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U.S. Supreme Court Justice Stephen Breyer. (Photo: National Archives and Records Administration).

Breyer will retire, clearing way for first Biden Supreme Court nomination

Booker, Menendez likely to vote for eventual Biden nominee

By Joey Fox, January 26 2022 1:33 pm

It was reported this morning that Associate Justice of the Supreme Court Stephen Breyer will retire, ending more than a year of speculation over whether the 83-year-old jurist would leave his post while Democrats still held Congress and the presidency.

During the 2020 Democratic primary campaign, now-President Joe Biden promised to put the first Black woman on the Supreme Court. So far, the two candidates most often mentioned to take Breyer’s place – Ketanji Brown Jackson, a judge for the U.S. Court of Appeals for the D.C. Circuit, and California Supreme Court Justice Leondra Kruger – are both Black women.

New Jersey’s Supreme Court recently reached that same milestone when Fabiana Pierre-Louis was sworn in as the court’s first Black female justice in September 2020.

Many Democrats have agitated since the beginning of Biden’s term for Breyer to retire, arguing that the court’s three-person liberal minority should be bolstered by a younger justice before congressional midterm elections. Rep. Bill Pascrell (D-Paterson), who has called for Supreme Court reform in the past, alluded to those concerns in a statement praising Breyer’s decision.

“The retirement of Stephen Breyer is a seminal moment in the life of our country,” Pascrell said. “Breyer must be replaced by a vigorous, forward-thinking jurist who will protect democracy, individual rights, and the freedom of the individual against big business.”

As for the two New Jersey Democrats who will actually have a significant say in the nomination process, Senators Cory Booker and Bob Menendez, neither are likely to present obstacles for Biden’s nominee. Of the 42 federal justices Biden has appointed, Booker and Menendez have voted for nearly every single one (both missed a small number of votes), including for Jackson, who was confirmed by the Senate in June of last year.

Booker is also a member of the Senate Judiciary Committee, meaning that he will have the opportunity to ask questions of the nominated justice prior to a full Senate vote.

One of the court’s nine current justices, Samuel Alito, has deep ties to New Jersey. Born in Trenton and raised in Hamilton, Alito was the son of the director of the New Jersey Office of Legislative Services, and served as the U.S. Attorney for the District of New Jersey before rising to the U.S. Court of Appeals for the Third Circuit and eventually the Supreme Court.

But neither Breyer nor either of his most likely replacements have clear Jersey connections; Breyer and Kruger are both from California, while Jackson was born in Washington D.C. and raised in Miami.

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