As President Biden and Nancy Pelosi slow-roll Democrats' plans to pack the Supreme Court (even as they insisted that they don't have a position on the issue but agree it should be "studied further"), the Democratic grass roots is trying to ensure that Democrats don't make the same mistake twice.
The mistake we're referring to here is, of course, the decision by former Justice Ruth Bader Ginsburg to stay on after President Obama left office (though, to be fair, the fact that Obama couldn't get a vote on Merrick Garland, it's unclear whether her retirement would have ultimately stopped the seat from being filled by a Republican).
Still, a growing number on the left see RBG's decision as a critical error and a strike against her legacy. While few Democratic lawmakers have spoken out directly in support of Breyer retiring now, progressive groups are growing increasingly vocal about suggesting him to "consider" stepping down before the next election, to ensure that President Biden and the Democrat-controlled Senate have a chance to confirm his replacement before the start of campaign season.
At 82, Breyer is the eldest justice on the court.
The campaign to oust Breyer is being led by a group called "Demand Justice". According to Bloomberg, DJ is "using social-media hashtags to get its point across, and also drove a truck-mounted electronic billboard around Capitol Hill last month, urging Breyer to retire."
In an interview with Bloomberg, "Demand Justice's" founder Christopher Kang, a veteran of the Obama White House, said the campaign isn't so much about forcing Breyer out as it is about galvanizing progressive attention (and, of course, donations) for the cause of pushing the Supreme Court back toward the progressive end of the spectrum and undoing President Trump's most enduring legacy.
"I don’t suspect that Justice Breyer is going to look out the window of the Supreme Court and see one of our trucks driving by and say, 'They’re right! I should retire now!'"
Instead, Kang said he and co-founder Brian Fallon, press secretary for Hillary Clinton's 2016 presidential campaign, want the group to focus liberal voters on the "importance of every single vacancy, and the need to start building a more enduring bloc on the court."
But we suspect he's being facetious. In reality, Demand Justice sees itself as a kind of ersatz Federalist Society: Liberals have long envied the political machine that the GOP built up around building a conservative majority on the nation's highest courts. This infrastructure was leveraged to great effect during Trump's presidency, as he filled hundreds of federal court vacancies. Democratic justices, by comparison, have marched to the beat of their own drum, instead of doing the right thing for Dems' overall political strategy.
Democrats had no such grass-roots effort with voters or with judicial-minded think tanks before 2020, except to sound the alarm when a confirmation fight was brewing, like after Ginsburg’s death in September.
"It's about reminding people that the Supreme Court is an inherently political institution. And in this moment, when we have a 50-50 Senate, part of this is about preserving Justice Breyer’s legacy and making sure that he’s succeeded by a like-minded justice," Kang said.
And at least as far as Democrats are concerned, the most important issue that progressive politicians deploy to scare voters to the polls is the undoing of Roe v. Wade. The court's decision just to hear a case about a Mississippi abortion law has once again got pro-choice activists up in arms, even as the conservative Supreme Court has repeatedly declined to embrace the most restrictive path available when it comes to shifting abortion rights.
As one twitter user pointed out, Dems need to avoid "another RBG situation".
1) Not a surprise to see Feinstein with a horrifically bad take here. Breyer needs to retire now to avoid another RBG situation under a future GOP president.— Mehdi Hasan (@mehdirhasan) May 6, 2021
2) Not a surprise to see Feinstein, age 87, saying a really old fellow top official (Breyer, age 82) should retire early https://t.co/MUcd6LjAGx
Notably, the push for Breyer to consider retirement is escalating just as the Supreme Court's term is ending (it will end late nest month). Typically, decisions about retirement have been held until after the end of session.
Should he chose to stay on, Breyer might be forced to retire mid-term, or shortly after the next term ends in the summer of 2022, right in the middle of campaign season.
Bloomberg noted that the pressure campaign "is unusually high profile for the judicial branch, an arena that has typically been seen as beyond the realm of politicking. So far, only two Congressional Dems, NY's Mondaire Jones and California's Jared Huffman, have suggested that Breyer should retire. Sen. Richard Blumenthal has offered a more subtle hint, saying that Breyer should consider the political reality during a recent interview with the Washington Post.