Ron Klain, the chief of staff of Joe Biden, told a ‘limited number’ of people, just before the news was leaked publicly, that Supreme Court Justice Stephen Breyer would retire, the number two Democrat in the Senate confirmed on Monday.
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According to reports last week, the 83-year-old liberal judge was ‘blindsided’ by the news before he could publicly announce it.
Dick Durbin, the chair of the Senate judiciary committee, said that he received a ‘surprise’ call from Klain on Wednesday morning informing him that Breyer would retire. Klain asked him to keep the news confidential. According to him, it was the first time Klain had ever called him.
Durbin’s committee would have to hear anyone Biden nominates to replace him.
‘So I think it must have been Wednesday morning when I received a surprise call at 9:30 a.m. from Ron Klain, not a usual person to call me. I think the first time he’s ever called me,’ Durbin recalled.
‘He said the president wanted me to know that Stephen Breyer was about to announce his retirement from the court and they were telling a limited number of people and that I should keep it confidential.’
One hour later, Fox reported on the story.
Durbin added, ‘That’s what confidential on Capitol Hill leads to, I guess.’
Biden and Durbin will meet in person at the White House on Tuesday, along with the ranking member of the Judiciary Committee, Senator Chuck Grassley.
Members of the panel will offer their advice and opinions concerning potential replacements for Breyer.
According to NBC News, which ran the story the day before, ‘people familiar with the justice’s thinking’ confirmed the story.
The Washington Examiner reported that Breyer wasn’t set to announce the news himself for months.
‘He did not plan for this to leak out. He was just beginning the standard process of winding down,’ according to a source the Examiner spoke with.
In a White House event the following day, the liberal justice formally announced his retirement.
A letter from Breyer to Biden on January 27 told the vice president that he will step down as soon as the court adjourns for its summer recess.
In his farewell speech, Breyer expressed his pride in the American ‘experiment’ of democracy and spoke of his conversations with young people in which he asked them to carry it forward.
‘And I’ll tell you something: you know who will see whether that experiment works? It’s you, my friend. It’s you mister high school student. It’s you, mister college student, it’s you mister law school students. It’s us, but it’s you,’ Breyer said.
‘It’s that next generation and the one after that. My grandchildren and their children. They’ll determine whether the experiment still works. And of course, I am an optimist, and I’m pretty sure it will.’
The day before, he had been reported as having felt frustrated over the leak, but his demeanor that day did not reflect this.
Biden announced he would make good on a campaign promise to appoint the first black woman to the Supreme Court, which prompted swift backlash from Republicans who accuse him of tinkering with the judicial nomination process.
There are reportedly several candidates in his running, including DC Circuit Court Judge Ketanji Brown Jackson, who was elevated to her post by Biden last year; South Carolina District Judge J. Michelle Childs, who has support from both parties with Republican Senator Lindsey Graham and Democratic Rep. Jim Clyburn, all are from the same state; and California Supreme Court associate Justice Leondra Kruger, who twice turned down the position of Solicitor General of the United States.
Jennifer Psaki, at the White House press briefing on Monday, compared Biden’s pledge to Ronald Reagan’s promises and the appointment of the first female justice.
‘There was no such complaint from the voices on the right who are speaking out now,’ Psaki noted: ‘but there’s no question in his mind that there is a wealth of qualified, talented black women to choose from.’
Breyer officially announced retirement and threw a wrench in the plans by demanding his replacement be approved before he retires.
“I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court, and to serve under the provisions of 28 U.S.C. 371(b),” Breyer wrote, referring to the statute dealing with retired justices and their ability to continue collecting a salary.
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“I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer added in the letter.
“Harvard Law School professor emeritus Alan Dershowitz said Sunday that President Joe Biden’s decision to limit candidates to replace retiring Supreme Court Justice Stephen Breyer only to a black woman may actually be unconstitutional.
“I think it may be unconstitutional. If he had said he was going to appoint the first… Muslim to the court, that would be unconstitutional,” Dershowitz told Fox News host Maria Bartiromo.
“As the Constitution, Article 6 specifically provides that no religious test should ever be required. I think the 14th and 19th Amendments also extend that to no racial or gender tests,” Dershowitz added.