Though Obama made a compelling case for her stepping down, Ginsburg was unpersuaded. When pressed a year later how the meeting went, Ginsburg would only reply, "I think he would agree with me that it’s a question for my own good judgment."
That judgement, in the end, proved to be suspect when Ginsburg died last September and was replaced, not by a Democratic president, but by a Republican one. Amy Coney Barrett would go on to become Donald Trump's third appointment to the high court. Conservatives now enjoy a 6-3 majority. Elections have consequences, but so do arrogant justices who don't know when to call it a career.
Stephen Breyer, unlike Ginsburg, is in good health. There is no reason to believe that he couldn't continue on the bench for several more years. But he is 83, which is three years older than Ginsburg was when she succumb to cancer, and four years older than Antonin Scalia was when he suffered a fatal heart attack. Don't kid yourself: while death eventually claims us all, it is far more likely to happen in our later years.
And that is why it is imperative that Joe Biden invite the liberal justice over for a heart to heart as soon as possible. Screw the appearance of impropriety. Senate Republicans were practically begging Samuel Alito to retire when it was obvious Trump lost the election. Why is it that Democrats are the only ones who have to hold themselves to a higher standard? Biden ran on restoring normalcy to the White House. But just because the man he replaced was a professional grifter with the emotional acumen of a four year old, doesn't mean he has to walk on water. The man is human, you know.
Breyer may bristle at the suggestion that it's time to hang up his robe, but unless he's been living under a rock the last few months, he has to be aware of the current makeup of this court. If progressives lose one more seat, the last sixty years of jurisprudence will be wiped off the judicial map. The recent punt by the Court on the abhorrent Texas abortion ban is a harbinger of things to come. The law literally grants standing to a third party to file a civil suit against anyone who either performs an abortion or assists someone in getting one after six weeks. Chief Justice John Roberts joined with the three liberal justices calling for an injunction; to no avail. He was outnumbered by his fellow conservative brethren.
The reality is that if Republicans flip the Senate next year and a vacancy were to suddenly appear on the Court, Mitch McConnell has already said publicly that he would not allow Biden to fill it. It was a ballsy statement coming from the minority leader, but then this is the same man who blocked Obama from appointing Scalia's replacement back in 2016, so testicular fortitude is not something he lacks. And let's face it, Republicans have been saying the quiet part out loud for quite some time. This is why progressives have been calling on Biden to "pack" the Court. You don't bring a knife to a gun fight. Not unless you plan on getting slaughtered.
In politics, as in all things, timing is everything. The next Supreme Court term is expected to start in a month. Once that happens, cases will be heard. All the more reason for the urgency here. If Breyer were to announce his retirement now, his replacement could be confirmed by Thanksgiving. At worst, the Court would be only slightly inconvenienced.
The bottom line is this: Biden would get to nominate a considerably younger liberal to the bench; one who would be able to serve another 20 to 30 years. And if a conservative were to step down, he'd be able to restore the makeup of the Court to where it was before Ginsburg died. That would all but guarantee that draconian abortion laws, like the one in Texas, would never see the light of day. Who knows? It might even preempt the rash of Republican-led voter suppression laws that are springing up across the country.
That's the least progressives should be able to hope for these days.
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