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Well, it turns out that Jeffrey Toobin wasn’t just jerking us around after all.
Toobin got a lot of flack after suggesting that Breyer’s retirement was imminent and then misspelling the name of one of the justice’s most likely successors. And while the latter point remains unforgivable, he appears to be right about the first part.
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NBC News reports that Breyer intends to retire at the end of this Term, allowing him to impotently reign over the Court’s liberal wing while Roe, affirmative action, and basic environmental protections get gutted.
Have fun next Term, replacement!
While many encouraged the octogenarian to retire earlier, especially after watching Justice Ginsburg’s hubris turn into Amy Coney Barrett, Breyer declined to walk away, relishing his opportunity to be the dean of the Court’s liberals just as soon as that role relegated him to assigning morose dissents about watching half a century of legal precedent crumble. That job now falls to Justice Sotomayor.
Perhaps the Court’s COVID ruling finally broke through to the self-styled pragmatist. Watching the Court rule with a straight face that Congress couldn’t have intended to consider falling off a ladder a workplace injury because you could fall off a ladder at home, he must have realized that this is just going to get a lot stupider before it gets any better.
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His mid-Term announcement leaves the administration with a potentially bumpy road forward. While the Democrats maintain a majority until at least next January, expect the disingenuous “we should wait until the next Senate is convened” rhetoric to take off now that legislative midterms are on the radar. If the Democrats can keep their members in a row that’s not a problem, but if Joe Manchin decides to balk or some biopharma lobbyist offers Kyrsten Sinema $20 to gum up the works, the whole endeavor could come crashing down.
But this is slightly more pragmatic than the alternative… so there’s that, at least!
[UPDATE: To clarify, Manchin and Sinema are probably going to vote to confirm the nominee… but it’s not as simple as noting that they have supported Biden’s lower court nominations. This process will be very different and the frenzied, totally unhinged pressure they’ll face won’t resemble any circuit court vote they’ve cast so far.
UPDATE 2: Chuck Schumer reportedly wants a fast turnaround on this nomination following the precedent set by the confirmation of Amy Coney Barrett. That improves the chances of a nominee before the media stirs up enough baseless connections between the nominee and phony culture war issues to drive a wedge within the Democratic caucus. But don’t look now, here comes Dianne Feinstein to undermine this too!
With six months until Justice Breyer departs the court, the Senate Judiciary Committee will have ample time to hold hearings on President Biden’s nominee. I look forward to this process and trust President Biden will name a worthy successor to fill Justice Breyer’s seat. pic.twitter.com/ykvmygbJYS
— Senator Dianne Feinstein (@SenFeinstein) January 26, 2022
Justice Stephen Breyer to retire from Supreme Court, paving way for Biden appointment [NBC News]
Earlier: The Gaslighting Of Stephen Breyer
Justice Breyer Roasted In Devastatingly Honest Book Review
We’re Not ‘Partisan Hacks,’ Says Partisan Hack At Partisan Event
Justice Thomas Is Shocked And Saddened At Suggestion SCOTUS Is A Bunch Of Ideological Hacks
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.