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Away from Washington and the pressures of the recently ended session and gossip about his possible retirement, Breyer, a 27-year veteran of the High Court, said on Wednesday that two factors would prevail in his decision.
“Mainly, of course, health,” said Breyer, who turns 83 in August. “Second, the court.
Liberal advocates, law professors and some Democratic members of Congress have attempted in public statements to persuade Breyer to step down. They want Democratic President Joe Biden to be able to appoint a younger Liberal while the Senate, which has the constitutional power of “advice and consent,” has a slim Democratic majority.
When asked directly over coffee in rural New Hampshire if he had decided when to step down, Breyer simply replied, “No.”
He dismissed questions about the timing of a decision but was ready to talk about factors that would influence it, including respect for the court. He also explained the satisfaction that his leadership role on the left wing brought.
Breyer said his new tenure in the judges’ private discussion of cases “made a difference to me.… It’s not a fight. It’s not sarcasm. It’s deliberation.”
He also assumes a new role in the internal debate, speaking earlier in the private conferences of judges, guided by the rhythms of seniority.
“You have to understand better what you’re going to say in a conference, just to make it understood,” Breyer said. “You have to be flexible, listen to others, and be prepared to change your views. But that doesn’t mean (coming in with) an empty mind.”
Breyer tried to play down the politics of a 6-3 Conservative-Liberal bench in these particularly polarized times. A lengthy speech he gave at Harvard Law School last April has been turned into a book to be published in September entitled “The Authority of the Court and the Peril of Politics.”
The six Conservatives on the tribunal are nominee Republicans who often vote together, as they did recently to narrow the scope of the 1965 Voting Rights Act, decrease the power of unions to organize on farmland, and restrict the regulation of large political donors. The three liberals, all nominated by the Democrats and including Breyer, strongly dissent.
Yet Breyer has long adopted a middle ground mindset and often remarks that he views dissent “as a failure.” In court he is known to have tried to reach consensus and over the past decade the leftist couple most likely to try to compromise with the right has been Breyer, appointed by President Bill Clinton in 1994, and Judge Elena Kagan, a 2010 nominee by President Barack Obama.
Summer retreat
On Wednesday in Plainfield, a rural village of just over 2,000, Breyer appeared relaxed. Dropped from the black dress, he wore khaki shorts, a short-sleeved shirt with blue and orange stripes, and sandals. Yet he remained a cautious conversationalist, refusing to speak about the confidential deliberations of the court.
Liberals beyond the court praise his record but, as they have done with Ginsburg for years, say he should make way for a new justice, especially while Biden has a Democratic Senate.
Unlike Ginsburg’s death and the transformation of the Tory-dominated 5-4 court into a 6-3 bench, a new person named by Biden would not change the current ideological divide.
Theoretically, Democrats should maintain their advantage of one vote at least until the midterm elections in November 2022. But activists are worried about any sudden change in that margin. Their concerns come in the context of 2016, when then Senate Majority Leader Mitch McConnell barred any hearing of Obama’s choice of Merrick Garland to succeed Judge Antonin Scalia, and 2020, when Ginsburg passed away and McConnell helped rush through Amy Coney Barrett as a successor. in October, just days before President Donald Trump was removed from office.
In an institution bound by rank, Breyer knows what it’s like to be downgraded. He spent over 11 years as the most junior judge (almost the criminal record), simply due to a shortage of associate judge appointments during that time. Samuel Alito joined in January 2006, a person appointed by President George W. Bush, after Bush chose Roberts to be chief justice in 2005.
Ginsburg was named to the bench in 1993, the year before Breyer. His tenure as Senior Left Judge lasted for a decade, from 2010 (when Judge John Paul Stevens retired) to 2020.
Breyer’s tenure is unlikely to reach a decade, but he’s made it clear that it won’t be a single term.
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