The NPR Politics Podcast - Supreme Court Justice Stephen Breyer To Retire

Episode Date: January 26, 2022

Breyer's retirement gives President Biden his first opportunity to name a new justice to the court. During the presidential campaign, he pledged to name an African American woman if he got the chance. This episode: White House correspondent Tamara Keith, White House correspondent Scott Detrow, and legal affairs correspondent Nina Totenberg.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. It is 1.29 p.m. on Wednesday, the 26th of January. I'm Tamara Keith. I cover the White House. I'm Scott Detrow. I also cover the White House. And I'm Nina Totenberg. I cover the Supreme Court. And we all know why Nina is here. Supreme Court Justice Stephen Breyer will retire. That is what Nina is reporting. That is what everyone is now reporting. And he is part of what you would call the liberal wing of the court. But before we get to the politics of this, let's lay out some basic facts. Nina, has an announcement happened? How do we know this? And when does he plan to retire? He plans to retire, it's my understanding, at the end of the court term, usually at the end of June.

That would give the Biden administration plenty of time to get somebody nominated, have hearings, and be confirmed. And then that person could immediately move into his slot at the Supreme Court during the summer and be ready for the new term, which formally begins in October, but actually begins in September when they do work we don't see. And quick clarification, Nina, because it's been a while. The Senate could hold hearings and even vote on the replacement before Breyer formally retires, right?

It could do that, absolutely. He wouldn't be formally sworn in until the nominee, who would almost certainly be a she, would not be formally sworn in until Breyer had stepped down at the end of the term. But it would leave the Biden administration plenty of time to get that done. So Scott, this is a very big deal for President Biden. Naming a Supreme Court justice is one of the very big things that not even every president gets to do. How is the White House reacting? How's the president reacting? Well, officially, the official word is what? We'll wait to hear from Justice Breyer. We have nothing to say about this. President Biden just appeared and said just as much, saying no announcement has been made. Let him make announcement and I will be happy to talk about it later. Of course, you know, Nina has

talked to administration sources. Clearly, they were they were well aware of this coming announcement. They have put a lot of planning into it. The most important thing to know for now is that during the presidential campaign, during the 2020 primaries, Biden promised that if he got a vacancy, he would nominate a black woman to the Supreme Court. Number one, I committed that if I'm elected president, have an opportunity to appoint someone to the courts, I'll appoint the first black woman to the courts. It's required that they have representation now. It's long overdue.

There's never been a black woman nominated to the Supreme Court. There's only been two black justices. If you look at the broad judicial nominations that Biden has made already to lower federal courts, he really has pushed a much more diverse set of judges, not only in terms of demographic background, but also professional background, a lot of public defenders, people who come outside of the typical prosecutor type lanes that you see for judges. So that's what we're looking at right now. And also, in this super partisan moment on the Supreme Court, we talked about this before, it's worth really reiterating

that this would not necessarily change the overall makeup of the court. This would be replacing one liberal justice with another liberal justice. him for this podcast late last year and asked him about his retirement plans. And he had been under a ton of pressure from outside liberal groups, including like people running ads or driving trucks around Washington, D.C., begging him to retire. What do you think brought him to this decision now? What do you think? Why now? The Democrats have a razor-thin majority in the Senate, and they could lose that majority. And were that to happen, it would be much more difficult to get someone confirmed to replace him. So the moment to do this is now to give the administration time to get somebody confirmed and before the election. I also think that he still last term, he had a really great term last term. The court did not do

some of the more extreme things that liberals feared the supermajority, conservative majority would do. And I think that was traceable in part to some of Breyer's persuasive abilities. And so he thought he had done pretty well. Then comes this term, and suddenly you see the conservative majority on the march in terms of guns, in terms of abortion, in terms of potentially now affirmative action, and in terms of the whole regulatory regime of the federal government. And I think he thought, ultimately, that time was for a new generation to come in and make that fight, not him. And how old is he? 83. He'll be 84 in August. So, Scott, earlier you mentioned that President Biden has said that he will nominate an African

American woman to this role. Who are some of the top contenders? The two names that instantly leap to the front of the list are a federal judge, Katonji Brown Jackson, who was recently elevated to Merrick Garland's old seat on the Court of Appeals for the District of Columbia Circuit, and also a California Supreme Court justice, Leandra Kruger. Nina, I know you've been paying attention to both of them for a while now. What do we need to know? They're both African American. They're both relatively young.

Ketanji Brown Jackson is 51. Leandra Kruger is 45. Kruger was a real star in the Solicitor General's office. She served as an Assistant Solicitor General and then Deputy Solicitor General in both Republican and Democratic administrations. She was a star performer in court as an advocate, and then was nominated and easily confirmed as a California Supreme Court justice where she's been for several years. So they both are people with stellar credentials. They both actually clerked at the Supreme Court. Ketanji Brown Jackson actually clerked for Breyer.

Kruger, I think, clerked for Justice Stevens. They are both highly regarded in the legal community. All right, we're going to take a quick break. And when we get back, more on Justice Breyer's legacy and also what his replacement will face in this pretty divided Supreme Court. And we're back. And I know we said earlier that Justice Breyer was part of the liberal wing of the court. As far as justices go, though, he is probably like the least likely to be picked out of a lineup by the average American. He's not one of the famous justices, if you will. So, Nina, tell us about his approach to the court

and why he mattered. What his legacy is. Well, he mattered because he was really a very moderate liberal, along with Elena Kagan. And he was the one who was able to hammer together some sense of consensus. I think it's probably part of the reason he didn't leave last term, is that he was doing that very successfully. But then he comes back, and on the march is the conservative supermajority on all the big social issues, abortion, guns, now affirmative action for next term. So I think it was clear to him and probably remains clear to him that that ability to forge consensus isn't serving him all that well. And it doesn't surprise me that he would say at the age of almost 84, it's time for somebody else to make the fight. And I want to get to the tension on the court. Things have not been great, according

to your reporting, Nina, between the justices. So what is Breyer's replacement walking into? Well, I don't think it's fair to say it's a hornet's nest. These are people who would like to get along, but are not having a great time doing that. And it's partly because there is finally a super majority for the conservatives on the court, meaning they can afford to lose any one of their group. And these are people who were nominated very explicitly because of their conservative agenda. And with the potential exception of the chief justice, they have lived up to that. What they can't seem to agree on even among themselves is what exact approach to take. So there are fissures in the conservative movement that are partly the result of their success in getting a supermajority. And there are personal divisions, too,

that you can see starting to develop. Scott, I do want to prepare our audience for what is about to happen. And maybe this only really just consumes Washington. But filling a Supreme Court vacancy is one of the most all-consuming political events that you can have. And as a country, there have been three recently. There were three in the very, you know, in the only the four years of the Trump administration. We're now headed into yet another one of these that will take up a lot of oxygen. Do you have any sense of what that means for the president and for the president in this moment where his approval ratings aren't awesome? I don't actually know the answer to

this. I was thinking about whether Supreme Court nominations are one of the vestiges of kind of the old Senate patterns and habits compared to other things, but I don't really actually think that is the case anymore because we have lived through, we have had three successful Supreme Court confirmations and one unsuccessful Supreme Court nomination in the life of the NPR Politics podcast. And you had the unprecedented situation of Merrick Garland being appointed by Barack Obama and then the Senate never holding a vote on him or even a hearing. The Kavanaugh circus, which does have only one president, Nina covered both of them and could talk a lot about that. And then the other unprecedented thing of after Mitch McConnell says, no, we're not going

to hold a hearing or a vote in an election year, when Justice Ginsburg dies with just weeks before the presidential election. Trump nominates, nominates Coney Barrett and the Senate with just days to go, confirms her. So I don't really know the answer to that. I think, I think Joe Biden very much hopes for, for regular order to restore itself and have a smooth process. But yeah, it's going to be a month's long story. And with that tight Democratic vote margin, every one of the parties is going to have to be on the same page. Scott, I have a question for you. How prepared do you think the Biden White House is for all of this? I mean, I had always assumed that it would be very prepared. But I've heard a couple of

things lately that suggest to me that they have quite inexperienced people at the staff level, lower staff level, where people do the scut work that prepares a nominee for a confirmation hearing. You know, here are all your opinions and what you have to look at. We need a list of everything you've ever written and to have it combed for every bad interpretation opinions and what you have to look at. We need a list of everything you've ever written,

and to have it combed for every bad interpretation you could possibly find. How much do you think they're prepared for that? You know, I think there have been some surprises over the last year, and I think we've talked a lot about them, of things that, you know, across the board, this is one of the most experienced administrations ever. Like you have, obviously, Joe Biden has been in government for a long time. It is populated by people who serve for long chunks of the Obama administration. And yet they have been caught flat footed by a lot of things. But I mean, I think the answer to that question will come in the coming days.

Do they roll out a nominee very quickly? Or is this something, does this stretch out and lose some momentum, which you've seen in so many other things, like including and most prominently Build Back Better, you know, a White House that prides itself on understanding Congress, understanding the Senate, and particularly just got caught in an endless negotiating bog that so far it has still not found its way out of. Right. Well, let us leave it there for today. More coverage on the radio. And you can listen via the NPR One app. I'm Tamara Keith. I cover the White House. I'm Scott Detrow. I also cover the White House. I'm Nina Totenberg. I cover the Supreme Court.

And thank you for listening to the NPR Politics Podcast.