Senators agree it’s entirely up to Breyer, who is 82 years old, to make a decision on when to step down from the high court.
“I am not going to pressure justice in any way. He can make up his own mind,” said Senate Judiciary Committee Chairman Dick Durbin (D-Ill.).
Durbin, however, said the Senate would prioritize a Supreme Court confirmation process if Breyer or any other justice vacated his or her seat.
“We can handle the issues as they arise and that’s one of the most important, so it will be a priority,” Durbin added.
Sen. Elizabeth Warren (D-Mass.), a leading progressive, refused to comment on the subject of Breyer’s possible retirement.
“Oh, I have no comment on that. None,” she declared.
Sen. Patrick Leahy (D-Vt.), a senior member of the Judiciary Committee, argues that Democrats could ram Biden’s nominee through the Senate as quickly as Republicans moved Justice Amy Coney Barrett in October, when she was confirmed a mere 30 days after her nomination.
“We should be able to move it quickly,” he said, arguing that then-Senate Majority Leader Mitch McConnell (R-Ky.) was willing “to break every rule” to get Barrett on the high court by the Nov. 3 elections.
But that would spark Republican retaliation, and GOP senators could use a variety of procedural tools to exact revenge, from denying quorums during votes on nominees — including a potential Supreme Court nominee — to employing other dilatory tactics.
The prospect of a fall battle over the Supreme Court looms as more and more of a headache for Senate Majority Leader Charles Schumer (D-N.Y.) as legislative priorities continue to pile up on the calendar.
Bipartisan negotiations over an infrastructure bill that originally had a Memorial Day deadline continue to drag on going into the July 4 recess.
Negotiations over police reform legislation that had an initial end-of-June deadline, now appear to also be headed into July.
And the biggest item of all on the Democratic to-do list, passing a Senate budget resolution to pave the way for a second reconciliation package, which would require only Democratic votes to pass, still needs to be done.
Schumer seeks to take up the budget resolution in July, but that means most of the work on the reconciliation package will happen in September or August.
Senate Budget Committee Chairman Bernie Sanders (I-Vt.) only last week circulated his initial proposal to pass a whopping $6 trillion reconciliation bill. Putting together a multi trillion-dollar infrastructure spending package amidst many Democratic disagreements over what should go into the package will likely take months.
Those priorities would get less attention if the Senate is wrapped up in a Supreme Court confirmation battle. Last fall’s clash over Barrett brought coronavirus-relief discussions to a standstill before Election Day.