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Supreme Court Justice Stephen Breyer Is Retiring, Opening Seat for Biden Nominee

Democrats have been urging the 83-year-old liberal to retire in order to give Biden a chance to fill his spot.

Associate Justice Stephen Breyer sits during a group photo of the Justices at the Supreme Court in Washington, D.C. on April 23, 2021.

Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden and Democrats a chance to fill a crucial spot in the nation’s top court. Biden is expected to announce the justice’s retirement as soon as Thursday.

The 83-year-old liberal was nominated by President Bill Clinton in 1994 and is the oldest member of the Supreme Court. Democrats have been urging Breyer to retire since President Joe Biden took office last year in order to give the president ample time to fill his seat.

On the campaign trail, Biden pledged to nominate a Black woman to the Supreme Court. If he follows through on this promise and his pick is confirmed by the Senate, the justice would be the first Black woman to serve on the High Court. Lawmakers like Representatives Cori Bush (D-Missouri), Barbara Lee (D-California) and Mondaire Jones (D-New York) have begun urging Biden to pick a Black woman to fill the seat.

Senate Majority Leader Chuck Schumer (D-New York) has said that the Senate will vote swiftly on a nominee once one is chosen. “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,” he said in a statement.

Currently, there is a conservative majority in the court, with five right-leaning justices and four liberals. Replacing Breyer won’t change the partisan makeup of the court, given that Biden chooses a liberal, but it will secure a liberal spot on the court for the remainder of the justice’s lifetime appointment.

Breyer’s retirement comes just as Democrats could potentially lose the ability to nominate a liberal justice for years to come. Last year, Senate Minority Leader Mitch McConnell (R-Kentucky) vowed not to allow a Biden nominee to be confirmed by the Senate if the GOP retakes the Senate in the upcoming midterm elections.

Securing this seat is critical for Democrats, as Republicans have fought tooth and nail to pack the court with conservative justices. In 2016, the GOP, led by then-Senate Majority Leader McConnell, delayed President Barack Obama’s Supreme Court pick, Merrick Garland, for 11 months. They justified this obstruction by making the dubious claim that it was too close to the general election to fill the seat.

When Donald Trump’s pick, Justice Brett Kavanaugh, was up for confirmation, the GOP changed filibuster rules to push him through, ignoring numerous sexual assault allegations that had been leveled against the justice. Notably, Republicans have steadfastly opposed changing filibuster rules when it comes to protecting voting rights and addressing the climate crisis.

Last year, Republicans broke their own rule about filling Supreme Court seats in relative proximity to an election. When liberal Justice Ruth Bader Ginsburg died in September, just weeks before the general election, GOP members rushed to replace her; McConnell released a statement vowing to rush through an appointment the night of Ginsburg’s death. Trump nominated the far right Amy Coney Barrett, who was confirmed by Republicans just eight days before the election took place.

Though the nation is years away from another presidential election, Democrats are bracing for yet another fight with Republicans.

“The right-wing donors who stocked the Court with its 6-3 supermajority will deploy massive dark-money firepower in an attempt to defeat any Biden replacement,” said Sen. Sheldon Whitehouse (D-Rhode Island) in a statement. “I hope the White House and our allies prepare for the fight ahead. We cannot allow right-wing donor interests to tighten their grip on the Court any further.”

Over the last year, Whitehouse has been raising awareness about dark money interests that are influencing the Supreme Court, which he says have pushed the Court further to the right.

The Court has made several far right moves over the past months and has shot down Biden’s pandemic-related mandates and is poised to potentially overturn Roe v. Wade. Justices also recently agreed to take on a case that could end affirmative action, which has helped uplift non-white students in the college admissions process for decades.

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