Opinion: Breyer’s retirement gives Democrats a big political opportunity. Will they take it?


HR King
May 29, 2001
At first glance, the announcement that Justice Stephen G. Breyer will retire from the Supreme Court looks mostly like a disaster averted for Democrats. We won’t see what might have happened if the 83-year-old Breyer had waited to step down after Democrats lost the Senate, when Republicans would have flatly denied President Biden’s nominee a hearing, keeping the seat vacant.
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But if they are thoughtful and strategic about the confirmation process for Breyer’s successor, Democrats could turn this into a real opportunity with profound political consequences. They just need to be clear about what’s at stake whenever we think about the future of the court and about why their supporters should care much more about it than they have in the past.
Meanwhile, Democrats must avoid the peril that the justified excitement of a historic choice to fill Breyer’s seat could distract from the danger the court still presents.

For decades now, the Republican electorate has cared far more about the Supreme Court than Democrats have. They invested huge sums in creating a pipeline of conservative judges. Their presidential primary contenders are grilled mercilessly on whom they’d appoint. Republicans have embraced any and all procedural tactics and norm violations to swipe seats when possible.
And it has paid off, to a degree that most Democrats probably don’t fully appreciate.
What Democrats must do now is use the confirmation hearings to highlight the long-term stakes of allowing the right’s energy and commitment to the court to continue dominating.
Jennifer Rubin: This is not how the Supreme Court is supposed to work

The risk is that the opposite might happen. After all, simply replacing Breyer won’t dent the underlying structural 6-to-3 advantage conservatives enjoy. And seating an African American woman on the court, as Biden has promised to do, might feel like such a historic breakthrough that it could persuade Democratic partisans to relax a bit.

“Breyer’s retirement presents both an opportunity and a danger,” Sarah Lipton-Lubet, the executive director of Take Back the Court, told us. She said the hearings should be used to spotlight “what comes next” and to focus the country on the continuing "damage done to America” by the court’s “right-wing supermajority.”
“The danger comes if Democrats instead are complacent and see simply maintaining a 3-to-6 deficit as sufficient,” Lipton-Lubet told us.
Democrats can use the hearings to prime the country for what’s coming. The almost certain overturning of Roe v. Wade later this year is just the beginning. The court will likely outlaw affirmative action, curtail the government’s ability to combat climate change and safeguard the environment, continue its assault on workers’ rights, strike down almost any restriction on unfettered gun proliferation, and continue to enable the Republican war on voting rights.

What’s more, the Senate is split 50-50 with a midterm election coming up. If Democrats lose control, Sen. Mitch McConnell (R-Ky.), as majority leader, will repeat what Republicans did with Merrick Garland in 2016 and simply refuse to allow any subsequent open seat to be filled.
Neal Katyal: Breyer’s act of listening will pave the way to a healthier democracy
With a GOP-controlled Senate, no Biden nomination for a court vacancy would get a hearing. Ever. And a Republican president beginning in 2025 could cut off the chance to add another liberal to the court for four or even eight years.
In short, Republicans appreciate what Democrats haven’t: This is a long-term struggle. And as Democrats look for a way to get their base energized and motivated for the 2022 elections, they could hardly have found a better one.

So Democrats must use this opportunity to fully explore the vital issues that will come before the court in the future and all the ways the McConnell-built court will continue making this a crueler, more unequal, more unjust country.
As a first step in reversing that tide, Democrats can show people what’s really at stake in the midterms, the next presidential election and beyond. It ought to start now.