Hypothetical Non-Stephen Breyer/Second SCOTUS Vacancy

[Waiting4Perot]

Let's assume that Justice Stephen Breyer retires in 2021 or 22, President Biden appoints Judge Ketanji Brown Jackson to the Supreme Court.

In 2023 or 2024, Democrats still hold the Senate Majority. A SCOTUS seat suddenly opens up (yes, unlikely but just go with it). Whose seat is it, and which candidates do you think President Biden would consider to fill the vacancy? Bonus points for plausibility and justification.

Two names I imagine he'd consider are Tino Cuellar and Sri Srinivasan.

[brucejoel99]

Either Sotomayor retires over 'health concerns' (i.e. retiring with a Democratic President/Senate while she still can because her diabetes might not enable her to make it to the next time that we control both) or one of Thomas/Alito randomly drops dead. As for the resultant nominee, Srinivasan, Paul Watford, Cuéllar, Leondra Kruger, & Goodwin Liu would presumably be the best guesses for no other reason than the fact that they'd all still be 55-or-younger (at least in 2023; Srinivasan & Watford may be looked upon less kindly in the event of a 2024 vacancy, given that they'd be 56 or even 57 by then).

[Skill and Chance]

From most likely to least likely:

1.  Sotomayor has health concerns and decides she doesn't want to risk a conservative taking her seat. 

2.  Roberts loses his bond with Kavanaugh, ends up stuck dissenting in a bunch of landmark 5/4 decisions, and then decides to get out and give the Dems the CJ seat out of spite. 

3. Kagan has health concerns or decides to get out while she can have a similar successor.  She is younger than Sotomayor by a wide margin, is less ideological, and is younger than Roberts and probably hopes to be CJ one day, so this strikes me as much less likely. 

4. Thomas or Alito develop serious health concerns.

5.  One of the Trump appointees develops serious health concerns.     

[Donerail]

Yes, Srinivasan and Watford I think may be aged out by then (which is a crazy thing to think about, but hey, that's how appointments work these days). It seems like a Californian is the odds-on favorite; Liu/Kruger/Cuéllar are obvious, but Michelle Friedland on the 9th Circuit and Vince Chhabria in the Northern District may be positioned well for a hypothetical '23/'24 vacancy. You might also look at Amit Mehta (DDC).

[politicallefty]

I wonder who Biden picks if Breyer retires this year, to be honest. I think they have Ketanji Brown Jackson in mind if he retires in 2022. A quick elevation from a circuit court to the Supreme Court is not unheard of. John Roberts went from DC Circuit to SCOTUS in just over 2 years (and he had no judicial experience prior to that). But I'd find it hard to believe that he'd elevate a new circuit court judge with no more than a couple months experience, although she does have 8 years experience as a district court judge.

Anyway, as to the topic, Thomas and Alito would definitely die before they would allow a Democratic President to replace them. I think the same is likely true of the Trump appointees as well, but they're all younger and serious illness or family issues could potentially result in leaving the bench.

Others have already mentioned Sotomayor, so I won't do the same. I think the same applies to Kagan.

Overall, Roberts is probably the most likely of any Justice to leave on his/her own accord under a President of the opposite party. He's the Chief Justice and carries the weight of the federal judiciary on his back. I do think an early retirement is more likely since the untimely death of RBJ. The balance of the Court has been severely upset. After Kennedy's retirement, he was the median Justice. I think he was expecting that to last a lot longer than 2 years. However, even then, I definitely don't expect him to retire this decade.

[brucejoel99]

I wonder who Biden picks if Breyer retires this year, to be honest. I think they have Ketanji Brown Jackson in mind if he retires in 2022. A quick elevation from a circuit court to the Supreme Court is not unheard of. John Roberts went from DC Circuit to SCOTUS in just over 2 years (and he had no judicial experience prior to that). But I'd find it hard to believe that he'd elevate a new circuit court judge with no more than a couple months experience, although she does have 8 years experience as a district court judge.

To be fair, that's also not unheard of: Souter was nominated to join the Supremes just 61 days after receiving his circuit court commission (though, of course, he'd also accumulated 12 years of state-level judicial experience by that point: 5 years at the appellate level followed by 7 years on the NH state supreme court).

[H.E. VOLODYMYR ZELENKSYY]

I don’t see Biden replacing Sotomayor or Kagan with a man, frankly.

[Sir Mohamed]

Goodwin Lieu, who's currently an Associate Justice at CA's Supreme Court, is another contender for a Biden nomination. Would be the 1st Asian American on the bench.

[Skill and Chance]

I don’t see Biden replacing Sotomayor or Kagan with a man, frankly.

Agreed, and furthermore if he ends up having the opportunity to put a 4th liberal back on the court after replacing Breyer, that would in all likelihood be the decisive seat to give SCOTUS a female majority for the first time ever.  I can't see Biden or Senate Dems turning down that opportunity.

[ultraviolet]

I think it’s probable Sotamayor retires if Dems still control the senate in 2023/2024. She’ll be almost 70 by then, and I’m not sure how serious her health issues are, but there is no way she wants to get even close to an RBG situation. I’m not familiar with Biden’s prospective picks, but he’d likely replace her with another woman, possibly another Hispanic woman.

[Amenhotep Bakari-Sellers]

There won't be any vacancy on the Crt unless there is a death. Thomas made it very clear that SCOTUS is for the 2nd Amendment and banning commercial sales on guns is allowable, concealed weapons will be permitted

[Stranger in a strange land]

I think it’s probable Sotamayor retires if Dems still control the senate in 2023/2024. She’ll be almost 70 by then, and I’m not sure how serious her health issues are, but there is no way she wants to get even close to an RBG situation. I’m not familiar with Biden’s prospective picks, but he’d likely replace her with another woman, possibly another Hispanic woman.

TBH I feel she should retire this year: she's had a good run by historical standards, trailblazed as the first Latina woman on the court, and Dems hold the presidency and Senate.

[brucejoel99]

I think it’s probable Sotamayor retires if Dems still control the senate in 2023/2024. She’ll be almost 70 by then, and I’m not sure how serious her health issues are, but there is no way she wants to get even close to an RBG situation. I’m not familiar with Biden’s prospective picks, but he’d likely replace her with another woman, possibly another Hispanic woman.

TBH I feel she should retire this year: she's had a good run by historical standards, trailblazed as the first Latina woman on the court, and Dems hold the presidency and Senate.

So I just looked it up: Sotomayor has yet to hire a single clerk for the Court's term beginning in October 2021, despite having already been fully hired-up for the October 2020 term at this point last year, so perhaps she's indeed one to keep an eye on.

[Skill and Chance]

I think it’s probable Sotamayor retires if Dems still control the senate in 2023/2024. She’ll be almost 70 by then, and I’m not sure how serious her health issues are, but there is no way she wants to get even close to an RBG situation. I’m not familiar with Biden’s prospective picks, but he’d likely replace her with another woman, possibly another Hispanic woman.

TBH I feel she should retire this year: she's had a good run by historical standards, trailblazed as the first Latina woman on the court, and Dems hold the presidency and Senate.

So I just looked it up: Sotomayor has yet to hire a single clerk for the Court's term beginning in October 2021, despite having already been fully hired-up for the October 2020 term at this point last year, so perhaps she's indeed one to keep an eye on.

Very interesting.  When Obama came into office, Justice Souter (then age 69) retired first in 2009, while Justice Stevens (then age 89) waited until 2010.  Could Sotomayor retire before Breyer?  Her views are so far from the median justice at this point, that she may be bored and may have given up on ever getting to write a landmark decision?  She's also way more explicitly political than Kagan and Breyer. 

[Geoffrey Howe]

I think it’s probable Sotamayor retires if Dems still control the senate in 2023/2024. She’ll be almost 70 by then, and I’m not sure how serious her health issues are, but there is no way she wants to get even close to an RBG situation. I’m not familiar with Biden’s prospective picks, but he’d likely replace her with another woman, possibly another Hispanic woman.

TBH I feel she should retire this year: she's had a good run by historical standards, trailblazed as the first Latina woman on the court, and Dems hold the presidency and Senate.

So I just looked it up: Sotomayor has yet to hire a single clerk for the Court's term beginning in October 2021, despite having already been fully hired-up for the October 2020 term at this point last year, so perhaps she's indeed one to keep an eye on.

Very interesting.  When Obama came into office, Justice Souter (then age 69) retired first in 2009, while Justice Stevens (then age 89) waited until 2010.  Could Sotomayor retire before Breyer?  Her views are so far from the median justice at this point, that she may be bored and may have given up on ever getting to write a landmark decision?  She's also way more explicitly political than Kagan and Breyer. 

Stevens claims (make what you will of it) that he decided to retire when he stumbled over his oral dissent in Citizens United and that it had nothing to do with party. He was a Republican (though a liberal one) after all.

https://www.oyez.org/cases/2008/08-205 (You can listen here.)

[brucejoel99]

I think it’s probable Sotamayor retires if Dems still control the senate in 2023/2024. She’ll be almost 70 by then, and I’m not sure how serious her health issues are, but there is no way she wants to get even close to an RBG situation. I’m not familiar with Biden’s prospective picks, but he’d likely replace her with another woman, possibly another Hispanic woman.

TBH I feel she should retire this year: she's had a good run by historical standards, trailblazed as the first Latina woman on the court, and Dems hold the presidency and Senate.

So I just looked it up: Sotomayor has yet to hire a single clerk for the Court's term beginning in October 2021, despite having already been fully hired-up for the October 2020 term at this point last year, so perhaps she's indeed one to keep an eye on.

Very interesting.  When Obama came into office, Justice Souter (then age 69) retired first in 2009, while Justice Stevens (then age 89) waited until 2010.  Could Sotomayor retire before Breyer?  Her views are so far from the median justice at this point, that she may be bored and may have given up on ever getting to write a landmark decision?  She's also way more explicitly political than Kagan and Breyer. 

Stevens claims (make what you will of it) that he decided to retire when he stumbled over his oral dissent in Citizens United and that it had nothing to do with party. He was a Republican (though a liberal one) after all.

https://www.oyez.org/cases/2008/08-205 (You can listen here.)

There's some interesting background on this: Stevens actually had an agreement with Souter (who was Stevens' closest friend when he was still on the Court) that the latter would personally & honestly let the former know when he'd declined physically/mentally enough to such an extent that retirement was called for. Of course, though, that went out the window once Souter left the Court even before Stevens did, & thus the onus of being on the look-out for any sort-of decline on Stevens' part fell upon Stevens himself: as soon as he felt he was off in anyway, he decided that it was finally time to go.

[Geoffrey Howe]

I think it’s probable Sotamayor retires if Dems still control the senate in 2023/2024. She’ll be almost 70 by then, and I’m not sure how serious her health issues are, but there is no way she wants to get even close to an RBG situation. I’m not familiar with Biden’s prospective picks, but he’d likely replace her with another woman, possibly another Hispanic woman.

TBH I feel she should retire this year: she's had a good run by historical standards, trailblazed as the first Latina woman on the court, and Dems hold the presidency and Senate.

So I just looked it up: Sotomayor has yet to hire a single clerk for the Court's term beginning in October 2021, despite having already been fully hired-up for the October 2020 term at this point last year, so perhaps she's indeed one to keep an eye on.

Very interesting.  When Obama came into office, Justice Souter (then age 69) retired first in 2009, while Justice Stevens (then age 89) waited until 2010.  Could Sotomayor retire before Breyer?  Her views are so far from the median justice at this point, that she may be bored and may have given up on ever getting to write a landmark decision?  She's also way more explicitly political than Kagan and Breyer. 

Stevens claims (make what you will of it) that he decided to retire when he stumbled over his oral dissent in Citizens United and that it had nothing to do with party. He was a Republican (though a liberal one) after all.

https://www.oyez.org/cases/2008/08-205 (You can listen here.)

There's some interesting background on this: Stevens actually had an agreement with Souter (who was Stevens' closest friend when he was still on the Court) that the latter would personally & honestly let the former know when he'd declined physically/mentally enough to such an extent that retirement was called for. Of course, though, that went out the window once Souter left the Court even before Stevens did, & thus the onus of being on the look-out for any sort-of decline on Stevens' part fell upon Stevens himself: as soon as he felt he was off in anyway, he decided that it was finally time to go.

'A severe breach of contract on his part'

[SenatorCouzens]

Sotomayor is a very under appreciated possibility -- 70 at the end of Biden's first term, has the bad type of diabetes, rather partisan, and by far the least influential justice within the court (though she seems to enjoy writing to a larger academic community and being a voice in a larger debate -- but Breyer and Kagan both more pragmatic and interested in being strategic and influential within the court).

If she really hasn't hired any clerks for next year, I'm surprised David Lat isn't on the case.

[NewYorkExpress]

Sotomayor and Breyer might both retire this term.

However, it's unlikely Biden actually gets a chance to fill either seat, at least not without appointing Republicans, simply because I don't think Breyer will retire, and unless Sotomayor retires, there won't be a vacancy before 2022. If a seat becomes open in 2023, or in a Biden second term (or at any point in Kamala Harris term) Mitch McConnell will keep it open, no matter which Justice opened it.

[brucejoel99]

Sotomayor and Breyer might both retire this term.

However, it's unlikely Biden actually gets a chance to fill either seat, at least not without appointing Republicans, simply because I don't think Breyer will retire, and unless Sotomayor retires, there won't be a vacancy before 2022. If a seat becomes open in 2023, or in a Biden second term (or at any point in Kamala Harris term) Mitch McConnell will keep it open, no matter which Justice opened it.

This just makes no sense. Sure, if Thomas or Alito suddenly pass away out of nowhere while Biden is President & the Republicans control the Senate, then we're obviously gonna be in for an appointment fight that'd be just as ugly as the last few, if not even moreso, but in the event that it's one of the liberals who's retiring, there'd be literally nothing for McConnell to lose in allowing any decent judge whom Biden nominates to get confirmed. Blanketly holding the seat open for the remainder of the Biden presidency would just end up being an unnecessary political headache, given that the ideological leaning of the Court wouldn't even be in jeopardy in the first place: replace a Breyer or a Sotomayor with a Jackson or a Kruger & the ideological balance of the Court stays exactly the same as it is right now: 6-3 conservative. And that's not even mentioning the fact that he'd probably manage to get some bipartisan brownie points from enough of the American people for actually allowing for the confirmation of a Biden nominee, since it'd give him the opportunity to say "See, we Senate Republicans are fair: we let Joe Biden appoint somebody to the Supreme Court!" It'd be one of the easiest votes to cast for any Senate Republican who can afford - or outright needs - to come across as moderate & conciliatory.

[NewYorkExpress]

Sotomayor and Breyer might both retire this term.

However, it's unlikely Biden actually gets a chance to fill either seat, at least not without appointing Republicans, simply because I don't think Breyer will retire, and unless Sotomayor retires, there won't be a vacancy before 2022. If a seat becomes open in 2023, or in a Biden second term (or at any point in Kamala Harris term) Mitch McConnell will keep it open, no matter which Justice opened it.

This just makes no sense. Sure, if Thomas or Alito suddenly pass away out of nowhere while Biden is President & the Republicans control the Senate, then we're obviously gonna be in for an appointment fight that'd be just as ugly as the last few, if not even moreso, but in the event that it's one of the liberals who's retiring, there'd be literally nothing for McConnell to lose in allowing any decent judge whom Biden nominates to get confirmed. Blanketly holding the seat open for the remainder of the Biden presidency would just end up being an unnecessary political headache, given that the ideological leaning of the Court wouldn't even be in jeopardy in the first place: replace a Breyer or a Sotomayor with a Jackson or a Kruger & the ideological balance of the Court stays exactly the same as it is right now: 6-3 conservative. And that's not even mentioning the fact that he'd probably manage to get some bipartisan brownie points from enough of the American people for actually allowing for the confirmation of a Biden nominee, since it'd give him the opportunity to say "See, we Senate Republicans are fair: we let Joe Biden appoint somebody to the Supreme Court!" It'd be one of the easiest votes to cast for any Senate Republican who can afford - or outright needs - to come across as moderate & conciliatory.

The Republican base wants a 9-0 Supreme Court in their favor and McConnell knows that.

[Donerail]

but in the event that it's one of the liberals who's retiring, there'd be literally nothing for McConnell to lose in allowing any decent judge whom Biden nominates to get confirmed. Blanketly holding the seat open for the remainder of the Biden presidency would just end up being an unnecessary political headache, given that the ideological leaning of the Court wouldn't even be in jeopardy in the first place: replace a Breyer or a Sotomayor with a Jackson or a Kruger & the ideological balance of the Court stays exactly the same as it is right now: 6-3 conservative. And that's not even mentioning the fact that he'd probably manage to get some bipartisan brownie points from enough of the American people for actually allowing for the confirmation of a Biden nominee, since it'd give him the opportunity to say "See, we Senate Republicans are fair: we let Joe Biden appoint somebody to the Supreme Court!" It'd be one of the easiest votes to cast for any Senate Republican who can afford - or outright needs - to come across as moderate & conciliatory.

The issue is not the ideological leanings of the court now, but in the future — if you let the liberals replace their people w/ younger justices, you allow them to continue to hold three seats and maybe, if you get unlucky with retirements or deaths, take control of the court at some point in the future. It also leaves you open to the rare but real possibility that two of the conservative justices get squishy (if you're feeling uncharitable, Roberts is already there). Maybe not the most likely risks, but what's the downside?

[Geoffrey Howe]

I think we're being a bit kind to and optimistic about Mitch McConnell here.

[politicallefty]

The issue is not the ideological leanings of the court now, but in the future — if you let the liberals replace their people w/ younger justices, you allow them to continue to hold three seats and maybe, if you get unlucky with retirements or deaths, take control of the court at some point in the future. It also leaves you open to the rare but real possibility that two of the conservative justices get squishy (if you're feeling uncharitable, Roberts is already there). Maybe not the most likely risks, but what's the downside?

I agree with this. McConnell has no problem going as low as he can to hold power and he know the power of the judiciary. In the last two years of the Obama Administration, when Republicans controlled the Senate, only 2 circuit court judges and 18 district court judges were confirmed. I'm surprised he even got that many district court judges. If there's one thing Biden and Schumer should be doing, it's at least making sure all circuit judgeships are promptly filled, leaving absolutely no vacancies. The damage there was considerable. Trump got in what one term what many Presidents get in two. Biden has nominated three for the circuit courts, but there are currently seven vacancies.

I have no doubt though that McConnell would keep a vacancy open for the chance to get a Republican President to fill it, no matter which seat opens up. As for Justice Sotomayor, I'm not really concerned. She takes her diabetes very seriously. If you know anything about diabetes, it's that low sugar is far more acutely dangerous. As long as she has a sugary beverage or something around, there's not really any worry. Her leaving the Court would be disappointing. Her Fourth Amendment views are second to none on the current Court.

[Skill and Chance]

I think we're being a bit kind to and optimistic about Mitch McConnell here.

He has no say right now anyway.