Senate Democrats have a lot on their plate right now. They’re trying to get an infrastructure bill on Biden’s desk, the laborious Senate budget resolution is on the docket, the Republicans are still impossible to work with, and while midterms are a little over a year away, campaigns will really start revving up this fall. So the last thing they need to worry about is the conservative-leaning Supreme Court, which has already proved beyond disappointing in recent weeks.
But despite the mountain of work ahead—and neverending distractions along the way—Dems can’t ignore the aging elephant in the room: Supreme Court Justice Stephen Breyer.
The Hill reports that Sen. Schumer may have alluded to 82-year-old Breyer in a recent letter to Senate Democrats regarding upcoming projects ahead. In addition to warning his colleagues that they may be “working long nights, weekends, and remaining in Washington into the previously-scheduled August state work period” he said that “As always, Senate Democrats stand ready to expeditiously fill any potential vacancies on the Supreme Court should they arise.”
Perhaps Schumer was simply stressing that Democrats must be ready to handle multiple gauntlets at the drop of the hat. Or, he’s saying, “retire, bitch.”
It’s likely decorum that has prevented Senate Democrats from suggesting publically that Breyer retire. But at what point does concern over the uncertain future of law, justice, and fairness in America trump decorum. The answer is now, that point is now.
Sure, Breyer retiring wouldn’t mix up the balance of the court: He’s a liberal judge and, with Democrats in charge, he would be replaced with another liberal judge. But Breyer retiring before the 2022 midterm elections would allow Democrats to replace Breyer with someone half his age and avoid another Ginsburg shitshow. The Democratic majority in the Senate is razor-thin, and the slightest shake-up during the midterms could spell disaster. If Republicans regain the Senate in 2022 and Breyer dies or retires sometime after that, Republicans won’t hesitate to block Biden’s nomination for his replacement. If his seat remains vacant and Republicans manage to reclaim the White House in 2024, we could be looking at a conservative supermajority on the Supreme Court for generations to come.
So, yeah, maybe, I don’t know, fuck decorum. Supreme Court justices are proud people. The aging and often ailing Justice Ginsburg felt pressure to retire during the Obama administration, but she bristled at the suggestion and refused. Well, she should have quit: Ginsburg died weeks before the 2020 election, and under President Trump and a Republican Senate, she replaced by the ultra-conservative Justice Amy Coney Barrett. Why risk this again? It’s time for some good ol’ fashioned peer pressure.