To the delight of liberal activists, sources say that Justice Stephen Breyer will announce his retirement from the Supreme Court. He had been mau-maued by them for a year to retire and clear the way for a younger and more liberal justice before the Republicans regained power. During the 2020 campaign, Biden promised to name a black woman as his first nomination to the court. “Among likely contenders are U.S. Circuit Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia, a former Breyer law clerk; and Leondra Kruger, a justice on California’s Supreme Court,” reports NBC News.
Kruger would probably fit the bit for many liberals. She is young, 45, and clearly committed to the left’s “living” constitution. She worked in the Justice Department under Barack Obama, and notably argued a case before the Supreme Court against religious freedom for his administration. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, she argued that the federal government could force a religious school to rehire a “minister” and “teacher” who had violated the church’s rules. Her case was so flimsy all nine justices voted against it. The case produced a memorable exchange between Kruger and Elena Kagan.
“Do you believe, Ms. Kruger, that a church has a right that is grounded in the Free Exercise Clause and/or the Establishment Clause to institutional autonomy with respect to its employees?” asked Kagan. Kruger replied, “We do not see that line of church autonomy principles in the Religion Clause jurisprudence as such.”
Such freewheeling activist legal reasoning comports with Biden’s conception of a good judge. He has said that his ideal candidate must believe in the existence of unstated rights in the Constitution—the “rights” that liberals have invented out of thin air.
“I would look to judges, potential nominees, they would have to acknowledge the fact that there are unenumerated rights that are nonetheless constitutional rights,” he has said. “They’re not mentioned by name in the Constitution.”
Chief among these unmentioned “rights,” of course, is abortion. Planned Parenthood will undoubtedly play a large role in Biden’s choice of a replacement for Breyer. His nominee will have to be somebody that both Black Lives Matter and Planned Parenthood can agree on. But given the tightness of the Senate, would such a nominee be a lock for confirmation? Maybe not. Biden has his work cut out for him. He has foolishly restricted himself with his pandering campaign promise.
Some wags may recommend that he rid himself of a failing vice president by nominating Kamala Harris to the court. But she hardly qualifies as a legal scholar. She failed to pass the California bar exam on her first try.
Or maybe Biden will consider Michelle Obama for the court. She went to Harvard Law, where she learned all about the activist jurisprudence and “equity” liberals demand of their justices. Is her lack of legal experience a problem? It wasn’t for Robert F. Kennedy, who became attorney general without having argued a single case in court. Besides, in the view of Biden, justices are just politicians in robes, legislating from the bench according to whatever whims hold sway within the Democratic Party. Michelle Obama could certainly fulfill that role. Biden once mused that he would like to put Barack Obama on the court “if he would take it.” But his campaign promise rules that out.
The hapless Breyer has had to walk the plank for the party’s identity politics and ruthless court scheming. As an old white guy himself, Biden should have some sympathy for Breyer. But he probably doesn’t. He is happy to see him go so that he can make his mark on the court. As the father of “Borking,” Biden has long waited for this day.