Between the district and circuit courts, there are currently 45 vacancies in the federal judiciary — a number that’s likely to grow as more progressive jurists eye retirement after Donald Trump exits the White House. As HuffPost reported last week, Joe Biden’s incoming White House counsel, Dana Remus, has already begun reaching out to Democratic senators for progressive recommendations.
It’s clearly a top priority for the incoming team: The article added that Biden “wants judicial nominee recommendations for existing district court vacancies ‘as soon as possible,’ said Remus, and no later than Jan. 19 — a day before Biden is formally sworn in.”
Of course, when Remus sent the letter, there was a high hurdle lurking in the background: in a Republican-led Senate, Biden’s judicial nominees would likely languish. We need only look to 2015 and 2016 — the last two years of Barack Obama’s presidency — to see the ease with which a GOP-led Senate ignored, blocked, and defeated qualified judicial nominees as part of a partisan crusade to shift the courts to the far-right.
But now that a Democratic-led Senate appears likely, the parties can now look at the federal judiciary in a very different light. As of this morning, Team Biden’s emphasis on the courts matters because his nominees stand a good chance of being confirmed.
And as Politico noted, the calculus related to the U.S. Supreme Court has changed just as quickly.
The results of the Georgia Senate runoffs aren’t yet final. But left-wing activists are already pressuring Supreme Court Justice Stephen Breyer to take advantage of a possible Democratic majority in the Senate and retire. Demand Justice, the group founded in 2018 as a progressive response to conservative organizing around the courts, praised Breyer in a statement to POLITICO but encouraged him to make way for a younger liberal replacement and to do it early in Joe Biden’s first term.
I won’t pretend to know what Breyer is thinking about his future or possible retirement plans, but there are some obvious truths to consider. We know, for example, that the justice will turn 83 this year. We also know that the center-left jurist, tapped for the high court in Bill Clinton’s first term, wouldn’t ask Donald Trump to choose his successor.
And we can probably surmise that Breyer is aware enough of current events to know that if he retired while Mitch McConnell ran the Senate, his vacancy could go unfilled indefinitely — until there was another Republican president in the White House.
But if the results out of Georgia remain on their current trajectory, Breyer’s path to retirement looks a lot less complicated, if he’s interested in pursuing it.
To be sure, he may not be. But Ruth Bader Ginsburg waited, and I suspect Breyer is well aware of how that turned out.
Postscript: In case anyone’s curious, there are only two other sitting justices above the age of 70: Clarence Thomas, who recently turned 72, and Samuel Alito, who’ll turn 71 later this month. Those hoping either of them might step down during Biden’s term should probably lower their expectations.
