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      Who has more influence on supreme court: Clarence Thomas or his activist wife?

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      Who has more influence on supreme court: Clarence Thomas or his activist wife?Justice’s wife, Ginni Thomas, sits on the board of conservative group that backs lawsuit seeking to end affirmative action, raising concerns it could present potential conflict of interest Clarence Thomas, the hardline conservative supreme court justice, is facing calls for his recusal in the case over race-based affirmative action in college admissions that the court agreed to hear this week.US supreme court will hear challenge to affirmative action in college admissionRead moreThe case, which is being brought against Harvard and the University of North Carolina, is the latest potential conflict of interest involving Thomas and his wife Virginia Thomas. Ginni, as she is known, is a prominent rightwing activist who speaks out on a raft of issues that frequently come before the nation’s highest court.A one-person conservative powerhouse, she set up her own lobbying company Liberty Consulting in 2010. By her own description, she has “battled for conservative principles in Washington” for over 35 years.The challenge to the two universities’ race-conscious admissions policies is being brought by Students for Fair Admissions (SFFA). Its leader Edward Blum has been a relentless opponent of affirmative action and voting rights laws.His argument that race-based affirmative action is a quota system that discriminates against Asian students is framed with the supreme court’s newly emboldened rightwing majority in mind. A central player in that new six-justice conservative supermajority is Clarence Thomas, who is the longest-serving of the justices and at 73 will be the oldest once Stephen Breyer retires.Justice Thomas’s influence has soared in recent months with the rightward shift of the court following Donald Trump’s three nominations, to the extent that some pundits now dub him the unofficial chief justice of the court.SFFA’s lawsuit seeking to strike down affirmative action has received the enthusiastic backing of the conservative National Association of Scholars. It filed an amicus brief in support of the suit, accusing Harvard admissions officials of being prejudiced against Asian students and stereotyping them as “uninteresting, uncreative and one-dimensional”.Ginni Thomas sits on the advisory board of the National Association of Scholars. Observers are concerned that her position with a group that has intervened in the affirmative action case could present appearances of conflict of interest.Noah Bookbinder, president of the government ethics watchdog Crew, told the Guardian that while supreme court regulations may not legally require Thomas to recuse himself, there were serious questions to answer.“Ginni Thomas is an advisory board member of an organization that has taken a very specific position on a case in front of her husband. That will make it hard for the public to be confident that he’s going to be totally unbiased.”Bookbinder said that in the circumstances “the better course of action would be for him to recuse or for her to cease her involvement in that organization.”The potential appearance of a conflict of interest over the Harvard case was noted in a recent investigation by the New Yorker reporter Jane Mayer that takes a deep dive into the overlapping interests of the couple. The article chronicles in devastating detail the many instances where Ginni’s political activism appears to present problems for the image and integrity of the court.“Ginni Thomas has held so many leadership or advisory positions at conservative pressure groups that it’s hard to keep track of them,” Mayer concluded. “Many, if not all, of these groups have been involved in cases that have come before her husband.”In the most troubling recent instance, Ginni Thomas lent her voice to Trump’s big lie that the 2020 presidential election was stolen from him. She was vocal on the subject in the buildup to the violent insurrection at the US Capitol on January 6 last year that led to the deaths of five people and left more than 100 police officers injured.On the morning of the January 6 itself, Mark Joseph Stern of Slate reported, Thomas posted on her Facebook page words of encouragement for the “Stop the Steal” marchers in Washington. “LOVE MAGA people!!!!”, she said., “GOD BLESS EACH OF YOU STANDING UP or PRAYING!”Soon after the insurrection, Thomas was forced to apologise to her husband’s former supreme court law clerks for comments she made privately to them that appeared to lament Trump’s defeat in the 2020 election. The remarks were sent to a private email list called “Thomas Clerk World”.In the emails, disclosed by the Washington Post, she wrote: “Many of us are hurting, after leaving it all on the field, to preserve the best of this country. I feel I have failed my parents who did their best and taught me to work to preserve liberties.”An even more direct intervention in the politics surrounding Trump and the big lie was made last December when Thomas joined 62 other influential conservatives in signing an open letter to the leader of the Republicans in the House of Representatives, Kevin McCarthy. It urged him to expel the Congress members Liz Cheney and Adam Kinzinger from the Republican party.Their sin, the letter writers opined, was to serve on the House committee investigating the January 6 insurrection. They described the committee as an “overtly partisan political persecution that brings disrespect to our country’s rule of law [and] legal harassment to private citizens who have done nothing wrong”.Since the Capitol insurrection, the Department of Justice has arrested more than 725 defendants in relation to the storming of the building. Federal prosecutors have charged 225 with assaulting, resisting or impeding police officers, including over 75 charged with using a deadly or dangerous weapon or causing serious bodily harm to an officer.Last week the supreme court rejected attempts by Trump to block the January 6 committee from acquiring his White House records from the time of the attack. There was only one dissent from the bench to that 8-to-1 decision: it came from Clarence Thomas.“Ginni Thomas’s activities are unprecedented in supreme court history in terms of a spouse engaging in issues that are constantly before the court,” said Gabe Roth, executive director of Fix the Court, a non-partisan group which advocates supreme court reform. “The appearance of impropriety is in itself impropriety – all the supreme court has is the trust of the public, and once you chip away at that you are in trouble.”Roth added that Thomas’s comments in the days before January 6 were clearly problematic given her husband’s vote on the Trump documents. “It’s possible that the January 6 committee has emails between Ginni Thomas and administration officials from that day or the days leading up to it given how vocal she was. That’s definitely a place where Justice Thomas should have recused himself.”Should the rightwing majority around Thomas use its newfound muscle to ban affirmative action, as is widely predicted, it would mark the negation of more than 30 years of settled constitutional law on the matter. What lies ahead bears strong resemblance to Roe v Wade, the landmark 1973 ruling that made abortion legal which the court is probably poised to weaken or even overturn outright.Mayer points out in the New Yorker that an amicus brief was filed in the supreme court case challenging Roe by Robert George who also sits on the advisory board of the National Association of Scholars alongside Ginni Thomas.Roth told the Guardian that a simpler solution to the full recusal of Clarence Thomas from the affirmative action case might exist. That would be to remove the National Association of Scholars’ amicus brief.“There is an easy way to deal with this perceived conflict of interest – strike the amicus brief,” he said.It is established practice in all federal appeals courts, though not in the supreme court, that amicus briefs brought by anybody with a connection to a judge hearing a case are routinely thrown out.The president of the National Association of Scholars, Peter Wood, told the Guardian that he knew of no conflict of interest relating to Thomas’s position on the advisory board. “Ms Thomas’s role is to provide advice to NAS in response to questions I put to her about NAS policy and initiatives. I have never discussed with her any NAS matter that was likely to come before the supreme court,” he said.TopicsUS supreme courtUS politicsLaw (US)The far rightRacefeaturesReuse this content More

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      Can Biden prevent a war with Russia? Politics Weekly podcast

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      Jonathan Freedland and Julian Borger discuss Joe Biden’s strategy when it comes to potential war with Russia over Ukraine, as well as some potentially good news at home for the president as he gets the chance to nominate a liberal pick to the supreme court

      How to listen to podcasts: everything you need to know

      Archive: BBC, WION, CSPAN, CBS Buy tickets for Hettie Judah’s Guardian livestreamed conversation with the artist Lubaina Himid. Send your questions and feedback to podcasts@theguardian.com. Help support the Guardian by going to gu.com/supportpodcasts. More

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      Biden to nominate first Black woman to sit on supreme court by end of February

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      Biden to nominate first Black woman to sit on supreme court by end of FebruaryUS president announced plans for court at White House event marking retirement of Justice Stephen Breyer01:04Joe Biden intends to announce his nominee to become the first Black woman to sit on the US supreme court by the end of February, the president said on Thursday at a formal White House event to mark the retirement of the liberal-leaning justice Stephen Breyer.Lauding the retiring justice as a “beacon of wisdom” and a “model public servant at a time of great division in this country”, Biden pledged to replace him with someone worthy of Breyer’s “legacy of excellence and decency”. He said the nominee would have “extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States supreme court.”He added: “It is long overdue in my view.”Biden’s confirmation that he is still studying the résumés of candidates and has yet to make his pick will do little to settle nerves among progressives still smarting from Donald Trump’s three supreme court appointments. Many Democrats want the president to emulate the warp speed with which the Trump administration drove through the confirmation of Amy Coney Barrett in less than six weeks following Ruth Bader Ginsburg’s death in September 2020.The Washington Post, citing an anonymous source, said that the majority leader in the Senate, Chuck Schumer, is aiming for a similar timeline.Replacing Breyer with a like-minded justice is seen by many Democrats as critical in preserving the already beleaguered rump of liberals on the bench. The retiring justice is one of only three such individuals on the nine-justice court, and they are so outnumbered that the country now faces drastic changes in several key areas from abortion to guns and affirmative action.Despite the pressure for haste among his party’s members, Biden insisted that he would be “rigorous” in choosing the nominee. He would listen to advice from senators and meet candidates, indicating a selection process that is likely to take weeks not days.For his part, Justice Breyer is hoping that his successor can be confirmed and in place within the next six months. In his formal retirement letter to Biden, he said he would step down at the start of the court’s summer recess in June or July, “assuming that by then my successor has been nominated and confirmed”.Speaking in the Roosevelt Room of the White House, Breyer made a lyrical paean to American unity. Recalling a speech he likes to deliver to school students, he said that the US was an experiment that is still going on.“My children and grandchildren will determine whether the experiment will last, and as an optimist I’m pretty sure that it will,” he said.Biden first committed himself to promoting a Black woman to the nation’s highest court at a presidential debate against Trump during the 2020 presidential campaign. The promise was reportedly made after intense prodding by the prominent South Carolina Democrat Jim Clyburn, who endorsed Biden the following day in a move that helped propel him into the White House.Though the race is now on to confirm Breyer’s replacement before the court’s term reaches its summer recess, there are large hurdles ahead. Looming over the proceedings is the evenly divided 50-50 split in the US Senate, the chamber that will preside over the confirmation hearings of whomsoever Biden picks.The Democrats hold the casting vote with Vice-President Kamala Harris, but they will need to keep all 50 senators on board during the process. That is a challenge that has eluded the Biden administration in recent months with the high-profile defections of Joe Manchin and Kyrsten Sinema over vital issues ranging from the president’s Build Back Better legislation to overcoming the filibuster to secure essential voting rights reforms.To reduce any risk of Democratic splits, Schumer will also be looking to lure Republican moderates such as Susan Collins from Maine and Lisa Murkowski from Alaska to their side.Then there are the nationwide midterm elections in November which will inevitably place a partisan political pall over the confirmation process. Republicans have already begun to test out lines of attack, predicting that Biden’s nominee will be, in the words of the senator from Florida Rick Scott, “a radical liberal with extremist views”.Rightwing Twitter feeds have also lit up with claims that Biden’s choice of a Black woman would constitute unlawful sex and race discrimination. Those playing the affirmative-action card were forgetting that in 1980 Ronald Reagan pledged to pick the first woman to sit on the nation’s highest court, appointing Sandra Day O’Connor the following year.Republican leaders will be hoping that by portraying Biden’s choice as a culture wars threat to American values they will help to drive out the party’s base to the polling booths on 8 November.Similar calculations will be at play on the Democratic side. Party strategists will want to leverage the nomination of a Black woman as an energizing factor at the polls for important elements of its electorate who include African Americans, women and progressive voters. TopicsUS supreme courtJoe BidenLaw (US)US politicsnewsReuse this content More

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      Liberals across America sigh with relief about Justice Breyer’s retirement | Moira Donegan

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      Liberals across America are sighing with relief about Justice Breyer’s retirementMoira DoneganThe 83-year-old US supreme court justice is stepping down – and allowing Biden to chose a successor before the midterms. Thank God for that That sound you hear is Democrats in Washington and across the country letting out a sigh of profound relief: Associate Justice Stephen Breyer is retiring in June, at the end of the US supreme court’s current term. News of the 83-year-old’s choice to step down broke on Wednesday – evidently a little earlier than the man himself would have liked – giving Joe Biden his first opportunity to fill a vacancy on the nation’s highest court.The decision from Breyer ends months of speculation and a determined pressure campaign to convince the ageing liberal justice to retire while Democrats still held both the White House and the Senate, that rare and precarious circumstance that is now required for any Democratic president to see his federal court nominees confirmed. Breyer’s decision to step down this summer gives the Democrats a narrow window to appoint his replacement before they are expected to lose control of the Senate in the November midterms.There is no doubt any more: the US supreme court is run by ‘partisan hacks’ | Robert ReichRead moreBreyer’s retirement, after nearly 30 years as a justice, will not change the balance of power on the supreme court, which has heaved dramatically rightward since Justice Anthony Kennedy chose to retire under Donald Trump in 2018. Nor will his exit mitigate what are likely to be ruinous outcomes in this term’s major rulings, which include the hateful Dobbs v Jackson, the case that is almost certain to overturn Roe v Wade. The benefits of his timely exit aren’t so much ameliorative as preventive: because he has retired under a Democratic trifecta, he has ensured that the supreme court’s conservative 6-3 supermajority will at least stay 6-3, and not become and insurmountable 7-2. But the extremist makeup of an increasingly maximalist rightwing court will continue.What his retirement does bring to an end is a long legal and political career of the kind that has since become unfeasible. Breyer’s early career was marked by the industrious bipartisanship of the latter 20th century, and he helped shape that era’s neoliberal consensus.When he was young, Breyer was a legal academic at Harvard – read any biography of a federal courts judge and the words “legal academic at Harvard” are likely to appear –and he wrote inventively about the prerogatives of executive agencies, a field known as administrative law. He favored deregulation, and took several leaves of absence from teaching throughout the 1970s to work as a special counsel to Democrats in the US Senate; among his accomplishments there was shepherding the deregulation of the airline industry.He gained a reputation for friendliness and a willingness to negotiate, and as this was in keeping with the social norms of Washington at the time, he was close with a number of Republicans. His children played with the children of the segregationist Republican senator Strom Thurmond. This closeness with men on the other side of the aisle paid off: when President Clinton nominated Breyer to the supreme court in 1994, he was confirmed 87 to 9.On the court itself, Breyer exerted his influence primarily in conference, attempting to extract compromises from his conservative colleagues and to cultivate their more moderate impulses. His colleagues on the left, Ruth Bader Ginsburg and later Sonia Sotomayor, took up the role first crafted by Thurgood Marshall, and wrote passionate dissents to conservative rulings that were meant to sway the public as much as the legal community. This was not Breyer’s style; he was nearly always speaking to other lawyers, not to lay people. We don’t know how much this worked – the justice’s conferences are confidential – but it is entirely possible that as the court shifted right over the course of his tenure, it was Breyer whose private arguments helped slow its lurch.But as the court and the nation became more polarized, Breyer had come to seem out of place. His commitment to persuasion was no match for a 6-3 court packed with conservative ideologues; his passionate belief in legislative power did not fit with the realities of a deadlocked and dysfunctional Congress that increasingly delegated policymaking power to the judiciary. His questions – always famous for their long-windedness and convoluted structure – devolved into meandering soliloquies, and on the audio broadcasts of the court’s oral arguments, his liberal colleagues Elena Kagan and Sonia Sotomayor could often be heard trying to nudge him towards conclusion or clarify his point. It was obvious that he was from another time, and that time has now ended. The best thing he could have done for the country was go, and it is to his credit that he did.What comes next? On the campaign trail, candidate Biden promised to appoint a Black woman to the court, and the likeliest candidate is Ketanji Brown Jackson, a former Breyer clerk who has the justice’s blessing and whose promotion to the DC circuit court of appeals last June was seen as a stepping stone to succeed her former boss. She is 51, and could serve on the court for decades.But, if she is appointed, the institution that awaits Judge Brown Jackson is less collegial and less dignified than the one that welcomed Breyer. Despite the increasingly laughable protestations of its conservative wing, the supreme court has become an all but nakedly political body, frequently warping the law in bizarre and inventive ways to ensure outcomes that align with Republican priorities. They are going to dispose of abortion rights this year. Affirmative action is set to be dismantled. Voting rights have already been shockingly eroded, and the conservatives seem intent on interpreting religious freedom rights for Christians in whichever way can secure the maximum injury and indignity for everybody else.Increasingly, the impression left by the justices themselves is one of vain and petty figures, fixated on their own PR, attempting to maintain the solemn mystique of an institution that has long since lost it. Who would want to join such a workplace? Perhaps Judge Brown Jackson, if she does indeed become the nominee, deserves not only our congratulations, but also our condolences.
      Moira Donegan is a Guardian US columnist
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      The leading female contenders to succeed Breyer on supreme court

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      The leading female contenders to succeed Breyer on supreme court Justice Stephen Breyer’s retirement allows Biden to make history by appointing its first Black womanThe liberal supreme court justice Stephen Breyer is retiring and Joe Biden has said he will stand by a previous promise to nominate a Black woman to America’s highest legal body.Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judgeRead moreAt 83 years old, Breyer is the oldest justice of the court and his retirement will give Biden his first seat to fill on the supreme court, which is currently conservative-leaning by six to three. Replacing Breyer won’t allow Biden to change that dynamic but it does allow him to ensure the liberal contingent is not reduced further and make history by appointing its first Black woman.Here are some of the women considered leading contenders for the seat:Ketanji Brown JacksonBorn in Washington DC and raised in Miami, Florida, Jackson has been a judge of the US court of appeals for the DC circuit since June 2021 after the 51-year-old Harvard graduate replaced the attorney general, Merrick Garland.The DC circuit has historically been seen as a stepping stone to the supreme court. From 2010 to 2014, Jackson served as vice-chair of the United States sentencing commission, during which the commission significantly reduced sentences for numerous drug offenders.Leondra KrugerKruger, a native of Los Angeles, is an associate justice of the supreme court of California. The 45-year-old was previously the acting principal deputy solicitor general under the Barack Obama administration.Supreme court justice Elena Kagan once called Kruger “one of the best advocates in the Department of Justice”. Kruger has argued 12 cases in front of the supreme court. She has previously described her approach to the law as one that “reflects that fact that we operate in a system of precedent”.J Michelle ChildsChilds is currently serving as a district judge of the US district court for the district of South Carolina. Appointed by Obama in 2009, the 55-year-old Detroit native has also been nominated by Biden for a seat on the DC circuit court of appeals. Childs was also the first Black woman to become a partner at Nexsen Pruet, LLC, one of South Carolina’s major law firms.She has served as the deputy director in the labor division at South Carolina’s department of labor, licensing and regulation. Congressman Jim Clyburn, a close ally of Biden, is fiercely supports Childs and has previously pushed the Biden administration to nominate her as the supreme court’s next liberal justice. “She is the kind of person who has the sort of experiences that would make her a good addition to the supreme court,” Clyburn said.Wilhelmina WrightWright is a district judge of the US district court for the district of Minnesota. A favorite of Senator Amy Klobuchar of Minnesota, the 58-year-old is also Minnesota’s first African American justice. Wright has previously said that fairness, impartially and respect for the rule of law have been her “lodestar”, adding that she “give[s] no consideration to whether I agree or disagree with a party”. She has also emphasized the importance of diversity in the judicial system, at one point writing: “I believe it would undermine the public’s trust and confidence in the judiciary if there were no judges who are women or judges of color.”Eunice LeeSince August 2021, Lee, 52, has been a judge of the US court of appeals for the second circuit after being nominated by Biden. Lee has worked at the office of the appellate defender in New York City from 1998 to 2019. In addition, from 2019 until her bench appointment, Lee was an assistant federal defender in the appeals bureau of the federal defenders of New York.Candace Jackson-AkiwumiJackson-Akiwumi is currently a US circuit judge of the US court of appeals for the seventh circuit since July 2021. Jackson-Akiwumi is the first judge appointed to the seventh circuit who has a background as a federal public defender.Nominated by Biden in April 2021, Jackson-Akiwumi was also a staff attorney at the federal defender program in the northern district of Illinois from 2010 to 2020 where she represented indigent people who were accused of federal crimes. From 2020 to 2021, Jackson-Akiwumi served as a partner at Zuckerman Spaeder, a DC-based law firm where she focused on civil litigations and white-collar criminal defense.Sherrilyn IfillIfill is the president and director-counsel of the Legal Defense and Educational Fund at the National Association for the Advancement of Colored People (NAACP). Before joining LDF as an assistant council in 1988, the 59-year-old New York native was a fellow at the American Civil Liberties Union.Ifill taught civil procedure and constitutional law for over two decades and pioneered numerous law clinics, including one of the first in the country that focused on challenging legal obstacles to the re-entry of ex-offenders. In 2021, Time named her one of the world’s 100 most influential people.TopicsUS supreme courtLaw (US)Biden administrationJoe BidenUS politicsnewsReuse this content More

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      Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judge

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      Stephen Breyer to retire from supreme court, giving Biden chance to pick liberal judgeBreyer, 83, had been under pressure from progressives eager to fill a seat on the supreme court while the Democrats hold power Justice Stephen Breyer will retire from the supreme court, according to widespread media reporting on Wednesday, which, if confirmed by the court, will provide Joe Biden with the opportunity to fulfill a campaign pledge by nominating the first Black woman judge to the bench.Such a choice would be a milestone and bolster the liberal wing of the bench, even as it weathers a dominant conservative super-majority achieved under the Trump administration.Breyer, 83, had been under pressure from progressives eager to give the new president the chance to fill a seat on the court while the Democrats hold power in the White House and Congress, including a wafer-thin margin in the Senate, which would have to confirm Biden’s nominee.Later in the year Biden would face the threat of any picks of his being blocked if the Republicans win back control of the US Senate in November’s midterm elections.California-born Breyer was nominated by Bill Clinton in 1994 and confirmed with strong bipartisan support in the Senate at the time.As news of Breyer’s retirement came in, the White House distanced itself from the development in an apparent attempt to signal that Biden had not pressured the justice.Biden, meeting private sector CEOs at the White House to talk about his legislative agenda, declined to comment on the retirement per se, saying: “There have been no announcements from Justice Breyer.””There have been no announcements from Justice Breyer,” President Biden says. “Let him make whatever statement he’s going to make, and I’ll be happy to talk about it later.” He jokes to a CEO in the meeting with him right now, “Do you want to go to the Supreme Court?”— Kaitlan Collins (@kaitlancollins) January 26, 2022
      But there were no denials from the White House or the court.At the White House daily briefing, the first question from the media to the press secretary, Jen Psaki, was whether Biden intends to follow through on his campaign promise to nominate a Black woman to the court, and she said: “The president has stated and reiterated his commitment to nominating a Black woman to the supreme court and certainly stands by that.”Gabe Roth, executive director of Fix the Court, which advocates reform of the federal judiciary, told the Guardian that Breyer’s move was “a long time coming. The risk that an 83-year-old would hang on only to see himself replaced by a Republican president and Republican Senate was growing exponentially with every passing year.”Roth added: “The supreme court is not an apolitical body, and if you care about protecting your legacy then you retire when a like-minded president is in office.”Breyer is perhaps the least well-known of the current justices outside legal circles, chiefly because he is regarded as a pragmatist and has spent more than two decades at the moderate end of the liberal wing, actively eschewing partisanship.He is the most senior member of the court’s liberal minority following Ruth Bader Ginsburg’s death in 2020 at 87.Despite what had appeared to be resistance to pressure to retire quickly in the Biden administration, Breyer is calling it a day.Among names being circulated, the frontrunner on Wednesday appeared to be Ketanji Brown Jackson, an appeals court judge in Washington DC. Other contenders for the seat are the California supreme court justice Leondra Kruger, US district court judge J Michelle Childs and several others. Despite no explanation from Breyer when the news broke, there are clues to his possible thinking. In an interview with the New York Times last August he quoted his late peer on the bench, Antonin Scalia, who once told him: “I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.”Whatever his rationale, there is no doubt that he had warnings ringing in his ears from liberals, building last summer, that he shouldn’t hang on to his seat and risk having Republicans dictate his replacement.That happened with Ginsburg, who resisted years of such hints, including from Barack Obama when he was president, and outright lobbying.She died in the last weeks of the 2020 election campaign, affording the Republican president Donald Trump his third supreme court pick. The Senate, led at the time by the GOP’s Mitch McConnell, rushed through Ginsburg’s replacement, the ultra-conservative Amy Coney Barrett, boosting conservatives to a 6-3 majority on the bench.McConnell said last June that it was “highly unlikely” he would allow Biden to fill a vacancy if Republicans had regained Senate control.But the court’s shift to the right began five years ago, when Antonin Scalia died suddenly and Senate Republicans refused to process Barack Obama’s nomination of Merrick Garland.Had Garland, now Biden’s attorney general, been confirmed, it would have given the court a majority appointed by Democratic presidents for the first time in 50 years.Instead, the seat remained empty, Trump unexpectedly won the presidency and his first of three picks, Neil Gorsuch, joined the court in April 2017.A year later the court’s “swing vote”, Justice Anthony Kennedy, retired and Trump put Justice Brett Kavanaugh in his seat.Kennedy’s retirement essentially put Chief Justice John Roberts at the ideological, though right-leaning, center of the court. He has tried to combat rising public perceptions of the court as merely a political institution.Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, had earlier this year written an opinion piece for the Washington Post calling on Breyer to retire sooner rather than later.In the American Bar Association Journal, however, Chemerinsky also paid tribute to Breyer’s “pragmatic approach to judging that looks more to real-world effects than abstract ideology”.And he pointed to important positions taken by Breyer.These included a majority decision in Whole Woman’s Health v Hellerstedt in June 2016 against severely restricting abortion in Texas. And a dissent in 2015’s Glossip v Gross case, where Breyer said it was “highly likely that the death penalty violates the eighth amendment” to the US constitution which prohibits cruel and unusual punishment.Breyer was born in San Francisco and raised in a Jewish family. He studied at Stanford University, Magdalen College, Oxford and Harvard Law.Hillary Clinton called Breyer’s decision “admirable”.Thank you to Justice Breyer for 30 years of distinguished service on the bench, and for his admirable decision to retire now. We are grateful for your career dedicated to fairness and justice for all.— Hillary Clinton (@HillaryClinton) January 26, 2022
      The Senate majority leader, Chuck Schumer, voiced optimism that Biden’s pick will swiftly win confirmation.SCHUMER in a statement: “President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.”— Daniella Diaz (@DaniellaMicaela) January 26, 2022
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      Battered Biden gets chance to change political narrative as Breyer retires

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      Battered Biden gets chance to change political narrative as Breyer retiresAnalysis: president faces high expectations as he prepares make one of his most consequential decisions In his spare time, Justice Stephen Breyer enjoyed taking the bench at humorous “mock trials” of characters such as Macbeth and Richard III for Washington’s Shakespeare Theatre Company. The case usually turned on epic battles over succession.Now Washington is about to be consumed by the question of who will inherit Breyer’s crown following his reported decision to retire from the US supreme court. At 83, he is its oldest member, one of three liberals outnumbered by six conservatives.This is a perfectly timed political gift for Joe Biden, aware that choosing a supreme court justice is one of the most consequential decisions that any president can make.After a year in the White House, Biden was limping with a stalled legislative agenda, a tenacious pandemic and Vladimir Putin threatening Ukraine. He was a tired brand in desperate need of a relaunch, a tough ask at the age of 79.Biden ‘stands by’ pledge to nominate Black woman to supreme court, White House says – liveRead moreBreyer has provided it, instantly changing the conversation. “This has to feel like a political elixir right now,” observed Chuck Todd, host of MSNBC’s Meet the Press Daily show.A vacancy on the highest court enables Biden to rally the Democratic base and begin to cement a legacy that, despite early ambitions, had recently looked to be in jeopardy. Although the ideological balance of the court will not change, Biden could choose a young liberal who will serve for decades.The Senate, which must approve his choice, is divided between 50 Democrats and 50 Republicans with Vice-President Kamala Harris casting the tiebreaker vote. Breyer has given it enough time to confirm the president’s pick before the midterm elections could shift the balance of power.Democratic divisions have been on display of late but a supreme court vacancy typically unites a party like nothing else. Even senators Joe Manchin and Kyrsten Sinema, who broke ranks over the Build Back Better plan and voting rights, have voted for every Biden nominee to the lower courts so far. Both will presumably regard this confirmation as an easy way to win back some favour with angry liberals.Not for the first time, however, Biden has raised expectations. At a debate in the 2020 Democratic primary, he declared: “I’m looking forward to making sure there’s a Black woman on the supreme court, to make sure we, in fact, get every representation.” His judicial appointments so far have been historically diverse, and Jen Psaki, the White House press secretary, told reporters after the news of Breyer’s imminent retirement broke that Biden “certainly stands by” his promise.The upshot is that if he now nominates anyone other than a Black woman, there will be disappointment on the left. Sean Eldridge, founder and president of the progressive group Stand Up America, said on Wednesday: “President Biden promised to appoint the country’s first-ever Black woman supreme court justice, and he must make good on that promise.“The president and vice-president’s voters are watching eagerly to see that he follows through and makes history with his first supreme court nomination.”Potential candidates include the US circuit judge Ketanji Brown Jackson, California supreme court justice Leondra Kruger, civil rights lawyer Sherrilyn Ifill and US district judge Michelle Childs, a favourite of the South Carolina congressman James Clyburn, a Biden ally.Notably, when Jackson was confirmed last year to the influential US court of appeals for the DC circuit, often seen as a springboard to supreme court, the Republican senators Lindsey Graham of South Carolina, Susan Collins of Maine and Lisa Murkowski of Alaska voted with Democrats in favour.Carl Tobias, Williams chair in law at the University of Richmond, said: “I expect that the Democrats will remain united, as they have so far, because all Democratic members, including Senators Manchin and Sinema, have voted for all of Biden’s lower court nominees.“Most GOP senators have voted against many Biden lower court nominees. The major exception is Lindsey Graham, who has voted for many Biden lower court nominees in committee and on the floor. Senators Collins and Murkowski have also voted to confirm a number of Biden lower court nominees. If the Democrats vote together, they do not need GOP votes.”It remains an open question whether a handful of Republicans might back Biden’s nominee given the politicisation of the court in recent years – from Republicans blocking Barack Obama’s pick Merrick Garland to the rancour that surrounded Donald Trump’s three appointments, and the court’s imminent decision on the constitutional right to abortion.In an ominous statement on Wednesday, Graham said: “If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support. Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the supreme court.”Don’t call Joe Biden a failed president yet | Gary GerstleRead moreMeanwhile, Carrie Severino, president of the conservative Judicial Crisis Network, fired the first shots of a partisan battle to come. “The left bullied Justice Breyer into retirement and now it will demand a justice who rubber-stamps its liberal political agenda,” she said. “And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them.”Yet it is Republicans who waged a multi-generational project to tilt the court in their favour with the help of the Federalist Society, which created a pipeline of young, ideologically rightwing lawyers. Trump’s release during the 2016 election of a shortlist of judges for the court helped him secure the conservative base; his three justices are likely to be his most lasting legacy.Democrats were criticised for being slow to wake up to the threat and lacking similar aggression. Now, thanks to Breyer’s retirement, they find themselves with the unaccustomed comfort of having political momentum on their side.TopicsJoe BidenUS supreme courtLaw (US)DemocratsRepublicansUS politicsanalysisReuse this content More