Opinion

KOLB: Progressives Kept Justice Breyer On The Supreme Court

ERIN SCHAFF/POOL/AFP via Getty Images

Charles Kolb Deputy Assistant to George H.W. Bush
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Credit those members of the progressive left urging Supreme Court Justice Stephen Breyer to retire with tackiness, deplorable manners and, yes, stupidity.

As Justice Breyer’s Sept. 12 interview with Fox News Sunday’s Chris Wallace demonstrated, the 83-year-old associate justice is at the top of his game as the Court’s most senior justice in age and length of service. Breyer achieved this “status” (which gives him additional authority in assigning opinions in certain contexts) when Ruth Bader Ginsburg died last year.

Breyer’s interview showed him to be vigorous, thoughtful, judicious, articulate, funny, serious, charming and not ready to retire. While he acknowledged the calls for his resignation, Breyer made clear that he would make that decision when he was good and ready, mindful of his own health and that of the institution he has served since 1994.

I got to know Justice Breyer in the mid 2000s. At the time, I was president of the nonpartisan, business-led think tank, the Committee for Economic Development (CED).  In 2002, CED issued recommendations on reforming state judicial elections in the roughly 41 states that permitted sitting judges and judicial candidates to raise campaign money from individuals and parties that might appear before them.

That CED project had been co-chaired by Rod Hills (a former White House Counsel and  Securities and Exchange Commission chairman) and Derek Bok (a former Harvard University president). One afternoon, Hills called to ask if I could find time to brief “a good friend” of his who was interested in the issue. Hills thought I could save his friend considerable time by bringing him up to speed quickly on CED’s findings and recommendations. I agreed, and at the end of the call, Hills asked me to call Stephen Breyer.

I called the Justice that afternoon. He was out but called back a few hours later and asked if I could see him the next day. I had travel plans, so the Justice asked about the following day. (He’s intensely focused and doesn’t waste time!)

So, we met in Justice Breyer’s chambers two days after our initial conversation. It was a cold February morning with a light dusting of snow on Capitol Hill. Justice Breyer graciously brewed some tea and invited his colleague, Justice Sandra Day O’Connor, to join our discussion which went for nearly two hours. Justice Breyer was interested in CED’s reform ideas, and, after she left the Court, Justice O’Connor made state judicial reform a priority in her early retirement years.

Move forward to early July 2012. Justice Breyer and I were on separate panels at a weekend economic-policy conference held annually in Aix-en-Provence, France. We chatted before our respective presentations, and I attended his Saturday afternoon discussion (he speaks superb French); he attended mine the next morning.

After my panel concluded, Justice Breyer came bounding up to me in the hallway to discuss my remarks. I told him that this conference concluded my 15 years as CED’s president.  The following month I was moving to New York City to head a France-oriented nonprofit.

An ardent Francophile, Justice Breyer said that he’d be delighted to help me in my new role. He also prefaced his offer by indicating that he planned to serve on the Supreme Court perhaps another five or so years.

Do the math. Add five to 2012 and you get … 2017.

Virtually all of the predictions in 2015 and through election day 2016 showed somebody other than Donald Trump being elected in 2016. Hillary Clinton was expected to succeed Barack Obama.

When Clinton lost, no doubt Justices Ginsburg and Breyer thought they could serve another four years until someone other than Donald Trump could nominate their successors. Justice Ginsburg died on September 18, 2020. President Trump replaced her with Judge Amy Coney Barrett.

Justice Breyer recently published a new book, “The Authority of the Court and the Peril of Politics.” In his book and in his Fox interview, Justice Breyer remains well aware of the importance of maintaining the Supreme Court’s institutional legitimacy and avoiding impressions that the justices and their decisions are ideological or partisan. As he told Chris Wallace, “I’m there for everybody.”

By publicly urging Justice Breyer to resign, the progressives achieved the opposite result. Justice Breyer has, properly, ignored their taunts. He’ll leave the Court when he decides, and all Americans should be grateful for his judicial temperament, his determination, and his love for the institution which he serves.

Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990-1992 in the George H.W. Bush White House