President Joe Biden “certainly” stands by his promise to nominate a Black woman to the Supreme Court, the White House said Wednesday, as it scrambled to respond to the news that Justice Stephen Breyer, 83, will retire at the end of this term.
NBC News first reported Breyer’s impending retirement, citing people familiar with his thinking. Breyer has not announced the news himself. It set off a flurry of activity in the West Wing, and it was initially unclear if Biden was aware of Breyer’s intentions, although Politico later reported that he informed the president last week.
White House press secretary Jen Psaki tweeted shortly after that “it has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today.”
Sen. Chuck Schumer (D-NY), the Senate majority leader, vowed in a statement that Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.”
Breyer has served on the Court for more than 27 years. He was appointed by President Bill Clinton in 1994 in a nomination process overseen by Biden, then the chair of the Senate Judiciary Committee. He’s considered the oldest of the Court’s liberal wing, which also includes Justices Sonia Sotomayor and Elena Kagan.
The justice’s time on the bench will come to an end as the Supreme Court is set to rule on one of the most consequential cases of his career: a direct challenge to Roe v. Wade that court-watchers say looks likely to overturn the landmark case protecting abortion access. As the senior-most liberal justice, Breyer would likely write the dissent if Roe is overturned.
Breyer’s pending retirement comes after the court was crafted into an ultra-conservative majority during the Trump administration. And while a Biden-nominated justice would not shift the Supreme Court’s current ideological tilt—conservative-leaning justices outnumber liberal-leaning ones six to three—it would prevent the risk of Breyer being replaced under a potential Republican successor, which liberal legal scholars have warned of since Biden’s inauguration.
Some Democrats had been urging Breyer to resign so Biden could appoint a younger, more liberal judge in his place—and avoid a repeat of the late Ruth Bader Ginsburg’s refusal to retire, which ultimately led to the appointment of conservative Justice Amy Coney Barrett.
Since February 2020, Biden has pledged several times to nominate the first Black woman to the Supreme Court if given the opportunity.
“Number one, I committed that if I’m elected as president and have the opportunity to appoint someone to the courts, I’ll appoint the first Black woman to the Court,” he said during a Democratic primary debate in March 2020. “It’s required that they have representation now—it’s long overdue.”
On Wednesday, Psaki stonewalled reporters in the White House briefing room who asked for details about the administration’s process in selecting a nominee, noting that while Biden “certainly” stands by his commitment to name a Black woman to the nation’s highest court, no more information would be forthcoming.
“It’s always been the decision of any Supreme Court justice if and when they decide to retire,” Psaki said. “We’re not going to have additional details.”
She dodged multiple inquiries about whether Vice President Kamala Harris, a former California attorney general, might be considered for the post.
Biden’s nomination of Judge Ketanji Brown Jackson to fill the seat on the U.S. Court of Appeals for the D.C. Circuit left vacant by now-Attorney General Merrick Garland was seen as a signal that a Supreme Court nod could be next. She was confirmed by the Senate 53-44 in June last year.
Brown Jackson, a former clerk for Breyer, was nominated to her previous position on the U.S. District Court of the District of Columbia by President Barack Obama in 2013. After Justice Antonin Scalia’s death in 2016 she was mentioned alongside Garland as a possible SCOTUS pick.
The process will be a major test of Biden’s ability to navigate the U.S. Senate, and will put him on the opposite end of the role he once held. As chairman of the Senate Judiciary Committee, Biden presided over Supreme Court nominations, leading the hearings for Justice Clarence Thomas and Ginsburg.
But the Senate’s composition has changed drastically since then. During the Thomas hearings, it consisted of 55 Democrats and 45 Republicans, while the Breyer and Ginsburg nominations faced an even wider gap: 58 Democrats and 42 Republicans. In the current evenly split Senate, one defection could topple a nomination.
Liberal judicial groups were quick to applaud Breyer’s retirement, seeing it as an important first step to staunching the bleeding on a host of cases they see as critical.
“It is a relief that President Biden will get the opportunity to choose the next justice on the Supreme Court while the Senate is in Democratic hands,” said Demand Justice executive director Brian Fallon in a statement following the news. “Justice Breyer’s retirement is coming not a moment too soon, but now we must make sure our party remains united in support of confirming his successor.”
Some of Breyer’s prominent decisions included his majority opinion last month defending the Affordable Care Act, writing in California v. Texas that the defendants lacked standing. He also wrote in favor of abolishing the death penalty, questioning its constitutionality in the dissenting opinion in 2015’s Glossip v. Gross.
Breyer often spoke out on other liberal standpoints through his opinions. In the 2004 Vieth v. Jubelirer dissent, he condemned political gerrymandering, writing, “Sometimes purely political ‘gerrymandering’ will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm.”