragmatic force on a court that has grown increasingly conservative, trying to forge majorities with more moderate justices right and left of center. His retirement will give Biden the chance to name and win confirmation of a replacement before next fall's election when Republicans could retake the Senate and block future nominees.
Democrats are planning a swift confirmation, perhaps even before Breyer officially steps down, which is not expected before summer.
He has been a justice since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, he opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama's presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.
Breyer's departure won't change the 6-3 conservative advantage on the court because his replacement will almost certainly be confirmed by a Senate where Democrats have the slimmest majority. It will make conservative Justice Clarence Thomas the oldest member of the court. Thomas turns 74 in June.
Senate Majority Leader Chuck Schumer said Biden's nominee “will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.” A White House decision on a nominee could take several weeks, Biden aides and allies said.
Republicans who changed the Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.
Sen. Lindsey Graham of South Carolina, a Republican who previously chaired the Senate Judiciary Committee, said in a statement: “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.”
Liberal interest groups expressed relief. They have been clamoring for Breyer's retirement, concerned about confirmation troubles if Republicans retake the Senate.
“Justice Breyer's retirement is coming not a moment too soon, but now we must make sure our party remains united in support of confirming his successor,” Demand Justice Executive Director Brian Fallon said.
Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court judge. Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before South Carolina's presidential primary in 2020.
Biden's pledge to name the first Black woman to the Supreme Court was made during the 2020 presidential campaign. Since he took office a little more than a year ago, he has been focused on increasing racial, ethnic and experiential diversity in the lower federal courts.
He has doubled the number of Black women who serve on appellate courts just below the Supreme Court, with three more nominees pending.
Democratic Rep. Joyce Beatty of Ohio, the chairwoman of the Congressional Black Caucus, said, “We know that when America's boardrooms, legislatures and even the Supreme Court start to resemble America, we all benefit.”
Nomination of a Black woman could also help Biden politically with some of the Democratic Party's most important Election Day supporters. He has been criticized by black leaders and groups for failing so far to persuade the Senate to pass legislation shoring up voting rights that are being restricted in a number of Republican-led states.
The president wouldn't address reports of Breyer's retirement Wednesday.