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Supreme Court Justice Stephen Breyer To Retire. Aired 2-2:30p ET
Aired January 26, 2022 - 14:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[14:00:28]
ANNOUNCER: This is CNN Breaking News.
ALISYN CAMEROTA, CNN HOST: Hello, everyone. I'm Alisyn Camerota. Welcome to NEWSROOM.
VICTOR BLACKWELL, CNN HOST: I'm Victor Blackwell. It's good to be with you.
We are beginning with the breaking news that will have legal and political ramifications in this country for decades. A source tells CNN that Supreme Court Justice Stephen Breyer plans to retire and that means that President Biden will have a chance to make his first nomination to the bench.
CAMEROTA: Breyer reportedly plans to formally announce his retirement tomorrow at the White House. He plans to stay on until the end of this term in June and until a replacement is confirmed. Breyer is 83 years old and the oldest and most senior liberal justice. He was nominated in 1994 by President Clinton.
With us now is CNN justice correspondent Jessica Schneider.
So, Jessica, tell us what more we know about his decision.
JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, Alisyn and Victor, we really know that Justice Breyer indeed understands the political realities of this moment for Democrats. Justice Breyer is someone who previously worked for the Senate Judiciary Committee before becoming a judge and he has said in the past that he would consider two things when deciding to leave. His health and the court.
So with no known health issues, it's clear that the court's future is really his main focus for leaving after nearly three decades on the Supreme Court. Justice Breyer, he's been facing unrelenting political pressure over the past year from progressives. They have been demanding that he step down to leave plenty of time for President Biden to name a successor, but at the same time, interestingly, Justice Breyer has been really outspoken about the perils of viewing the Supreme Court politically.
In fact he published a book back in September where he did express that concern that if the public viewed the court as overtly political that it would ultimately erode faith in the Supreme Court. But, you know, as the oldest justice on the court and as someone who has felt this pressure for the past year, he's now saying yes, he will retire. He's going to stay, we learned, through at least the end of the term, which ends in June and until a successor is confirmed, because there's ultimately a lot of work left for this court to do in the next five months.
Huge issues are pending. The fate of abortion rights, gun rights. Those were his cases that were heard late last year. They're still awaiting a decision which Justice Breyer will obviously weigh in on, play a part in, especially after we've seen in the past few weeks, Justice Breyer joined really in some fiery dissents with his two fellow liberals.
Alisyn and Victor, those were on issues of the vaccine mandate, the Texas abortion law. So a lot of work left for Justice Breyer on the bench and now of course a lot of work for the White House as they prepare to decide on a nominee here and go through that process -- guys.
CAMEROTA: OK. Jessica Schneider, thank you for your reporting.
So President Biden was just asked about the Breyer news. Here's what he said.
(BEGIN VIDEO CLIP)
JOE BIDEN, PRESIDENT OF THE UNITED STATES: Every justice has the right and opportunity to decide what he or she is going to do and announce it on their own. There has been no announcement from Justice Breyer. Let him make whatever statement he's going to make and I'll be happy to talk about it later. Thank you so much.
(END OF VIDEO CLIP)
CAMEROTA: OK. So the big question is who will the president nominate to replace Justice Breyer.
CNN chief White House correspondent Kaitlan Collins is here. What do we know, Kaitlan?
KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: That's going to be the major question facing President Biden because, of course, every candidate who runs for office, who runs for the presidency, who becomes president always has a list and an idea in the back of their mind of who they would nominate if they get this opportunity, and with this news that Justice Breyer will be retiring, this is a huge opportunity for President Biden to make his first pick for the Supreme Court, his first nominee of course since he has taken office a year ago, and so that is now going to be the major decision facing President Biden, and there he declined to really go into detail on this.
That's because we're told that they are waiting for a formal announcement, which we are expected to happen here at the White House tomorrow with Justice Breyer. That's typically how you've seen justices in the past announce these. Certainly of course Justice Breyer knows the timing here is going to be everything if given the midterms coming up and the unpredictability of what's going to happen with the Senate majority and that razor thin majority that Democrats have right now.
And so that is going to be the big question facing President Biden, though he has already given an idea of who he would like to see on the Supreme Court.
(BEGIN VIDEO CLIP)
BIDEN: I'm committed that If I'm elected president, have an opportunity to appoint someone to the courts, I'll appoint the first black woman to the courts. It's required that they have representation now. It's long overdue.
[14:05:02]
We are putting together a list of group of African-American women who are qualified and have the experience to be in the court. I am not going to release that until we go further down the line of vetting them as well.
(END OF VIDEO CLIP)
COLLINS: So that is a commitment that President Biden has made. It is one that the White House has said in recent months he still stands by that commitment to put the first black woman on the Supreme Court. And so the question of who the nominee is going to be of course is the big one. And that is going to go to this fight on Capitol Hill to get that person confirmed. They would have to get of course all 50 Democrats to vote yes in favor of President Biden's nominee and it's going to put President Biden in an interesting position.
He has been the chairman of the Senate Judiciary Committee for so many of these confirmation hearings for past Supreme Court justice including Justice Breyer. Now he is the president. Now it will be up to President Biden to make the pick of who could potentially replace him.
BLACKWELL: All right, Kaitlan Collins at the White House. Thank you very much.
Let's bring you now CNN legal analyst Joan Biskupic, CNN senior legal analyst Laura Coates, and CNN chief political correspondent, Dana Bash.
Good to have all of you. Joan, let me start with you. I just went back and watched your interview with Justice Breyer in October and you asked him the question, does it irk him when people bring up this retirement talk? I want to play that then we'll talk about his response.
(BEGIN VIDEO CLIP)
JUSTICE STEPHEN BREYER, SUPREME COURT: The truth I think is there's always hope. You know, you can always hope for your mature self which is there sometimes, and this is a country in which every day I see this in this document, but number one, it's called Freedom of Speech. That means freedom of --
JOAN BISKUPIC, CNN SUPREME COURT ANALYST: So you think let them --
BREYER: It means freedom of expression.
BISKUPIC: Let them say what they want.
BREYER: Oh, I do believe that.
BISKUPIC: But are you really -- but you must be irked somehow. This must drive you nuts a little bit, right?
BREYER: If you -- I mean, please.
(LAUGHTER)
BISKUPIC: I didn't mean to slip into an informal way of asking you a question, Justice Breyer.
BREYER: No, it's fine. I was thinking of Harry Truman. If it's too hot, get out of the kitchen.
(END OF VIDEO CLIP)
BLACKWELL: So a little laugh there from Justice Breyer, laughed off that question. I wonder, though, when you saw the alert that he was going to retire, was there any sign of that in that discussion?
BISKUPIC: You know, I knew he had been struggling with this. I knew that it was time, you know. And it was just a matter of when he would tell the president and I think that the way that he is doing this really shows the kinds of concerns he has about the process. To tell the president of the United States in January before he'll be actually leaving in June is giving the president lots of time to name a successor and to avoid getting caught up in the partisan hostilities that I know Justice Breyer has been concerned about.
He resisted the pressure last term as you know to leave because everybody was thinking about what happened with Justice Ruth Bader Ginsburg who resisted pressure when a Democrat was in the White House and President Obama had a Democratic Senate and then what happened is that she died and her successor, Amy Coney Barrett, has transformed this court. So Justice Breyer didn't want that to happen, although, you know, he really likes his job and wanted to stay as long as he could.
By choosing January to reveal this, he's giving the White House plenty of time and the other thing that you should know is that he's conditioning it on the replacement of a successor because he doesn't want the court to be left with eight justices. So I know that he has been weighing this for a long time. It was just a matter of when he was going to just accept the fact that he's had a long, important tenure. 28 years on the Supreme Court. He's 83. He doesn't want to leave anything more to chance especially since the Senate hangs by one vote for a Democratic majority.
CAMEROTA: So, Laura, tell us the significance of this for the court because it won't change the balance in terms of liberal-conservative, but of course it will change the chemistry of the court. So what should we be looking for?
LAURA COATES, CNN SENIOR LEGAL ANALYST: Well, it will change everything if in fact President Biden makes good on his promise that he made on the campaign trail and beyond to put in place a black woman on the Supreme Court. And the idea that he has frankly a wide number of choices of qualified black women with extraordinary experience in the legal field. The names have been fielded and already put to the plate are people who are extraordinary. They are revered for their intellect, for their impartiality.
They are not someone who doesn't have any experience in the practice of law. One in particular, Judge Wilhelmina Wright in Minnesota where I'm from, actually served at the state appellate level, at the Supreme Court level, and now is a district judge. That's one of the people being talked about. We're not talking about a dearth of actual experience or integrity.
And the idea here of why this is so impactful and important is because, listen, I know that we talk about obviously this being an apolitical group of nine and they should be and they should be impartial, but they've got to bring their entire selves with them and the diversity of experience, the diversity of what their lived or legal experience is all very important in the evaluation of some of the most important cases of not only my lifetime, but my parents' lifetime and my children's lifetime.
[14:10:25]
Look at what's before the court right now, Alisyn. The idea of a ban on a woman's right to choose. The idea in Mississippi where it's an overwhelmingly disproportionate impact on black and brown communities. I want to have a black woman on the bench to really evaluate that as well going forward. How about affirmative action?
Already teed up for next term, which is when that person would actually serve. Well, it's important to have somebody who could contextualize, synthesize and actually render an opinion that's based on the law and the value of precedent.
That all requires there to be not just to continued inertia of having white men who are chosen in these positions. It has to be representative of the entire community and the last, frankly, one of the last entities to be tapped for some reason in America continues to be black women. I want to see a black woman on the bench and there are more than enough qualified ones to choose from.
BLACKWELL: Yes, Steve Vladek reminds us that of the 115 justices who served on the bench, 108 white men, two black men, five women of those four white women and one Latina. Just so we know the demographics of the court. Dana, let me come to you. One week ago at this very hour, we were
standing by for a news conference from President Biden and there was talk of a White House in need of a domestic reset. No movement on Build Back Better. The voting rights bill was stuck in the mud. What does this mean, this opportunity now to appoint someone to the bench mean for this president?
DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: It's an opportunity to deliver. It's an opportunity to deliver an, A, the promise that he made. It was at a CNN debate as you just showed. I believe I was actually the one who asked the question, and I was surprised that then candidate Biden didn't just say a woman, but a black woman. He was very, very clear. And now he has the chance to show voters across the country, but I'm really interested in the voters of Georgia.
Because the voters of Georgia are the ones who are making it possible for the events that we're seeing over the last few hours because you can bet that Justice Breyer wouldn't have said in January that he is going to retire at the end of the term if he didn't feel confident that he, that President Biden will get a replacement through a Democratic-led Senate. There's only a Democratic-led Senate because Senator Raphael Warnock was elected from Georgia in a special election.
Who elected them? A lot of people of color, especially black women. So this is all connected on a political level. And we cannot say that enough. That so much of this is fate, but what Stephen Breyer tried to do -- there's so much gold in Joan's interview this past fall with Justice Breyer. One of those little bits of gold was when he said I don't live on Pluto. Well, this is proof. He doesn't. He's very much here on planet earth steeped in the reality of the politics which is why he did what he did when he did it.
CAMEROTA: It is, Joan, really helpful to see your interview. Just to even see who he is as a person. I mean, you know, we see these sort of robed justices on high and we don't often, I mean, I was just fascinated watching him smile and laugh at some of your questions. And so as I was just talking to Laura about, it will change the chemistry regardless of what happens of the court. So what role did Justice Breyer play that was specific and unique to him?
BISKUPIC: And he did have a specific role. You know, he came from the legislative side. He was an aide to Teddy Kennedy back in the '70s on the Senate Judiciary Committee. Something he talks about all the time. You can hardly have a conversation with Justice Breyer without him referring to his years with Senator Kennedy. And he was -- he talked about the importance of building consensus and he has told me he doesn't like dissents because dissents are a failure so he was trying to work more with Chief Justice John Roberts and work more with the justices on the right wing.
And that, he will, his absence will change some of the negotiations behind the scene and the politicking behind the scene because he at least kept trying to reach across the court aisle so to speak. And what this will leave is essentially, you know, Justice Sonia Sotomayor will be the senior liberal on the left wing now and she, she is much more committed to liberal outcomes.
[14:15:09]
And I expect to hear her voice more even though she's already so pronounced, but you know, Justice Breyer tried to do something at the center of the court, mainly working with Justice Elena Kagan in a way that separated themselves from Justice Sotomayor and Ginsburg. So the court will miss that. The court will also miss someone who really believes that government can work. He was always deep into the nitty- gritty of statutes, of legislative history. He liked, he sort of believed in Congress. He believed in Washington.
And when you think of the new Trump appointees, the three individuals that former President Trump was able to seat, they all are very much against the regulatory power. We saw that obviously about 10 days ago in the big OSHA ruling, against vaccine requirements. Justice Stephen Breyer believed that regulations actually help America. Not that they impinged on America. So we're going to miss -- that kind of voice will be away from the court, also. And, you know, there's something that everybody quotes at this time. All the time.
It's an adage of the late Justice Byron White who used to say, you change one justice, you change the whole court, and I think we have to be mindful of that. Not only will there likely be more diversity on this bench, everyone will be reordered in a way that is affected by whoever that new individual is.
CAMEROTA: That is such interesting context. Joan, Laura, Dana, stand by. You've only raised more questions for us so we'll be back in a second and we're also following this breaking news as we've just said.
Supreme Court Justice Stephen Breyer plans to retire so we'll take a closer look at some of the possible replacements.
BLACKWELL: And we're going to look at the political fallout from all this during a midterm election year. That's next. Stay with us.
(COMMERCIAL BREAK)
[14:21:28]
BLACKWELL: More now on the breaking news. Justice Stephen Breyer's planned retirement. Nominating a judge to the Supreme Court is one of the most consequential appointments a president can make. Seats on the bench really don't come up very often.
CAMEROTA: CNN's Paula Reid joins us now. So, Paula, what do we know about President Biden's potential picks to replace Justice Breyer?
PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Well, of course on the campaign trail, Biden vowed to nominate a black woman and we have seen the pressure Breyer has been under for a while now to step down while Democrats still hold the majority in Congress. And so a list of well-qualified, potential nominees has really crystallized during this Breyer retirement watch. So let's take a look at who made the short list. (BEGIN VIDEOTAPE)
REID (voice-over): A coveted seat on the highest court in the land will soon come open as Justice Stephen Breyer has announced his plan to retire. The question now, who will President Biden pick to replace him?
BIDEN: I made it clear that my first choice for the Supreme Court will make history as the first African-American woman justice.
REID: A Supreme Court pick can be a president's most lasting legacy. Justices can serve for decades. Their decisions last for generations. Former President Trump solidified a conservative majority with his three court picks.
DONALD TRUMP. FORMER PRESIDENT OF THE UNITED STATES: I have long been told that the most important decision a president can make is the appointment of a Supreme Court justice.
REID: For Breyer's spot, Judge Ketanji Brown Jackson is seen as the front-runner. A former Supreme Court clerk for Breyer, she was vetted recently by Biden and his team and confirmed to the D.C. Circuit Court of Appeals to fill the seat left vacant by Attorney General Merrick Garland. The Circuit is seen as a feeder for the high court and the move was meant to groom her for a justice position if a vacancy came open.
JUDGE KETANJI BROWN JACKSON, D.C. CIRCUIT COURT OF APPEALS NOMINEE: When you become a judge, you take an oath to look only at the law in deciding your cases, that you set aside your personal views about the circumstances, the defendants or anything else.
REID: A close second choice is California Supreme Court Justice Leondra Kruger. A former acting deputy solicitor general in the Obama administration, she argued a dozen cases before the high court. While she has not been thoroughly vetted by the administration, she once clerked for the late justice, John Paul Stevens.
JUSTICE LEONDRA KRUGER, CALIFORNIA SUPREME COURT: I think we tend to forget when we're in the outside world that really conversations about these very difficult cases are confined to a very small number of people.
REID: Other names circulating, Minnesota District Court Judge Mimi Wright, outgoing NAACP Defense Fund president Sherrilyn Ifill, Second Circuit Court of Appeals Judge Eunice Lee, Seventh Circuit Court of Appeals Judge Candace Jackson-Akiwumi, and J. Michelle Childs, a South Carolina judge who's been pushed by House majority whip, James Clyburn.
JUDGE J. MICHELLE CHILDS, U.S. DISTRICT COURT FOR SOUTH CAROLINA NOMINEE: I have a high regard and sincere appreciation for our legal system, which is the form of order in our court, in our democracy.
REID: During the 2020 campaign, Clyburn gave Biden the endorsement he needed to help boost his floundering candidacy after Biden promised to appoint a black woman.
REP. JAMES CLYBURN (D-SC): This country is at an inflection point. It is time for us to restore this country's dignity.
REID: The eventual nominee will likely face a daunting confirmation process. Breyer told several people who nudged him to retire that the confirmation process shouldn't be political.
[14:25:05]
BREYER: If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law itself can only diminish.
REID: Some Democrats were worried Breyer would remain on the bench and with the 2022 midterms looming, Senate Republicans have already raised the stakes around his retirement with five GOP lawmakers telling CNN in December that they would likely oppose any nominee out of this White House if they take the majority in November.
(END VIDEOTAPE)
REID: And it usually takes two to three months for a president to see a nominee confirmed once that person is named. But the most recent nominee, now Justice Amy Coney Barrett, was confirmed in just a month and a half after Senate Republicans pushed to get her approved before the 2020 election.
CAMEROTA: OK. Paula Reid, thank you for explaining all of that.
Let's bring back CNN senior legal analyst Laura Coates and CNN chief political correspondent, Dana Bash. Also joining the conversation is CNN senior reporter Edward-Isaac Dovere.
Great to have all of you. OK, so, Laura, as Paula just laid out, it's an embarrassment of riches in terms of who President Biden can pick given that he wants to pick a black woman. So let's just put up their names again. Are there any here from what you know that would be more problematic? That have any sort of flags that would make it harder for them to make it through a confirmation process?
COATES: I know of none, but of course it doesn't mean that someone won't be tried to impute those on these women because of the partisan politics involved in really what is a political process even though it's an apolitical bench. I mean, full disclosure, I was a year behind at Princeton, Justice Candace Jackson. I'm from Minnesota and have set several times Judge Mimi Wright. She is somebody who unlike anyone else in the history of Minnesota started at every level of the courts. The appellate level, the states Supreme Court, let along now as a district court.
And I could go through every single one of those women who have been named as potential nominees and sing their praises based on their intellects and reputation and impartiality alone. But again, we're talking about a system here that is inherently political. And here's why that's important. For the same reasons that many of the people who have been talked about have been recently confirmed, I am waiting to see to what extent somebody will bring up, for example, for Judge Ketanji Brown.
Whether they will mention her relative infancy when it comes to being an appellate judge in D.C. Circuit and in comparing that to how the relative infancy was when it came to Justice Amy Coney Barrett as an appellate judge as well. There was bipartisan support for several of these women in recent times. I'm wondering if there will be hypocrisy going forward about whether suddenly when it comes to the highest court in the land, one's impartiality or their ability and credibility will be challenged.
And it will be very interesting to see how they do this, but as Dana mentioned during the last segment as well, it's so important to think about the timing of this because I think it was Justice Breyer's way, and perhaps as a nod to giving ample amount of time to consider this, but also keep in mind, the Democratic Party I'm sure has been wondering what is it going to be that will galvanize voters to have the same type of turnout, albeit a smaller level, as a presidential election when it matters so much.
And I'm wondering now if this, the idea of the prospects of all that is ahead on a Supreme Court docket, will this be the catalyst that voters need to return? Voting rights on the chopping block, issues around the Second Amendment, issues around separation of powers and checks and balances let alone other issues of extraordinary importance. Will this be the change? I think it might be.
BLACKWELL: Let's put the contenders back up on the screen. Those seven women. We've never seen this in this country, where every name, every face of a potential nominee to the Supreme Court is a black woman.
And Isaac, you've got reporting on how we got to this moment and tell us about it.
EDWARD-ISAAC DOVERE, CNN SENIOR CORRESPONDENT: Well, yes, in the book that I had about the 2020 election that came out last year, it's called "Battle for the Soul," I reported about what happened here which is that you've got to remember where Biden's campaign was after the early primaries. He followed up coming on fourth in Iowa, coming in fifth in New Hampshire. His campaign seemed like it was over.
He went to South Carolina hoping for some kind of comeback. He goes to Jim Clyburn and Clyburn says, listen, I'm ready to endorse you, but you've got to do a couple of things. First of all, tighten up your answers, you're going on for too long, and the other thing, make sure you promise to nominate a black woman to the Supreme Court. Biden says OK. He's supposed to do it the night of the debate, that CNN debate in South Carolina.
About an hour goes by in the debate and he hasn't said it. Clyburn sitting in the audience, going crazy, he's supposed to say it, and during one of the commercial breaks, he runs backstage and says to Biden, you have to remember to say that and if you look at the transcript of what happened there, he was asked a question about what's your personal motto and he starts talking about it and then shoves in at the end of that answer, oh, by the way, I think it's time to nominate a black woman to the Supreme Court.
So he remembered that he needed to do that to follow Clyburn's advice and to sort of figure -- finish out the deal that he made with Clyburn for that endorsement.
