Return to Transcripts main page

Inside Politics

Justice Stephen Breyer To Retire After More Than Two Decades On The Supreme Court. Aired 12:30-1p ET

Aired January 26, 2022 - 12:30   ET

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

[12:30:00]

JOHN KING, CNN HOST: The diversity of life experience, legal views are up to the justices as you just made clear. Diversity of life experience is critical in every setting. It would be amazing at the highest court of the land. And again, this is not pure speculation. Let's listen to then candidate Joe Biden saying, if I get a pick, this is what I will do.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: I committed that if I'm elected President, had an opportunity to appoint someone to the courts will be -- I'll appoint the first black woman to the Court.

(END VIDEO CLIP)

KING: Said in the middle of a political campaign, Laura Coates, when candidates are trying to, you know, get votes, trying to appeal to important Democratic constituencies. But a critical important for a president who always says that he got into politics because of his views on civil rights, and that he's president of the United States because of the support in the Democratic primaries of black voters.

LAURA COATES, CNN SENIOR LEGAL ANALYST: Yes. And, you know, black women often complain. And we do with justification about the ways in which phrases like black girl magic are thrown around during an election year and election cycle and the black woman vote as if it were a monolith is coveted. And then people suddenly abandon and their attention span goes other places.

And then oftentimes, we're left with our wheel spinning, wondering about the bridge between the campaign promises, and what you'll actually do in reality of practice. Well, here's an opportunity for that to be demonstrated. And again, it's not because you're just making a promise that can't be supported by qualified candidates. Let me just repeat this to people so there's never any mincing of the words. We're not talking about plucking somebody out of oblivion and saying, hey, you're a black woman, and I promise to have a black woman on the bench. So how about you, we're talking about women who are revered in their field, for their impartiality, their intellect, their ability to synthesize information, who have court experiences, up and down the levels of what it means to be a public servant and, and a law. And that is the ideal, you know, sort of choices that you are going to choose from, it'll be a difficult one for this President to make. But, you know, in the last few weeks, we've been hearing about the president who has been in some ways condemned for his deep prioritization of voting rights in this country as a legacy of a promise made to black voters, and also to voters in this country who believe in voting rights and not just the beneficiaries. But thinking about that, and this is yet another instance, for him to make good on a promise that should be easy, given the breadth and scope of so many skilled black women judges in this country, not the least of whom you've already said have been have been nominated and confirmed on a bipartisan basis.

KING: And it's a fascinating and potentially historic moment for the President of the United States. Laura, standby, appreciate that perspective. Stay with us. I want to bring in New York Times White House correspondent Zolan Kanno-Youngs. Zolan, you've done reporting on this, and you have some insights on the -- not just the pressures on Biden, but the process that the President used to get to his decision that if I get a pick, the first one would go to an African American woman?

ZOLAN KANNO-YOUNGS, CNN POLITICAL ANALYST: Well, absolutely. John, it's -- it is true that regardless of this pick, the conservatives will still have the majority of the Supreme Court. But for all the reasons that Laura just noted, there is, it is going to be crucial, it is going to be impactful if the President makes good on his campaign pledge to nominate a black woman to the Supreme Court.

We have seen that the White House has faced increased criticism for the Congress failing to actually pass police reform, that was a campaign promise by the President. They have not passed that thus far. We've also got voting rights, that has not been fulfilled, which is heightened that criticism. So this appointment for all of the reasons largest noted both legal and personal for many constituents would also provide him something politically to point to going towards the midterms and going towards future elections.

Now, I want to take you back about a year, my colleagues reported at that point. It's about February 2021. And you have Representative James Clyburn of South Carolina, highest ranking African American at that point in the House. He basically goes to meet with the President and immediately goes to Vice President Kamala Harris's office at that point. And the first topic that he brings up, which goes in is emblematic of the priority of this appointment for Democrats, he brings up the Supreme Court.

Now in that case, he brings up District Court Judge Michelle Childs at that point. She happens to be from South Carolina, which obviously was a crucial state for President Biden when it came to running for president during the campaign, obviously pivotal for that coalition that did support him, and many would say, fuel him to the presidency. So, not saying that that is definitely going to be the nomination, not saying that at all but I mentioned that meeting to show just the priority and how this has been prioritized and how many Democrats on in Congress, as well as the White House and throughout the Congress -- and throughout the country, have really looked to this appointment as pivotal going towards the elections.

You saw that with that early meeting by the highest ranking African American in the House bring it up immediately to Vice President Kamala Harris as well as President Biden just shortly after they were elected.

[12:35:09]

KING: Zolan, appreciate that important perspective, standby. Let's bring in our senior political analyst Nia-Malika Henderson. So Nia, obviously, priority number one is to find an accomplished justice. The President has said his first pick would be a black woman, you're talking about filling a slot on the Supreme Court of the United States, but we cannot escape the calendar and the timing here. There'll be a confirmation process in a midterm election year, where history and current polling tells you, it puts a stiff wind in the face of Democrats. This is a confirmation picked it, again, number one is about the court. But number two will become very much about midterm politics.

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL ANALYST: That's like midterm politics and also some symbolism too. We talked about Joe Biden wanting to nominate a black woman to the Supreme Court, making that pledge in the dead of the, you know, sort of the dead heat of those primary battles. And Jim Clyburn, pivotal, right in making him make that pledge. He has said that his endorsement of Joe Biden was pivotal on him actually saying that he would nominate a black woman to the Supreme Court and pushed him to make that announcement in that debate. So this goes back even further. Then when Joe Biden was actually in office and had that, and Jim Clyburn had that meeting with Vice President Harris, so very much a priority, I think, for a huge part of the Democratic constituency.

So what you've seen, I think so far, is a lot of disappointment in Joe Biden's presidency so far in terms of the deliverables, whether it's voting rights, whether it's criminal justice reform, whether it's some of what's happened with COVID, as well. And so going into a midterm, this could be a real jolt, I think, to rank and file voters, African American voters in particular, who if you look at the polling there about 70 percent in terms of seeing Joe Biden's approval rating. It's higher than sort of the general public but still fairly low.

You want that in the 80s or 90s is that -- because it's such an important part of the Democratic constituency, it'll be a real battle, of course, a high profile battle going into a very tough battle for the midterms. But I imagine this will give a real jolt to a key part of the Democratic constituency.

KING: One of the many fascinating pieces of this, if you will, as we look forward, Nia-Malika Henderson, standby as well. For those of you just joining us, we're going to bring you up to speed. We're following this major, major breaking news this hour. The Supreme Court Justice Stephen Breyer, we are told plans to retire. That decision, of course, means President Biden gets to nominate his replacement in the thick of this midterm election year. Justice Breyer is 83 years old. He is expected we were told to stay on the bench until the end of this term, and until, until this is an important condition, until his replacement is confirmed by the United States Senate.

President Biden has said in the past, he would nominate a black woman if given a first pick to the court. Let's bring in our Supreme Court analyst, our court analyst, Joan Biskupic. Again, Joan, perspective on Justice Breyer is deeper than anybody else I know here. And so it's a big decision for him to make, which then hands his friend, the President of the United States an even bigger decision.

JOAN BISKUPIC, CNN LEGAL ANALYST: That's right. He's known him -- he's known Joe Biden for a long time. And, you know, this is going to give President Biden the chance, the first time in 12 years that a Democratic president is going to be able to name someone to a lifetime seat on the Supreme Court. And you can see the effect of that given that Stephen Breyer is 83 years old. So if he chooses someone who's in her 50s or 40s, that person can be here for this generation, the next generation, our children's generation. So this is very big.

And, you know, I know it was a hard decision for Justice Breyer. He's been under a lot of pressure. He saw what happened to Ruth Bader Ginsburg, when she declined to step down when she was pressured in the Obama years. And then, you know, died in office in September of 2020, which has transformed this court because of her successor, Amy Coney Barrett, and I know he did not want that to happen this time. And he thought he had the two years that the Senate was Democratic. And, indeed, he waited to this year, but again, he's not taking any chances with it.

And I just want to pick up on some of the things our colleagues have said about the experience of some of the women who might be candidates for this seat and their tenure on lower appellate courts. Just to remind folks that, you know, Justice Elena Kagan, quite accomplished, never served as a judge before she was appointed. And Clarence Thomas was on the D.C. Circuit appellate court only for about a year, maybe a little bit more when he was named to the Supreme Court, John Roberts only about two years.

So, you know, appellate experience has been important for many nominees, but not for all. And the other thing I want to mention in terms of the diversity that my colleagues have been referring to the very first case that's going to be up next October is one that the Justices just announced on Monday that they would take, and that tests affirmative action policies at Harvard University and the University of North Carolina, a very important case, one that involves race-based remedies that Justice Breyer had wholly supported. But many of his colleagues now today do not.

[12:40:27]

So whoever President Biden puts into that seat will immediately be thrust into a major part of the culture wars. And who knows whether abortion will still be lingering then or if they will resolve that completely this spring in the Mississippi case they have. So I wanted to mention those. And finally, John, just one element looking forward, again, thinking about the changing face of the Supreme Court, when Justice Breyer retires, he is leaving his post as the senior liberal justice, the liberal wing, of course, is now down to just three justices.

But one of the reasons he stayed on was because he thought he could have an effect in that position. And when he steps down this summer, it will be Justice Sonia Sotomayor, who was named by President Obama in 2009. She will now be the senior justice on the left, which is quite a new, it will be a new role for her. We know of her and her position as a very strong dissenter these days to so many cases. But she will have more authority now on the left to try to figure out just how collectively they want to take on this conservative dominance that is now the way of this Supreme Court, John.

KING: That's fascinating point. The personnel domino effect, if you will, in stature and leadership on the court. Joan standby.

BISKUPIC: Sure.

KING: I want to bring Steve Vladeck back into the confirmation -- into the conversation to talk about this path ahead. Steve, it's the legal team that does the original vetting, right, inside the Biden White House. This is inside the Trump White House. It's lawyers, and it's legal experts who do the vetting and they build the list. But then the political team, let's be honest, gets a good look too, because you're trying to think about is there anything in this record that helps us? And is there anything in this record that could hurt us?

I just want to mention one of the candidates here and then get your perspective. Judge Ketanji Brown Jackson is 51 years old, she was confirmed to the D.C.-based appellate court just last year. She got 53 votes in June 2021. That's a 50-50 Senate. She got 53 votes, including these three Republicans, Susan Collins, Lindsey Graham, and Lisa Murkowski. If you're the Biden political team, you're looking at that vote and saying essentially, you voted for her just a year ago. Here we go. I'm not saying she's the pick. But that would work in her favor, would it not?

STEVE VLADECK, CNN LEGAL ANALYST: It certainly would, John. And let's be clear with Judge Jackson, yes, she's only been on the D.C. circuit for about a year. But she spent eight years before that on the Federal District Court in Washington. She was an appointee of President Obama. So with it, you know, there's no real experience, not against her.

The other thing about that vote last year, John, is it was understood at the time, that whenever there was going to be a shortlist for a Supreme Court seat in the Biden administration, she was going to be on it and so that she got those three Republican votes. It is a pretty good sign that at least going into this conversation, she's going to be in the mix. And she's going to be very high on a lot of folks' lists.

John, the other point that I think it's worth not losing, especially given the politics of the last couple of weeks, is look how big a deal now in retrospect, the Georgia runoff elections last January were, right, that, you know, yes, we've had a lot of frustration on the left with West Virginia Senator Joe Manchin with Arizona Senator Kyrsten Sinema. But this is now such a different conversation, John, such a different political equation for this White House, even this embattled White House, with a Democratic Senate, with Kamala Harris, the Vice President, in a position to break a tie if it comes to that.

And so given that political reality, given the vote, you mentioned, you know, this is actually I think, probably not going to be the hardest political battle that the Biden administration fights this year. You know, I think that's part of why this timing was especially important, as Joan said, by putting the announcement out now, by conditioning, his retirement on the confirmation of his successor. You know Justice Breyer has given President Biden and the White House just about as strong a hand as they could have had for this particular confirmation process at this particular point in time.

[12:44:23]

KING: Steve Vladeck, appreciate the insights. Those of you just joining us again, Steven Breyer, announcing he is going to retire -- resign from the Supreme Court of the United States. Dramatic breaking news, won't shift the balance of the court but it will give President Biden the midterm election your pick for the Supreme Court. We'll continue our breaking news coverage in just a moment.

(COMMERCIAL BREAK)

KING: Meanwhile, breaking news surprise this hour from the Supreme Court of the United States, the leading liberal Justice Stephen Breyer plans to retire. His decision will shape the arc of President Biden's second year giving the President the Supreme Court pick in the middle of a midterm election fight. Justice Breyer has told people close to him he will serve out his term and this is important. He will stay on the bench until his successor is in place. Let's get some more insights from our reporters and our analysts beginning with our chief White House correspondent Kaitlan Collins. Kaitlan?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: John, it's a massive moment for President Biden because this is the opportunity that every president wants not every president gets. And of course, Biden's predecessor had three of these opportunities to put a justice on the Supreme Court and now President Biden will have the same with this announcement from Justice Breyer. And of course as a candidate on the campaign trail to get to the White House, Biden pledged to nominate the first black woman to the Supreme Court.

And so of course when it comes to the nominees and the names that we will be looking at over the next several days and weeks while we wait for an announcement from the White House, that is going to be a point of focus for President Biden because his aides including his Press Secretary Jen Psaki has said that he does remain committed to that pledge to put the first black woman on the Supreme Court.

[12:50:13]

So of course, the next steps here are going to be critical of what this looks like when they first announced this retirement. And as Wolf Blitzer noted earlier, he said it could come as soon as tomorrow were President Biden and Justice Breyer come out and formally announced that he is going to be leaving the court. But there are going to be so many questions here about what's going to happen next on Capitol Hill because, John, as you know, very well, Democrats have the slimmest of majorities, but they do have enough votes to get someone confirmed if all Democrats voted for President Biden's pick. And they have a very short window to act, of course, with the midterms approaching this fall. So we'll be significant here at the White House today.

KING: It's a fascinating, fascinating political moment and legal moment. Kaitlan Collins, appreciate the reporting from the White House. Let's get some perspective now from our CNN senior legal analyst, Laura Coates. And Laura, before I get your thoughts, I want -- let's hear from Justice Breyer, because he knew about the pressure. Democrats remember Ruth Bader Ginsburg was sick back in the Obama days. She stayed in the fight, and bless her, she was a warrior. But a lot of liberals thought we lost that. We lost the opportunity to replace Justice Ginsburg, Donald Trump got that choice. Justice Breyer knew there was pressure, he liked to say, listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: What do you say to people who argue that you should retire as soon as possible while the Democrats have the Senate Majority? That's the basic issue that those --

JUSTICE STEPHEN BREYER, SUPREME COURT: That's their point of view. I've said pretty much what I have to say. There are a lot of considerations. And I don't want to add to what I've had to say tonight, because I noticed every time that I add something, it becomes a big story. And so the less I add the better. And it's -- I think I'm not from Pluto. I think I knew this gentleman thought. And I think I have most of the considerations in mind. And I simply have to weigh them and think about them and decide when the proper time because I've also said that I don't -- I hope I don't die on the Supreme Court. And there we are.

(END VIDEO CLIP)

KING: And here we are. It's a funny answer, because Justice Breyer is a humorous man, not just a great legal scholar, but he's a very funny man. But he has decided here we are. And obviously, he brushed off that criticism because that's what you do until you make your decision. But now the President of the United States has a momentous decision, A, to say thank you to Justice Breyer for his years of service and then to turn to a historic pick.

COATES: Now remember, of course, it is the prerogative of somebody who has a lifetime appointment to decide when that lifetime on the court is going to end. And one of the issues, of course, I'm sure he was grappling with is the very reasons he mentioned in his 2021 book about the idea of concerns about the perceptions of the Supreme Court as being a political extension, a political arm as opposed to impartial and a political. A sentiment that's been echoed, of course, by the likes of his colleague, Justice Sotomayor, and others as well, and people across the spectrum who have commented on the idea of how consequential elections can be, because obviously, it leads as you know, John, to having political appointments and nominations that lead to who could be on the bench. And so while we want to talk about this being an apolitical body, the process by which to get someone nominated and confirmed is inherently political. I think he was averse to trying to feed into that by saying, you know what, unless I think about my timeline, according to who is in the White House, I'm doing a disservice to Democrats. But if I do that, then I'm feeding into the presumption that we are thinking about political consequences. Having said that, there is the reality, of course, that it is a consideration that there's a limited amount of time to be able to have a president in a position to provide a lifetime appointment to somebody again.

And the people you've talked about in the past who has been named, their name has been floated, these are also skewing younger. And the idea towards having to be able to capitalize on the relative youth of so many people to have their presence felt for decades to come. Now, that's a good thing, or a bad thing, depending on how you view their ideology.

KING: Laura Coates, appreciate that perspective. Let's bring in Nia- Malika Henderson back into the conversation. Nia, several tweets from black Democrats in the House are saying they are grateful for this opportunity thankful for this historic opportunity. And the Democratic majority of the United States Senate Chuck Schumer just saying the nominee once the President makes that choice, will get a prompt hearing. Welcome, welcome to a bruising fight.

HENDERSON: It's going to be so bruising. Whenever it happens, I think you're going to see Republicans really try to make this a tough vote for some of these Senate Democrats who are up in 2022. Some of these folks have already gotten the thumbs up from folks in the Senate. But I think, given how high profile this is going to be given the fact that we know Republicans are going to try to make 2020, those midterms sort of a referendum on the culture wars, of whether or not Democrats are too woke and all that sort of conversation that's going on, you're going to have this person who's likely going to be a black woman, be a prominent figure in these culture war debates and fights that Republicans are so expert at hanging around the necks of Democrats. So it is going to be just I think a really vicious ugly fight and debate that we see over whoever this woman is likely a black woman this summer in the run up to the midterms.

[12:55:19]

KING: I thank all our reporters, correspondents, analysts for hustling this hour breaking news. A couple quick footnotes Chuck Schumer is an optimistic man. He says the pick will be considered and confirmed by the full Senate with deliberate speed. We'll see if that plays out in this for the history books. Justice Breyer was the last of the Supreme Court Justice confirmation hearings, Joe Biden presided over as the chairman of the Senate Judiciary Committee.

Thanks for joining us in Inside Politics today. We'll see you tomorrow. Ana Cabrera picks up our coverage after a quick break.

(COMMERCIAL BREAK)

[13:00:00]