U.S.A. –-(AmmoLand.com)- Wednesday’s retirement announcement by Supreme Court Associate Justice Stephen Breyer—a chief holdout among the court’s liberal justices who argue the Second Amendment protects a right to keep and bear arms as part of a militia—has set off a scramble to identify potential candidates to replace the 83-year-old jurist.
It also may spark more than a little controversy, because liberals including Senator Patty Murray (D-WA) immediately called for President Joe Biden to nominate a Black woman, reminding him of a campaign pledge made in 2020. While this represents to liberals an effort to bring more diversity to the high court, to many conservatives, it translates to symbolism over substance. Shouldn’t ethnicity and gender take back seats to judicial qualifications, they wonder?
This was essentially underscored by a report at Fox News, explaining “Pundits largely agreed that while a new Biden appointee would not change the ideological makeup of the court, it could serve as a symbolic and historic moment for the president and a much-needed boost to Biden’s image.”
The St. Louis Post-Dispatch already published a possible shortlist of nominees.
DC Circuit Judge Ketanji Brown Jackson
“Biden has already elevated Judge Ketanji Brown Jackson once,” the newspaper said, “appointing her last year to the US Court of Appeals for the District of Columbia, which is considered the second-most powerful federal court in the country. Previously, the 51-year-old judge served on the federal district court in DC.”
California Supreme Court Justice Leondra Kruger
“Kruger, now 45, was the youngest person to be appointed to the California Supreme Court when then-Gov. Jerry Brown nominated her in 2014,” the story noted. “Kruger is intimately familiar with the Supreme Court having worked as a clerk for the late Justice John Paul Stevens and served as acting deputy solicitor general in the Obama administration.”
South Carolina US District Court Judge J. Michelle Childs
“Childs, a judge on South Carolina’s federal court, is said to have a major booster in House Majority Whip James Clyburn, a Biden ally who helped deliver South Carolina for the eventual nominee in the 2020 Democratic primary,” according to the newspaper. “Just last month, Biden nominated Childs to the US Court of Appeals for the District of Columbia Circuit, and the nomination remains pending.”
Presently, thanks to the 2020 death of Associate Justice Ruth Bader Ginsburg, former President Donald Trump was able to seal perhaps his greatest legacy, by bringing the federal courts back toward the right, including three appointments to the high court. He replaced the liberal Ginsburg with Associate Justice Amy Coney Barrett, who joined Justices Neil Gorsuch and Brett Kavanaugh as Trump appointees, swinging the balance to 6-3, conservatives versus liberals. With the likelihood of more Second Amendment cases being accepted for high court review over the next few years, it is important to have a majority that recognizes the Second Amendment as protective of an individual right.
Breyer as a dissenter in the 2008 Heller and 2010 McDonald gun rights rulings. As noted back in December 2010 by the New York Times six months after the McDonald decision, “The dissents—written by Justices Breyer and John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg—held that the Second Amendment affirms the right of the people to ‘keep and bear arms’ as part of a ‘well-regulated militia,’ but not an absolute individual right to own a gun.”
On the campaign trail, Biden promised he would nominate a Black woman to the court. Newsweek recalled his remarks during a March 2020 primary debate during which he said, “I am committed that if I’m elected president and have an opportunity to appoint someone to the courts, I’ll appoint the first Black woman to the courts. It’s required that they have representation now. It’s long overdue.”
His choice is almost certain to have a view of the Second Amendment that is not friendly to the individual right as explained by the late Justice Antonin Scalia in his majority opinion in Heller. But with a conservative majority that also includes Justices Clarence Thomas, Samuel Alito and Chief Justice John Roberts—at least so far as the right to keep and bear arms is concerned (Roberts came down with the majority in both Heller and McDonald), Biden and his liberal cronies may not be able to relegate the Second Amendment to a second-class right, much less a government-regulated privilege.
Writing at Fox News, Adam Sabes observed, “When Supreme Court Justice Stephen Breyer steps down from the nation’s highest court – as Fox News has been told he intends to do at the end of the court’s current term – his departure will end the influence of former President Bill Clinton on the court.”
Clinton appointed both Ginsburg and Breyer during his presidency, underscoring the adage, “Elections matter.”
During his four years in office, Trump filled some 200 federal court vacancies including the three Supreme Court vacancies.
About Dave Workman
Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.
