Nicolais: Stephen Breyer gets caught by the politics of Supreme Court appointments

After decades denying politics play a role on the U.S. Supreme Court, Justice Stephen Breyer’s final act is purely partisan. Haunted by the ghost of Justice Ruth Bader Ginsburg, Breyer timed his retirement to provide Democratic President Joe Biden the opportunity to nominate his successor.

Supreme Court nominations have regularly been surrounded by political enmity. Over the past few decades, that enmity has grown to a caustic war of attrition. No nominee has gained more than 80% approval from the Senate since … Stephen Breyer in 1994.

Republicans generally point to the nominations of Robert Bork and Justice Clarence Thomas as flashpoints. The acrimonious Bork hearings led to his rejection, while Thomas was confirmed by the narrowest of margins after allegations of sexual harassment became public.

In hindsight, those hearings seem civil. Seen through the looking glass, neither would likely receive a hearing in today’s climate. Both men were conservative nominees of a Republican president to a Democratic Senate. Both came just a little over a year before the next presidential election.

After Senate Republicans stalled Merrick Garland for 10 months six years ago, it seems doubtful any president facing an opposition Senate would get their nominee through now. That is why Sen. Mitch McConnell, the architect of Garland’s demise, made an about face to fill Ginsburg’s vacancy with Justice Amy Coney Barrett while President Donald Trump was still in office. 

It is the same reason Breyer announced his retirement now.

By November of this year, Republicans have a very good chance to win back the Senate. If Breyer’s successor has not been confirmed by then, there is every reason to believe McConnell would use his new majority to block hearings or a vote for two full years.

And if Biden won reelection in 2024 and Republicans continued to hold the Senate? It could be a six-year vacancy.

That is exactly why Breyer ceded to liberals who called on the octogenarian to vacate his seat now. The composition of the court has already swung decidedly to the right with six of nine seats filled by Republican appointees. While Chief Justice Roberts frequently played the pivot role to force compromise on a 5-4 court, that influence has been diluted by a supermajority that does not need his vote.

An extended Breyer vacancy would leave the court balance at 6-2. 

If Republican gambles paid off — again — his replacement could make it 7-2. Given lifetime appointments and the relative ages of current justices, that amounts to decades of conservative rulings.

Consequently, Breyer’s retirement is simply an effort to protect the status quo and stanch the bleeding from the liberal side of the dais.

There are potential remedies to alleviate the malady suffered by Breyer for future members of the bench. I personally like the idea of a court composed of a floating number of justices. Each president would pick one or two nominees during a single four-year term. 

Such a plan would reduce the gamesmanship that allowed Trump to appoint three justices in one term while each of his three predecessors had only two over two full terms. A floating number of justices would also avoid a perpetual game of One-Up progressive proposals to pack the court would surely begin.

It may also make the process more comprehensible to ordinary citizens. It is easier to understand and may become a more relevant factor in the votes they cast. 

Regardless, none of these proposals helps Breyer now. Whether he is ready or not, his retirement has been foisted upon him by circumstance. If he waits, it would almost certainly undo his life’s work.

Breyer may have had another two or three or seven years left in him on the bench. But, in the end, it was a risk he decided he could not take.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq