PD Editorial: Don’t let Stephen Breyer be the court’s last pragmatist

Justice Stephen Breyer plans to retire from the U.S. Supreme Court at the end of the current court term later this year. As Democrats celebrate the opportunity to replace him, they should look for someone who will bring not just a strong progressive record but also Breyer’s pragmatic, people-focused approach to justice.

Breyer was a leader of the court’s liberal wing. He authored several important decisions on reproductive rights and asked tough questions of attorneys seeking to uphold a Texas ban on most abortions during recent oral arguments. He also became increasingly skeptical of the constitutionality of the death penalty. Yet he could throw curveballs, too, especially on cases about religious liberty.

Breyer believed that the judiciary transcended politics. In a book published last year, he cautioned that if people believed the court’s decisions were political rather than grounded in the law, they would no longer consider the court legitimate. He also warned against structural changes to the Supreme Court pushed by liberal activists, lest they politicize the court.

His views infuriated progressives because the politicization of the judiciary is well underway, even if Breyer was blind to it.

Republicans used chicanery and hypocrisy to secure two of President Donald Trump’s three court appointments. Recent confirmation hearings have been bitterly partisan. And the elimination of the filibuster for Supreme Court nominees ensures the majority needn’t concern itself with any more moderation than is necessary to keep 51 senators happy — or 50, with the vice president breaking the tie.

Politics will play a role in selecting Breyer’s replacement. The days when senators might confirm a Supreme Court nominee on an 87 to 9 vote, as they did Breyer in 1994, are gone. No more than a handful of Republicans likely will support the upcoming nominee, just as few Democrats supported Trump’s nominees.

Democrats quietly urged Breyer to resign during the Obama administration. Those calls became overt after President Joe Biden’s inauguration. The volume increased proportionally with worry that Democrats could lose control of the Senate in the midterm elections.

On the campaign trail in 2020, Biden pledged to nominate the first Black woman to the court, adding long-overdue diversity. One of the top contenders is California Supreme Court Justice Leondra Kruger. Los Angeles Rep. Karen Bass’ name also crops up on some lists.

Breyer has strong ties to California. He was born in San Francisco, and he majored in philosophy at Stanford University. His brother served as a federal judge for the Northern District of California.

The left wants someone more progressive than Breyer who will serve for decades. Biden’s pick won’t change the ideological balance on the court, a liberal for a liberal, but she will serve as a young progressive foil to the young conservative Trump appointees and the foundation for potential long-term change as older conservative justices retire or die off.

That’s a valid, political goal, but Biden should look for more than satisfying his base.

“He is unapologetically pragmatic in thinking that it's the court's job to help make government work for real people,” one of Breyer’s former law clerks once said of his former boss. “He thinks we’re all kind of in this together.”

That judicial philosophy benefits the court and the country. Americans should hope that Breyer’s successor keeps it alive while navigating these deeply political and partisan times.

You can send letters to the editor to letters@pressdemocrat.com.