Analysis: Battle lines drawn, speculation circulates over Breyer replacement

U.S. Supreme Court Justice Stephen Breyer is expected to formally announce his retirement from the high court Thursday. News broke of his imminent retirement Wednesday, setting off a flurry of speculation and political posturing over who would replace the Democrat-appointed justice.

Biden pledged multiple times on the campaign trail to nominate a Black female justice, emphasizing he is “looking forward to making sure there’s a Black woman on the Supreme Court.”

Analysts have circulated several names, including D.C. Circuit Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, and South Carolina District Judge J. Michelle Childs.

“Number one, I am committed that if I'm elected president and have an opportunity to appoint someone to the courts, I'll appoint the first Black woman to the courts,” Biden said in March 2020. "It's required that they have representation now. It's long overdue."

Shannon Bream, a host at Fox News, tweeted Wednesday that Breyer had not intended to announce his retirement yet and was “surprised” by the revelation.

“Why are political operatives in the White House trying to bully Justice Breyer into retirement?” said U.S. Sen. Ted Cruz, R-Texas, raising speculations about the motive and source of the leaked news.

The speculation highlights a deadline for Democrats. With the possibility of ceding control of the Senate to Republicans in November, Democrats will likely need to get their nominee through the approval process before the midterm elections. The Senate must ratify any Biden appointment to the bench with a simple majority.

“I can't imagine why Senate Republicans would agree to move on Biden's replacement for Breyer until after the November elections,” said Tom Fitton, head of Judicial Watch.

The rumors continued inside Washington, with others speculating that Vice President Kamala Harris could become the nominee, though the White House has given no credence to that idea.

In response to those rumors, White House Press Secretary Jen Psaki was asked if Harris’ nomination was a possibility during the White House press briefing Wednesday.

“Again, I’m not going to speak to any considerations, preparations, lists,” Psaki responded. “And as we’ve stated earlier, and as you heard the president say, there is a long history of Supreme Court Justices determining when they will retire, if they will retire, and announcing that and that remains the case today.”

The Breyer news comes on the heels of a few major rulings from the Supreme Court, including its decision to block Biden’s vaccine mandate for private employers with at least 100 employees.

Notably, the court is considering an abortion case that some say could lead to the reversal of Roe v. Wade, upending federal abortion law and sending the power of abortion lawmaking back to the states.

While several Republicans are expected to vote against the nomination, moderate Democrats like Sens. Joe Manchin, D-W.V., and Kyrsten Sinema, D-Ariz., will be closely watched. They have shut down other parts of Biden’s agenda, including his push to axe the filibuster to push through a federal takeover of state elections.

“I take my Constitutional responsibility to advise and consent on a nominee to the Supreme Court very seriously,” Manchin said Wednesday. “I look forward to meeting with and evaluating the qualifications of President Biden’s nominee to fill this Supreme Court vacancy.”

Some Republicans called on Biden to use the nomination to extend an olive branch to the other side.

“Moment of truth for Joe Biden. Will this deeply unpopular & divisive president finally reject the radical elements of his party and nominate someone who loves America and believes in the Constitution?” Sen. Josh Hawley, R-Mo., wrote on Twitter. “Or will he continue to tear apart this country w/ a woke activist?

“If he chooses to nominate a left wing activist who will bless his campaign against parents, his abuse of the FBI, his refusal to enforce our immigration laws, and his lawless vaccine mandates, expect a major battle in the Senate,” Hawley added.

At 83, Breyer is the oldest member of the Supreme Court. President Bill Clinton nominated Breyer, who has served since 1994. Only two other current justices on the nine-member bench were nominated by a Democratic president.

“I'm sending my sincerest thanks to U.S. Supreme Court Justice Stephen Breyer for his many years of service to our country,” said Rep. Jim Langevin, D-R.I.