Why Justice Breyer Should Resign Now

In 2010, Barack Obama learned the hard way that the window to get things done can be even shorter than you imagine

As President Biden works to pass the American Rescue Plan in a closely divided Congress, there has been a lot of talk about the “lessons of 2009.” The gist of this discussion has been about whether Biden and Congressional Democrats could learn from the early mistakes of the Obama Administration in combatting the financial crisis.

I have a lot of thoughts about the reductive nature of this conversation that I shared on Pod Save America last week. The fair version of the critique boils down to the Obama Administration passing a stimulus package that was too small for the scale of the crisis to get votes from Republicans and conservative Democrats. With Biden and Congressional Democrats rejecting bad faith critiques about unity and preparing to go it alone if necessary on a $1.9 trillion package, it is clear that the lessons of 2009 have been learned.

Because I can never find enough things to worry about, there is a different, less discussed lesson from the early Obama years that keeps me up at night — the brittle fragility of the majority. This is the lesson we learned ever so painfully in 2010 when the Democrats unexpectedly lost the election to replace Senator Ted Kennedy. And this is why Supreme Court Justice Stephen Breyer should retire as soon as humanly possible.

The Filibuster Proof Majority Goes Bust

Any conversation about Obama-era mistakes that Team Biden should avoid includes a discussion about how a fruitless search for Republican votes caused passage of the Affordable Care Act (ACA) to take way too long and doomed the Democrats in the 2010 midterms. There is no question, we let the Finance Committee negotiations go on way too long out of deference to Senator Max Baucus, the chair of the Committee. But that only lasted for the summer months of 2009. That process was over in September and the bill had passed the House and the Senate by Christmas. All that was left was negotiations between the House and Senate over the differences between their bills. It was a done deal.

The final bill was going to require sixty votes in the Senate to overcome a Republican filibuster. This wasn’t a concern, because Democrats had sixty votes. Ted Kennedy had passed away the previous summer and the special election to fill his seat was in January. But there was no way that a Republican was going to win Ted Kennedy’s seat in a state that Barack Obama had won by 25 points. Well, thanks to a fired up Republican base and a Democratic candidate so out of touch with the electorate that she ridiculed campaigning at Fenway Park, the Republicans shockingly won the seat and took away the filibuster proof majority we needed to enact the ACA.

Democrats had to go back to the drawing board, rewrite and then re-pass the bill on a party line vote using the budget reconciliation process. This delayed the process by months, made it messier, and complicated the politics.

The lesson here is to take nothing for granted and waste no time, because you never know when your governing majority could come to an end.

No Margin of Error

In 2010, Democrats had a margin of error. Being forced to use the budget reconciliation process complicated matters and forced some good policy to end up on the cutting room floor, but the bill still became law and millions still gained access to health care. In 2021, Democrats have no such margin of error. If we lose a single seat for any reason, Mitch McConnell would take over as Majority Leader. I won’t indulge in grim speculation about how we could unexpectedly lose a senate seat, but it has happened many times in history. Senators have passed away unexpectedly and resigned in scandal. In 2001 Vermont Senator Jim Jeffords switched parties because Karl Rove was an arrogant asshole.

While House seats remain vacant until a special election, Senate vacancies are filled by gubernatorial appointment until the next election. More than a dozen current Democratic Senators represent states with Republican Governors that could appoint a Republican to fill the seat (Massachusetts has a law that says the replacement has to be of the same party as the Senator being replaced).

We don’t know what will happen. We don’t know how long Democratic Senate control will last. We can nothing for granted. And this is why Justice Stephen Breyer should resign by the time you finish reading this newsletter.

Supreme Stakes

Elections have consequences, but shaping the Supreme Court is the greatest and most long-lasting of those consequences. The current court has proven this over and over again with devastating effects on civil, voting, and reproductive rights.

With Democratic control of the White House and Senate, there is a narrow window for President Biden to put his imprint on the court. Stephen Breyer is 82 years old. He is the oldest Justice on the court by a decade. He was appointed by President Clinton in 1994. If he wants to ensure that his replacement is appointed by a Democrat, he needs to resign.

As we learned in 2010, opportunities to enact our agenda can be fleeting. Every day of delay increases the risk that somehow Democrats could lose the majority and put the Supreme Court at risk of eventually becoming even more conservative.

While it is certainly possible that a Senate Majority Leader McConnell would allow Biden to confirm a justice that would not shift the ideological balance of the court, we cannot assume that he would. If the the Republicans re-take the Majority, Lindsey Graham will chair the Senate Judiciary Committee. Just a few weeks ago when Republicans were illegitimately clinging to power, Graham refused to hold a hearing for Biden’s nominee to be Attorney General.

In 2016, there were likely enough votes to confirm Merrick Garland to the Supreme Court. McConnell was able to steal that seat by convincing then Judiciary Chair Chuck Grassley to never hold a hearing and keep the nomination from coming to a vote. It is very possible that McConnell and Graham could collude to keep a Breyer replacement from getting confirmed potentially for years. There would be tremendous pressure from the disturbingly large pro-insurrection wing of the Republican Party to prevent Biden from putting a nominee on the Supreme Court. The vast majority of Republican voters incorrectly view Biden as illegitimate. In the latest Crooked Media/Change Research Pollercoaster poll, 86 percent of Republicans believe Trump actually received more votes than Biden. It’s easy to see a world where malicious opportunists like Josh Hawley partner with malicious grifters like Sean Hannity to lead a charge to block any Biden nominee to the court.

If Breyer’s replacement is chosen by a Republican President at some point in the future, it will be a huge setback. Of the nine Justices, only two would have been appointed by a Democratic President even though Democrats have won the popular vote in all but one election since 1992.

President Biden and Congressional Democrats are rightly focused on passing the American Rescue Act to fix economy and control the pandemic. No one can force Justice Breyer to resign, but I hope he looks at what happened in 2010 and realizes how short the window may be to ensure his replacement is a progressive jurist as opposed to a Republican hack. I hope there are folks in his circle making this case.

The lesson of 2010 is that there is no time to wait. Democrats must proceed as if there is no tomorrow, because there may not be.

Time is of the essence.