Breyer not retiring

[politicallefty]

I think some have theorized that he wants one more term in the traditional format (i.e. on the bench with in-person arguments).

[politicallefty]

If Dems lose the Senate he can just immediately retire and a new nominee can be put through in the lame duck. We know it can be done because the Republicans did it in less time with Barrett. The only way in which it's risky is if the Dems lose a Senator.

One issue is that with a 50/50 Senate, even a single sudden scandal+resignation erupting or a Senator passing in a state with a GOP governor could complicate matters for the Democrats.

If he's thinking at all about a replacement, then what Breyer is doing is not unlike Ginsburg's decision not to retire because she thought when she did, a replacement would be made by a Democrat. Breyer might be thinking the same thing, just on a shorter time span. Or, who knows, maybe he doesn't care who his replacement is and he just wants to do what he wants to do. In which case I am sure Republicans are ecstatic and extremely supportive of Breyer's wishes.

The general consensus is that the frontrunner for Breyer's seat is Ketanji Brown Jackson, who just recently took her seat on the DC Circuit Court. She clerked for Justice Breyer in the 1999-2000 term. It's worth noting that six of the current nine Justices are former SCOTUS law clerks (Roberts for Rehnquist, Breyer for Goldberg, Kagan for Marshall, Gorsuch for White and Kennedy, Kavanaugh for Kennedy, and Barrett for Scalia). It's been said that Kennedy actually asked for Kavanaugh for replace him on the Court. I don't think Breyer would be so straightforward, although I'd hope that his former law clerk being the likely frontrunner would nudge him into the right decision.

[politicallefty]

I think the biggest concern is that anything could happen, but that's true of life in general. A lot of people look to Vermont as a state of possible concern, with both Leahy and Sanders up there in age. However, Governor Phil Scott said last year that if Bernie Sanders had joined Cabinet, he would've appointed someone who would caucus with the Democrats. I see no cause for concern there. Arizona, Maryland, Montana, and West Virginia all have laws requiring any vacancy to be filled by a member of the same party (only including states with Democratic Senators and Republican Governors). The states of highest concern are Georgia, Ohio, New Hampshire, and Massachusetts (the latter only a temporary basis until a special election), all states with no restrictions on the power of the Governor to appoint a successor. Massachusetts can and should change its laws immediately (not because I'm necessarily worried about Elizabeth Warren or Ed Markey, but on the principle that a vacancy should be filled by someone of the same party).

[politicallefty]

Republicans losing AL in 2017, too. Crucially, though, this year hasn't seen the President trigger any special elections as a result of appointing a Senator to his Cabinet, & no Senator is &/or has been dying. Barring a Wellstone-esque plane crash from outta nowhere, we're fine. Besides, the political branches already have more than enough on their plate right now anyway trying to hammer out legalese for infrastructure that can garner 60 votes in the Senate, & then reconciliation, be it for the totality of the American Jobs & Families Plans if the Republican G21 members back out of the bipartisan deal, or for the remainder of the American Jobs Plan as well as the totality of the American Families Plan in the event that the Republican G21 members actually come through in the end. Dealing with the addition of a Supreme Court vacancy to the mix when - occam's razor-ing it - such a vacancy could just as easily be dealt with a year from now is wholly unnecessary.

All of that and quite a few lower court seats to fill as well. Another bright side is that the Senate Judiciary Committee won't be tied up for a month or so. There's a lot of work to be done in filling lower court vacancies. They're not just rebalancing the judiciary, but they're the future circuit court judges and Supreme Court Justices. I'm hoping Congress will either cancel or at least trim its August recess.

Maybe we'll get lucky and Alito will announce his retirement first next spring.

I'm allowed to dream.

[politicallefty]

I'm not going to start pulling my hair out unless we're having this same discussion exactly one year from now.

[politicallefty]

I'm not going to start pulling my hair out unless we're having this same discussion exactly one year from now.

You know it's going to happen, right?

No? It seems like Justice Breyer wants another traditional term on the Court. His former law clerk is the frontrunner for his seat (and he certainly knows this). With that said, he's now the senior Justice of a rump minority. It's an unfortunate position, but most of what he'll get to do in the big cases is assign the dissent. But ultimately, I can't pretend to get into his mind.

I'm not going to start pulling my hair out unless we're having this same discussion exactly one year from now.

Or the Democrats suddenly lose a Senate seat.

There are basically 3-4 states that are of potential concern should the worst happen, but that's it. Should the worst happen in any of this, there is no guarantee that Democrats won't have the majority in the Senate when the 118th Congress. We just prefer to have the guaranteed replacement as soon as we can.