Breyer to Retire, Part ll

Mike has noted the news being reported this morning that Justice Steven Breyer will retire at the end of the Court’s current Term.  It’s true, as Mike observes, that this will give our aging President the chance to solidify the liberal wing on the Court with someone 30 or 40 years younger than Breyer.  But there are two other features about today’s news worth noting.

The first is that Breyer’s departure takes off the Court its last categorical death penalty opponent.  For more than 50 years, the Court has had one and often two Justices who wanted to ban capital punishment in all circumstances:  Brennan, Marshall, Blackmun,  Stevens, Ginsburg and Breyer.  (Souter often seemed to be a categorical opponent as well, but to my memory never said so directly, see his dissent in Kansas v. Marsh).  In other words, abolitionism’s last steadfast proponent will no longer be there.

Now of course this needs a caveat.  Justice Sotomayor has often and caustically criticized capital punishment, leading me to wonder whether she would ever vote to affirm a death sentence.  Justice Kagan said at her confirmation hearing that the death penalty was “settled law going forward,” and would thus seem to be precluded from holding it a constitutional violation, but she too has never to my knowledge voted with the state on the merits of a death penalty case.  And of course we don’t know who President Biden’s nominee will be or what her views are.

But with all that said, it’s remarkable that, with all the leftist chatter about how “the death penalty is dying” (chatter contrary to the views of the majority of the electorate), capital punishment, with Justice Breyer’s departure, will be in a stronger position on the Supreme Court than it has been since the 1960’s.

The second noteworthy feature of today’s news concerns President Biden’s promise to name a black woman to the seat.  For shear obtuseness, this is hard to beat.  It automatically excludes close to 95% of the population (and more than that of the legal profession).  Why you would start a search for a judge to sit on the highest and most important court in the country by excluding almost everyone is, shall we say, head scratching.

The excuse we most often hear is that the Court should “look like America.”  But that’s arrant nonsense.  Even assuming the very questionable proposition that the political branches of government should “look like America,” that nostrum is absurd when applied to the judicial branch.  That branch is, by design, anti-majoritarian, non-political, and unrepresentative.  It’s supposed to consist of the most learned legal minds, people with the highest standards of scholarship, maturity, even temperament and fair-mindedness.  Almost nothing could be less important than what they look like.

P.S. It’s not just that race-only and sex-only criteria are wrongheaded on their face.  It’s also that President Biden’s prior use of them to select the person to be “a heartbeat away” has given us the manifestly unqualified Kamala Harris, a Vice President so lacking in even basic competence that liberals themselves are trying to figure out how to dump her.


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