Breyer… or San Jose?
This week I have been put into a conundrum. We have an odious piece of local legislation out of San Jose that has zero chance of being upheld in court, or we have court politics at the Supremes. I had to make a decision about what to discuss…
In the end, I chose the Supremes.
If you are waiting with bated breath to hear what my thoughts are on San Jose, I suspect I will be writing about that fairly soon as the guaranteed court case gets filed and moves along.
In the meantime, the palace intrigue surrounding Justice Breyer’s retirement is just too good not to write about.
Justice Stephen Breyer is retiring.
This is not an event that will cause massive upheavals in the Court. A liberal justice will be replaced with a liberal justice. (Well, maybe there is a history of Presidents appointing a member to the Court based on a perceived political inclination, only to find out they swing, sometimes wildly in the other direction; see Earl Warren.)
So, it is not outside the scope of possibilities that President Biden would appoint a putative liberal with the slim possibility he or she might actually follow Constitutional principles, an unlikely scenario, but a scenario nonetheless. Thus, the absence of Breyer in and of itself does not spell doom and gloom. Like I said, a jurist unmoored by the Constitution is likely to be replaced with another jurist unmoored by the Constitution.
What potentially will be lost is the next Republican president (yes… I suspect we will have a Republican president next go around) will not have the opportunity to further push the Court towards Constitutional jurisprudence… sad, but not the end of the world. Thankfully, we still have a majority of Constitutional jurists, regardless of Breyer’s replacement.
What was interesting was the way Breyer capitulated and what it says about the Democrats’ understanding of what is about to hit them.
For the last few months there has been an increasing clarion call on the left for Breyer to retire. They did not want another Ginsberg or Garland scenario manifesting. They are also painfully aware of the administration’s poll numbers and how this will most likely affect the midterm elections.
With razor-thin margins (a 50/50 split in the Senate) and two Senators who have shown a willingness to stand against the neo-authoritarians and protect the Constitution, there is a real possibility a current nominee may not be able to garner enough votes to be confirmed. After the election there is an extreme possibility that the numbers will switch dramatically in favor of Republicans and we may have a litany of nominees removed as votes for their confirmation remain elusive. If this drags into the election year, then the Garland scenario could manifest again where the Republicans controlling the Senate just simply wait for the next president to fill the seat.
So… the only chance for Biden to get a “like-minded” jurist confirmed is to do it now.
Breyer was extremely dismissive of those calling for his retirement but, in the end, told the White House he would be a good solider. The White House was so excited about this, and so fearful that Breyer would change his mind they leaked the information before he had a chance to announce that he was, in fact, departing. (Bad form, but consistent with what we have seen from them so far.)
(If you have arrived here from our newsletter, continue reading here…)
Then there is the other “possibility”… it is house of cards kinda stuff, but plausible enough with these people that it merits discussion:
Joe Biden has stated repeatedly that he will nominate a black woman to be on the Supreme Court. (I won’t go into how incredibly insulting this is. Apparently, skin color and gender have trumped cognitive abilities or legal acumen.) As I mentioned earlier, there is going to be a push for a jurist who has demonstrated legal beliefs that fall outside the constraints of the Constitution. This will most likely result in one nominee, or even several, being sent up and then subsequently dismissed.
The theory is that at a certain point Vice President Harris herself gets selected. Her chances of becoming President have diminished to such a degree that she must know her political career is effectively over. By elevating to the Bench, she can remain “in power” indefinitely. So, she gets the nod.
Then the knives come out.
She may squeak through and get confirmed, but it is, frankly, doubtful.
The shenanigans that she engaged in during her time as the State’s Attorney General are legion, potentially even worthy of criminal investigation. At a certain point I believe if this scenario happens, it will become apparent that not only will she not be confirmed, but that she may be impeached… and with a change in the Senate, even convicted if she returns to the office of the Vice President.
So… she resigns.
This allows President Biden the opportunity to appoint a Vice President, just as Nixon appointed Gerald Ford.
This gives Hillary Clinton the possibility to move into the Vice Presidency of a faltering president. After the midterms he is quickly ushered off the stage and she takes over the reins.
Hillary gets what she always wanted… the presidency, without having to go through a pesky election again.
We shall see.