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October 2, 2023

Thank you, Justice Breyer, for not repeating Ruth Bader Ginsburg’s mistake

Thank you, Justice Breyer, for not repeating Ruth Bader Ginsburg’s mistake

Democrats finally got some good news Wednesday, and it came from the unlikeliest of places: the Supreme Court.

Breyer’s swan song is a relief for the many Democrats who feel the late Justice Ruth Bader Ginsburg made a tragic mistake by refusing to retire.

After a year of Democrats cursing the court as the place where President Joe Biden’s key policy priorities go to die, Justice Stephen Breyer surprised pundits and lawmakers alike by announcing his impending retirement from the federal bench. Breyer’s retirement offers Democrats the chance to turn an election-year Supreme Court nomination into prime-time political theater, which Democrats desperately need after a year when Republicans and the media have focused on the party’s failures and missteps. It also gives Biden the chance to make good on his pledge to put the first Black woman on the nation’s highest court.

Breyer’s swan song is a relief for the many Democrats who feel the late Justice Ruth Bader Ginsburg made a tragic mistake by refusing to retire, despite multiple bouts with cancer, during Barack Obama’s presidency when he could have chosen a like-minded successor.

“No amount of swag or hagiography can obscure the fact that, while Ginsburg is responsible for a great number of landmark legal decisions, her legacy may be sorely tarnished by one truly terrible one: refusing to retire when President Barack Obama could have named her replacement,” Stephanie Mencimer wrote for Mother Jones in 2018. Two years later, these Democratic fears would come true. Ginsburg died in September 2020, two months shy of Donald Trump’s November election loss.

Sensing Trump’s imminent defeat, then-Senate Majority Leader Mitch McConnell, R-Ky., rammed through Ginsburg’s arch-conservative successor, Amy Coney Barrett. Ginsburg’s gamble cost Democrats more than a liberal seat on the court — legal scholars such as Edward Larson argue that Barrett’s eleventh-hour nomination and confirmation hurt the legitimacy of the court itself. That legitimacy crisis, which came as the court lost ground with the public on other counts, hasn’t gone away: Only 40 percent of Americans approve of the Supreme Court — a record low. Chief Justice John Roberts is still grappling with how to restore its shattered credibility.

The Washington Post urged Breyer to “learn from Justice Ginsburg’s mistake” and clear the way for a successor while Democrats had the legislative majority to guarantee a confirmation. To his credit, Breyer understood that serving another term would be likely to mean repeating Ginsburg’s devastating misstep. With Republicans favored to take back the Senate this November, there are precious few months left when Democrats will have a free hand to shape Supreme Court vacancies.

Because Breyer announced his retirement when Democrats control the Senate, there will be no GOP-led obstruction of Biden’s pick, as happened with Obama’s failed nomination of now-Attorney General Merrick Garland to the court in 2016. Breyer’s retirement is also a massive gift to a Democratic Party still struggling to develop a unifying midterm fundraising and advocacy message — and Breyer deserves thanks from a party that has often criticized his unwillingness to discuss his plans.

And it’s also good timing, because it follows recent Democratic disappointments on the child tax credit, voting rights and other priorities. A winning Supreme Court fight would be catnip for Democrats eager to post high-profile wins. Biden’s nominee will be likely to find herself headlining countless Democratic National Committee and congressional fundraising emails rallying donors to protect the court from further right-wing corrosion. Her nomination will be a rare moment of party unity and an opportunity for Democrats to turn all of their messaging weaponry on a Senate GOP opposed to granting Biden any political victories — let alone a historic Supreme Court confirmation that realizes one of Biden’s weightiest pledges to Black voters.

But to get there, Democrats will need to find a nominee. One problem facing Biden is that relatively few Black women serve on the federal bench, the go-to source for future Supreme Court justices, and many of them are over 60 years old. That poses a challenge if Biden wants a nominee who guarantees a long-lasting liberal presence to counter conservatives like Barrett, 49, and Brett Kavanaugh, 56. After facing the stress and calamity of Ginsburg’s death, Democrats would like to avoid a similar crisis among the current liberal justices any time soon.

According to data tracked by the Federal Judicial Center, just five of almost 300 federal appellate judges are Black women. Five! Among them are standout legal minds like Judge Ketanji Brown Jackson, 51, who often finds herself on lists of potential Biden Supreme Court picks. There’s also California Supreme Court Justice Leondra Kruger, who at just 45 years old would have decades to build a strong presence on the court. Biden must be purposeful in his search, but the White House must also acknowledge that time is of the essence and that every day spent on the search is a day lost confirming the eventual nominee.

While the Senate will need to act quickly to hold hearings and begin the confirmation process, McConnell himself offers a road map for moving Biden’s nominee forward in the course of a few weeks. Barrett’s controversial nomination rocketed through the Senate in just 27 days. MSNBC legal analyst Joyce Alene and other pundits are already putting pressure on Biden and Senate Majority Leader Chuck Schumer, D-N.Y., to follow that aggressive timeline. Having taken so many punches to the face in Supreme Court fights past, Democrats are in no mood for delay.

And Democrats’ efforts to confirm whoever is chosen will be boosted by a major change McConnell made to the Senate rules: In 2017, Senate Republicans eliminated the filibuster for Supreme Court nominees. The original intention was to clear the path for Trump nominee Neil Gorsuch, whose nomination was on track to fail under the traditional 60-vote threshold. With only a bare majority needed to confirm the next member of the Supreme Court, Senate Democrats won’t be hung up by their two conservative members’ love of the filibuster rule.

This moment wouldn’t be possible without Breyer’s laudable decision to step away from power. In doing so, he has not only prevented another gridlocked crisis between a Democratic president and a Republican Senate but also allowed Democrats to repair some of the damage to the court caused by Kavanaugh’s scandal-filled nomination and McConnell’s scorched-earth confirmation process for Barrett. By vetting a nominee with strong liberal positions, Democrats can wash away some of the taint currently dogging the Roberts court.

On the surface, Breyer’s retirement doesn’t change the court’s partisan slant. Since President Bill Clinton nominated Breyer in 1994, the court’s liberal wing has only shrunk. But Breyer is a powerful example of the pragmatism and clear thinking required to bring our Supreme Court back to legitimacy. He deserves the thanks not only of Democrats but also of anyone invested in the credibility of our highest legal authority.

Max Burns

Max Burns is a Democratic strategist and founder of Third Degree Strategies. Find him on Twitter @themaxburns.

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