Power Up: Breyer’s SCOTUS comments prompt renewed calls from progressives to retire

SHOULD I STAY OR SHOULD I GO: Supreme Court Justice John Paul Stevens retired 11 years ago to this day. 

And the presidency of Joe Biden, along with an evenly split Senate, has some progressives advocating for the “strategic retirement” of another Supreme Court justice: Stephen G. Breyer. 

Breyer became the court’s oldest justice and the senior member of the court’s liberal wing after Ruth Bader Ginsburg’s death last fall. He gave no indication of plans to retire during a 70-page lecture at Harvard Law School earlier this week as the left’s high court minority has dwindled to three seats.

In his remarks, Breyer instead warned against structural reform to the court embraced by some liberal activists and argued it was “wrong to think of the court as another political institution.” His comments have renewed pressure from progressives for Breyer to retire now while Democrats control Washington.

• “We’re now firmly in the season where the [retirement announcement] should be happening,” Brian Fallon, the executive director of Demand Justice — an advocacy group that pushes for a more liberal judiciary — told Power Up. “He’s starting to be on borrowed time in outlasting when previous justices have announced their retirements, and his comments make me worried he doesn’t get it if he doesn’t think the court is unduly conservative right now.”
• “It makes me worried [Breyer] doesn’t appreciate how important it is he’s replaced and that a Democratic nominee is moved without delay in a [Democratic] controlled Senate,” Fallon added.

The pressure on Breyer to retire from other liberal activists is growing.

• “These appointments come up so rarely and are not regularized so we have no idea when these opportunities will come up unless justices act strategically and retire under the same party president,” Amanda Hollis-Brusky, an associate professor of politics at Pomona College who has studied judicial nominations, told us. 
• “Frankly, it’s disturbing that justices not only have life time appointments but also get to decide and anoint their successor,” she added, referencing Supreme Court justice Anthony M. Kennedy’s request for Trump to consider one of his former clerks, Brett M. Kavanaugh, to replace him. 

Democratic senators are also remaining mum about Breyer’s future, which frustrates activists who want them to approach the courts as strategically as Senate Republicans.

• With the help of Senate Minority Leader Mitch McConnell (R-Ky.), former president Donald Trump transformed the judiciary, appointing over 200 conservative jurists during his four years in office. 

Power Up surveyed the 11 Democratic members of the Senate Judiciary Committee and most declined to comment or did not respond to the question of whether Breyer should retire before 2022. Sens. Sheldon White House (D-R.I.) and Alex Padilla (D-Calif.) both responded that the decision is Breyer’s to make. 

Liberal attention to the courts has waxed and waned in recent years. After pressure to respond aggressively to Republicans judicial campaigns that have transformed the court – including the swift replacement of Ginsburg less than 50 days before the 2020 election – the Biden White House has tepidly moved forward on the issue. 

Biden opposes what is known as “court packing” in which the number of justices on the high court would be expanded. He’s instead appointed a bipartisan commission to craft recommendations over the course of 180 days. But radical changes proposed by progressives are unlikely. 

• “I can’t say for sure whether the results of that process will be revolutionary but early signs don’t indicate that they would be,” Hollister Brusky told us. “Biden has not committed to that either— he’s an institutionalist… He’s going to make smart decisions about who he appoints to the court — but I don’t see him as someone thinking about out of the box ways of reform and restructure the judiciary under his presidency.”
• “Federal court change—commission-motivated or otherwise—has largely been incremental. Support is typically diffuse and opposition well-organized,” per the Brookings Institute’s Russell Wheeler. 
• Biden has thus far announced a list of 11 judicial candidates he intends to nominate to serve as judges for the federal circuit, district court and superior court.

The full list of names of those on the commission – one of eight court commissions in the last half-century – has yet to be released by the White House, though it’s expected imminently. 

Fallon, however, is hopeful momentum for reform of the courts will pick up again once a bill on structural changes being crafted by congressional Democrats is introduced in the coming weeks. 

• “That has the potential to provide something to rally around regardless of the approach the Biden commission takes,” Fallon added. “I won’t be surprised if they endlessly debates a couple proposals without ratifying any — that’s often what these commissions are designed to be.”

Aaron Belkin, the director of the advocacy group Take Back the Court, is heartened by what he sees as the politics shifting “incredibly” on expanding the high court.

• “The politics continue to shift rapidly,” Belkin told us. “There’s now a universal understanding of the danger and partisanship of the courts and the politics of judicial reform… we have just begun the conversation.”
• “I don’t think the question is whether Breyer should retire and I don’t think it’s appropriate for elected officials to tell justices when they should end their careers,” Belkin added. “My personal opinion? Sure. He should retire but that won’t fix the courts.”

COOPERATION COULD OPEN THE FLOOD-GAETZ: Joel Greenberg, “a Florida politician at the center of an investigation into Rep. Matt Gaetz (R-Fla.), is negotiating with federal prosecutors to resolve his own sex-trafficking and other charges, a potentially ominous sign for Gaetz if his associate decides to cooperate in a bid for leniency,” our colleagues Barbara Liston, Matt Zapotosky and Michael Scherer report. 

• “The Justice Department has been exploring whether Greenberg procured women for Gaetz and whether the two men sometimes shared sexual partners, including the 17-year-old girl at issue in Greenberg’s case.”
• Details: “In two late-night Venmo transactions in May 2018, Gaetz sent Greenberg $900. The next morning, over the course of eight minutes, Greenberg used the same app to send three young women varying sums of money,” the Daily Beast’s Jose Pagliery and Roger Sollenberger report. “When Greenberg made his Venmo payments to these three young women, he described the money as being for ‘Tuition,’ ‘School,’ and ‘School.’”

Latest Gaetz Gate developments: “Rep. Adam Kinzinger (Ill.) called on Gaetz to resign Thursday night, making him the first Republican to do so,” Politico’s Nancy Vu reports. 

HAPPENING TODAY: “The White House plans to release an outline of President Biden’s spending priorities,” Bloomberg’s Roxana Tiron and Anthony Capaccio report. “The plan had been widely expected last week, but its release was delayed in part because of disagreements over defense spending.”

• “Biden plans to request $715 billion for his first Pentagon budget, a decrease from Trump-era spending trends.”

BIDEN ADMINISTRATION SHELLS OUT MILLIONS FOR UNACCOMPANIED MINORS: “The Biden administration appears to be spending at least $60 million per week to care for the more than 16,000 migrant teenagers and children in shelters operated by the Department of Health and Human Services,” our colleague Nick Miroff reports. “Those costs are expected to rise significantly over the coming months.”

CHAUVIN MURDER TRIAL UPDATE: Martin Tobin, a Chicago-area pulmonologist and critical-care doctor who specializes in the science of breathing, testified Thursday that “the pressure of Derek Chauvin’s knees on George Floyd’s neck and back made it virtually impossible for the handcuffed man to breathe as he was pinned face down on a street and would have killed any healthy person,” our colleague Holly Bailey reports. 

• Jurors also heard from David Isenschmid, “a forensic toxicologist at NMS Labs, which tested [Floyd’s] blood for illicit drug use and found the presence of fentanyl and methamphetamine,” the Minneapolis Star-Tribune’s Rochelle Olson and Paul Walsh report. 
• “Isenschmid said that while fentanyl was found in Floyd’s blood, so was norfentanyl, which is metabolized fentanyl. Overdose victims who die rarely have norfentanyl in their blood, he said.”
• Happening today: “Prosecutors are expected to call Hennepin County Medical Examiner Andrew Baker [who] performed the autopsy on Floyd.”

UNCERTAINTY LOOMS FOR AMAZON UNION: “The union trying to organize workers at an Amazon warehouse in Bessemer, Ala., sounded a pessimistic note Thursday as a partial tally showed votes against the union with an early and widening lead,” our colleague Jay Greene reports. “The union is fighting to represent 5,805 workers at the facility in one of the most high-profile labor battles in years.”

• “With roughly half the 3,215 ballots counted, no votes hit 1,100 while yes votes totaled 463. The count was scheduled to resume [today].”
• “The incomplete tally put Amazon on the cusp of defeating the most serious organized-labor threat in the company’s history. In a high-profile campaign since the fall, the Retail, Wholesale and Department Store Union aimed to establish the first union at an Amazon warehouse in the United States. The result will have major implications not only for Amazon but also for organized labor and its allies,” the New York Times’s Karen Weise and Michael Corkery report.

Amazon has gone to great lengths to fight unionization. “Emails among U.S. Postal Service employees in January and February show that Amazon pressed the agency to install a mailbox outside the warehouse, a move the union contends is a violation of labor laws,” per Greene.

• “The union has complained about the mailbox, which the Postal Service installed just before the start of mail-in balloting in early February. It has argued that the mailbox could lead workers to think Amazon has some role in collecting and counting ballots, which could influence their votes.” The mailbox does not have any U.S. Postal Service markings.
• But “Amazon spokeswoman Heather Knox said that the mailbox’s placement was intended to make voting easy and that the company proposed a variety of options to do so.”

(Amazon chief executive Jeff Bezos owns The Washington Post.)

THE VACCINE HAVES AND HAVE-NOTS: “Priority-supply deals, export restrictions and other means of hoarding by rich nations have contributed to a severe global supply crunch and left many countries scrambling,” our colleague Emily Rauhala reports.

• “As of Thursday, just short of 20 percent of the U.S. population was fully vaccinated, giving some 66 million people a strong measure of protection against a disease that has already killed more than 500,000 Americans.” 
• “While the United States administers millions of inoculations a day, some countries are still waiting for their first shots to arrive. A recent WHO estimate suggested that just 2 percent of the 690 million doses administered to date globally went to Africa.”
• A world of difference. “The world’s least wealthy continent, Africa, is also the least vaccinated. Of its 54 countries, only three have inoculated more than 1% of their populations. More than 20 countries aren’t even on the board yet,” Bloomberg’s Tom Randall reports.