​​With Stephen Breyer Set to Retire, Biden Aims to Bring a Black Woman to the Supreme Court

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Can Republicans stop him?

After sitting on the bench for 28 years, Justice Stephen Breyer is planning to retire from the Supreme Court at the end of this term — which is already set for some blockbuster decisions, with a number of pivotal cases on everything from abortion to gun rights and religious liberties. Breyer made the news official today with an announcement at the White House, kicking off a frenzied process for finding his replacement.

“I have been aware of the great honor of participating as a judge in the effort to maintain our Constitution and the rule of law,” he wrote in his resignation letter to President Biden.

Who is Stephen Breyer?

First nominated by former President Bill Clinton in 1994, the 83-year-old is the court’s oldest member, and one of the panel’s three liberal justices. Known for his pragmatism, his path wasn’t an easy one: He didn’t get the job on his first try after showing up to his interview with Clinton with a broken rib due a bike accident. (The late justice Ruth Bader Ginsburg was chosen instead.) But when another seat became available the following year, Breyer got the nod and went on to make inroads with moderate conservatives on the bench, like Sandra Day O’Connor. 

What does Breyer’s retirement mean for the court?

His retirement caps months of growing calls from progressives for him to step aside and make room for a younger justice before Republicans have a chance to potentially take back the White House. But he won’t officially step down until the court’s term ends this summer, and his departure won’t change the current 6-3 split between conservative and liberal justices. 

Who will Biden nominate?

Biden may not be able to shake up the court’s conservative majority, but he will get the chance to name a new jurist of his own choosing — and diversify the court in the process. During his 2020 campaign, the president pledged to nominate the first Black female Supreme Court justice.

A number of candidates are reportedly on Biden’s shortlist, but federal Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger are thought to be the top contenders.

Can Republicans block this nomination?

Given the current rules, Democrats can confirm a replacement (even without any Republican support) in the evenly split 50-50 Senate. Senate Majority Leader Chuck Schumer has already vowed to give Biden’s nominee a speedy hearing. 

Legal expert Michael Olivas emphasizes that time is of the essence, given November’s midterm elections that could potentially result in Republicans taking control of the upper chamber. While Olivas doesn’t expect Republicans to block a nominee like they did with Merrick Garland in 2016, he would still “urge” Biden to nominate a replacement in time.

“As long as [Democrats] fill it before Jan. 20, they run the Senate and they’ve got the chance to do it — and they can’t be blocked,” he tells us.