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Justice Stephen Breyer

U.S. Supreme Court Justice Stephen Breyer will reportedly retire at the end of the current session. (Photo: Erin Schaff/Pool/AFP via Getty Images)

Biden Urged to Nominate Black Woman to Supreme Court as Breyer Says He'll Retire

"President Biden has an opportunity to secure a seat on the bench for a justice committed to protecting our democracy and the constitutional rights of all Americans, including the freedom to vote."

Brett Wilkins

Reports that U.S. Supreme Court Justice Stephen Breyer plans to retire prompted progressives Wednesday to urge President Joe Biden to fulfill a campaign promise and nominate a progressive Black woman who will counter the high court's right-wing supermajority and protect democracy, human rights, and the climate. 

"The status quo is failing all of us, so Biden's choice is crucial."

CNN reports a "well-placed" unnamed source said Breyer, an 83-year-old liberal, is expected to stay on the bench until the end of the current term and a replacement is confirmed. Two "people familiar with the decision" also confirmed his plan to The New York Times.

"As we celebrate Justice Breyer's career... we also call for President Biden to live up to his campaign promise and nominate a Black woman to the bench who believes in the constitutionality of reproductive rights and has a strong record favoring civil rights," Bridget Todd, communications director for the advocacy group UltraViolet, said in a statement.

"Biden promised to take the historic step of nominating a Black woman," she added. "We expect Biden to deliver on this promise and will demand that the Senate move expeditiously to approve that nominee."

Since Biden's election, some progressives have been pressuring Breyer to step down in order to allow the president to appoint a liberal justice to the high court. During the 2020 presidential campaign, Biden said that he was "looking forward to making sure there's a Black woman on the Supreme Court."

Responding to the reports, Biden—who as then-Senate Judiciary Committee chair presided over Breyer's 1994 confirmation hearing—told reporters Wednesday, "Let him make whatever statement he's going to make and I'll be happy to talk about it later."

Senate Majority Leader Chuck Schumer (D-N.Y.) said Biden's nominee to replace Breyer will receive a "prompt hearing" and will be considered and confirmed by the full Senate with "all deliberate speed," according to Reuters.

Advocates urged Breyer to retire while Democrats control the U.S. Senate, which must approve the president's pick. Given that the upper chamber is evenly split between Democrats and Republicans—with Vice President Kamala Harris casting tie-breaking votes—there are concerns that Sens. Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), who have torpedoed their own party's agenda including by refusing to abolish the filibuster, could thwart a progressive nominee. 

Since the Republican-controlled Senate in 2017 invoked the so-called "nuclear option"—which eliminated the 60-vote threshold for Supreme Court nominees—to secure the confirmation of Justice Neil Gorsuch, the first of former President Donald Trump's three Supreme Court nominees, a simple majority vote is all that will be required to approve Biden's pick. 

"If Manchin and Sinema try to screw around with Biden's nomination to replace Justice Breyer, it's going to be torches-and-pitchforks time," Mark Jacob, a former Chicago Sun-Times editor, tweeted

However, other observers note that both of the senators have been reliable votes as Biden appoints federal judges at a record pace

Advocates are urging Biden to select a progressive nominee to help counter the court's right-wing supermajority.

"With Justice Breyer's retirement, President Biden has an opportunity to secure a seat on the bench for a justice committed to protecting our democracy and the constitutional rights of all Americans, including the freedom to vote," Sean Eldridge, founder and president of the advocacy group Stand Up America, said in a statement.

"The Supreme Court is dangerously imbalanced, with a 6-3 conservative supermajority actively eroding voting rights, abortion rights, environmental and worker protections, and more," he added. 

Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said that Breyer's retirement "and the nomination of a new Supreme Court justice comes at a critical moment for our country as we contend with a nationwide fight for civil rights, including protecting the fundamental right to vote."

"The nominee to succeed him must be committed to securing equal justice under the law, including fair reading of constitutional provisions, federal statutes, and regulations that have bearing on critical civil rights statutes," he continued.

"Right now, we have an opportune moment to expand the racial and gender diversity of the court. Once a nomination has been made, the Senate must take its constitutionally-mandated advice and consent role seriously, and carefully evaluate the nominee's full record without engaging in partisan games," he added. "Any gamesmanship or efforts to obstruct this nomination for political gain must not be tolerated."

Kierán Suckling, executive director at the Center for Biological Diversity, said in a statement that "with the climate and extinction crises getting more dire every day, President Biden must now appoint a justice who understands that our existing laws must be used to their fullest extent to save our planet and future generations. The status quo is failing all of us, so Biden's choice is crucial."

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