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Breyer: I’m Retiring, But Only When My Successor Is Confirmed

Breyer: I’m Retiring, But Only When My Successor Is Confirmed

Biden has confirmed his campaign promise only to consider Black women for the next vacancy, and will make a nomination by the end of February.

Justice Stephen Breyer made it official today, he is retiring. But he’s not going to risk his seat sitting vacant and possibly subject to a Republican controlled Senate (either through the 2022 midterms or the death or incapacity of a Democrat Senator which might flip the Senate depending on the replacement). Breyer made his retirement contingent on his successor being nominated and confirmed.

“I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or July) assuming that by then my successor has been nominated and confirmed.”

Breyer attended a White House event. Biden has reiterated that only Black women are under consideration, making good on his campaign promise. Biden said he intends to make the nomination by the end of February.

Biden says he has already been studying the backgrounds of potential replacements for Justice Breyer, focusing on their qualifications and experience. And he has made it clear he intends to make good on his campaign pledge that his pick “will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue in my opinion.”

* * *

The president made some news during his remarks. He says he will be making a decision on his nominee by the end of February.


Mitch is on the case.

“The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”



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I guess that neither Kamala nor Hillary wanted to go through a confirmation process.

That’s going to create a big problem. Black Women represent approximately 6-7% of the entire U.S. population. If a Black Woman is confirmed to the court, 1 out of 9 = 11.111~%, and Black Women will be over represented on the court. That can’t be a good thing, can it?

    Peabody in reply to Marco100. | January 27, 2022 at 1:33 pm

    Biden is the new heart throb! All the hearts of black women everywhere—-with a law degree or the equivalent of 6 months of community college—are beating very rapidly right now.

    janda in reply to Marco100. | January 27, 2022 at 1:44 pm

    That’s if you use outdated “white supremacist” math. Using leftist democrat math, 100% black women would equal 100% diversity.

    Exiliado in reply to Marco100. | January 27, 2022 at 1:58 pm

    If that is the case, then the person nominated needs to agree to subject herself to amputation of an arm or a leg or both, to the amount necessary so that her appointment correctly represents US population.
    Oh, wait.
    There s already as Black person in SCOTUS, right?
    This race math can get really complicated.

      rocuall in reply to Exiliado. | January 28, 2022 at 3:22 pm

      Right Color but he upholds the constitution. Can’t have that. We need one who will MAKE law or ignore the Constitution. A Rubber stamp Judge who will always side with the left no matter what. Preferably one who doesn’t understand the constitution. Thats their real Ideal candidate

    And only a minority of those six to seven percent would be acceptable to BrandonCorp. The rest wouldn’t be politically reliable.

    Milhouse in reply to Marco100. | January 27, 2022 at 3:17 pm

    Much more importantly, black women don’t constitute anything like 6% of those qualified to sit on the supreme court. Not even 1%. So if he restricts his search to those black women who are qualified, it’s going to be a very short list.

A new low point for AA.

Whoever FJB chooses, she will have been a beneficiary of AA. Brains, merit, no way.

    Chuckin Houston in reply to pfg. | January 27, 2022 at 5:03 pm

    It’s sad in an important way. Even if Biden appoints an outstanding black, female jurist most of the the country will believe she’s an affirmative action hack. Even the woke crowd will forever see her as somewhat flawed, i.e. someone who couldn’t have gotten the job without the help of woke, white progressives.

    henrybowman in reply to pfg. | January 30, 2022 at 1:28 am

    Having already successfully wrested the title of “Most Incompetent” from Democrat Jimmy Carter, Biden now sets his sights on claiming the title of “Biggest Racist” from Democrat Woodrow Wilson.

    Owego in reply to pfg. | January 31, 2022 at 10:33 pm

    “They,” please.

Can they nominate and confirm someone before there is an official vacancy? Advise and consent is the exclusive purview of the senate; I don’t see how a retiring justice can put his personal conditions on the process.

    That’s a fair point. A judgeship is a simply federal office. If the office is filled, meaning it’s not vacant, there’s nothing to be filled.

    TargaGTS in reply to slagothar. | January 27, 2022 at 2:16 pm

    I agree. It’s weird and really not all that common if you look back through the last several decades. But, there’s precedent in O’Connor, I believe.

    OldProf2 in reply to slagothar. | January 27, 2022 at 2:35 pm

    I think this is legal because the number of justices isn’t specified in the Constitution. But what about if the successor is confirmed, and then Breyer decides not to retire. That would be a sneaky way to pack the court.

    Milhouse in reply to slagothar. | January 27, 2022 at 3:10 pm

    Yes, they can nominate and confirm someone before there is an official vacancy. The constitution says the president appoints new justices, with the senate’s advice and consent; there’s no reason it can’t consent in anticipation of a vacancy. “Do you agree that, in the event that there is a vacancy in the next few months, I should appoint Janet Smith?” “Yes, we consent to that and advise you to do so.”

    Of course until a vacancy occurs the consent is of no avail. And in the meantime a new senate could withdraw its consent.

    OldProf2, the number of justices is specified by law. So he can’t appoint a tenth justice.

      there’s no reason it can’t consent in anticipation of a vacancy
      There’s also no reason it can’t withhold its consent on that basis, too.

        Milhouse in reply to GWB. | January 27, 2022 at 4:06 pm

        It can withhold its consent at any time, of course. Withholding just means “not giving”. Right now it’s not giving its consent to an appointment, because it hasn’t been asked. When it is asked, it can still not give it.

      Think38 in reply to Milhouse. | January 27, 2022 at 8:08 pm

      Until an appointment to an actual vacancy has occurred, is this really an appointment? Or is it a hypothetical action?

        Milhouse in reply to Think38. | January 28, 2022 at 12:22 am

        No, it’s not an appointment, and nobody is claiming it is one. It’s a nomination; he will name the person he would like to appoint to fill the anticipated vacancy, and will ask the senate’s permission to do so. Once that is given, and the vacancy materializes, he will make the appointment. No vacancy is required until then.

          Sternverbs in reply to Milhouse. | January 28, 2022 at 8:07 am

          Correction: “…he will name the black, liberal, female, racist he would like to appoint…

          ss396 in reply to Milhouse. | January 28, 2022 at 10:45 am

          From what we’ve seen of the Left, they’ll claim that such a confirmation is a de facto approval to have 10 Justices on the Supreme Court – and then we can sit back and watch Breyer not step down. And we’ll have 10 Justices. Step #1 in the Left’s Court-packing scheme.

          No. No way, no how. Under no circumstance should the confirmation of Breyer’s successor even be started, much less be accomplished, before Breyer steps down. Nomination – sure; confirmation process – NO, NO, NO.

          Gremlin1974 in reply to Milhouse. | January 29, 2022 at 9:21 am

          @ss396 It wouldn’t surprise me if they tried this, not sure it would work, but it wouldn’t surprise me. The left only see laws and the like as important if they support their current attempt to subvert them.

    The_Mew_Cat in reply to slagothar. | January 27, 2022 at 4:12 pm

    The Senate can confirm a nominee before the vacancy officially happens. It has been done before. And if the facts change – as if a different Justice dies in the meantime, the newly confirmed Justice can be appointed by the President to the new vacancy, and Justice Breyer can cancel his retirement.

    malclave in reply to slagothar. | January 27, 2022 at 8:16 pm

    I’m not a lawyer, but I looked up 28USC371 that BREMER referenced. If I understand it right (admittedly questionable), he can retire but still retain the office, so I suppose technically there would be an opening.

    Eagle1 in reply to slagothar. | January 28, 2022 at 3:31 pm

    In short, yes, and it has occurred multiple times on the Supreme Court over the years. It occurs regularly with military positions. The nominations are approved by the Senate, but the officer doesn’t promote into the job, until the incumbent retires.

Two elderly men appear at a news conference at the White House.

One looks old and feeble, can barely speak and should probably be in a nursing home. He is obviously tense, speaks slowly and with great difficulty, his eye flutter as he tries to properly pronounce his words.

The other man appears very healthy and is comfortable speaking without notes, waving his arms around confidently. He is relaxed and easy going, speaking with a clear mind, a perfect picture of health.

Which one is retiring?

The president of the government of the United States made this announcement:

“The person I nominate to replace Justice Breyer will be someone with extraordinary qualifications. Character, experience, and integrity.

“And they will be the first Black woman nominated to the United States Supreme Court.”

The candidate will not, however, qualify for the feminine third person singular pronoun.

    Peabody in reply to Epimetheus. | January 27, 2022 at 3:05 pm

    They is crazy. You am silly. We be screwed.

    Language is supposed to evolve, with new words appearing and old words becoming obsolete as time goes on. If you want to invent new words like black people do for their names that is perfectly fine. But taking existing words and changing their meaning to suit your agenda and then forcing others to play along is a form of bullying and should not be tolerated.

Contrary to Robert’s claim Breyer proves Trump right about Obama judges and Trump judges.

Justice Clarence Thomas needs to come out as identifying as a woman. Then just like that, Biden’s nominee won’t be the first black woman.

    Milhouse in reply to jimincalif. | January 27, 2022 at 3:12 pm

    Not sure how Ginny would feel about that.

      Chewbacca in reply to Milhouse. | January 27, 2022 at 3:57 pm

      As they like to say, love is love. As long as she loves him (I mean her) for who he (she) is, that’s all that matters. Clarita Thomas, first black woman in the Supreme Court. Sounds like a hell of a plan.

      jimincalif in reply to Milhouse. | January 27, 2022 at 4:13 pm

      Well of course he can switch his self-identity back once the next confirmation battle is over. Just goes to highlight the lefts’ internal contradictions. They make a big deal about appointing a woman, but if anyone can call themselves a woman, what makes appointing a woman so special?

    Milhouse in reply to jimincalif. | January 27, 2022 at 4:54 pm

    Also, he ain’t black. Biden said so.

Wait..if we are committed to diversity, shouldn’t this pick be a woman of Asian descent?

compare this highly politcal document to Kennedy’s retirement letter

There is an argument that Biden cannot fill a seat that is not empty.

Breyer’s letter expressly states that he will not give up his seat until his successor is confirmed. However, there won;t be an empty seat to fill until he steps down.

    Milhouse in reply to Juris Doctor. | January 27, 2022 at 3:14 pm

    That’s not an argument. Of course Biden can’t fill a seat that isn’t empty. He isn’t proposing to. But there’s no reason he can’t obtain the senate’s consent in advance to fill an anticipated vacancy, when and if it occurs.

      Juris Doctor in reply to Milhouse. | January 27, 2022 at 3:55 pm

      There is nothing in the constitution that allows the Senate to consent before an opening actually occurs. If that were the case, the GOP held Senate under Trump could have confirmed replacements for Sotomayor, Kagen, and Breyer.

        While I won’t agree with the “nothing in the Constitution allows” bit, that would be a fantastic political play if the right re-took the Senate and the White House.

        Milhouse in reply to Juris Doctor. | January 27, 2022 at 4:12 pm

        There’s nothing that doesn’t allow it. Consent just means agreement. It’s an ordinary word, not a term of art. If the senate is OK with it, the president can appoint.

        And sure, the senate could have consented in advance to the potential replacements of those justices. But what would have been the point? They were not planning to retire, so there would be no vacancy for Trump to fill. And in 2021, even if Trump had remained president there would have been a new senate, so he would need its consent to make further appointments. And of course even with the same senate, Biden would not have made the appointments the senate had consented to.

          Juris Doctor in reply to Milhouse. | January 27, 2022 at 4:14 pm

          False. The advice and consent clause prohibits it.

          Juris Doctor in reply to Milhouse. | January 27, 2022 at 4:17 pm

          If what you said is correct, (and it is not), then Trump and McConnell could have confirmed binding replacements for Sotomayor, Kagen, and Breyer.

          Juris Doctor in reply to Milhouse. | January 27, 2022 at 4:20 pm

          Just because it will illustrate the folly in your reasoning, tell us specifically why President Brandon is limited to just Breyer’s seat if it is constitutionally permissible to fill a seat that is not vacant.

          Milhouse in reply to Milhouse. | January 27, 2022 at 4:44 pm

          There is no such thing as a “binding replacement”. Where did you get the idea that there was? The president, and only the president, appoints new justices. He can’t do it without the senate’s permission, but obtaining that permission doesn’t mean he now has to do it. The president could wake up the morning he intended to make the appointment, and change his mind. He could say “Thank you very much, senators, for having consented to my appointing Ms Smith, but I’ve decided not to, and now I’d like your consent to appoint Ms Jones instead”.

          And no, of course it’s not constitutional to fill a seat that isn’t vacant, which is why nobody has suggested Biden should do that. What Breyer intends is simply that Biden choose someone to replace him, get the senate’s consent to that person, and then Breyer will resign and Biden will immediately appoint the new person. Of course at any time until the appointment is made, the senate could change its mind and withdraw its consent.

          Milhouse in reply to Milhouse. | January 27, 2022 at 4:50 pm

          Biden could certainly announce today that in the event Thomas’s seat were to fall vacant he will appoint AOC to fill it. He can ask the senate to consent to that hypothetical appointment, and the senate can do so. And if the seat does then fall vacant, he can immediately appoint her. Or he can change his mind and not appoint her. The reason he hasn’t done this (besides his probably never having read the constitution) is because there’d be no point. What would it gain him?

        Gremlin1974 in reply to Juris Doctor. | January 29, 2022 at 9:32 am

        This is an attitude that I wish we would get away from. It is the “well the law doesn’t say you can do it.” Attitude.

        That is not the way our laws are supposed to work. Instead if the law doesn’t address it that means it is legal and you can do it. If society decided that whatever it is should not be allowed then we as a society make a law to say it is illegal, not the other way around.

    #FJB <-- Disco Stu_ in reply to Juris Doctor. | January 28, 2022 at 6:43 am

    Huh. Wouldn’t this then essentially give Breyer veto power over the identity of his successor?

    Claiming control as if it’s HIS personal judicial position to fill and not necessarily the President’s?

      That is my issue with the way this is going down. So if Breyer doesn’t like the nomination then he can just not retire. That means he is controlling the nomination and deciding who is going to replace him, not the President or the Senate.

      Also, I hope the Republicans will actually use their power to block a bad pick and not go all spineless. (I know it’s a faint hope.)

Biden looked old, tired, and was obviously reading from a teleprompter about a man he would have known from his days on the Senate Judiciary Committee. Breyer, who is at least five years older than Biden, spoke for about four minutes, was relaxed, cogent, and upbeat.

Interesting soundbite from Biden about how Harris will be involved in the selection of Breyer’s successor, was California’s AG, etc.

Yeah, and then he doesn’t retire
Isn’t that packing the court?

Has Stacey Abrams announced her availability yet? She meets the racist and sexist criteria.

An odd retirement letter. “I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.”

A close reading says that if the successor has not been confirmed by the beginning of the summer recess, then his resignation is null and void. If the nominee is confirmed after that recess, he’s going to have to re-resign. This conclusion is based on the relationship between “I intend” and “assuming.” “I intend this to happen assuming that happens” means this doesn’t happen if that doesn’t happen. No confirmation by the beginning of recess = no resignation.

His retirement could suffer from a long period in purgatory.

Of course, no doubt he means to retire as soon as a replacement nominee is confirmed. EXCEPT. If the Republicans are able to hold the line until next year, and then continue to hold the line, and a Republican gets into the White House in January 2025, there can be no doubt — what resignation? “I told you my resignation would take effect [only if] there was a confirmation by the summer recess in 2022. There wasn’t, and I’m still here.”

It is shocking that a Supreme Court justice would be guilty of such sloppy language as that in his retirement letter.

    And you can’t confirm a nominee for a position that isn’t open, so……

      GWB in reply to GWB. | January 27, 2022 at 4:02 pm

      Yeah, I know what Milhouse says above. But there’s an argument to be made otherwise. And it should be made. At a minimum the argument should be “Yeah, you’re not a king or a divine representation of justice, so you don’t get to pick your ‘successor’. Now shut up and retire and let the Constitution work.”

      The_Mew_Cat in reply to GWB. | January 27, 2022 at 4:21 pm

      Actually, the Senate can give advice and consent before the vacancy officially opens. It has been done before. Justice Breyer has to make that proviso because anything can happen between now and July – Biden could die, a Senator could die and flip the Senate, Biden’s nominee could be voted down by a Democrat Senator (although one would think his staff will vet her sufficiently to prevent this), Biden could be incapacitated and there will be a question as to whether Acting President Harris can still break a tie, etc..

    TX-rifraph in reply to Michael. | January 27, 2022 at 9:17 pm

    It is not a retirement letter. It is a letter stating he may decide to retire based on some unspecified subjective criteria. I see it as a display of his contempt for the Constitution but what else is new.

How can they nominate and confirm someone for a position that is not vacant?

Clarence Thomas would like to have a word with President Brandon regarding his attitude toward African America SCOTUS nominees.

Candace Owens




It would be my absolute honor to accept this nomination on behalf of the American people. I assure you I meet all the necessary qualifications as I am both black and female. I look forward to establishing further communication with the Biden administration.

Quote Tweet

With any luck, Breyer and Brandon will both have expired, from natural causes, before summer gets here.

goddessoftheclassroom | January 27, 2022 at 6:07 pm

I’m skipping to the end for now.
I am an extensively and expensively educated White Southen woman of a glorious vintage.
I was just four years old when MLK was assassinated.
My parents brought me up to understand how demeaning the “n-word” and “boy” were.
I only care about the content of anyone’s character. Nothing else matters.

Wouldn’t this violate the constitution? (Yea I realize that it’s the Dims we are talking about, but still). How can you nominate a replacement for a position that doesn’t have an actually vacancy?

    Milhouse in reply to Gremlin1974. | January 28, 2022 at 12:29 am

    No. For about the fifth time, there is nothing in the constitution to prevent the president from nominating someone as his candidate to fill a vacancy that doesn’t yet exist, and obtaining the senate’s consent to make that appointment when and if the vacancy happens. But obviously he can’t make the appointment until it does.

      ThePrimordialOrderedPair in reply to Milhouse. | January 28, 2022 at 2:28 am

      Sure … so a President could nominate and confirm a bunch of judges and justices while his party held enough votes int eh Senate and then just slide them all into positions (as those positions opened up) after he lost the Senate in an election.

      Yeah … that sounds like it works … Sure …


    ThePrimordialOrderedPair in reply to Gremlin1974. | January 28, 2022 at 2:25 am

    It’s a tax!!

Why did they ask you to do this now, Breyer?

    Milhouse in reply to alohahola. | January 28, 2022 at 12:31 am

    They’ve been asking him to do it since the election. He obviously agreed with them in principle, but was not about to be pushed around, so he took his sweet time about announcing it.

    Gremlin1974 in reply to alohahola. | January 29, 2022 at 9:51 am

    That is simple, they realize they are going to get their preverbal arse handed to them in November. Hence why Pickled Pelosi of the Botox Brain announced she is running again. If she bowed out now while Speaker it would only make the coming losses even worse.

    She will run again and win, because she could literally kill puppies in the streets and win in her district. Then on the off chance they retain the House she will be speaker again, if not then she can be Minority Leader for 6 months, consolidate her ill begotten gains and retire due to (insert reason here).

    That is why this is happening now, it’s to far out from the election for the Republicans to reasonably delay the nomination and they kept hoping things would improve. They want to avoid having another Ginsberg situation come up while they are not in power.

    There is also the possibility that, though he looks to be very spry for this age, that Breyer does have some kind of unannounced medical condition that has not been announced. Most of the Justices tend to be very close to the vest about such things, Ginsberg was an outlier.

ThePrimordialOrderedPair | January 28, 2022 at 2:24 am

They cannot nominate, or confirm, a SCOTUS justice when there is no vacancy. Of course, I don’t expect Breyer, or the leftists, to understand this … and I know that they don’t even care about it. Of course, this is from the Barky wing, when they actually proposed in November of 2008 that George W just step down early and Barky would just slide into the Oval Office, Constitution be damned! They seriously offered that up …. emergency and all that stuff … The funny part is that when Barky finally took office he couldn’t put a cabinet together to save his life (though lots of GOP morons finally confirmed the disgusting America-haters he put forth just because they felt sorry for the Indonesian).

Breyer should be yanked off the SCOTUS just for floating such an un-Constitutional proposal, to begin with.

ThePrimordialOrderedPair | January 28, 2022 at 3:05 am

Of course, all this is coming from a group that impeached and tried a guy who wasn’t even President … wasn’t even in the federal government. Of course, their impeachment was, itself, a treasonous act done in collusion with foreign enemies … but I guess if you’re going to be impeaching and trying private citizens in the Senate you might as well team up with a foreign enemy to do it.

“Justice Stephen Breyer made it official today, he is retiring. …”

But, “It depends on what the meaning of the word ‘is’ is. …”

Breyer continues to rewrite the Constitution to meet whatever objectives he wishes to achieve. How does the Senate conduct confirmation hearings for a seat that is not vacant and whose vacancy is contingent on the current holder’s approval of the nominee? IMHO McConnell could stop the entire process by a procedural objection leaving Breyer in his position until DJT returns to the Whit House during which term Breyer will hopefully retire to whatever place in Hell has been reserved for him.

It seems to me that this will work against the approval process by removing some of the urgency to approve a new justice. Hopefully those on the right side of the aisle need to be very aggressive in fighting the nomination process.

As Punishment for all the Leaking that dems Do. he should WAIT until the midterms. This way we can get rid of the troublemakers that we always have with Confirming “JUDGES” and I use that term loosely because Harris is not a JUDGE.. PERIOD

Insufficiently Sensitive | January 28, 2022 at 3:32 pm

his pick “will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue in my opinion.”

The pick would be the first Black Woman NOT FILIBUSTERED by Joe Biden. He exerted multiple filibusters to prevent one from being appointed to a Federal court, a few days ago.

This time around is likely a wash. We will probably get another loon like Sotomayor, but that should only be marginally worse than Breyer in terms of decisions. Breyer almost 100% of the lime took the lunatic fringe position. But I think it is quite likely we won’t see another vacancy for at least 10 years. So we can breath a sigh of relief that the next Biden nominee won’t be a trannny of afro/Polynesian/Indian/orc decent with a preferred pronoun of ze.

ThePrimordialOrderedPair | January 28, 2022 at 5:01 pm

You cannot “make an appointment” if there is no vacancy. There is nothing to appoint the person to. Anticipating an appointment is not the same as making an appointment. You CAN make an appointment if someone is holding an “interim position” … but there are no such things on the SCOTUS.

There has to some meaning left in the language in order to have anything resembling a Rule of Law.

e pluribus unum | January 29, 2022 at 4:57 pm

So he’s nominating a “they”, or so he says. I thought a black woman would be a she.
I just can’t keep up with the proliferation of pronouns.