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Wake Up To Politics - January 27, 2022

Wake Up To Politics: What Breyer’s retirement means
Wake Up To Politics - January 27, 2022

by Gabe Fleisher

Good morning! It’s Thursday, January 27, 2022. Election Day 2022 is 285 days away. Election Day 2024 is 1,013 days away.

We’ve got some big news for you today, so I’m excited to be getting an assist this morning from WUTP’s resident Supreme Court expert, legal correspondent Anna Salvatore, to break it down:

Breyer to retire, handing Biden coveted Supreme Court vacancy

Justice Stephen Breyer is expected to announce today that he plans to retire when the Supreme Court’s current term ends in June. Breyer’s departure will give President Joe Biden his first opportunity to place an imprint on the court and shore up its depleted liberal wing.

Breyer’s retirement has yet to be officially announced, but outlets including the New York Times, the Washington Post, NBC News, and CNN have confirmed the news. Here’s your guide of what you need to know, from me and Anna:

The background: At 83, Breyer is the oldest justice currently on the court and the most senior of the three liberal justices. He has faced intense pressure to retire ever since Biden took office, with progressives urging him to act quickly while Democrats were still in control of the Senate.

Breyer bristled at the pressure campaign for much of the past year, but is now suddenly bowing to its wishes — ensuring that Democrats will avoid repeating the fate of Justice Ruth Bader Ginsburg, who long refused to retire and later died during a Republican presidency.

Stephen Breyer’s retirement creates a coveted Supreme Court vacancy for President Biden to fill. Paul Morigi / Brookings Institution

What happens now: Per CNN, Breyer will make the retirement official by sending Biden a letter today and then appearing alongside him at the White House. (According to Politico, the justice first informed the president of his plans last week.)

Although Breyer will remain on the court until June, Democrats will move quickly to ensure a successor is in place by then. According to the Washington Post, Biden plans to nominate a replacement within the month. Senate Majority Leader Chuck Schumer (D-NY) said in a statement that the Senate will then move with “all deliberate speed” to confirm the pick.

Who Biden might pick: Biden pledged during the 2020 campaign to name the first Black woman to the Supreme Court, a pledge that the White House has reiterated he plans to keep. Here are the key names Biden will be considering:

  • Ketanji Brown Jackson, a judge on the powerful D.C. Circuit Court of Appeals. After serving as a federal district judge for almost a decade, the 51-year-old was elevated to her current perch by Biden last year. She stands out among other contenders as a former public defender, which is rare for Supreme Court justices but has been a hallmark of Biden’s previous judicial picks.
  • Leondra Kruger, a justice on the California Supreme Court. At only 45 years old, Kruger would be positioned to serve on the high court for several decades. She attended Harvard and Yale Law School, clerked for Justice John Paul Stevens, and worked as an assistant solicitor general in the Obama administration.
  • Michelle Childs, a judge on the U.S. district court in South Carolina. Childs was nominated by Biden last month to join Jackson on the D.C. Circuit, often seen as a stepping-stone for Supreme Court justices. She is 55 years old.
Judge Ketanji Brown Jackson is seen as the early frontrunner for the Supreme Court seat. Wikimedia Commons

Jackson is seen as the early frontrunner for the post, but Childs has at least one powerful backer: House Majority Whip Jim Clyburn (D-SC), who has been pushing for his home-state judge. Clyburn’s endorsement of Biden in 2020 is widely credited for fueling his primary victory.

“This is an opportunity for the Supreme Court to have someone who comes from a different background,” longtime Democratic operative Donna Brazile, who was the first Black woman to manage a presidential campaign, told Wake Up To Politics. “And someone who has an American story that I do believe should be known and should be heard on the Supreme Court.”

But one name you can rule out: “Kamala Harris is not under consideration,” added Brazile, a frequent outside adviser to the vice president.

The political implications: Breyer’s retirement is a political gift for Biden, after months of watching his legislative agenda stall and his approval ratings crater. Although his party has lately been divided over Biden’s voting rights and spending packages, Democrats have largely united behind his judicial picks — allowing him to name more federal judges than any first-year president since Ronald Reagan.

That unity is expected to extend to his Supreme Court pick, which could lead to a relatively quick and painless confirmation process. Republicans eliminated the filibuster for Supreme Court nominees in 2017, so Biden’s pick will only require 51 votes (with Harris available as a tie-breaker).

If Biden’s nominee is quickly confirmed, it will offer him a much-needed boost ahead of the 2022 midterm elections, especially among Black and female voters. He has lost ground with both groups in recent months.

Breyer’s retirement will add a new voice to the court, but won’t shake its ideological balance. Gabe Fleisher / Wake Up To Politics

Breyer’s legacy: The retiring justice was appointed to the Supreme Court by President Bill Clinton in 1994, having previously served on the Eleventh Circuit for four years. Though a moderate liberal on most issues, he became an increasingly forceful advocate for overturning the death penalty in recent years. “It is highly likely,” he wrote in a 2015 dissent, “that the death penalty violates the Eighth Amendment.”

Breyer is known for his long, complicated questions during oral arguments and his unusual willingness to cite international law in his decisions. “Law is not a science,” he once told the Atlantic, perhaps indirectly referencing his textualist colleagues. “It is, at least in part, a humane discipline.”

What this all means for the court: While Breyer’s departure won’t change the ideological balance of the court, his successor will inject a fresh liberal voice at a time when the court’s six-justice conservative majority is ascendant and appears increasingly emboldened.

Just this term, the justices are considering whether to overturn Roe v. Wade, the decades-old precedent protecting abortion rights, as well as whether states can impose strict limits on carrying guns in public. Their next term will include a high-profile case about whether colleges can consider applicants’ race in admissions decisions.

A reality check: Biden’s nominee is unlikely to to change the outcome of major cases with her vote. Instead, whoever takes Breyer’s seat will join Justices Elena Kagan and Sonia Sotomayor in a chorus of dissent, one that will surely grow ever louder as the court continues to add controversial — and consequential — cases to its docket.

Policy Roundup

Every morning, WUTP’s stable of contributors rotate to offer a briefing on the latest news in a different policy area. It’s Thursday, so Anna Salvatore is back with the week’s top legal headlines:

The Supreme Court declined on Monday to overturn House Speaker Nancy Pelosi’s proxy voting rules. Pelosi enacted the rules early in the pandemic to allow members to cast floor votes without being physically present. House Minority Leader Kevin McCarthy first sued her in May 2020, arguing that the Constitution contains a “repeated and emphatic requirement” for in-person voting. But McCarthy lost that legal challenge in July 2021, when a D.C. Circuit panel ruled unanimously that it had no jurisdiction to hear disputes between legislators over their voting procedures.

  • “Indeed, we are hard-pressed to conceive of matters more integrally part of the legislative process,” the lower court wrote, “than the rules governing how members can cast their votes on legislation and mark their presence for purposes of establishing a legislative quorum.”
  • Though McCarthy appealed the circuit’s ruling last September, the Supreme Court refused to hear that appeal on Monday, providing neither an explanation nor a voting lineup for its decision.

A British judge ruled on Monday that Wikileaks founder Julian Assange can appeal his extradition order to the U.K. Supreme Court. Assange faces espionage charges in the U.S. for allegedly hacking into military computers and publishing classified documents about the American invasions of Iraq and Afghanistan.

  • Though the Justice Department has sought to extradite him since 2017, Assange has secured several legal victories allowing him to stay abroad. Perhaps most notably, a U.K. blocked his extradition in January 2021 because it determined that he might commit suicide in an American maximum-security prison.
  • The U.S. now promises that Assange can serve time in his native Australia if he is convicted.
WikiLeaks founder Julian Assange scored a legal victory against the U.S. this week. Ars Electronica Festival

More legal headlines to know, via Anna:

— Michael Avenatti, the lawyer accused of defrauding Stormy Daniels in her lawsuit against former President Trump, declared on Tuesday that he will represent himself in his criminal trial.

— The Third Circuit heard arguments earlier this week about whether the Postal Service discriminated against a Christian employee by requiring him to find his own substitute for Sunday shifts.

— The Eighth Circuit ruled on Tuesday that Iowa cannot pass a law banning mask mandates in public schools. In response, Republican state legislators plan to appeal the case to the Supreme Court.

Ask Gabe

Today’s first question comes in response to Tuesday’s newsletter on proposed pieces of legislation that would ban members of Congress from being able to trade stocks:

Q: Would passage of any of these bills mean that lawmakers turn over management of their portfolios to someone else and are not allowed to make suggestions? Every time I talk to my Edward Jones guy about my little IRA, he needs my permission to buy or sell anything. Would that no longer be required for Congress? — LaDonna H.

A: All of the proposals I wrote about would require lawmakers to either divest their holdings or put them in a blind trust. When someone places their holdings in a blind trust, they are handing over complete control of the investments — not only does the trustee not require the individual’s permission to buy or sell, but the individual is generally forbidden from intervening in decisions related to the trust or even having any knowledge of the changes the trustee makes.

This next question is about a procedural maneuver I wrote about earlier this month, in which Democrats took an unrelated bill — H.R. 5746, the NASA Enhanced Use Leasing Extension Act — and transformed it into their voting rights package. So let’s buckle up and jump into the legislative weeds:

Q: I don’t have time or desire to read the full H.R. 5746 so I’m hoping you can answer my question about the bill’s process. I’m confused. How does a NASA bill become a voting rights bill?? And what happens to the original NASA bill content? Is NASA just out of luck or is their content still somewhere in the voting rights bill? — Linda G.

A: First off, let’s talk about why the Democrats did this. Generally, when pieces of legislation are being considered by the Senate, they must advance past two votes with a 60-vote threshold: one that allows the Senate to formally begin debate on the bill, and another that allows the Senate to end debate on the bill and move to a final vote. (If a bill fails to receive 60 votes at either of these stages, it has been “filibustered” — blocked from moving forward by a minority of senators.)

If a bill doesn’t have bipartisan support, it can often get stopped at that first 60-vote hurdle (formally known as the cloture vote on the “motion to proceed”), which means the Senate never even begins debate on the underlying bill. But there is an exception: bills that have already passed the Senate, and have been sent back to the chamber in amended form by the House, can bypass the “motion to proceed” cloture vote since they already went through that process.

Democrats took advantage of this loophole by taking an unrelated Senate-passed bill, amending it in the House to include their voting rights provisions, and then sending it over to the Senate. (The measure still died after failing to overcome the second 60-vote hurdle, although this ploy allowed Democrats to hold a formal debate on the bill first.)

So what became of the original bill? If, like Linda or any other sane person, you opted against giving it a read: the measure would have extended NASA’s authority to lease underutilized areas on its properties to other agencies and institutions. That extension was not included in the final House-passed bill, but it is still likely to become law eventually.

“We hope and expect to pass a NASA [leasing] extension in future legislation,” Aaron Fritschner, the communications director for Rep. Don Beyer (D-VA), who introduced the original bill, told me. But: “I don’t have any details on timing yet,” he added.

For what it’s worth, Beyer didn’t seem all that upset about how his bill was being used, telling Bloomberg that he was “honored to make this unexpected contribution to the cause of protecting out democracy.”


All times Eastern.

President Joe Biden will receive his daily intelligence briefing at 9:30 a.m. The only other event on his public schedule is his weekly economic briefing at 3:30 p.m., although CNN has reported that he will hold an event at the White House with Justice Stephen Breyer at some point today. A time for that event has not been announced.

  • Vice President Kamala Harris departed Washington, D.C., at 4:25 a.m. this morning to travel to Honduras. At 12 p.m., she will attend the inauguration ceremony of the country’s new president, Xiomara Castro. At 3:05 p.m., Harris and Castro will hold a bilateral meeting. At 6:20 p.m., Harris will depart Honduras and return to Washington.
  • Second Gentleman Doug Emhoff will join Transportation Secretary Pete Buttigieg for a “safety-related announcement” at 9:30 a.m. Buttigieg is seen as a possible rival for Emhoff’s wife in a future Democratic presidential primary contest.
  • White House press secretary Jen Psaki will hold her daily press briefing at 12:30 p.m.The House and Senate are both on recess for the week. The Senate will briefly convene at 10 a.m. for a pro forma session — a quick meeting where one member comes to gavel the chamber in, and then promptly gavels it out. No business is conducted during such sessions, which are only held to fulfill the chamber’s constitutional requirements of meeting every three days.

    The Supreme Court does not have any oral arguments or conferences scheduled this week.

That’s it for today. If you enjoy Wake Up To Politics, it’s always appreciated if you donate to support the newsletter or buy some merch. Or if you tell your friends and family to sign up at wakeuptopolitics.com.

If you have any questions or feedback, feel free to email me: my inbox is always open.

Thanks for waking up to politics! Have a great day.

— Gabe