Why U.S. Supreme Court Justice Stephen Breyer is retiring now

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U.S. Supreme Court Justice Stephen Breyer is retiring. With a potential red wave coming in the midterm election, his move to step down now is about politics and the ideological direction of the court.

Transcript

ASMA KHALID, HOST:

Justice Stephen Breyer is expected to announce he's stepping down at the end of the Supreme Court's term in June. That gives President Biden his first opportunity to nominate a justice to the Supreme Court, where conservatives outnumber liberals by a 6-3 margin.

Joining us now to discuss what happens next is NPR senior political editor and correspondent Domenico Montanaro. Hey, Domenico. It is very good to speak with you.

DOMENICO MONTANARO, BYLINE: Hey, Asma.

KHALID: So let's begin with a basic but important question. Why is Justice Breyer doing this now?

MONTANARO: It's really all about politics. I mean, the ideological direction of the court has shifted significantly in the time that Breyer has been on the court. And Democrats are facing a potential red wave in this midterm election year - Republicans favored to take over the House. And while the Senate is more competitive - it's 50-50; it's as close as you can get. And the Senate, where justices are confirmed, you know, you only need 50 votes plus the vice president, given that Republicans, when they were in power, did away with the filibuster requirement for Supreme Court justices.

KHALID: So talk to us about what kind of pressure Justice Breyer has been facing to retire at this point.

MONTANARO: I mean, it's been pretty significant. I mean, you'll remember that during the Obama years, a lot of people on the left wanted the late Justice Ruth Bader Ginsburg to retire in case a Republican won the White House in 2016. And, of course, one did and appointed three justices, including Ginsburg's replacement. They don't want that to happen again. Breyer is 83. He's quite aware of the politics at play. When he was first appointed to the court in 1994, it was majority liberal. Now it's majority conservative. And this retirement gives Biden and Democrats the chance to at least hold serve ideologically on the court and nominate someone younger who can serve for a couple of generations, potentially.

KHALID: So let's talk about that. I certainly recall during the presidential campaign, now President Biden, at the time, he promised to diversify the court. What are you hearing about specific names of potential replacements?

MONTANARO: Yeah. President Biden specifically promised before the South Carolina presidential primary to nominate a Black woman if he were elected. Here's what he said in a debate there before that primary.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT JOE BIDEN: The fact is what we should be doing - we talked about the Supreme Court. I'm looking forward to making sure there's a Black woman on the Supreme Court, to make sure, in fact...

(APPLAUSE)

BIDEN: Not a joke. Not a joke. I'd push very hard for that.

DANA BASH: Vice President...

BIDEN: And my mother's motto was - she said, you know, you're defined by your courage. You're redeemed by your loyalty. I am loyal. I do what I say.

MONTANARO: Key there - I'm loyal. I do what I say. And there are two names who have risen to the top, federal judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger. Ketanji Brown Jackson is 51. She serves on the U.S. Court of Appeals in Washington, D.C. She's been in that post for about a year and served as a federal judge before that. Kruger's even younger - 45 - and served as acting solicitor general in the Justice Department. But for those who are - you know, want to talk about their age or experience, we should remember that several of the sitting justices weren't even judges at all, if very long. Justice Roberts, for example, served on the D.C. appellate court for only about two years, Justice Clarence Thomas for about a year. And Justices Kagan and Amy Coney Barrett were never judges.

KHALID: So just briefly, what is the timeline here? When can we expect a new justice on the court?

MONTANARO: Yeah. This is all expected to go pretty quickly. Breyer is expected at the White House tomorrow to make it official. Then, once Biden nominates someone, Senate Majority Leader Chuck Schumer says a nominee will get a, quote, "prompt hearing" and get through with, quote, "deliberate speed." And deliberate speed could be just over a month barring any issues with COVID and senators. You know, the timetable should be like what Republicans had moving Justice Amy Coney Barrett through in 2020.

KHALID: NPR's Domenico Montanaro, thanks as always.

MONTANARO: You're welcome. Transcript provided by NPR, Copyright NPR.