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Editorial Advisory Board: Justice Breyer’s decision

More than a handful of Democrats have called for 83-year-old Supreme Court Justice Stephen Breyer to retire while there is still time to assure that a Democrat will be president when the time comes to appoint his successor, or before there is a change in the composition of the Senate. Breyer says he understands the concern, but its only one of “many, many considerations” that factor into his decision whether or not to step down. So far, he appears to have no intention of leaving the court and it has been reported he has hired four new clerks for the court’s next term.

When confronted recently about calls for him to retire, he merely replied that those Democrats who are seeking his retirement are “entitled to their opinion.” He did acknowledge that those politicians had a better understanding of the political world, meaning they understood the difficulties of nominating and approving a new justice and what can happen to the process and a nomination if it occurs when the Senate is in flux or under the majority rule of an opposing party.

Justices are appointed for life, but can retire at any time. His answer to the question why he has not yet retired may come across to some as a bit flippant, maybe even a tad arrogant. His answer: “because I decided on balance I would not retire.”

Justice Breyer even told an interviewer he did not want to die in office. Problem is, his expressed intention to live long enough to be replaced is not binding precedent.

It happened to Justice Ruth Bader Ginsburg, also in her 80’s, albeit she suffered from medical problems, and the timing of her passing was bad for Democrats who would have liked to have seen her replaced with a liberal justice. Clearly, Breyer can, at any time, suffer the same fate, perhaps preventing the Democrats from seating his successor.

Chief Justice John Roberts rankles at the thought of people labeling justices by the president who appointed them, and we agree. But an analysis of the court’s last term by National Public Radio concluded the court had veered to the right even by the standards of the traditionally conservative court under the eye of Roberts. But we also recognize that there are liberals and conservatives in the world of politics and on the bench and the Democrats and Republicans would like to see retired justices replaced with justices closest to their own political beliefs.

Certainly, Breyer may have time to decide on retirement, but the window is fast closing.  He needs to look at the long, and not the short, term if he cares, like Justice Antonin Scalia did, about being replaced by a justice who “tries to [undo] everything I have tried to do”.

As Sen. Amy Klobuchar said, if Breyer is going to retire, he should to it “sooner rather than later.” We agree.

Editorial Advisory Board members Gary E. Bair, Arthur F. Fergenson, Susan Francis, Leigh Goodmark, Roland Harris and Debra G. Schubert did not participate in this opinion.


James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.