Justice Breyer staffs up for the Fall...

[brooklynite]

Link to tweet

[hlthe2b]

1. I just want to say that I fully appreciate the fear everyone has after Ginsburg that is leading to

calls for Breyer to resign to ensure Biden can replace him. I share these fears intensely.

That said the amount of ageism in this country has become horrible and all are lumped together as one. That is wrong. Breyer is both physically and mentally vigorous--far more so than many decades younger and he clearly works to maintain that. How painful it must be, given how much his opinions have been lauded as recently as this term that some are writing him off.

I understand both sides, but honestly, it pains me to see people hounded from their jobs no matter how good and pragmatic the reason. I know the risks so kindly don't preach the lessons of Ginsburg. To me, the answer is reforming SCOTUS and adding seats--not forcing a well-respected and productive member of the court out.

[brooklynite]

2. Ginsburg Barrett, Marshall Thomas

[hlthe2b]

3. Had you bothered to read my post I addressed the concerns intensely that I share. I likewise suggest

reform of the court is the answer. Why did you not bother to address THAT point, rather than remind me about what I VERY CLEARLY already acknowledged to be the issue?

I can go back through the entire history of the court and provide pairs of departed and their replacement justices that were detrimental. Thus the need to take the worst of politics out of it and add seats to the court.

[brooklynite]

5. Yes I did, and I disagree....

Age is not a stand-alone issue; it's age in the context of current politics. And political reality is that we won't be eliminating the filibuster, so we won't be increasing the size of the Court.

Given the past track record, I'm not ready to take the risk.

Now, that said, I'm not worried right now because we have all of next year to process a replacement if Breyer is willing to retire.

[hlthe2b]

7. Second time you ignore the point made in my post totally: Reform the court

Add seats either through the proposal of House Judiciary members Reps. Nadler, Johnson, and Jones and Senator Markey Judiciary Act of 2021

or alternately via a proposal that would give Dems and R's even number of seats (4 or 5 each) matched by an additional number of seats to be determined by consensus of the 10 appointed members as advanced by Norm Ornstein and others.
https://www.washingtonpost.com/politics/2021/04/15/4-ideas-supreme-court-reform/

OR any number of other possible reconfigurations of SCOTUS that would include future term limits.

[brooklynite]

9. And you ignored mine...

political reality is that we won't be eliminating the filibuster, so we won't be increasing the size of the Court.

[hlthe2b]

10. I disagree that the filibuster is here forever or that it won't be at least reformed.

That said, you have ignored all discussion except for the bee in your bonnet that Breyer must go without delay.

[brooklynite]

11. You also didn't read my last sentence...

Now, that said, I'm not worried right now because we have all of next year to process a replacement if Breyer is willing to retire.

Now since you insist that we CAN reform the Court (requiring a change in the Filibuster rule), please let us know how?

[hlthe2b]

13. I provided both the proposed legislation and a link to a thoughtful discussion of four other

alternatives from an earlier WAPO article: 4 ideas for Supreme Court reform.

Post #7

Add seats either through the proposal of House Judiciary members Reps. Nadler, Johnson, and Jones and Senator Markey Judiciary Act of 2021

or alternately via a proposal that would give Dems and R's even number of seats (4 or 5 each) matched by an additional number of seats to be determined by consensus of the 10 appointed members as advanced by Norm Ornstein and others.
https://www.washingtonpost.com/politics/2021/04/15/4-ideas-supreme-court-reform/

OR any number of other possible reconfigurations of SCOTUS that would include future term limits.

[brooklynite]

14. HOW you reform the Court is not the issue...

How you get the reform to pass IS...

Its easy to lay blame with Manchin and Sinema, but there are other Democrats who don't like the idea of eliminating the Filibuster, and there are many more (including President Biden) who oppose changing the Court. How will will you be getting them behind your proposals.

[hlthe2b]

16. An how does replacing Bryer get us past a 6:3 majority?

[brooklynite]

18. It doesn't; it prevents us from going to 7:2.

[hlthe2b]

19. Sounds like GWBush* and his "Mission Accomplished" speech. Where's your banner?

[OnDoutside]

21. The problem is that you are only one sudden death of a Senator

from Majority Leader McConnell. Remember earlier this year when Pat Leahy fell ill ? Time is not on Democrats side unfortunately.

[dsc]

20. Marshall is actually the opposite problem

He died four days after Clinton was inaugurated had he held on he would have been replaced by Clinton, that said, Breyer needs to retire.

[FBaggins]

6. O'Connor continued to hear appellate cases for many years

There’s no reason that he needs to permanently retire from something he’s good at. It’s just that he has no influence on who replaces him in the future, except to consider retiring when he knows the current scenario would be reasonably likely to produce a good replacement.

If he thought that he has at least another decade in him… that’s one thing. If he expects to retire in the near term… there likely isn’t a better time. He can’t be certain enough that republicans won’t return to power in the Senate and force a moderate replacement.

[hlthe2b]

8. My post was meant to initiate a discussion of ways to expand and reconfigure the court

Yet all anyone seems intent on discussing is how quickly we should force Breyer out. sigh...

[FBaggins]

15. That's probably because one is possible and the other isn't

Feel free to speculate on other impossibilities. We could develop a time machine and convince Ginsburg to retire. Or maybe we can cure cancer and then invent the time machine and keep that genius on the court for another decade.

I enjoy a little fan fiction as much as the next guy. But we eventually have to return to the real world.

The safest time to retire is during the first year of a Senate cycle where the right party controls the White House and the Senate. I don’t want to look back five years from now and regret his decision the way we regret Ginsburg’s.

What if something were to happen to the President?

[hlthe2b]

17. and how does replacing Bryer get us past a 6:3 majority?

Speaking of "fan fiction."

It is condescending to suggest I don't share your concerns when my first post made clear:

I fully appreciate the fear everyone has after Ginsburg that is leading to calls for Breyer to resign to ensure Biden can replace him. I share these fears intensely.

I know the risks so kindly don't preach the lessons of Ginsburg.

[FBaggins]

22. Nobody said that it could

It’s just that a 7-2 majority is worse.

I also didn’t say that you hadn’t attempted to immunize your post by expressing empathy for other concerns.

You can’t really claim to have learned the “lesson of Ginsburg” here if there’s no difference in your position between them and now.

[hlthe2b]

23. Your attacks on me aside...

You offer no solutions. Just condescension. I'm sorry you don't wish to collegially debate on this, especially since I am in total agreement with the risks you point out that we face, (your catty comment about "immunizing myself," not withstanding).

It is such short-term thinking-- that does not even consider a strategy for the long term-- that will have us facing an even worse SCOTUS make-up.

We need to think beyond the immediate, no matter what Breyer decides. If he announced retirement later today it does not solve the imminent and much larger problem. Unless you want Dems relegated to effectively doing no more than getting a Post Office named, it is past time that we develop that strategy and if necessary push our elected officials along.

[Janbdwl72]

24. While you see a chance take it

This old Steve Winwood tune expresses my view on this. As mentioned in earlier posts, the health of Leahy and the knowledge that Moscow Mitch will as usual, put his party above his country, make me believe Breyer should go ahead and announce his retirement as soon as possible.

Also, let's not forget that Feinstein exhibits health and aging woes that are worthy of concern as well. I don't believe anyone who has posted is suggesting that Breyer has become ineffective. But the main concern is making sure the margin doesn't go from 6-3 down to 7-2.

[Mr.Bill]

29. And this is, in my opinion,

the main reason republicans are trying to throw California's governor out of office. So a republican can name her successor. They gain little else with a republican governor in California. Both houses of the legislature have a super majority of Democrats. Other than appointing a Senator, the republican governor would be mostly powerless.

[Buckeyeblue]

25. I agree with you

Breyer seems to be quite healthy. He could be on the court many more years. And because our current system provides "for life" appointments, it's his decision.

Honestly, we probably have several years where 6 conservative justices will lead the supreme court.

As technology improves so does our medical knowledge. People will continue to live to be older. And while all will not be robust in mental and physical health, more and more will. Staying active, keeping weight down and staying curious about the world will go along way to changing what it means to be in your 80's

[Demsrule86]

40. This isn't about agism...if we lose the Senate and we may, the GOP will get another

judge. Breyer needs to go...very disappointed in him. I loved Ginsberg...but her good work will be destroyed because she did not resign during the Obama years. We have to think politically. When a Democratic president is in office with a Democratic Senator and you are an older justice then resign for God's sake...for the good of the country.

[hlthe2b]

42. Please don't be condescending. I already acknowedged the risk, But yes, it is ageism because

there are other liberal justices with health conditions that no one is targeting and no one targeting Breyer is demanding health records from all the others despite CJ Robert's history of seizures, Sotomeyer's Type 1 diabetes, Kagen's history of smoking, and little known about the rest. By contrast, Breyer appears to be in excellent health and not only for his age, has shown considerable influence on opinions--even among some conservatives and no evidence of slippage either physically or mentally.

But the bigger issue is how does this help a 6-3 conservative majority? Not at all. None of the angry retorts I've received demanding Breyer depart immediately have discussed court reform or any strategy whatsoever to get us a narrowed conservative majority or even a liberal-moderate majority.

I've provided the legislation the progressive Reps on House Judiciary have submitted to increase the court and likewise, a very well-thought-out set of alternative reforms from a WAPO article posted upstream. While filibuster reform will by necessity have to part of this or extended majorities in 2022, no one here seems even willing to read these pieces nor discuss them. https://www.washingtonpost.com/politics/2021/04/15/4-ideas-supreme-court-reform/

Instead, I get retorts that suggest I must just be stupid as hell. Well, guess what? I see the bigger picture and it isn't improved by merely assuring we continue to lose in a 6-3 court. Any reassurance one might get by thinking it can't get worse than 6-3 if we replace Breyer needs to be put in perspective against the fact we have no idea what the health might be of the others. We have to think beyond that.

[bottomofthehill]

4. Has he learned nothing.....

Maybe he sees it as 6/3 or 7/2 what’s the difference….

[pwb]

31. He thinks Democrats will win the Senate again?

I do too. It is a lifetime appointment but they can leave at any time. Scalia died serving. Others retired. Ginsberg thought she died at the right time. They are a special bunch.

[bottomofthehill]

36. I think they can too, but there is a chance they dont

He could solve that problem now.

[Demsrule86]

41. There were a number of 5/4 rulings so there is a f'ing big difference.

He absolutely needs to go.

[StarfishSaver]

12. Justices always hire clerks for the next session, even if they're planning to retire

Among other things, there's no guarantee his successor will be in place before the term starts, so even he announces his retirement, he'll need to be prepared to continue working for awhile.

[former9thward]

26. If that was his thought he would have announced he planned retirement

a couple months ago. That would allow a successor to start hearing cases immediately in the Fall.

[StarfishSaver]

28. That's not how the Justices operate

[former9thward]

32. Since you know how they "operate"

is Justice Breyer going to retire this summer?

[StarfishSaver]

33. You tell me - since you seem to believe you know his thoughts.

[former9thward]

34. No, you know how they operate.

That is what you said. You posted when someone said his hiring clerks seemed to mean he was not retiring. You are trying to have it both ways.

[FBaggins]

27. That's not quite correct

Three of the last four retiring justices failed to fill their four slots when hiring for the next term.

[StarfishSaver]

30. Of the last four, one hired no clerks, one hired one, one hired three and one filled all four slots.

Breyer hiring four law clerks tells us nothing about his retirement plans.

This law clerk tea leaf reading is an interesting game that court reporters play, it actually tells is very little. The best that can be said is that a justice hiring fewer than the retinue of clerks might be a sign they are retiring, but a justice filling all of the slots isn't an indication that they're not.

[FBaggins]

37. It tells us much more than "nothing". Your dataset is incomplete.

In the last couple of decades, we've seen roughly 180 justice-years.

In three of those justice-years, the justice hired fewer than four clerks. In all three cases, the justice retired.

That leaves about 177 justice-years where the justice hired the full complement of four clerks. In 176 of those 177 cases, the justice did not retire.

Rock-solid proof? No... certainly not when considering that Breyer's recent lectures imply that he doesn't like this kind of speculation.

But far more than "tells us nothing".

On balance - I think that his desire to eschew hints of political considerations tells us that he'll hang around for at least another year - so that it doesn't look like he's doing exactly what most of us wish that he would do.

[tritsofme]

35. Kennedy hired a full complement of clerks before retiring in 2018

[edhopper]

39. But was that

before or after he was paid off to resign.

[JanMichael]

38. "The Fall" Camus

The end of that book....