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Justice Breyer Confirms Leaving SCOTUS In Summer, K. Brown Jackson Leading Black Female Contender

Tyler Durden's Photo
by Tyler Durden
Thursday, Jan 27, 2022 - 05:25 PM

President Joe Biden and Supreme Court Justice Stephen Breyer will formally announce Breyer’s retirement this morning, clearing the way for Biden’s first nomination to the nation’s highest court.

"I'm here today to express the nation's gratitude to Justice Stephen Breyer for his remarkable career in public service and his clear-eyed commitment to making our country's laws work for its people," Biden said, as Breyer stood behind him.

"Today, Justice Breyer announces his intention to step down from active service," Biden said.

Breyer, 83, is the oldest member on the nation's highest court.

Justice Breyer just issued a letter announcing his retirement.

"I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.”

Watch his remarks along with the president live here (due to start at 1230ET):

Senate Majority Leader Chuck Schumer said the Senate would move quickly to replace Breyer with Biden’s nominee.

“We can’t risk losing yet another seat on the high court to the radical, anti-democracy right,” Democratic Representative Mondaire Jones, a New York progressive, said in a statement.

Biden should nominate “someone who is not hostile to the fundamental right to vote, who respects precedents like Roe v. Wade, who believes in the science of vaccines, and who respects the constitutional prerogatives of Congress.”

But the hearings for Biden’s eventual nominee are set to become a proxy fight for the high-stakes battle for control of Congress in the November election.

“There is no greater issue to the Republican base than the Supreme Court,” said Kyle Plotkin, a GOP strategist and former chief of staff to Missouri Republican Josh Hawley.

“It would be political malpractice if Republicans let this nomination go through without a fight.”

President Joe Biden said Thursday he would nominate the first Black woman in US history to the Supreme Court bench as he addressed the nation on the retirement of the liberal justice Stephen Breyer.

"I've made no decision except (the) person I will nominate will be someone with extraordinary qualifications, character, experience and integrity," Biden said in an address from the White House.

"And that person will be the first Black woman ever nominated to the United States Supreme Court."

Biden said he will name his choice by the end of February.

As Jonathan Turley notes, Biden’s controversial use of racial and gender criteria will only grow in the coming months as the Supreme Court considers two new cases involving racial preferences in college admissions. Those cases may now be heard before a Court with one member who was expressly selected initially on the basis of not of a racial preference but a racial exclusionary rule.

Biden’s record on racial discrimination as president has not been good.

It is the same type of threshold use of race that resulted in federal programs in the Biden Administration being struck down as raw racial discrimination, including prioritizing black farmers for pandemic relief.

There is also a current controversy in the Biden Administration’s use of race in distributing scarce Covid treatments. As with cities like New York, the Biden Administration has endorsed the use of race to give priority to African Americans in receiving such treatments. It was entirely unnecessary.

It is equally baffling why Biden needed to exclude other races and genders rather than include those issues as what the Court called a “plus” on admissions.

Nothing, of course, prevented Biden from, like Reagan, seeking and selecting a female black candidate.

That is why Biden’s decision to impose a racial and gender exclusionary rule was a political, not a practical choice. Yet, it will now unnecessarily add a controversy to this nomination. The short list of judges include some who would be natural candidates on any vacancy. President Biden has saddled the eventual choice with an asterisk nomination that is unfair to both the nominee and the Court.

But, as Nick Ciolino detailed earlier at The Epoch Times  White House press secretary Jen Psaki refused to answer speculative questions about the future of the Supreme Court but did say that President Joe Biden remains committed to his campaign promise to appoint the first ever black woman to the high court in the event of a vacancy.

White House Press Secretary Jen Psaki holds a press briefing at the White House in Washington on Jan. 25, 2022. (Leah Millis/Reuters)

This after Senate Majority Leader Chuck Schumer (D-N.Y.) issued a statement Jan. 26 saying that Supreme Court Justice Stephen Breyer will retire at the end of the court’s term this summer. Several Democratic congressional members then followed with calls on Biden to nominate a black woman.

“The president has stated and reiterated his commitment to nominating a black woman to the Supreme Court and certainly stands by that,” Psaki said.

“For today, again, I’m just not going to be able to say anything about any specifics until, of course, Justice Breyer makes any announcement, should he decide to make an announcement.”

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, and Associate Justice Amy Coney Barrett. (Erin Schaff/Pool/Getty Images)

At a campaign event last summer, Biden said that he is “putting together a list of African-American women who are qualified and have the experience to be on the court,” and added that he’s “not going to release that until we go further down the line in vetting them as well.”

Breyer, 83, has served as a Supreme Court justice for more than 30 years. He was appointed by former President Bill Clinton, a Democrat, and is considered to be part of the high court’s liberal-leaning wing. Were he to step down, it would pave the way for Biden to appoint his first Supreme Court justice.

Some have speculated that Vice President Kamala Harris—who previously served as attorney general for the state of California—could be a potential choice for a vacant seat. Psaki on Wednesday repeated her previous statement saying that Biden intends to run again in 2024 with Harris on the ticket.

Supreme Court appointments have been highly contentious political events in recent years, with nearly all Democrats voting to block former President Donald Trump’s three picks.

Jared Carter, an assistant professor at Vermont Law School, told The Epoch Times on Wednesday that he expects Republicans to fight a Biden nomination as aggressively as Democrat’s did the Trump nominations. But he noted that the Democrats hold a slim majority in the Senate and that Democratic Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have both voted independent of Biden’s agenda in the past.

My sense is certainly that Biden recognizes that he’s going to have to appease every Democrat, and that includes Sens. Sinema and Manchin, and so I think that means we’re going to see, certainly, not a ‘far-left’ nominee,” Carter said. “We’re much more likely to see a centrist jurist—someone who doesn’t have a reputation one way or the other.”

Sen. John Cornyn (R-TX), who sits on the Senate Judiciary Committee, said of the pending retirement, “There will be immense pressure from the radical left to replace Justice Breyer with a partisan who will legislate from the bench, and I hope President Biden will not cave to their demands the way he has on nearly everything else the past year.”

Schumer said 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.”

If Breyer does decide to retire at the end of the Supreme Court term this summer, he will likely vote on Dobbs v. Jackson Women’s Health Organization—a case that examines the constitutionality of a law from Mississippi that would ban abortions after 15 weeks of pregnancy, with no exceptions for rape or incest—before he vacates his seat.

As we detailed yesterday, Democratic insiders are whispering about Judge Ketanji Brown Jackson, who was appointed last summer to the Washington DC Court of Appeals (seen as a stepping stone to the nation's highest court), being the top candidate since President Biden has said he would nominate a black woman, what would be a first for the court. But KBJ, as she has become known, isn't the only contender.

Ketanji Brown Jackson

According to NYTimes, California Supreme Court Justice Leondra Kruger is also in the running, having served as an acting deputy solicitor general in the Obama administration, presenting 12 arguments on behalf of the federal government. Like four of the current justices, she graduated from Yale Law School. Like six of the justices, she served as a law clerk on the Supreme Court, for former Justice John Paul Stevens.

KBJ was on President Obama's shortlist for the court in 2016, and Kruger (also a black woman) served as assistant, and then deputy solicitor general in both Democratic and Republican administrations prior to her nomination to California's highest court.

U.S. District Judge Michelle Childs is also a potential contender - albeit an outside bet - with a big ally. Representative James E. Clyburn, Democrat of South Carolina, told Vice President Kamala Harris and the White House counsel, Dana Remus, that whenever an opening emerged on the court, Mr. Biden should nominate a little-known federal judge in his home state: J. Michelle Childs. In one of her more high-profile cases, Judge Childs struck down a South Carolina rule during the 2020 election that would have required a witness to sign absentee ballots.

All three women are young for SCOTUS: Brown Jackson is 51, Kruger is 45, and Childs is 55. And Brown Jackson and Kruger for sure possess the legal credentials necessary to potentially attract a moderate Republican or two. There is no filibuster for SCOTUS nominees.

Brown Jackson is the bettors' favorite and even Kamala Harris gets a nod...

Source: PredictIt

* * *

Finally, because sometimes we all need a laugh, Babylon Bee yesterday reported it had received an exclusive look at Biden's list of potential SCOTUS nominees. Surprisingly, they're not all black women.

DISCLAIMER: The following list of names and comments are taken verbatim from Biden's list and do not reflect the views of The Babylon Bee.

  • Queen Latifa:  She's black, female, and sassy! That's a win-win-win scenario.

  • Michelle Obama:  Barack will kill me if I don't nominate her.

  • Rachel Dolezal: A woman who is also black.

  • Whoopi Goldberg: She was a nun. That'll help me look Catholic! Actually– maybe we can just replace the whole court with The View. Gotta' ask Jill.

  • Aunt Jemima:  I can't believe they fired that poor woman. The Pearl Mining Company just wants to keep her in chains!

  • Mrs. Butterworth: She's probably black. I can't tell.

  • Peter Dinklage:  He could use a boost.

  • Xi Jinping:  We already have a good working relationship.

  • Greta Thunberg: Our court would be well served by this infallible child of light. She's black, right?

  • Hunter Biden:  He should fit right in. This may be the easiest nominee to push through. Gotta' tell Jill.

  • Donald Trump:  The only way to keep him from running for President.

  • Vladimir Putin:  The only way to keep him from invading Ukraine.

  • Kamala Harris:  The only way to keep her from killing me. Plus, she's black! (Editor's Note: The word 'black' was circled three times)

Noticeably absent from the list is former Obama appointee, Merrick Garland. Sources confirm he doesn't tick any intersectional boxes which makes him a major liability.

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