Winston Churchill famously remarked that you can always count on Americans to do the right thing after theyve tried everything else. So it is with retiring Supreme Court Justice Stephen Breyer, 83, who at last announced today that he is stepping down.
Before coming to this decision, Breyer even wrote a tortured book last fall, The Authority of the Court and the Peril of Politics, contending that timing a resignation would politicize a Courtthat is already politicized beyond recognition. It convinced no one.
Breyers announcement comes after a long parade of people begging him to swallow his pride and step down. There will now just be time for the Senate to confirm a successor before the November midterm elections, which could put the Democratic Senate majority in jeopardy.
Biden pledged in so many words at a public debate in Charleston, South Carolina, to appoint an African American woman to the high court. It was Rep. Jim Clyburn of Charleston whose endorsement literally led to Bidens nomination.
That nominee will almost certainly be Judge Ketanji Brown Jackson, 51, who has served as Breyers law clerk, a tie that may well have foamed the runway for Breyers retirement. Jackson was appointed last year to the D.C. Circuit Court of Appeals, which often serves as an antechamber for Supreme Court nominees. So she has the professional as well as the political chops for the job.
This succession will not alter the fundamental 6-3 ideological divide of the Court. Had Breyer emulated Ruth Bader Ginsburg and stayed on longer, though, it could have been catastrophic.
Replacing Breyer with Jackson may nudge the needle a shade to the left, since Breyer was an architect of the deregulation of the late 1970s when he was counsel to Ted Kennedy, and has been the most conservative of the Courts liberals on economic rulings. When Bill Clinton named Breyer to the Court in May 1994, he was confirmed 87-9, with the support of most Republicans.