Your Burning Questions About Justice Breyer’s Retirement Answered

Justice Stephen Breyer

Well, hearing that Supreme Court Justice Stephen Breyer, 83, was retiring certainly scrambled what I thought I was going to write about today! But let’s dive in to the burning questions, most of which I don’t see being answered in news stories right now.

When is Breyer retiring?

Most of the news articles I read (and I’ve read at least a half dozen) say that he’s retiring at the end of this Supreme Court term, but then they don’t tell the general public when that is. Do you know? I had to look it up to make sure. This term ends at the beginning of October. The Court is usually in recess during the summer but Justices are still working, so I’m a little unclear when exactly Breyer will be creating the vacancy.

Can McConnell block the nomination?

As long as all 50 Democratic Senators stick together, no. I have no doubt that he’ll try something, but Mitch McConnell himself was the one that eliminated the 60-vote filibuster for Supreme Court nominations, so the Democrats only need Vice President Harris to break the tie. And for those of you who are worried about Senators Manchin and Sinema, I want to point out that they have voted for every single one of President Biden’s judicial nominees thus far without fanfare.

How fast can a new nominee get confirmed?

The average nomination process (i.e. the time between the President announcing his nominee and when the Senate takes the vote to confirm the nominee) is roughly 2 months. That said, Justice Amy Coney Barrett’s nomination took exactly one month (nominated on September 26 and confirmed on October 26.) Majority Leader Chuck Schumer has already said he’d like to work on a timeline similar to Barrett’s.

Can the nomination process begin right away?

In recent years, the nomination process has only started when there is a vacant seat on the Court (due to a death), however, we know from former Justice Sandra Day O’Connor’s retirement that the President and the Senate can begin the nomination process as soon as the Justice announces their retirement. The nominee just can’t occupy the seat until the retiring Justice leaves.

What did Biden promise regarding potential nominees?

During the 2020 campaign, Biden promised to nominate a Black woman to the Supreme Court if there was a vacancy during his presidency. Read THIS to see who is most likely to end up on Biden’s short list.

Say what now?

Justice Breyer’s retirement gives Democrats first chance in TWELVE years to fill Supreme Court seat even though Democrats have held the Presidency for majority of that time. (Justice Elena Kagan was confirmed to the Court by President Obama in 2010, and as you remember, his nominee Merrick Garland was famously blocked by Republicans in 2016.)

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2 replies

  1. I read from a source I believe reliable (but can’t remember which one!) that the entire process can be completed and the new justice confirmed before Breyer’s term ends. She will assume her position at that point. It makes sense to me that Breyer, who’s very knowledgeable about both the law and administrative issues, factored that information into his timing.

    • The confirmation process can be completed before Breyer’s term ends, yes. But she can’t occupy the seat until he leaves, and he’s said he wants to see this SCOTUS term through. Also, it sounds as though he was not planning to announce his retirement until April.

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