U.S. Supreme Court Justice Stephen Breyer (Video screenshot)
[Editor's note: This story originally was published by Real Clear Politics.]
By Philip Wegmann
Real Clear Politics
Last week, the White House was emphatic: No speculation about any reported retirements at the Supreme Court would escape administration officials' lips until Justice Stephen Breyer confirmed the departure himself.
“Every justice has the right to decide what he or she is going to do, and announce that on their own,” President Biden told a disappointed press corps last Wednesday. “There’s been no announcement from Justice Breyer – let him make whatever statement he is going to make, and I’ll be happy to talk about it later.” White House Press Secretary Jen Psaki said the same. Repeatedly.
And until the 83-year-old jurist hand-delivered his resignation letter to the president, no one in the administration said a meaningful word on the record about a potential Supreme Court vacancy. They were deferential at the White House.
Demand Justice, a dark money political pressure group with close ties to Democrats, was not. For more than a year, the organization mounted a pressure campaign urging Breyer to give up his Supreme Court seat while Democrats controlled the White House and Senate. Op-eds were written. Activists held protests. A box truck circled Capitol Hill carrying a billboard with a direct message: “Breyer, retire.”
And while the White House remained hands-off, the administration was certainly aware that progressives wanted Breyer to retire sooner rather than later. Psaki, after all, previously worked for Demand Justice.
So did Paige Herwig, who joined the White House Counsel’s Office early last year. And on Friday, the White House announced that along with Vice President Kamala Harris and White House Chief of Staff Ron Klain, Herwig would lead the search process for a nominee to succeed Breyer, suggesting that Demand Justice enjoys significant new influence, not unlike the role the Federalist Society played during the Trump administration.
The progressive organization has long called for an overhaul of the federal judiciary, and Psaki worked as a “communications consultant” for Demand Justice as it pressed that message, according to her publicly available financial disclosure report.
Herwig was an early hire. She served as deputy chief counsel as Demand Justice launched its effort to defeat the nomination of Justice Brett Kavanaugh. After a stint at Facebook, Herwig joined the Biden-Harris administration and finally the White House Counsel’s Office. Demand Justice was ecstatic.
“More great news on judges under Biden: Paige Herwig is joining the White House counsel’s office,” tweeted Brian Fallon, an alum of Hillary Clinton’s presidential campaign and the organization's executive director. “She understands as well as anyone the issue’s urgency and the need to put new kinds of lawyers on the bench. This is huge for those who care about the courts!”
This enthusiasm was born from previous tragedy, at least in the minds of progressives. Three justices appointed by President Trump sit on the Supreme Court, including Amy Coney Barrett, who succeeded the late Ruth Bader Ginsburg, a liberal icon on the bench. Had RBG retired when Barack Obama was president, Democrats could have confirmed a more liberal successor and prevented the court from leaning further to the right. By retiring with Biden in the White House, and while Democrats control the Senate, Breyer may have saved progressives the pain of seeing that happen again.
The retiring justice certainly felt the pressure. His brother, U.S. District Court Judge Charles Breyer, told the Washington Post that “of course he was aware of this campaign.” The Supreme Court justice also understood the political situation, his brother added: “I think what impressed him was not the campaign but the logic of the campaign. And he thought he should take into account the fact that this was an opportunity for a Democratic president ... to fill his position with someone who is like-minded.”
The shoe is now on the other foot for conservatives. “Demand Justice spent all last year bullying Justice Breyer into retirement and their work finally paid off,” said Caitlin Sutherland, who serves as executive director of Americans for Public Trust. Pointing to the Herwig and Psaki connection to Demand Justice, she added that “this far left group will be first in line to hand-pick the next Supreme Court justice to fit their agenda and see more of their demands met.”
It was a Republican president, however, who first opened up his nomination process to outside groups in a public way. Six years ago, Donald Trump pledged to nominate Supreme Court justices from a list compiled by Leonard Leo, an outside adviser to the campaign while he was on leave from the Federalist Society. Biden, meanwhile, adhered to tradition, declining to release his own judicial shortlist during the 2020 campaign. Demand Justice Democrats released their own list anyway.
Biden has now promised to nominate the first black woman to the Supreme Court, and some of the potential nominees reportedly on the White House’s radar first appeared on the list drafted by Demand Justice.
A source familiar with internal White House discussions told CNN that the administration is considering an extensive list of potential nominees that includes North Carolina Supreme Court Justice Anita Earls and District Judge Wilhelmina “Mimi” Wright, as well as Melissa Murray, a law professor at New York University, and Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund. All four are conveniently on the list released by Demand Justice, a selection that “illustrates the breadth of progressive talent available to a president committed to nominating a diverse group of justices who have spent their careers fighting to uphold the values of equal justice under the law.”
The coming confirmation battle looms as traditional influence wanes and new powers emerge. The White House announced early last year that, like the previous two Republican administrations, it would not restore the American Bar Association’s role as an arbiter of potential judicial nominees.
Herwig, still new in the White House job last February, explained in an interview with the New York Times that, while the administration would seek the association’s input, Biden aides believe they can consider a wider range of nominees if the group doesn’t wield unofficial veto power.
“All of this is in service of one of our broadest goals — the diversification of the judiciary, in terms of making sure that we have considered the most talented nominees from a wide range of personal and professional life experiences,” she explained at the time.
While Demand Justice enjoys new prominence, the progressive group isn’t completely sympatico with the White House. Biden advisers rolled their eyes, for instance, when Fallon publicly called on the president to give up on his infrastructure agenda in favor of other priorities. Now law, that bill represents the administration’s greatest bipartisan accomplishment to date.
On the judicial front, the group also criticized the president’s Court Reform Commission last April, saying Biden had selected a group of academics “that includes far-right voices.” That commission failed to provide definitive recommendations on a number of topics, including increasing the number of sitting Supreme Court justices, a change Demand Justice supports.
Past disputes aside, the organization couldn’t be happier with the White House’s current selection committee helmed, in part, by their former colleague Herwig. “This team has executed President Biden’s vision for our courts to unimaginable success,” wrote Christopher Kang, the group’s chief counsel. “Biden and Harris couldn’t have a better group to assist them on this historic pick.”
[Editor's note: This story originally was published by Real Clear Politics.]
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