Stephen Breyer planning to retire from US Supreme Court

Stephen Breyer, a liberal member of the US Supreme Court, plans to retire this year, according to media reports, a move that will pose a political test for president Joe Biden as he seeks to install a progressive replacement.

Breyer, 83, is expected to step down at the end of the court’s current term in June. Chuck Schumer, the Democratic Senate majority leader, said Breyer “is, and always has been, a model jurist”, and vowed 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”.

When asked about the news at the White House on Wednesday afternoon, Biden told reporters: “There has been no announcement from Justice Breyer. Let him make whatever statement he’s going to make, and I’ll be happy to talk about it later.”

The Supreme Court’s oldest member has come under mounting pressure in recent months to step down so Biden can nominate a younger liberal to fill his lifetime seat on America’s highest court. There are no term limits for Supreme Court justices.

While the retirement would not shift the court’s ideological balance between conservatives and liberals, it will give Biden an opportunity to ensure Breyer’s seat goes to someone who will share similar views.

Breyer and his former colleague Ruth Bader Ginsburg first faced calls to resign in 2011, when Randall Kennedy, a Harvard Law School professor, argued in a contentious essay for The New Republic that the two justices should step aside to allow then-Democratic president Barack Obama to select their successors.

Ginsburg died in 2020 aged 87, just months before the end of Donald Trump’s presidency. He filled her seat ahead of presidential elections in November with Amy Coney Barrett, cementing a 6-3 conservative majority on the court’s bench.

Breyer, who was nominated by former president Bill Clinton, has been a member of the court for almost three decades.

Supreme Court justices are chosen by presidents but require confirmation by a simple majority in the Senate. The confirmation process, which includes a series of public hearings before the Senate judiciary committee, has become one of the most politically charged events in Congress.

“I think it could move very expeditiously because the White House has been thinking about this for a year, even before that,” said Carl Tobias, law professor at the University of Richmond.

While presidential appointments have in the past received bipartisan support, that has changed in recent years. The Senate voted 52-48 to confirm Barrett, with Susan Collins the only Republican to vote against her confirmation and no Democrats backing her.

Another Trump pick, Brett Kavanaugh, was also mired in controversy amid sexual harassment allegations dating back to his teenage years. He was ultimately confirmed in a 50-48 Senate vote, with Joe Manchin as the lone Democrat supporting his nomination.

As a candidate for president, Biden vowed to nominate a black woman to the Supreme Court bench should a vacancy arise during his tenure. Just two black justices — Thurgood Marshall and Clarence Thomas — have sat on the Supreme Court, and only five women have served as justices.

Ketanji Brown Jackson, a judge on the powerful appeals court for the District of Columbia, and Leondra Kruger, a justice on the California supreme court, are seen as among the lead contenders to take Breyer’s seat.

The Senate previously confirmed Jackson — who clerked for Breyer at the Supreme Court in 1999 and 2000 — by a bipartisan vote of 53-44 during her nomination to the appeals court last year.

Jen Psaki, the White House press secretary, did not offer any details on the administration’s thinking about a nominee to replace Breyer, but said the president “stands by” his vow to tap a black woman to the Supreme Court.

When asked if Biden might consider Kamala Harris, the vice-president, to fill the vacancy, Psaki responded: “The president has every intention . . . of running for re-election, and for running for re-election with vice-president Harris on the ticket as his partner.”

Dick Durbin, the Democrat from Illinois who chairs the Senate judiciary committee, praised Breyer as a “trusted voice on the bench with a first-rate legal mind” and said he looked “forward to moving the president’s nominee expeditiously” through the committee.

Lindsey Graham, a senior Republican on the Senate judiciary committee, called Breyer a “scholar and a gentleman” but did not indicate any inclination to back a Biden nominee.

“If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” Graham said. “Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”

NBC News first reported on Breyer’s retirement. The Supreme Court did not immediately return a request for comment.

Additional reporting by James Politi