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Supreme Court Justice Stephen Breyer to Retire. Aired 3-3:30p ET

Aired January 26, 2022 - 15:00   ET

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

[15:00:02]

VICTOR BLACKWELL, CNN HOST: Moments ago, White House Press Secretary Jen Psaki reiterated the president's campaign promise to -- I should say, in 2020, he made that -- that, in the event of a vacancy, he would nominate the first black woman to the court.

(BEGIN VIDEO CLIP)

JEN PSAKI, WHITE HOUSE PRESS SECRETARY: The president has stated and reiterated his commitment to nominating a black woman to the Supreme Court, and certainly stands by that.

(END VIDEO CLIP)

BLACKWELL: Justice Breyer reportedly plans to stay on until the end of this term -- that's in June -- and until a replacement is confirmed.

With us now, CNN White House correspondent M.J. Lee.

M.J., what more is the White House saying?

M.J. LEE, CNN NATIONAL POLITICS CORRESPONDENT: Well, certainly, this big news out of the Supreme Court is consuming the day here at the White House, as you heard there, White House Press Secretary Jen Psaki, as soon as she took the podium, getting a lot of questions about this news.

And even though she said she didn't want to get into the details, because until Breyer himself announces this decision, that it is basically a hypothetical, she did appear to confirm the big looming question, whether or not President Biden intends to stand by his campaign pledge to nominate the first black woman to serve as a justice on the Supreme Court when that vacancy becomes official.

And just to give you a sense too of how much the president's day has been upended by this news, he was meeting with a number of CEOs from big companies earlier today. And we were in the room. And even though he hoped to talk about Build Back Better, all the reporters in the room trying to get a quick reaction from the president to this news.

Take a listen.

(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's been no announcement for Justice Breyer. Let him make whatever statement he's going to make. And I will be happy to talk about it later.

Thank you so much.

(END VIDEO CLIP)

LEE: And you really can't underscore enough what a momentous and coveted decision this is for a sitting U.S. president to make, now President Biden getting the chance to make a nomination of his own to the Supreme Court.

Now, the political piece of this is going to be very, very important too. And we know that the White House, President Biden and his top aides, are going to be keenly aware of this. That is the political calendar.

They are very much focused on the fact that the midterm elections are looming, and, right now, the Senate is very, very closely divided, with Vice President Kamala Harris weighing in as the tiebreaking vote. This is their slim, slim majority, the slimmest majority you can have to get a justice through.

So, we already know from our colleagues on Capitol Hill who are reporting this out that the timeline is likely to move quickly. And, again, this is going to be a huge, huge decision for the president to make. And at this moment in time, we do expect that the formal retirement announcement could come as early as tomorrow from here at the White House -- guys.

BLACKWELL: M.J. Lee at the White House, thank you.

ALISYN CAMEROTA, CNN HOST: Let's get to CNN justice correspondent Jessica Schneider.

So, Jessica, tell us the backstory, what we know about Breyer's decision here.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, Alisyn, this is a retirement that progressive groups have been pushing for the past year.

We saw Justice Breyer brush aside those calls last June. But now, with just months until the midterms and with Republicans promising they would thwart a Biden pick if they win majorities. Justice Stephen Breyer has potentially injected some political calculation into this decision to retire after his nearly three decades on the Supreme Court.

(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.

[15:05:05]

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.

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. (END VIDEOTAPE)

SCHNEIDER: Now, Justice Breyer will stay on the court through at least the end of this term. That's five months from now in late June, with some consequential cases still to be decided.

He will participate in those huge issues to be decided hear, abortion rights and gun rights among them.

And, Alisyn and Victor, Justice Breyer has already spoken out against some of the court's decisions in those past few months that we have had, notably calling the decision to let that Texas abortion ban after six weeks stand, he called it wrong.

But Breyer does continue to speak highly in general of the work of this court that he will, in fact, be leaving after serving nearly three decades -- guys.

BLACKWELL: All right, Jessica Schneider, thank you for that.

With us now, CNN Supreme Court reporter Ariane de Vogue, CNN chief legal analyst Jeffrey Toobin, and CNN senior political correspondent Abby Phillip.

Jeffrey, you're up first.

We know that this will not shift the balance ideologically of the court. But your take on the significance, the impact on the court of this announcement, this retirement?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, one thing we know is that Joseph Biden will not join Jimmy Carter as the only president to have served a full term without naming anyone to the Supreme Court. There were just no vacancies when Carter was president.

And we know too something that Byron White said. Byron White, who served on the court for a very long time, said, any time you change one justice, you don't just change one justice, you change the whole court.

The very likely nominee -- nomination of a black woman would be historic, in and of itself. It would make for women on the Supreme Court for the first time in history. And it would also give a shot in the arm to the liberals, who would be sure that at least some of them will be around for quite some time.

The fact is, age matters on the Supreme Court. And by Supreme Court standards, the new nominee, Elena Kagan and Sonia Sotomayor, will be fairly young.

[15:10:08]

So, it will be clear that there will be a liberal presence on the Supreme Court for some time, although they are now very much in the minority. CAMEROTA: Ariane, it's been so interesting to see these old

interviews with Justice Breyer and to hear about the role that he played behind the scenes, and that he was seen as someone who was willing to compromise and willing to cross the aisle.

And, just by definition, whoever his replacement will be will be a newbie and unable to play that same role.

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, it's interesting that you bring that up, because he was under a lot of pressure from conservative groups last term to retire -- I'm sorry -- from liberal groups to retire.

And he chose not to, and they were furious. And some people think that he decided to stay just because of what you point out. He'd been on the court for so long. He knew some of the conservatives very well. He thought he could make a difference this term, when the court was hearing these gigantic cases having to do with abortion and the Second Amendment.

At the end of the day, and there's a lot of time left in this term, it didn't seem like he was able to be very persuasive. Look at that case having to do with the Texas abortion law. That is Texas' strict law, bars abortion before most people even know that they're pregnant.

The Supreme Court, the conservatives, allowed that to go into effect, even though it's directly contradictory to Roe v. Wade. Maybe he thought he could stay on, he could make a difference there or make a difference with the Second Amendment.

But this court right now is headed for a strong right turn. We have learned that they have just recently decided to take up an affirmative action case next term. This new nominee will have to deal with that huge issue on her first term of the court.

So it's very interesting about his role. He was sort of this absent- minded professor on the bench, always talking in very long, hypothetical questions. He wanted to try to bridge the gap between the sides. He wrote this book recently, trying to say, look, this court isn't a political institution.

But in fact, we're looking at it now is 6-3 between Republican and Democratic appointees. And on those issues that really grab the public's attention the most, it is really divided along those ideological lines.

BLACKWELL: Abby, let me throw a wild card at you.

We know that this president has committed to nominating a black woman to the bench. There is a woman whose name was not on that slate of seven who has been vetted, who served as the -- I see Jeffrey already smiling -- as the attorney general in California.

(LAUGHTER)

BLACKWELL: And it's his vice president, Kamala Harris. Now, he's committed to -- and Jen Psaki said it again today -- that

she will be on the ticket in 2024. But is that an outlandish talking point or discussion point? What do you think?

ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: I'm going to be honest with you, Victor.

(LAUGHTER)

BLACKWELL: Please.

PHILLIP: I'm going to be very honest.

I call -- I like to call this Supreme Court fan fiction, in which a lot of people who have ideas about who could be on the court throw them out, regardless of whether they are feasible, which is not to say that Vice President Harris is not qualified. It's not to say that maybe she might even want to be on the court.

But the reality is, in Washington, there is a 50/50 split in the United States Senate. She is the tiebreaking vote. And there's really no guarantee that someone who is very clearly a political figure would be able to get through that process. That's just the reality.

And I do think that while there are a lot of permutations of her being on the court and other people maybe stepping in as V.P. that might be interesting to people, particularly online, the math in the United States Senate does not work for that, realistically speaking.

And the Biden administration is probably looking for someone who they know can get 50 votes and who they know could get 50 votes, plus potentially some from the other side. And there are people being considered who they think that that is possible for.

So, I think that's where we are on this issue. And, as you said, the press secretary, Jen Psaki, said she's going to be on the ticket in 2024. And President Biden is going to run again, so take that for what it is.

(CROSSTALK)

BLACKWELL: Thank you for entertaining that. Thank you.

CAMEROTA: What, Jeffrey?

TOOBIN: I was just going to say that the idea of Kamala Harris on the Supreme Court was just a bunch of idiots speculating on Twitter.

Oh, that was me.

(LAUGHTER)

TOOBIN: But it's not going to happen. It's not going to happen.

(LAUGHTER)

[15:15:01]

CAMEROTA: Full disclosure. I like that.

(LAUGHTER)

CAMEROTA: But, Jeffrey, on that note, I mean, we keep hearing Justice Breyer believes that the court isn't a political institution, it shouldn't be. As we hear, he was all for sort of civil discourse.

And then we see all of the politics around the nomination and all of the politics around the Supreme Court. And so is it a political institution or not? I mean, is Justice Breyer just sort of the last vestige of when it was a kinder, apolitical court?

TOOBIN: Well, if I can just tell a quick story about Justice Breyer, Jimmy Carter nominated him to the First Circuit Court of Appeals in December of 1980, after Carter had already lost the presidential election, and he was still confirmed with 80 votes in the Senate, even though there was going to be a Republican president, no question about it.

That just gives you an idea of how different the world was back when Stephen Breyer became a judge.

With all respect to Stephen Breyer, I think he's completely wrong about how political the court is. I think it's a deeply political place. I think the fact that there are six Republican appointees and three Democratic appointees tells you most of what you need to know about the Supreme Court.

If you look at how the abortion case has been handled, this is a difference between Republicans and Democrats in Congress, in the White House, and on the Supreme Court. And I think to pretend otherwise is to hope the court is something that it really just isn't.

BLACKWELL: Yes, and, Ariane...

PHILLIP: And the fact, I should say...

BLACKWELL: Go ahead, Abby.

PHILLIP: The fact that he is retiring now, he knows that it's a political place, because he knows that there's a possibility Democrats won't have the Senate next year and what that would mean for the balance on the court.

BLACKWELL: Ariane, that was a perfect segue to what I was going to bring to you, that this decision at this time, Joan Biskupic says the earliest announcement on the calendar in almost 30 years, gives Democrats the time to get this done as far ahead of the midterms as possible.

So, political calculations were taken into consideration here.

DE VOGUE: Right. And Breyer knows that. And keep in mind, a lot of the progressives today are thinking about Judge Amy Coney Barrett, right, because, after Justice Ruth Bader Ginsburg suddenly died, right before the election, the Senate basically told the White House, we got to act fast here. We can't mess around. They were so quickly in getting Amy Coney Barrett in front of the Senate, confirmed.

It all happened within a month. And that's why so many people now are pushing for Judge Ketanji Brown, right, because she was recently vetted for a seat on the D.C. Circuit. She had been a judge before. She fits all of the criteria that Biden has said he wanted. She has worked outside the box. She served as assistant public defender. She's also a Breyer clerk.

She has experienced. The Senate has seen her. She's ready to go. She's probably the most vetted person out there on the short list. That's why you're hearing so much about it.

You're going to hear a lot of different candidates in the next couple of days, because allies of the president are going to push for who they want, but keep your eye there, because that would be the way to go as quickly as possible, to have hearings, and to be able to get this new nominee in with -- as soon as possible.

(CROSSTALK)

CAMEROTA: OK, we're out of time.

(CROSSTALK)

TOOBIN: Just to agree with Ariane...

CAMEROTA: Quickly, Jeffrey. Quickly.

TOOBIN: ... she got 53 votes. Why would anyone who voted for her a few months ago have reason to vote against her?

I mean, she is a virtual lock for confirmation. And what more do you need?

CAMEROTA: I like that you believe in consistency, Jeffrey. We will see if that actually still holds, Jeffrey.

(LAUGHTER)

PHILLIP: Hope springs eternal.

CAMEROTA: Yes, exactly.

Abby, Ariane, Jeffrey, thank you all.

OK, so our breaking news coverage of Justice Stephen Breyer's retirement continues. We're going to go to Capitol Hill next, where we're hearing how quickly senators could confirm a nominee.

(COMMERCIAL BREAK) [15:23:38]

CAMEROTA: We're back with our breaking news, Supreme Court Justice Stephen Breyer's plans to retire.

CNN's Manu Raju is live on Capitol Hill, where Democrats are already sketching out a timeline to confirm President Biden's replacement pick.

Manu, what are you hearing?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Yes, I'm told from a source familiar with the thinking of the Senate majority leader, Chuck Schumer, that they plan to move quickly, very quickly, and try to heed to the same time frame in which Republicans followed to get Amy Coney Barrett confirmed to the Supreme Court just days before the 2020 election

That took about a month's time frame here. And I'm told that Chuck Schumer is looking for about the same time frame to get whoever is to replace Stephen Breyer confirmed to the bench.

Now, going back to 2020, September 18, 2020, is when Ruth Bader Ginsburg died. About a week later, on September 26, Donald Trump nominated Amy Coney Barrett to serve. And about a month later, on October 26, 2020, that's when she was confirmed to that post.

Now, that is the same plan that Chuck Schumer plans to employ here. And I'm also told that Democrats are not going to wait for Breyer's term to officially end before acting.

In fact, they're going to move before that. Once the nomination is made to the Senate, that's when the process will begin. They plan to essentially have the nomination, in their hope, confirmed by the time that Breyer steps aside, well before Breyer steps aside, so, when he does, that person will replace Breyer.

[15:25:03]

Now, at the same time, Republicans are resigned to the fact that there's very little they can do to stop this nomination. One Republican, Lindsey Graham, who's supported President Obama's nominees to the Supreme Court, put out a statement saying: "As to his replacement," referring to Breyer, "if all Democrats hang together, which I 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."

Now, Graham has also voted up for some of the nominees on Joe Biden's short list, including Ketanji Brown Jackson, who was confirmed to the -- to a federal post judgeship last year. He was one of three Republicans who voted for her nomination.

So Democrats are confident that they can keep their full caucus of 50 senators in line, Manchin and Sinema, the Democratic senators, get them to support the nominee, and also potentially some Republicans too -- guys.

BLACKWELL: Manu Raju on Capitol Hill for us, thank you so much.

Breyer's retirement will not change the balance of the court. But it will give President Biden a much-needed midterm election year opportunity.

So, let's bring back CNN's Abby Phillip. Also joining us now, CNN political analyst Laura Barron-Lopez and CNN political commentator Scott Jennings.

Great to have all of you.

Scott, I just want to start with you, because where we left off with the last panel was basically we looked at the women, the judges, the black women, whose names are now being floated as possible Breyer replacements, all of them, as we have heard from other contributors who know them, just supremely qualified judges.

And Ketanji Brown Jackson was chosen for the U.S. Court of Appeals, D.C. Circuit, in this past June, got three Republican votes. But Mitch McConnell, but Senator Mitch McConnell, whom you know very well, has vowed to block the Biden administration, 100 percent were his words, in any way that he possibly can.

Do you think that he would be able to stop any Republicans from voting for a Biden nominee?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: I don't know, I mean, on these things, because the Democrats can do whatever they want here.

And I agree that they can confirm whoever Joe Biden sends up. Ultimately, it's a question for each individual Republican whether they want to give their individual vote to someone who is going to hold extreme views on issues like abortion.

I mean, my political advice is, there ought not be one Republican vote for this. And, furthermore, I think they ought to treat the president's nominee with the same level of respect that Brett Kavanaugh was treated with and what Amy Coney Barrett was treated with.

CAMEROTA: But they did vote for her.

(CROSSTALK)

JENNINGS: We know how Democrats treated them.

And I think Republicans ought to treat them to the same circus.

CAMEROTA: But though -- but Lisa Murkowski and Senator Collins and Senator Graham did vote for Judge Brown Jackson. So they don't think that she holds extreme views.

JENNINGS: They might again. And I don't know what's going to happen. I'm just telling you, my political advice is, what Republicans are

going to want here, out here in flyover country is for the Republican Party to treat this president's nominee with the same level of respect that Kavanaugh and Amy Coney Barrett got and that, furthermore, the issues before the Supreme Court right now demand that Republican senators stand up for the values that they supposedly run on as Republicans.

She may get some votes. And I guess that's fine. And individual senators, obviously, protect their votes very closely. But as political advice -- and I'm not a lawyer, but as political advice, I'd say I wouldn't I wouldn't stand with the president on this if I were a Republican senator.

BLACKWELL: Despite having voted for her just a few months ago.

Laura, let me come to you on the perspective from the White House.

We have reported on the level of dissatisfaction with the president from some black voters, specifically in South Carolina, some voters on the left, with the stalling of Build Back Better, the stalling of the voting rights legislation.

Just detail for us the political opportunity that this presents for the president, considering that dissatisfaction, to now name a black woman to the bench.

LAURA BARRON-LOPEZ, CNN POLITICAL ANALYST: Well, it would clearly be a historic nomination and one that would make good on a promise that, as you know, the president made, and that was extracted from Congressman Jim Clyburn, the most senior black lawmaker in the House.

And it's one that a lot of the congressional black lawmakers are telling me that they're going to be holding Biden to account on. They want to see him do this.

I was actually just on the phone with Congressman Clyburn a few minutes ago, and he said that he does think it can reinvigorate the base, and it is something that can get a lot of attention in the coming months, and that he hopes will inspire a lot of voters to look again at Biden and see that he is making good on some promises.

So, as the White House tries to reset, this is definitely something that can help them do that. Clyburn also made clear that his top choice is not Judge Jackson.