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Supreme Court Justice Stephen Breyer to Retire. Aired 1-1:30p ET

Aired January 26, 2022 - 13:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[13:00:28]

ANNOUNCER: This is CNN breaking news.

ANA CABRERA, CNN HOST: I'm Ana Cabrera in New York. And we began with breaking news, a bombshell announcement out of the U.S. Supreme Court reverberating across the nation's legal and political landscape.

CNN has learned that Justice Stephen Breyer plans to retire. This is according to a well placed source familiar with the matter. Breyer's departure will give President Biden a chance to nominate a successor to the liberal justice.

CNN's Jessica Schneider joins us with more reporting on this.

Jessica, I know you have been working your sources. What have you learned?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, Ana, this announcement is actually coming quite early. There are still five months left in this Supreme Court's term. Most justices that have announced their retirement in the past haven't done so until at least March.

But the 83-year-old justice has said in the past that he would consider two things when deciding whether to leave, his health and the court. Now, with no known health issues, it is clear that the court's future is really his main reason for leaving after almost three decades on the court.

He has spoken extensively, particularly over the past year. He even wrote a book that was released in September. And in those speeches, in his book, he expressed concern that the public views the court as political. And he talked about how that perception could really erode faith in the court.

But Justice Breyer does come from a political background himself. He was the chief counsel of the Senate Judiciary Committee in the 1970s. He understands this relentless over the past year progressive pressure on him to step down.

In fact, the progressive group Demand Justice just last spring, they paraded a mobile billboard past the Supreme Court with the simple words "Breyer, Retire" trying to get their message out there. So there has been this persistent pressure for Breyer to leave well before the midterms, when, at this point, Democrats would presumably still be in firmly control of this nomination and hearing process for the next justice.

But, of course, Justice Breyer still has a lot of work left to do in this term. It typically ends at the end of June. There are still huge issues outstanding, including the fate of abortion rights, gun rights. Those issues, those cases have been heard. We're still awaiting a decision that could come in the coming months.

And Justice Breyer will be part of those decisions, since he has -- we have learned that he won't retire until at least the end of the term and at least when his successor is confirmed.

But, Ana, he leaves a court that is drastically different even than it was just a few years ago. It is now solidly 6-3 in favor of conservatives. We have seen Justice Breyer even in recent weeks here join fiery dissents with his two other similarly minded justices, Sonia Sotomayor, Elena Kagan.

They have issued dissents in the vaccine mandate case that was struck down by the Biden -- that mandate that came from the Biden administration, and dissents in those decisions allowing the Texas abortion ban after six weeks to stay in place.

So, Justice Breyer has been outspoken, but there is still a lot more work to do in this term. And now, of course, there's work to do for the White House, determining who will be the next nominee.

We understand that there are probably two names, leading contenders. President Biden pledged to put in place a black woman. We have learned through sources that Ketanji Brown Jackson -- she's on the D.C. Circuit Court of Appeals -- she is a leading contender, along with Leondra Kruger. She is at the California Supreme Court.

So a lot to come yet in this Supreme Court term before Justice Breyer steps down, Ana. And, of course, now the real work begins for the White House and Democrats here -- Ana.

CABRERA: Jessica Schneider, thank you for your reporting. We will come back to you as you gather more details.

Let's continue our discussion.

I want to bring in CNN chief legal analyst Jeffrey Toobin, CNN chief political analyst Gloria Borger, and CNN Supreme Court reporter Ariane de Vogue.

Gloria, we just heard Jessica lay out what's happening at the Supreme Court, some of the reasons perhaps behind this decision, but this is big news for the Biden administration and for Democrats. What do you see as the impact?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, I also see it as big news for the country.

I mean, it is a history-making moment, when you step back and say that Joe Biden as a candidate pledged to appoint the first black woman justice, and he intends to do that. And it is something that the country has never seen before. We all know, as we have been talking about this morning, that it will not change the ideological balance of the court that you just pointed out.

[13:05:00]

But it will change the way the court looks. And I think we cannot understate that.

And, politically, as you asked, for the Democrats, of course, this is an opportunity. It is an opportunity for the president, who has disappointed lot of members of his base about what happened with voting rights. And he can now say, I am going to fight the good fight, and I am going to get this nominee through and on the bench.

CABRERA: So, Jeffrey, Gloria points out this will still be a 6-3 court. Breyer is a liberal justice. How are you looking at this?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, there's only been 120 people on the Supreme Court in the history of the United States. So whenever there's turnover, it always makes a big difference.

Byron White, who served on the court for many years, liked to say, when you change one justice, you don't just change one justice. You change the whole court.

And I think we are looking at a situation where there will likely be four women on the Supreme Court for the first time in history. It wasn't all that long ago that there were no women on the Supreme Court. We are looking like that the only liberals on the court will be women, Sonia Sotomayor, Elena Kagan, and President Biden's nominee.

So, the court will certainly look different, although the voting will not be all that different, at least in the short term. But this is a very big deal. And this will be a considerable reinforcement for Justices Sotomayor and Kagan, who -- or would be the last two liberals, if Breyer stayed on, to be replaced by a conservative.

So, it doesn't change the overall balance of the court, but it will be a big event in American history, because every Supreme Court appointment is a big event in American history.

CABRERA: Ariane, you know the inner workings and the dynamics among the Supreme Court justices probably better than a lot of us, most of us, in fact.

And so I'm curious how you see the shaking things up. Was Breyer extremely influential on the current court? Or will it be more easy to replace him in terms of fitting in with the crew?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, you're exactly right. Once justice leaves, the whole dynamic of the court does change.

And, as Wolf has reported, he said that he was going to step down upon the confirmation of his successor. So we will see those hearings. He's obviously going to stay on for the rest of this term, which is a blockbuster term.

But, keep in mind, it's going to be huge, as you said, for President Biden. And one of the key potential replacements is a judge named Ketanji Brown Jackson. She was one of President Biden's first choices for the most powerful federal appeals court in the country. She'd already been serving as a district -- on the district court.

And what we know about next term is that one of the biggest cases they're going to hear is an affirmative action case. So it's true that here we will see a liberal replacing a liberal, but the new nominee is likely to be much younger, maybe more liberal than Breyer, and will change all the inner dynamics of the court.

And, of course, Breyer is going to remain for the rest of this term, which is right now considering some of the biggest issues of the day, including the future of Roe v. Wade.

He's going to sit, and he will be there when that's decided sometime before July.

CABRERA: Well, obviously, there's still some six months left in the term, as Jessica pointed out. And so this is an early announcement.

Why do you think he made this announcement so early, Ariane?

DE VOGUE: Well, it's interesting, because a lot of progressives had been pressuring him last term to step down.

CABRERA: Yes.

DE VOGUE: And they were mad that he didn't there may have been some calculation. He might have thought, look, I have been on this court the longest. I have relationships with some of these conservative justices. I can play a role this term in these cases, the Second Amendment case, the abortion case.

But, so far, it doesn't seem like he did a lot in persuading his conservative colleagues, as we saw, especially in that one case where the court allowed that Texas law that bars abortion before most women even know they're pregnant to go into effect. Breyer there was in dissent.

And the conservatives are really pushing forward quickly here, turning this court to the right. So maybe he thought, I will stay another term. Maybe I can help here.

But now he's decided to make it clear that he's stepping down. And he's made that decision so early.

CABRERA: Gloria, the Supreme Court has been a big motivator for Republican voters for decades. I remember talking to voters out in the field before the 2016 election, and I would hear from people saying, I don't really like President Trump, then-candidate Trump, but I'm going to vote for him anyway because I know he's going to have a Supreme Court nominee, and that's important to me.

[13:10:05]

Do you think that can be a similar motivator for Democrats?

BORGER: Sure, absolutely. I mean, you look at what's occurred. I mean, look at what's occurred with voting rights, for example.

I think that would motivate the Democratic base. We have been talking about Roe v. Wade, affirmative action being up on the docket in the next term. I think this is an opportunity for Democrats, particularly the president, to talk about these issues and to talk about the importance of the Supreme Court.

And I was just talking to somebody who's been involved in confirmations previously. And he said to me, look, if I were running this right now, I would want these hearings tomorrow. I would want these hearings very soon, and because they all know that waiting until later in the year could become a disaster politically.

This is the window for them. Mitch McConnell has already said nothing happens as you get into the presidential election. So, this is the moment, honestly, to change the subject, and this is the moment for the Democrats to say, this is what we stand for, even if Biden was unsuccessful in getting what he wanted, for example, on voting rights.

CABRERA: Jeffrey, it's not going to be a lot of time, though, before the midterms, once Justice Breyer retires, for the president and the Senate to move through the nominating process.

TOOBIN: Well, but there's plenty of time for him to be confirmed.

I mean, I think that's one reason why he announced when he did, is that this -- by the standards of Supreme Court hearings, nominations, vacancies, all the time that it takes to do this process, a retirement in January is plenty of time to seat someone by the end of at end of -- at the end of the summer.

And, also, it's worth keeping in mind that...

CABRERA: But he's not retiring in January. He's making the announcement in January. He's not retiring until the end of the term, right?

TOOBIN: Well, but the process will move quickly.

And I think one of the interesting questions that Senator Durbin, who's the chairman of the Judiciary Committee, will he hold hearings on a nominee before there is an official vacancy? That's been done in the past. All of that will have to be worked out.

But I think the timing is not a problem for the Democrats. And it is also worth keeping in mind that the president of the United States is someone who knows a lot about Supreme Court confirmations.

CABRERA: Yes.

TOOBIN: He was chairman of the Judiciary Committee. He was ranking member of the Judiciary Committee.

He sat through, I think, at least a dozen Supreme Court nominations. His White House chief of staff, Ron Klain, is someone who, when he worked in the Clinton White House, worked on White -- judicial nominations. He worked with Biden on judicial nominations.

This is right in their wheelhouse. And they are going to be delighted that they can change the subject ,at least for a little while, from COVID and inflation.

(CROSSTALK)

CABRERA: Joe Biden, you're right, was the chairman of the Judiciary Committee. We went back and has -- was in that role as a senator for six different justice confirmation hearings, and dating back to 1987, when Bork ultimately failed.

Everybody, please stand by because we have reaction pouring in from Capitol Hill, including from Senate Majority Leader Chuck Schumer.

And CNN chief congressional correspondent Manu Raju joins us now from the Capitol.

What is the majority leader saying?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well, he's confident that a nominee will get confirmed. And Democrats largely are as well. Republicans also recognize that the chances of defeating a nominee here is going to be very slim, given, obviously, that Democrats control the Senate, 50/50 Senate.

Back in 2017, Republicans change filibuster rules to allow a simple majority to actually advance and lead to the confirmation of a nomination. So, if all Democrats stick together, they can confirm a nominee. And it's possible they can even pick off some, some who have voted for Democratic nominees in the past now.

Chuck Schumer putting out a statement, saying: "Stephen Breyer has served his country with the highest possible distinction. He is and always has been a model jurist. President Biden's nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered in confirm by the full United States Senate with all deliberate speed."

Now, the question will be if he can keep all 50 Senate Democrats on the same page. Joe Manchin, for one, has been the frequent swing both vote. He has frequently referred to presidential picks on nominations, in fact, voting for two of three of Donald Trump's Supreme Court nominees. Kyrsten Sinema, the other swing vote, has also voted for Biden's nominees in the past.

[13:15:00]

And some Republicans could potentially break ranks as well. Lindsey Graham, who serves on the Senate Judiciary Committee, voted for two of Barack Obama Supreme Court nominees back in 2010.

He put out a statement also about news of Breyer's retirement saying: "As to his replacement, if all Democrats hang together, which I suspect expect they will, they have the power to replace Justice Breyer in 2022 without one Republican vote in support. Elections have consequences. And that is most evident when it comes to fulfilling vacancies on the Supreme Court."

So, Ana, still -- lots still has to happen. They have to, of course, name the pick. There has to be a confirmation process, and fireworks will ultimately undoubtedly erupt and potential roadblocks could emerge. But, at the moment, Democrats have -- are very confident that whoever Biden picks will ultimately get confirmed with the support of their caucus and potentially some Republicans in the process -- Ana.

CABRERA: Manu, did the majority leader see this coming? Was he prepared for this reaction?

RAJU: They were undoubtedly prepared for this. It's unclear if he got a heads-up before this was happening, but they were -- they have been expecting this for some time to occur.

Dick Durbin, who serves as the Senate Judiciary Committee chairman, also the number two Democrat, is prepared to move expeditiously, he says, on hearings for this eventual replacement. So expect Democrats, as soon as this nomination comes down, to move on this, try to get their caucus in line and get this nominee confirmed.

CABRERA: Manu Raju, thanks so much.

Much more on this. Plus, we have other breaking news on the U.S. response to Russia on Ukraine.

Stay with us.

(COMMERCIAL BREAK)

[13:22:57]

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Thank you so much.

(CROSSTALK)

BIDEN: I will be happy to talk about this later. I'm going to get into this issue, OK?

(CROSSTALK)

UNIDENTIFIED MALE: We're going to start where to start by asking Tom -- Tom Linebarger, to offer your thoughts, please, sir.

TOM LINEBARGER, CHAIRMAN AND CEO, CUMMINS, INC: Yes, thank you.

Mr. President, it's an honor to be here.

BIDEN: Want to go to the Supreme Court, Tom?

(LAUGHTER)

LINEBARGER: I'm just going to demur on that one.

But it's really an honor to be here. Thank you for inviting me to this event.

And I just want to say that...

BIDEN: Come on, guys. Let's...

CABRERA: OK, this is a live event, the president holding a meeting with CEOs and top business leaders, talking about the economy and his, at this point, stalled Build Back Better Act. And he wants to try to get pieces of that through in smaller chunks of legislation in this upcoming year and months.

He was, though, asked many questions off the top about this breaking news. Liberal Supreme Court Justice Stephen Breyer is going to retire, his retirement announcement coming after more than 27 years on America's highest bench.

Here CNN's Jessica Schneider with more on his reasoning behind this decision.

(BEGIN VIDEOTAPE)

SCHNEIDER (voice-over): Justice Stephen Breyer announcing plans to retire from the Supreme Court after initially resisting a persistent drumbeat of calls to step down.

Breyer told CNN last summer he relished being the senior most justice of the liberal wing, and said he would only consider two things when deciding whether to leave, his health and the court. And he's been quite vocal in public speeches over the past year about the danger of politics permeating the high court.

STEPHEN BREYER, U.S. SUPREME COURT ASSOCIATE JUSTICE: If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law itself can only diminish.

SCHNEIDER: But after serving 27 years on the Supreme Court, Justice Breyer is stepping down at age 83, after a forceful push from Democratic activists, who point out that they have a short window and a slim majority in Congress to push through a replacement.

The group Demand Justice even paraded this mobile billboard around Capitol Hill, urging Breyer to retire in early April. Justice Breyer played a leading role in key decisions last term, writing the opinion that rejected a challenge to the Affordable Care Act and left the law in place.

He also wrote the decisions bolstering students' speech rights, and giving Google a victory in a multibillion-dollar copyright infringement case. Breyer is leaving the court after publishing a book in September based around the speech he gave at Harvard last spring where he expressed concern about the common practice of referring to justices by the president who appointed them.

BREYER: I think, or I fear, that these are more than straws in the wind. They reinforce the thought that's likely present already in your minds that Supreme Court justices are primarily political officials, or let's call them junior league politicians.

SCHNEIDER: And he warned against Democratic proposals to add more justices to the Supreme Court.

BREYER: What I'm trying to do is to make those whose initial instincts may favor important structural change or other similar institutional changes, such as forms of court packing, think long and hard before they embody those changes in law.

SCHNEIDER: Justice Stephen Breyer came to the court in 1994.

BREYER: So help me God.

ANTONIN SCALIA, U.S. SUPREME COURT ASSOCIATE JUSTICE: Congratulations, Justice.

(APPLAUSE)

SCHNEIDER: He was nominated by President Bill Clinton after years in the legal realm as an academic and government lawyer.

Breyer served as chief counsel of the Senate Judiciary Committee in the late 1970s, where Ted Kennedy was a mentor. Breyer also helped investigate Watergate in 1973. He was nominated to the First Circuit Court of Appeals by Jimmy Carter and spoke candidly about his first years as a Supreme Court associate justice.

BREYER: But I do know, my own first three years, I was frightened to death much of the time.

LARRY KING, FORMER HOST, "LARRY KING LIVE": Of?

BREYER: How do I know I can do this? How do I know I won't make a mistake?

SCHNEIDER: Breyer was a consistent liberal voice on the court, supporting abortion rights and affirmative action. He became a fierce critic of capital punishment and was perhaps best known for a dissent he wrote in 2015 where he questioned the constitutionality of the death penalty, asked whether innocent people had been executed, and pointed to the years death row inmates often spent in solitary confinement.

[13:25:17] BREYER: I put together this evidence and say, this is not what people expected when they wrote the cases upholding the death penalty more than 40 years ago, and, therefore, I think it's time to revisit the issue.

SCHNEIDER: His departure under a Democratic president and Congress will likely mean the court will remain divided six to three in favor of conservatives, but it does give President Biden the chance to make an historic choice.

Biden pledged on the campaign trail to fill any vacancy on the court with an African-American woman, a first. Potential candidates include 51-year-old Judge Ketanji Brown Jackson, recently confirmed to serve on the D.C. Circuit Court of Appeals, and 45-year-old associate Justice Leondra Kruger of the California Supreme Court, plus 55-year- old Michelle Childs, who is a federal judge in South Carolina.

More than anything, Justice Breyer believed in civility, gaining a reputation as a thoughtful listener and reaching for compromise whenever possible. He was good friends with his ideological opposite, the late Justice Antonin Scalia, and believed it was possible to disagree agreeably.

BREYER: There's no reason we can't be friends. There is no reason that human beings cannot differ civilly on matters of great importance.

SCHNEIDER: Jessica Schneider, CNN, Washington.

(END VIDEOTAPE)

CABRERA: Let's continue this discussion.

I want to bring back Jeffrey Toobin and bring in Paula Reid and Abby Phillip.

Paula, I understand you have more on the short list. Who are some of the women President Biden could be reviewing as potential replacements?

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Look, Ana, this is as big as it gets for a president.

This is President Biden's first chance to nominate a justice. On the campaign trail, he vowed to nominate a black woman. And we have known that Justice Breyer has been under enormous pressure to step down.

So a list really has materialized of the front-runners. Now, at the top of that list is Judge Ketanji Brown Jackson. She is seen as the front-runner. She's a former -- actually, interestingly, a former Supreme Court clerk for Breyer. But perhaps most importantly, she was recently vetted by the Biden White House and confirmed to the D.C. Circuit Court of Appeals to fill the seat left vacant by now Attorney General Merrick Garland.

That court is often seen as a feeder for the Supreme Court. Now, a close second is the California Supreme Court Justice Leondra

Kruger. She is a former acting deputy solicitor general in the Obama administration. She's argued dozens of cases before the court. But, notably, she has not been as thoroughly vetted. And we know, with the midterms looming, time is of the essence here.

Now, there's also a longer list of incredibly qualified options for President Biden to pick from, including Minnesota District Court Judge Mimi Wright, outgoing NAACP Defense Fund President Sherrilyn Ifill, Second Circuit Court of Appeals Judge Eunice Lee, and, also, interestingly, J. Michelle Childs.

She's a South Carolina judge who has been pushed by House Majority Whip James Clyburn. Now, you may remember, back during the 2020 campaign, Clyburn gave Biden what was at the time a much needed endorsement after he vowed to nominate a black woman.

So, here, the president has a lot of options, supremely qualified, but, again, time is of the essence. So the fact that Judge Brown Jackson has been vetted, that very much weighs in her favor, because they really can't afford any delays, especially as at least five GOP lawmakers have told CNN that they intend to block any nominee from the Biden White House if they retake the majority in November.

CABRERA: So, Jeffrey, of those names Paula just laid out, who do you think would be the most likely person to be confirmed?

TOOBIN: Ketanji Jackson, no question.

She fits all the requirements, starting with the most important, which is that she's highly qualified for the court. She has been a judge for some time on the district court in Washington. She was recently confirmed to the D.C. Circuit. I think, politically, that is a tremendous advantage, because it's the exact same Senate that will consider her nomination to the D.C. Circuit that will be considering her nomination to the Supreme Court.

Nothing has happened in the handful of months that would disqualify her for the Supreme Court, so she would certainly be on a glide path to confirmation. She is a former Breyer clerk, which has a certain poetry to it, just as Brett Kavanaugh was a former Anthony Kennedy clerk, whom he replaced.

So I just think the political and legal logic for Ketanji Jackson is very strong.

Leondra Kruger is also a possibility. And if the president were to get a second nomination, I would be very -- I think he -- she would be a very likely choice.