Aug 3, 2021 - Politics & Policy

Biden rebuffs left on Breyer

A close-up of Supreme Court Justice Stephen Breyer in black robe posing as part of a formal group photo
Breyer at the Supreme Court in April. (Photo: Erin Schaff-Pool/Getty Images)

President Biden and his top aides are rebuffing activists who want the White House to pressure Supreme Court Justice Stephen Breyer to retire, sources with direct knowledge of the situation tell Axios.

Behind the scenes: Both Biden and White House chief of staff Ron Klain believe applying such pressure — publicly or even privately — would politicize and damage the institution of the Supreme Court, the sources said. They're also afraid it could backfire.

Why it matters: Anxiety is rising on the left about Breyer, who turns 83 on Aug. 15 and has shown no inclination to vacate his seat for a younger liberal justice.

  • Progressives have PTSD about Ruth Bader Ginsburg's fateful decision to hang on through the Obama era. She died during Donald Trump's presidency, giving Republicans the power to choose her replacement.

Biden would be perfectly happy if Breyer chooses to step down soon. But the president and Klain disagree strongly with progressive activists who are urging a presidential pressure campaign on Breyer to retire, according to sources with direct knowledge.

  • They also think it's tactically stupid. They believe that pressuring Breyer could backfire and cause the justice to stay in his job longer to prove he's unmoved by political interference, these sources said.
  • Breyer appears to be relishing his new role as the court's most senior liberal justice. It's far from clear that he would give this up because of presidential pressure.

A White House spokesman, Andrew Bates, declined to comment on how others should approach the Breyer issue, but said, "The President's view is that any considerations about potential retirements are solely and entirely up to justices themselves."

The big picture: In addition to the White House's hands-off approach, most Democrats in Congress — even staunch progressive senators like Elizabeth Warren — have so far held back from publicly calling for Breyer to retire.

  • Democratic Sens. Richard Blumenthal and Amy Klobuchar have applied some public pressure on Breyer without calling directly on him to step down.

The other side: Rep. Mondaire Jones (D-NY) has led the charge on Capitol Hill, calling on Breyer to retire and blaming "senior-in-age justices" for denying Obama the opportunity to appoint more Supreme Court justices.

What they're saying: "For Democrats to sit on their hands and be content to potentially watch a slow-motion replay of the RBG situation play out just goes to show the folly of our party's passive approach to the courts over the years," Fallon told Axios.

  • "The Court is already a deeply politicized institution, and there is nothing lost by acknowledging that reality and responding accordingly," Fallon added.
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