Who Owns Justice Breyer?

Remember Justice Ruth Bader Ginsburg? Paul Campos does.

Justice Ruth Bader Ginsburg was widely, and deservedly, criticized for her refusal to retire from the Supreme Court at a time when a Democratic president could have chosen her replacement.

She could have retired during President Obama’s term of office. You know, that time during which Nino Scalia passed away and Merrick Garland was nominated to replace him, but Mitch McConnell gamed the delay and got away with it. Justice Ginsburg was asked. She said no. She wasn’t appointed to the Supreme Court to facilitate a political passage to her successor, but to be an associate justice of the Supreme Court, and that was exactly what she planned to do.

So what would it be any different for Justice Stephen Breyer?

Justice Stephen Breyer is making a similar and arguably even more egregious mistake.

The evident indifference on the part of Democrats regarding the failure of Justice Breyer, 82, to announce his retirement is apparently a product of the assumption that he will do so at some point during the current Congress and that therefore whether he does so anytime soon is not particularly important.

This is a grave mistake.

Justice Breyer doesn’t work for the Democrats. He doesn’t serve at the pleasure of President Biden, AOC or Prawf Campos. He doesn’t owe the left the remainder of his life term of office, and the expectation that he should take a bullet for the team by retiring now, when there is a Democratic president and the tiniest of majorities in the Senate, presumes exactly what the Dems complain about the Reps, that they “own” justices, and so are entitled to the seat lest the justice die at the wrong moment in history.

And while this doesn’t need to be said, it’s worth saying: 82 years of age isn’t dead yet. Justice Breyer still has a few good years left in him.

Campos argues that the Senate majority is fragile. Even with the current majority of a vice president, it could crumble at any moment.

The probability that such a shift may occur during this particular Congress may well be even higher than that. At the moment, no fewer than six Democratic senators over the age of 70 represent states where a Republican governor would be free to replace them with a Republican, should a vacancy occur.

Five other Democratic senators represent states for which a vacancy would go unfilled for months, until a special election to fill the seat was held — which would hand the G.O.P. control of the Senate at least until that election and likely for the rest of the current Congress if a Republican wins that contest. (In the case of Wisconsin, such a vacancy might not be filled until 2023.)

All things considered, the odds that Democrats will lose control of the Senate in the next 22 months are probably close to a coin flip.

Not only is that true, but as Campos no doubt knows, there’s a strong possibility of the Senate, maybe even the House, flipping at the midterms. The strongest argument to elect Democrats in 2020 was the loathsome Trump, who single-handedly gave the Senate to the Democrats in Georgia. Can they hold the Senate without Trump to give the Dems the win? Can they hold Congress with Biden pandering to the woke children despite a nation of Democrats who rejected the Bernie and Liz Show?

Nothing illustrates the anti-democratic dysfunction of our political system more clearly than the current makeup of the Supreme Court. Two-thirds of the sitting justices were nominated by Republican presidents, even though Republican presidential candidates have lost the popular vote in seven of the nine elections, which determined who nominated these justices.

And these justices were confirmed by a Senate that has become skewed so radically in favor of electing Republicans that the 50 senators who caucus with the Democrats represent about 41.5 million more Americans than the 50 Republican senators do.

Of course, nothing precludes the election of Democratic senators where Republicans now sit, except that their constituents decided otherwise. But while it may be numerically accurate that the Dem senators “represent” 41.5 million more Americans than the Reps, the assumption that those citizens are of a hive mind behind Biden’s nominee, who remains unnamed although to be a Woman of Color if he keeps his promise, doesn’t necessarily follow.

Under the circumstances, it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.

While calling it a “travesty” might be just a wee bit hyperbolic, it would be unfortunate. The Supreme Court should reflect a diversity of experience, background and perspective of jurists of exceptional integrity, good faith and intelligence. That includes the perspective of those who see the world from the left of center, and we would do well to have views representing the Democrats in the conference mix.

But how does this become Justice Breyer’s problem or fault? There is an alternative, that the Democrats present such a winning political agenda that they capture the hearts and minds of the middle as well as the progressive left. Hold the Senate, if you can. Gain some seats because you can appeal to people from flyover country as well as the hipsters on the coasts. If the Dems want to make the next Supreme Court appointment, not to mention the eight to follow, be the party that the nation wants to elect. That goes for the Republicans, too.

Don’t put the onus on Breyer to resign. He was appointed for life upon good behavior, and he’s still alive. He is not a servant to the cause, and he doesn’t owe the Democratic party his future because they fear they can’t keep the Senate on their current trajectory. Who owns Justice Breyer? Justice Breyer does, and it remains his until the day he, and only he, decides it’s time to walk away.