Stephen Breyer, 83, to retire from SCOTUS after 27 years 1

Stephen Breyer, 83, to retire from SCOTUS after 27 years

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President Joe Biden will keep his campaign promise to name a black woman to the Supreme Court, the White House confirmed on Wednesday amid reports Justice Stephen Breyer will step down at the end of the current term.

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The current court term will end in June or early July. Biden pledged during the 2020 presidential campaign to name a black woman as justice. 

‘The president has stated and reiterated his commitment to nominating a black woman to the Supreme Court and certainly stands by that,’ White House press secretary Jen Psaki said at her daily press briefing.

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The pick would be historic, marking the first time a black woman was named to the highest court in the land.

Breyer, 83, is one of the three remaining liberal justices, is the oldest member of the court and has been under pressure to step down in order to let Biden appoint his replacement. 

Liberal activists fretted that Justice Ruth Bader Ginsburg stayed on the Supreme Court too long despite her history of health problems – including a bout of pancreatic cancer – and should have stepped down during the last year of Barack Obama’s administration.

Obama himself had her to lunch in 2013 to take her temperature on retirement amid fears Democrats would lose the 2014 midterms (which they did). Ginsburg stayed on the bench, resisting pressure to retire. When she died in 2020, President Donald Trump appointed a conservative, Amy Coney Barrett, to fill her seat, moving the court further to the right.

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Biden refused to comment on reports of Breyer’s retirement, noting Breyer himself has made no announcements.

‘There have been no announcements from Justice Breyer,’ Biden said at a White House event. ‘Let him make whatever statement he’s going to make, and I’ll be happy to talk about it later.’ 

Breyer told Biden last week of his intention to retire and indicated he would follow up with an official letter, Politico reported.

Breyer’s decision to retire after more than 27 years on the court allows Biden to appoint a successor who could serve for several decades. Biden’s appointee should maintain the current 6-3 split between conservative and liberal justices.

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His pick is expected to be fast-tracked through the confirmation process. 

Senate Democrats are promising a swift vote in order to get the nominee confirmed before the November midterm election in case Republicans win control of the Senate. 

Justice Stephen Breyer will step down from the Supreme Court at the end of the current term

Justice Stephen Breyer will step down from the Supreme Court at the end of the current term

Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, Associate Justice Amy Coney Barrett, Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor pose for a group photo at the Supreme Court in April 2021

Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, Associate Justice Amy Coney Barrett, Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor pose for a group photo at the Supreme Court in April 2021

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Senate confirmation process for new Justice 

After President Joe Biden names his pick for the Supreme Court, his nominee must be Senate confirmed.

Democrats hold the advantage given their control of 50-50 split chamber. 

The first step in the process is for the nominee to make visits to senators’ office. Then the Senate Judiciary Committee will hold confirmation hearings.

The entire Senate would then vote for or against the nominee’s confirmation.

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Democrats will be expected to toe the line and support Biden’s pick, even rogue Democratic Senators Joe Manchin and Kyrsten Sinema would be expected to be ‘yes’ votes. 

If all Republican senators oppose the nominee, Vice President Kamala Harris would cast the tie-breaking vote.

And Republicans won’t be able to filibuster the nominee thanks to their own actions. 

In April 2017, then-Senate leader Mitch McConnell ended the filibuster rule for Supreme Court nominees, letting them advance to a final vote on a simple majority. He did it to help the confirmation of President Trump’s Supreme Court nominee Neil Gorsuch.

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The White House said it was up to Breyer to announce his future plans.

‘It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today. We have no additional details or information to share from @WhiteHouse,’ press secretary Jen Psaki tweeted. 

Biden is expected to act quickly to nominate a successor who can be ready to serve when the court’s new term begins Oct. 3. 

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Senate Democratic Leader Chuck Schumer said Biden’s pick would be confirmed with ‘all deliberate speed.’

‘President 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,’ Schumer said in a statement on Wednesday. 

Biden can name his pick once Breyer announces his retirement and Senate Democrats can begin to hold hearings even if Breyer isn’t formally stepping down until this summer.

The president is a former chairman of the Senate Judiciary Committee so he knows how the confirmation process works and has presided over many a confirmation hearing. 

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The process can be done a warp speed.  

Senate Republicans rushed to get Justice Amy Coney Barrett approved before the 2020 election, getting it done in a month and a half.

Even some Republicans are acknowledging the inevitability of Biden getting his court pick. 

Sen. Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee noted 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.’ 

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Justice Breyer told the New York Times in August that he was struggling with the question of when to step down.

‘There are many things that go into a retirement decision,’ he said.

He then recalled some advice Justice Antonin Scalia had given him.

‘He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’ Breyer. ‘That will inevitably be in the psychology’ of his decision, he said.

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‘I don’t think I’m going to stay there till I die — hope not,’ he noted.

Biden, during the presidential campaign, pledged to appoint a black woman to the court.

‘As president, I’d be honored, honored to appoint the first African American woman. Because it should look like the country. It’s long past time,’ Biden said in February 2020 shortly before South Carolina’s presidential primary. 

Federal Judge Ketanji Brown Jackson is said to be a top contender for a Supreme Court nomination

Federal Judge Ketanji Brown Jackson is said to be a top contender for a Supreme Court nomination

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Leondra Kruger, a justice on California’s Supreme Court, is said to be a top contender for a Supreme Court nomination

Leondra Kruger, a justice on California’s Supreme Court, is said to be a top contender for a Supreme Court nomination

Another possible nominee is Judge J. Michelle Childs, of the Federal District Court in Columbia, S.C.

Another possible nominee is Judge J. Michelle Childs, of the Federal District Court in Columbia, S.C.

Stephen Breyer, 83, to retire from SCOTUS after 27 years 2

Outside the White House, then-US Court of Appeals Chief Judge Stephen Breyer (left) stretches his legs as President Bill Clinton waits, prior to jogging together in May 1994 - Clinton would ultimately appoint Breyer to the Supreme Court

Outside the White House, then-US Court of Appeals Chief Judge Stephen Breyer (left) stretches his legs as President Bill Clinton waits, prior to jogging together in May 1994 – Clinton would ultimately appoint Breyer to the Supreme Court

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BIDEN’S SCOTUS CHOICES INCLUDE JUDGE WHO PROVOKED REPUBLICANS AND STACEY ABRAMS’ SISTER

With 83-year-old Supreme Court Justice Stephen Breyer’s retirement, President Joe Biden now has the change to make history by nominating the first ever black, female Justice to the highest U.S. court. Here are the three contenders at the top of the president’s list:

D.C. Circuit Judge Ketanji Brown Jackson

Biden already elevated Jackson last year from her previous post as a judge on the federal district court in Washington, D.C., where she remained from 2013-2021. Jackson now serves as a circuit judge for the U.S. Court of Appeals for the District of Columbia Circuit – arguably the second most powerful federal court in the country.

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Jackson, 51, earned her law degree from Harvard and, fittingly, clerked for Breyer. She is also married to the brother-in-law of former Republican House Speaker Paul Ryan. She has two daughters with her husband Patrick Jackson, whom she married in 1996.

During her time as a judge, Jackson has ruled on many high profile cases. She was part of the decision to order former Trump White House counsel Don McGahn to comply with the House of Representatives’ subpoena as part of its impeachment inquiry into then-President Donald Trump.One line in the ruling impressed Democrats: ‘The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.’

Jackson also signed the recent opinion ordering Trump White House documents be disclosed to the January 6 select committee. 

California Supreme Court Justice Judge Leondra Kruger

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Kruger served under President Barack Obama as acting Principal Deputy Solicitor General from May 2010- June 2011 where she argued 12 cases in front of the Supreme Court. During her time at the Department of Justice, Kruger earned in both 2013 and 2014 the Attorney General’s Award for Exceptional Service, which is the agency’s highest employee award.

The 45-year-old judge clerked for late Justice John Paul Stevens who served on the Supreme Court from 1975 to 2010 and died in 2019.

She was also the youngest person appointed to the California Supreme Court when then-Governor Jerry Brown nominated her in 2014, where she still sits as an associate judge. On this court, Kruger has authored a few notable opinions, including banning law enforcement from searching a woman’s purse without a warrant.

Kruger also upheld a California law requiring law enforcement to collect DNA samples and fingerprints from people arrested or convicted of felony offenses.

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South Carolina US District Court Judge J. Michelle Childs

Childs, 55, reportedly has the backing of Biden-ally House Majority Whip James Clyburn to replace Breyer. The U.S. District Court of South Carolina judge was nominated last month by Biden to the Court of Appeals for the District of Columbia Circuit, nut the nomination is still pending.

With a South Carolina School of Law degree, Child doesn’t have the Ivy League education that eight of the nine current justices hold – a breath of fresh air that advocates for her nomination tout as an advantage in making the Democratic party appear less elitist.

Child spent a decade in private practice and as a state court trial judge in the South Carolina Circuit. Also in her tenure she was deputy director of the South Carolina Department of Labor, Licensing and Regulation, and commissioner on the South Carolina Workers’ Compensation Commission.

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Others under consideration:

Judge Leslie Abrams Gardner, serves on Georgia’s district court and is the sister of the voting-rights advocate Stacey Abrams. 

District Judge Wilhelmina ‘Mimi’ Wright, Judge on Minnesota’s federal district court.

Circuit Judge Eunice Lee, U.S. Circuit Judge of the Court of Appeals for the Second Circuit.

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Circuit Judge Candace Jackson-Akiwumi, U.S. Circuit Judge of the Court of Appeals for the Seventh Circuit.

Sherrilyn Ifill, the attorney recently announced plans to step down from her role as President and Director-Counsel of the NAACP Legal Defense Fund.

Holly Aiyisha Thomas, judge for the U.S. Court of Appeals for the Ninth Circuit.

What about Kamala Harris?

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Rumors have emerged over the last year amid turmoil in the White House that President Joe Biden could dump Kamala Harris as his vice president by nominating her to the Supreme Court should a vacancy emerge. With news of Breyer’s retirement this week, speculations that she could join the court have reemerged.

White House Press Secretary Jen Psaki did not rule out on Wednesday the possibility that Biden could consider Harris for the vacant Supreme Court position. She did, however, clarify that Biden intends to run for reelection in 2024 with Harris on the ticket as his No. 2.

Harris was the district attorney for San Francisco from 2004-2011 and was attorney general of California from 2011-2017. From there she became a senator for the Golden State but didn’t finish her first term before being inaugurated as the first female and black vice president in January 2021.  

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Among likely contenders are federal Judge Ketanji Brown Jackson and Leondra Kruger, a justice on California’s Supreme Court. 

Jackson, 51, was confirmed by the Senate 53-44 in June to the federal bench and previously served as a law clerk for Justice Breyer. She succeeded Merrick Garland, who left the appeals court to become Biden’s attorney general. Three Republican senators voted for her confirmation: Lindsey Graham, Susan Collins and Lisa Murkowski.

She was on President Obama’s shortlist for the court in 2016. She is the sister-in-law of former House Speaker Paul Ryan.

She rceived a J.D., cum laude, from Harvard Law School in 1996, where she served as a supervising editor of the Harvard Law Review. She received an A.B., magna cum laude, in Government from Harvard-Radcliffe College in 1992.

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From 2005 to 2007, Jackson was an assistant federal public defender in the District of Columbia where she handled cases before U.S. Court of Appeals for the District of Columbia Circuit. From 2007 to 2010, Jackson was an appellate litigator at Morrison & Foerster, a private law firm.

On July 23, 2009, President Barack Obama nominated Jackson to become Vice Chair of the U.S. Sentencing Commission. During her time on the commission, it retroactively amended the Sentencing Guidelines to reduce the guideline range for crack cocaine offenses, and it enacted the ‘drugs minus two’ amendment, which implemented a two offense-level reduction for drug crimes.

Kruger, 45, earned a Bachelor of Arts degree magna cum laude from Harvard University. She graduated with a J.D. from Yale Law School, where she served as Editor-in-Chief of the Yale Law Journal.

She clerked for Supreme Court Justice John Paul Stevens from 2003 until 2004.

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From 2004 to 2006, Kruger was an associate at Wilmer, Cutler, Pickering, Hale and Dorr in Washington, D.C. She was a visiting assistant professor in 2007 at the University of Chicago Law School.

From 2007 to 2013, Kruger was an assistant to the United States Solicitor General and the acting principal deputy solicitor general. She argued 12 cases before the Supreme Court, and worked on dozens more, including the landmark case defending the Affordable Care Act, National Federation of Independent Businesses v. Sebelius.

In 2013, Kruger became a deputy assistant attorney general at the United States Department of Justice’s Office of Legal Counsel.

Governor Jerry Brown appointed her to California’s state Supreme Court in 2014 even though she had no prior judicial experience before her appointment.

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Another possible contender is Judge J. Michelle Childs, of the Federal District Court in Columbia, S.C.

She is a graduate of the University of South Carolina’s law school and a former law firm partner who also worked in state government. 

Some activists have pushed her name, arguing Biden should consider nominees without Ivy League degrees or Supreme Court clerkships but with a diversity of experience.

She is said to be a favorite of Democratic Rep. James Clyburn, whose endorsement of Biden in South Carolina’s 2020 presidential primary put him over the top, giving him a win in the state and saving his candidacy. 

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In December, Biden said he would name Childs to fill a vacancy on the D.C. Circuit, a sign that she may be a serious contender for Breyer’s seat.

Other possibilities include: 

District Judge Wilhelmina ‘Mimi’ Wright, a judge on Minnesota’s federal district court.

Circuit Judge Eunice Lee, a former New York public defender whom Biden nominated to the Second Circuit.

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Circuit Judge Candace Jackson-Akiwumi, an alumna of Chicago’s public defender’s office whose appointment by Biden to the Seventh Circuit.

Judge Holly Thomas, a longtime civil rights lawyer Biden named to the U.S. Court of Appeals for the 9th Circuit.

Sherrilyn Ifill, a civil rights attorney who recently announced plans to step down from her role as President and Director-Counsel of the NAACP Legal Defense and Educational Fund.

The Biden administration has so far nominated eight black women to the U.S. Court of Appeals with five of them being confirmed so far. 

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The women who have been confirmed include Ketanji Brown Jackson, Candace Jackson-Akiwumi, Tiffany P. Cunningham, Eunice C. Lee and Holly A. Thomas. 

His nominations of J. Michelle Childs, Arianna J. Freeman and Nancy Abudu are currently pending. 

STEPHEN BREYER: THE OLDEST SCOTIS MEMBER WHO MARRIED A BRITSH ARISOCRAT

Stephen Breyer, the oldest justice on the US Supreme Court and the senior member of the bench’s liberal-leaning wing, boasts a record of pragmatism in the hundreds of opinions he has authored in his long career.

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The bespectacled California native, aged 83, was nominated to the nation’s highest court by Democratic former president Bill Clinton, and US media reported Wednesday that he plans to retire at the end of the current term in June.

He has spent more than 25 years on the nine-member bench, which towards the end of his tenure has firmly leaned to the right of the political spectrum.

But being in the minority has not dimmed his jovial nature or passion for the work of the court. Breyer has insisted in his rulings on assessing real-world implications when deciding cases, rejecting the strict reading of the Constitution favored by some of his peers.

Breyer — who carries an annotated copy of the Constitution with him in his jacket pocket — is a fierce opponent of the death penalty, and has ruled in favor of abortion rights, same-sex marriage and environmental protection.

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He has bristled at the notion of partisanship on the court.

‘My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,’ he said in a 2021 lecture at Harvard Law School, his alma mater.

‘They are loyal to the rule of law, not to the political party that helped to secure their appointment.’

Stephen Breyer is the oldest justice on the US Supreme Court and the senior member of the bench's liberal-leaning wing

Stephen Breyer is the oldest justice on the US Supreme Court and the senior member of the bench’s liberal-leaning wing

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Justice Stephen Breyer and his wife Joanna stand during a private ceremony for Justice Ruth Bader Ginsburg, who lay in repose at the Supreme Court on September 23, 2020

Justice Stephen Breyer and his wife Joanna stand during a private ceremony for Justice Ruth Bader Ginsburg, who lay in repose at the Supreme Court on September 23, 2020

Justice Stephen Breyer (R) greets Prince Charles (C) of Britain as he arrives at the U.S. Supreme Court to attend a reception for the Marshall scholarship alumni on May 3, 2011

Justice Stephen Breyer (R) greets Prince Charles (C) of Britain as he arrives at the U.S. Supreme Court to attend a reception for the Marshall scholarship alumni on May 3, 2011

– From Harvard to high court –

Born on August 15, 1938 in San Francisco, Breyer was educated at Stanford, Oxford and Harvard — a prestigious academic career that challenged his keen intellect.

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He began his legal career in 1964 as a clerk to then-Supreme Court justice Arthur Goldberg and then spent time working in the Justice Department on antitrust matters, before serving as an assistant special prosecutor on Watergate in 1973.

He taught at Harvard University until 1980, when he got the nod from then-president Jimmy Carter to serve on the federal court of appeals in Boston, where he remained for more than a decade, eventually becoming its chief judge.

Breyer was initially considered for a Supreme Court spot in 1993, but his candidacy was marred by a revelation that he had failed to pay taxes for a part-time housekeeper.

A year later, he became Clinton’s second nominee to the high court, after Ruth Bader Ginsburg. The pair would end up shoring up the liberal-progressive wing of the court for more than two decades.

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– Supreme Court tenure – 

Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion rights on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.

Breyer´s views on displaying the Ten Commandments on government property illustrate his search for a middle ground. He was the only member of the court in the majority in both cases in 2005 that barred Ten Commandments displays in two Kentucky courthouses but allowed one to remain on the grounds of the state Capitol in Austin, Texas.

In more than 27 years on the court, Breyer has been an active and cheerful questioner during arguments, a frequent public speaker and quick with a joke, often at his own expense. He made a good natured appearance on a humorous National Public Radio program in 2007, failing to answer obscure questions about pop stars.

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He is known for his elaborate, at times far-fetched, hypothetical questions to lawyers during arguments and he sometimes has had the air of an absent-minded professor. He taught antitrust law at Harvard earlier in his professional career.

He also spent time working for the late Sen. Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a firm believer in compromise.

Still, he could write fierce dissents, as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to return the case to the Florida courts so they could create ‘a constitutionally proper contest’ by which to decide the winner.

And at the end of a trying term in June 2007 in which he found himself on the losing end of roughly two dozen 5-4 rulings, his frustrations bubbled over as he summarized his dissent from a decision that invalidated public school integration plans.

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‘It is not often that so few have so quickly changed so much,’ Breyer said in a packed courtroom, an ad-libbed line that was not part of his opinion.

His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals court judge in Boston, and he was confirmed with bipartisan support even after Carter´s defeat for reelection in 1980. Breyer served for 14 years on the 1st U.S. Circuit Court of Appeals before moving up to the Supreme Court.

His 87-9 high-court confirmation was the last with fewer than 10 dissenting votes.

Breyer´s opinions were notable because they never contained footnotes. He was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.

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‘It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision,’ Breyer once said. ‘It´s not to prove that you´re right. You can´t prove that you’re right; there is no such proof.’

President Barack Obama, first lady Michelle Obama, Vice President Joe Biden, Supreme Court Associate Justices Stephen Breyer and Ruth Bader Ginsburg at a White House event honoring Jewish American Heritage Month on May 27, 2010

President Barack Obama, first lady Michelle Obama, Vice President Joe Biden, Supreme Court Associate Justices Stephen Breyer and Ruth Bader Ginsburg at a White House event honoring Jewish American Heritage Month on May 27, 2010

Supreme Court Justices Ruth Bader Ginsburg (L) and Stephen Breyer chat before President Barack Obama's address to a joint session of Congress on February 24, 2009

Supreme Court Justices Ruth Bader Ginsburg (L) and Stephen Breyer chat before President Barack Obama’s address to a joint session of Congress on February 24, 2009

– ‘Not my job’ –

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Upon Joe Biden’s arrival in the Oval Office, Breyer found himself drawn into a perennial discussion when the White House changes hands — should older justices retire when a president of their own political persuasion takes office?

Biden’s predecessor Donald Trump had appointed three justices to the Supreme Court, sealing a 6-3 right-leaning majority.

But Breyer has repeatedly decried injecting politics into the court, and did not answer the call from liberals to leave his lifetime appointment to ensure a like-minded replacement.

‘If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power,’ he said in 2021.

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In an interview with AFP in 2016, Breyer — who is a Francophile and speaks fluent French — refused even to say what qualities an ideal candidate for the court would possess.

‘I can’t suggest who the president should appoint. It’s not my job,’ Breyer said.

‘Asking me a question about who should be appointed or how that process works is like asking for the recipe for chicken a la king from the point of view of the chicken,’ he quipped.

Breyer is married to psychologist Joanna Hare, a member of the British aristocracy and daughter of the late British Conservative leader John Blakenham. They have three children.

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– Agence France Presse and Associated Press

President Bill Clinton nominated Stephen Breyer to the Supreme Court on May 16, 1994

President Bill Clinton nominated Stephen Breyer to the Supreme Court on May 16, 1994

 

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