Former clerks to Justice Breyer say he should retire before Democrats lose Senate

Former law clerks to Stephen Breyer, the Supreme Court’s most senior liberal justice, are speaking out about their confusion over his apparent decision not to retire at the end of the court’s 2021 term.

In interviews with Insider, several former clerks to the 82-year-old justice expressed their surprise over Mr Breyer’s announcement that he would hire several clerks for the upcoming term set to begin in October, a clear signal that he plans to stick around for another year.

Liberals groups and left-leaning figures in the Democratic Party have openly speculated about whether Mr Breyer should retire, given the opportunity to fill his seat under the Biden administration. The Senate, they warn, could fall into GOP hands in 2022 or possibly before that should a member unexpectedly retire or die, which could result in Mitch McConnell following through on promises to block President Joe Biden from seeing a nominee confirmed to the bench.

"We’re genuinely perplexed as to why he’s decided to stay around," one former clerk to Mr Breyer told Insider, when asked about the general view of former clerks.

"We have a real shot of getting the first Black woman on the Supreme Court," that person added, referring to Mr Biden’s promise to nominate the first Black woman to the Supreme Court should a vacancy occur.

The former clerk then issued blunt criticism referencing what some liberal activists have argued was a mistake by former Justice Ruth Bader Ginsburg to not retire during the Obama administration, resulting in her seat being filled by Justice Amy Coney Barrett, the last of three nominations to the Court under the Trump administration.

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Those three seats filled by former President Donald Trump are likely to be his most significant presidential accomplishment, as they cemented a conservative majority that could last decades.

"If someone in the Senate gets sick or, because of some scandal, Democrats lose the majority, who knows when a Black woman will be appointed to the court? If anything goes wrong, this will be part of his legacy just like it’s part of Ginsburg’s,” the former clerk told Insider.

Left-leaning groups and lawmakers ramped up their efforts to publicly urge Mr Breyer to step down after Mr Biden took office earlier this year. Trucks bearing the message “Breyer Retire” funded by the group Demand Justice circled the building earlier this year, and in April freshman progressive Rep Mondaire Jones of New York said that there was “no question” it should happen.

“There’s no question that Justice Breyer, for whom I have great respect, should retire at the end of this term. My goodness, have we not learned our lesson?” he told Cheddar News in an interview.

Alexandria Ocasio-Cortez, his Democratic colleague in the state, added that she was “inclined” to say that Mr Breyer should step down in June during a CNN interview, but added that she had not thought about the issue.

Still, some former clerks to Mr Breyer warned Insider that public talk about his retirement only politicized the issue further, a prospect that the senior justice loathes.

"No one is telling him something he isn’t thinking about already. I would think all the noise and the buses and all of that makes him question whether his retirement will be perceived as a political act," one said. "I don’t think it’s helpful. I doubt he’s happy with it."