If Justice Stephen Breyer (age 82) leaves the court when Mitch McConnell is majority leader, the Senate will not confirm anyone that a Democratic president nominates. Recent history and a promise from McConnell confirm this. So numerous progressives have pushed Breyer to resign to ensure that a Democratic president can choose his replacement while Democrats control the Senate. More than one court watcher believes pressuring Breyer is likely to be counterproductive.
Noah Feldman observed last March:
Throughout his career, Breyer has believed that ideology and party are far less important than clear thinking and smart regulatory policy that makes people better off without costing more than it is worth. This perspective has come through in his extensive writing and lecturing, where he has emphasized that judges are not and must not be considered partisan political actors. If Breyer has an ideology, it is the rejection of ideology in favor of pragmatism.
The more we politicize the court and its work, the more judges and justices must perform their own neutrality. This isn’t just ego or narcissism; it is exactly the kind of institutionalism Breyer has expressed over and over throughout his career. “If the public sees judges as ‘politicians in robes,’ ” he said in an April speech that sent progressives into fits, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.” When Breyer takes a bold public stand for neutral, technocratic judges, it’s not just because he believes that of himself. It’s because he wants us to believe that, because he thinks it’s necessary to preserve the legitimacy of the judicial branch.
His need for judicial neutrality is existential, which is why browbeating him about the fact that he is idealistic, naïve, or playing straight into Mitch McConnell’s cynical, Montgomery Burns–rubbing hands really is akin to getting the Easter Bunny or the tooth fairy in a headlock and demanding that they admit they aren’t real.
Justice Breyer's view is difficult to square with what we can plainly observe. Harvard Law professor Randall Kennedy is emphatic in rejecting Breyer's view:
In an effort to portray the Court as independent of politics, Breyer propounds preposterous propositions. “I believe,” he writes, “that jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements.”
Nonetheless, Kennedy predicts that Breyer will soon resign. Neither Feldman, nor Lithwick venture a prediction. Time will tell.
And then there's Senator Joe Manchin. While his arguments for preserving the filibuster are flimsy and unconvincing (like Breyer's view that judges are not partisan political actors), and his surprising compromise proposal on voting rights is certainly going nowhere if the West Virginia senator is unwilling to entertain changing the filibuster rule, it doesn't look like he's going to budge. Evan Osnos observes:
… On June 6th, in an op-ed in the Charleston Gazette-Mail, Manchin wrote that he would not alter the filibuster or advance a voting-rights bill with no Republican support. “I believe that partisan voting legislation will destroy the already weakening binds of our democracy,” he wrote. The voting-rights bill, which Senate Democrats had declared their top priority, was effectively dead. . . .
Nobody who knows Manchin well was surprised by his decision. “I would bet a year of my salary that he would not agree to change the filibuster,” Jonathan Kott, a former senior adviser to Manchin, had told me. “He would quit the Senate before he does that.” There was little that Democrats could do to persuade him. They could threaten to take away his position as chairman of the Energy and Natural Resources Committee, but that would only improve his reputation with conservatives at home. Progressives could challenge him in a primary, but, if they lost the general election, they would likely end up with a Republican along the lines of the state’s junior senator, Shelley Moore Capito, who has voted to repeal the Affordable Care Act, defund Planned Parenthood, block the covid-relief bill, and acquit Trump, twice. If Democrats want to feel less captive to Manchin, they need to figure out how to elect more Democrats in places like West Virginia.
Harry Reid disagrees with Kott. He told Ostnos that he expected Manchin to come around: “I think there’s going to come a time when Joe’s going to say, ‘I’ve given it all this time. I’ve tried to be bipartisan. We can’t take it anymore.’”
I'm not taking any bets, but regardless of what Manchin does, I believe Ostnos has neatly summed things up: If Democrats want to feel less captive to Manchin, they need to figure out how to elect more Democrats in places like West Virginia.
Republican state legislatures across the country are putting in place obstacles to voting; more ominously, they are setting the stage to overturn future elections when Republicans don't win; and, they can be expected to gerrymander House districts (and state legislative districts) in the coming year. The Senate is constitutionally malapportioned to benefit small states and, in recent history, that benefits the Republican Party. The GOP has already captured the Supreme Court, so judicial remedies at the federal level will be few and far between.
Democrats will have an uphill climb in Congressional elections in both 2022 and 2024. Whether or not Congress acts on voting rights this summer, there is much more to do -- in campaigns for the House, the Senate, and critically important races for executive offices and legislative seats in the states -- to defend our democracy going forward.