Breyer: Facts and Theories  by Tom Reynolds

Supreme Court Liberal Justice Stephen Breyer has announced his retirement. Since a radical progressive President will probably nominate a radical progressive replacement for a radical progressive justice, this will have no immediate effect on the Supreme Court philosophical balance. It will, however, lock in that seat for a longer period since whoever is nominated for this lifetime appointment will be much younger than Breyer.

This will almost surely be bad news for the 2nd Amendment, as radical progressives ignore the Constitution if it suits their purposes. (Don’t bet against the three progressive judges ignoring the Constitution and siding with New York State in NYSRPA v Bruen?)

President Biden has said he will nominate a black woman as his first Supreme Court nominee. Biden, as usual, made blatant race discrimination on the part of Democrats a central part of his actions. If he follows through on his promise, the nominee will be decided based on race and sex and not qualifications. Whites, Asians, men, etc. need not apply. When this naked political partisanship happens, it further destroys the ever-decreasing confidence American citizens have in their government.

The Senate can approve the nomination by a simple majority. In case of a tie, the Vice President casts the deciding vote. This raises three interesting but distant possibilities: what if something happened and either party lost a sitting Senator and especially if it was a Democrat Senator; what if something happened to Biden and Kamala Harris became the President, leaving the tie breaking Vice Presidency vacant; what if Biden were temporarily disabled and Harris was serving as Acting President, would she be eligible to cast the tie breaking vote? Remote possibilities, but history has turned on even more remote possibilities.

Filibustering the nomination is not a possibility. When the Democrats controlled the Senate, it was to their benefit to change the filibuster rules to exempt judiciary appointments from being filibustered (but Supreme Court appointments were still eligible to be filibustered). So, when Republicans subsequently controlled the Senate and it was to their benefit, they changed the no-filibuster exemption to include Supreme Court nominees. This is a lesson currently lost on the Democrats except for Manchin and Sinema; that power can change hands and turnabout is fair play.

The nominee only needs a majority vote in the Senate. Democrats have been pretty good at holding their own in-line, until they recently became so radical that Manchin and occasionally Sinema fell out of line. Might Biden nominate someone so radical that it would break the Democrat’s “Iron Curtain”, again? Not such a remote possibility since Biden nominated a communist for Controller of the Currency and his current nominee to the Federal Communications Commission has a huge ethics problem. (And don’t forget gun grabber Chipman to head BATFE.) In a party that embraced riots - except on January 6th - and where A O-C is considered the de-facto speaker of the House, radicalness is more often the rule than the exception.

Will the Republicans be able to hold the line? Several Republicans have often been willing to reach-across-the-aisle. But a Supreme Court justice is not a part of the President’s administration, but is a member of the independent 3rd branch of our government and deference to the presidency should not be the rule. Still, past history has shown that Republicans are more likely to be “bi-partisan” than Democrats.

Looking forward, one can’t help in believing that the upcoming November election had an impact on this.

It’s heavily believed (but never certain until the “fat lady has sung”) that Republicans will win control of both houses of Congress. A Republican Senate would insure a much more moderate nominee and this may have pushed Breyer to retire now, to increase the chances of a radical progressive successor.

Biden may also feel further pressured to nominate a black woman as most polls show him and the Democrats losing voter support amongst their historically Democrat black voters. Any vote against a black or woman will be touted as racism or sexism and not based on disqualifications.

Who will be the nominees? Since we can expect an overtly political nomination, let me suggest three overtly political (and unqualified) possibilities: Michelle Obama (like the Clintons before them, the Obamas will never go away. However, this would seem to eliminate her from running for President); Kamala Harris (but could she ethically and legally cast the tie breaking vote as VP if she were the nominee. Ethics? Legality? Since when has that been an issue for Harris?); Susan Rice (will she give up running the country for Biden to step down to a Supreme Court decision. And like Michelle Obama, this would eliminate her running for President).

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