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Stephen Breyer needs to retire now

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One of the odd things about human tolerance for risk is that we tend to put too much emphasis on the probability of something happening and not enough on calculating the cost we’re running by tolerating the risk.

For example, when I noted a few days ago that Stephen Breyer was subjecting liberals, progressives, and leftists to a terrible risk by not retiring immediately, several commenters argued that there was no reason that he shouldn’t wait until the end of the current Court term to retire, because the risk that Democrats would be unable to fill his seat if he didn’t retire before then was quite low.

Well yes, it is low, but it’s far from non-existent, especially when you consider that:

(1) If Breyer waits until the end of the current Court term to announce his retirement, that would mean that a replacement nominee would probably not be voted on until September or October, which is actually several months from now; and

(2) There’s absolutely no indication at present that Breyer isn’t considering staying on the Court until at least the summer of 2022, if not longer.

Anyway, I went and did a little research, and it turns out that the party composition of the Senate has shifted at some point during the course of the vast majority of Congresses since World War II. Keep in mind that a shift of just one seat from a Democrat to a Republican, or even a seat currently filled by a Democrat going vacant for any length of time, shifts the Senate back to the GOP for as long as that seat isn’t filled by a Democrat.

Furthermore, the fact that the current Democratic Senate caucus is full of extremely old people makes the odds of the Mitch McConnell once again becoming the Senate majority leader at some point during the 117th Congress nauseatingly high, given the various consequences of that potential development.

Since the end of World War II, 27 of the 38 Congresses have featured a change in the party composition of the Senate during a session.

The probability that such a shift may occur during this particular Congress may well be even higher than that. At the moment, no fewer than six Democratic senators over the age of 70 represent states where a Republican governor would be free to replace them with a Republican, should a vacancy occur.

Five other Democratic senators represent states for which a vacancy would go unfilled for months, until a special election to fill the seat was held — which would hand the G.O.P. control of the Senate at least until that election and likely for the rest of the current Congress if a Republican wins that contest. (In the case of Wisconsin, such a vacancy might not be filled until 2023.)

All things considered, the odds that Democrats will lose control of the Senate in the next 22 months are probably close to a coin flip.

Under the circumstances, for Democrats to run the very real risk that they would be unable to replace Justice Breyer is unacceptable. Of course, the only person who is in a position to ensure that this does not happen is Justice Breyer himself.

While it’s true that the odds that the Senate shifts back to the Republicans in such a manner as to block the Democrats from being able to fill Breyer’s seat aren’t high, the point is that they are far too high given the catastrophic cost of that outcome, especially given that the alternative costs that need to be incurred to eliminate that risk by replacing him now are zero.

This is the part of the equation that’s especially galling. Say there’s a 5% chance that your house burns down if you don’t do X, when X consists of walking across the room and switching off a lamp that you’ve been meaning to get rid of anyway. What sort of sense does it make to say, hey there’s no rush because after all my house is very unlikely to burn down even if I don’t do this? That’s essentially what people are saying when they claim there’s no rush for Stephen Breyer to retire from the Supreme Court.

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