Dems To Justice Breyer: Retire From Supreme Court While We Control Senate : The NPR Politics Podcast Reeling from the political fallout after Justice Ruth Bader Ginsburg's death, some liberal groups are pushing for Supreme Court Justice Stephen Breyer to retire from the high court while Democrats control the nomination and confirmation process.

This episode: political correspondent Juana Summers, demographics and culture reporter Danielle Kurtzleben, and legal affairs correspondent Nina Totenberg.

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Dems To Justice Breyer: Retire From Supreme Court While We Control Senate

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AMY: This is Amy (ph) in the Commonwealth of Massachusetts. I'm in the Hot Shoppe about to blow glass with my buddies. This podcast was recorded at...


1:06 p.m. on Tuesday, May 4.

AMY: Things may have changed by the time you hear this. Like, we will have gathered molten glass on our pipes, added color, blown bubbles, made shapes, knocked them off, put them in the annealer, waited for them to cool and been able to hold this amazing medium in our hands. Enjoy the show.


SUMMERS: That is so cool. I have never blown glass before, but it sounds like it's a lot of fun.

DANIELLE KURTZLEBEN, BYLINE: Yeah, and labor-intensive also.

SUMMERS: (Laughter) Hey there. It's the NPR POLITICS PODCAST. I'm Juana Summers. I cover politics.

KURTZLEBEN: I'm Danielle Kurtzleben. I also cover politics.

NINA TOTENBERG, BYLINE: And I'm Nina Totenberg, legal affairs correspondent. And I wish I could blow glass.

SUMMERS: Democrats were shocked when Justice Ruth Bader Ginsburg died shortly before the presidential election last year, and her death gave President Trump the opportunity to nominate a third justice to the high court in just four years. That is a third of the entire bench.

Danielle, you have been doing some really interesting reporting around the court and around a push from some activists and lawmakers who say they want to see Justice Stephen Breyer retire while President Biden and Democrats still control the nomination and confirmation process. He's 82. He was appointed to the Supreme Court by former President Bill Clinton back in 1994. Can you just get us up to speed? What has been happening?

KURTZLEBEN: Sure. So like you said, this is largely, at this point, among the activist class, I think you could say. For example, the group Women's March put out a statement a couple of weeks ago saying, Justice Breyer, we respect you. We appreciate your work on the bench. Now to secure your legacy, please retire so Joe Biden can appoint someone. There's also a group called Demand Justice. It is headed up by Brian Fallon, who was high up in Hillary Clinton's campaign in 2016 - so a prominent Democrat.

That group is all about Supreme Court reform and activism. They have also said, we would very much like Stephen Breyer to retire. Not only that, they sent a truck with the words, Breyer retire, driving around the Supreme Court at one point last month. But there's also - you know, Black Voters Matter told Politico that they support this push as well. It's just sort of popping up in lots of places. Some law professors have written op-eds about this. But you're hearing a little bit of this on Capitol Hill as well. A Democratic representative from New York, Mondaire Jones, told me that - and has told other places as well that, yes, he very much is vocally supporting a push for Stephen Breyer to retire. And you hear this a little more quietly from some senators with quite a bit more decorum.

SUMMERS: Nina, can you just tell us a little bit about Justice Breyer and what he's been like on the court?

TOTENBERG: He is an intellectual, a pragmatist, somebody who loves to talk about ideas and is always interested in how a decision can work. Can lower courts follow it? Can people understand it? Can it work? And he's also a master of administrative law or as conservatives were to put it, the deep state. And he has seen programs that work and don't work and Supreme Court decisions that work well and don't work well, and that has been sort of his pragmatic role on the court. He's not the author of huge landmark opinions. He's a behind-the-scenes force for consolidating moderate compromise.

SUMMERS: But it sounds like here that you believe that he is probably someone who's keenly aware of the stakes, at least from a political standpoint, and why this type of agitation might be happening from the outside, from these groups that Danielle's been reporting on.

TOTENBERG: Well, one would realistically suspect that he does completely understand this. On the other hand, he may think he has another year to figure this out. I have no inside information, and I know enough not to guess. I mean, for three years, Republican conservatives were pushing Justice Kennedy to retire, not quite this overtly. And in some ways, it was nastier because they spread rumors that he was failing and he was ill and all kinds of stuff like that. In the end, he just decided the time had come for him to leave for personal reasons - to be with his wife, to enjoy his older age. But pushing somebody to retire is always - has some fraught problems to it.

KURTZLEBEN: To really flesh out what some of these Democrats and progressives are thinking, what I gathered from talking to people is that there is a sort of cumulative effect here of, look; not only having watched Donald Trump nominate three justices to the Supreme Court, but on top of that one, one of them took a spot that Obama nominated Merrick Garland to. And of course, Republicans didn't hold confirmation hearings for him. Then there was the bitter fight over Justice Kavanaugh. Then there was Amy Coney Barrett, who took the seat of the beloved on the left, Ruth Bader Ginsburg.

And you add all of that together, plus the very real fear - and it feels morbid to talk about. But the fear that, look; Democrats have such a slim majority in the Senate, the slimmest possible and there - as one person, Christopher Kang from Demand Justice told me, that means that if any senator were to, God forbid, you know, die tomorrow, then that would lead - then that would sway the balance away from Democrats, or it could sway away from Democrats.

CHRISTOPHER KANG: Well, hopefully, we have this majority for - until the end of 2022. Really, this majority could go at any moment given the potential health or something else that might happen.

KURTZLEBEN: One other thing I would add is that speaking of the politics of all of this, of course, the current Senate and whether or not they could confirm a Biden nominee is a big deal right now. But also on people's minds is the 2022 election. You know, in 2018, the Kavanaugh hearings were happening right as candidates were making their big pushes ahead of November. Then in 2020, Ruth Bader Ginsburg had just died right before the election.

And there is some sense from exit polls that - and from other polling that Democrats have grown more energized by Supreme Court nominations since 2016, when President Trump won people who were more concerned about the Supreme Court. So this is also something that Democrats are thinking might sort of amp up their voters next year. So there are a lot of things at stake.

SUMMERS: All right, we're going to take a quick break, and we'll talk more about all of this when we get back.

And we're back. Y'all, as we talk about the future of the court, I keep thinking back to a promise that President Biden made as a candidate. He said that he would nominate a Black woman to the Supreme Court if a vacancy did arise during his term. Danielle, is that something that plays into any of the dynamics from these outside groups?

KURTZLEBEN: Oh, yes. And that is something that is very much a big part of the message, for example, from Demand Justice. One of the things on that truck that they drove around the court was not just the message, please retire, Justice Breyer, but the message, it's time for a Black woman on the Supreme Court.

We've talked a lot on this podcast about the importance of identity among progressives, so that carries over to the Supreme Court. And people definitely are going to hold President Biden to his promise to put a Black woman onto the court.

TOTENBERG: I don't think that's going to be a hard promise to keep.

KURTZLEBEN: Absolutely not, no.

TOTENBERG: There are a ton of very talented Black women judges waiting in the wings for one or more of these jobs should they become available. I mean, we just, last week, saw Judge Ketanji Brown Jackson at her confirmation for the U.S. Court of Appeals for the District of Columbia. She's taking the seat previously occupied by Merrick Garland. There's Leondra Kruger, who has for many years now been on the California Supreme Court and prior to that was deputy solicitor general making arguments in the Supreme Court for the U.S. government. And there have already been nominated more highly qualified and accomplished Black female judges. That queue is long and standing out there waiting to take its place.

SUMMERS: So where is the White House on all of this? You know, so far, we haven't seen, at least publicly, President Biden put any sort of overt pressure on Justice Breyer to retire. Do you get the sense that that's something he might do?

TOTENBERG: I think that that would be folly, and they know that. Ron Klain, who's the White House chief of staff, was Biden's counsel on the judiciary committee. And so, you know, President Obama tried that with Ruth Bader Ginsburg, and she just looked, just stared back at him. And, you know, people criticize her for that. And I grant you that there is valid reason to criticize her for not having stepped down in 2014 when the Democrats, I guess, still had control of the Senate. But I think that she thought that Hillary Clinton would be the next president and that she could give her this nomination of a woman to fill her seat. And she thought, with some justification, that Republicans wouldn't confirm anybody like her to fill her seat, that it would be very difficult to get somebody confirmed. And therefore, she stayed where she was. She rolled the dice, and she lost by a few months. But she lost.

KURTZLEBEN: White House press secretary Jen Psaki said last month that President Biden does believe this is Breyer's decision. But to the point that Nina is making about Ruth Bader Ginsburg, one person I talked to in my reporting was Neil Eggleston, who was President Obama's last White House counsel. And that's a position that weighs in on Supreme Court nominations and things around that. And what he told me was that in his position there, he himself considered - and this happened after, I believe, that Obama-Ginsburg conversation. He himself thought, OK, should we try talking to Justice Ginsburg again? But he told me ultimately, he decided it just probably wouldn't do much.

NEIL EGGLESTON: It's a little unseemly for a White House to suggest to a justice that they should retire and that the White House didn't have any information that Justice Ginsburg didn't already have. And so I just decided she would decide what she, you know, thought was appropriate.

KURTZLEBEN: Yeah. And this gets at something that Nina has been saying here, that, you know, these justices are smart people. They're aware of the politics. They know what's going on, so it's really hard for a White House to tell them more than that.

TOTENBERG: Who would have thought prior to Justice Scalia's death and McConnell blocking any consideration of the Garland nomination by President Obama for something, like, 10 months - that's close to a year. Who would have thought that was even feasible before McConnell did it?


TOTENBERG: So in some sense, Ginsburg, I think, was somewhat prescient.

SUMMERS: Nina, I want to ask you because you know these justices so well, I'm curious whether you think that in the wake of the death of the late Justice Ginsburg, that the politics of all of this have changed at all for Justice Breyer. Do you think his calculations are any different after that loss?

TOTENBERG: I don't know if her death did, but, you know, he's the quintessential reasonable person who is able to change his mind because he sees something different than he saw before. And my sense - and it's really only a sense; I have no inside information - is that he thought he had, oh, a year or two to decide whether he's going to do it this year or next year. And I think he may, just by the speed of the Amy Coney Barrett confirmation, her nomination coming within days of Justice Ginsburg's death, even as she was being celebrated in the - you know, and lying in the rotunda of the Capitol. I think that it's possible that he has understood that these politics are so different from what he grew up with. He may have perceived that he doesn't have all the time in the world to ponder this, or he may have his nose out of joint. I mean, I would be very unhappy if I saw a truck going around NPR telling me to retire.

KURTZLEBEN: (Laughter) No one's planning on that, Nina. Come on.

TOTENBERG: Good. Get rid of that truck there.

KURTZLEBEN: (Laughter).

SUMMERS: All right, we're going to leave it there for now.

I'm Juana Summers. I cover politics.

KURTZLEBEN: I'm Danielle Kurtzleben. I cover demographics and culture.

TOTENBERG: I'm Nina Totenberg. I cover the Supreme Court.

SUMMERS: And thank you for listening to the NPR POLITICS PODCAST.


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