Judging Freedom - Justice Stephen Breyer retiring - What Will This Mean?

Episode Date: February 2, 2022

After more than 27 years on the court Justice Stephen Breyer allows the Biden to appoint a successor who could serve for decades. #supremecourt #BidenSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello there everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Wednesday, January 26th. It's 2.50 in the afternoon here on the East Coast. And the news just broke about an hour ago that Justice Stephen Breyer of the Supreme Court of the United States will retire. This is an informal announcement that the White House leaked, and apparently it's been confirmed by friends of Justice Breyer. The formal announcement, we believe, will come tomorrow. I'm going to guess that Justice Breyer is not going to leave now. Literally, he's going to leave at the end of the court term, which would be June 30th of this year. Already, of course, the battle lines are drawn for who will replace him. This is, of course, a decision entirely up to the president and then confirmed by the Senate.

When Joe Biden was running for office, he promised that his first appointment to the Supreme Court, if he had one, would be a Black female. And there are a half a dozen extremely well-qualified Black females in the mix already serving as state and appellate judges who share the liberal ideology of the president. And this is, of course, his choice. I don't think that the Republicans in the Senate will do what they did when Justice Scalia died and President Obama appointed Merrick Garland, the same Merrick Garland that's now the Attorney General of the United States, to replace Justice Scalia. The Republicans had a majority in the Senate. They refused to consider the Garland nomination. Now the Senate is evenly divided 50 to 50 with Vice President Harris breaking the tie.

There are, of course, Republicans in the Senate, Lindsey Graham comes to mind, who are of the view that the choice is the president's. And as long as the person is basically qualified, not ideologically consistent with what Republicans want, but basically qualified for the job, that that person ought to be confirmed. Senator Graham did not follow through on that view in the Merrick Garland nomination, but he has since repeated the view, and I think he'll probably carry through with it now. So whoever President Biden nominates, and my opinion is he'll pick someone very soon, that person will probably be confirmed. Senator Chuck Schumer, who's the majority leader in the Senate, has already said he wants a confirmation process to be as fast as was the process for Justice Amy Coney Barrett.

Now, that one took about two months, which is very, very fast from the day Justice Ruth Bader Ginsburg passed away in September to the confirmation of Justice Breyer by the end of October. She was confirmed, if you remember, shortly before election day. That's the election at which President Biden defeated President Trump. So another issue for all of us to watch. This does not change the ideological balance of the court at all, but it will change the longevity of the court. Justice Breyer is 83 years old. The black female jurists that the president is considering, but in her 40s, prepared to sit on the highest court in the land for another 35 or 40 years. Judge Napolitano, judging freedom.