"[E]very day Breyer stays on the court is another day Mitch McConnell gets to spin that wheel of death, and see if he gets enough votes to stop his replacement." - Elie Mystal
June 5, 2021

Not that Elie Mystal has ever been one to mince words, but I was not expecting him to gift me with the mental image of Jon Tester getting chased by a caribou.

Let me back up.

Mystal, justice correspondent for The Nation, and Fellow at Type Media Center gave us some real talk about why Supreme Court Justice Stephen Breyer needs to retire, and retire yesterday. John Berman mentioned Mystal's extensive piece on the same topic in The Nation, but asked him, "You say it would be malpractice for him not to step down now. Why?"

"We can't keep allowing the random wheel of death to choose how our laws are interpreted. This is a mistake that liberals, more than conservatives, make over and over again. They view themselves as indispensable. They view themselves as irreplaceable, and then they DIE," Mystal said. "As all humans must, they die, but they die at inopportune times where their replacements are picked by presidents of the opposite party and it's one of the big reasons we now have a Supreme Court that is slanted towards justices picked by Republican presidents, as opposed to justices picked by Democratic presidents."

Helpful as always, he even did the math to elucidate his point. "For over the last 32 years, we've had 16 years of Democratic presidents and 16 years of Republican presidents but Republicans have control of the Supreme Court, right now, by a margin of 6-3. It's because of decisions like the one Breyer is making right now."

Berman said, "And you note, this isn't an issue of Breyer maybe postponing it a year. Now Joe Biden has got four years in office. Maybe wait until year three or year four. You say, uh-uh. You have to do it now. You can't even wait until 2022. Why?"

After pointing out that it is a fact, not speculation, that Mitch McConnell will "simply not confirm a justice appointed by a Democratic president," Mystal explained that there is a chance the Grim Reaper will win back the majority in 2022, in which case, Breyer will need to live forever. Here's where the caribou comes in.

"But it gets worse than that. Right now the Democrats' majority in the Senate is Kamala Harris' 51st vote. If any Democratic senator dies in a state where they can be replaced by a Republican, Mitch McConnell once again can block Breyer's replacement," Mystal explained. "Pat Leahy in Vermont dies under a Republican governor? Gone. If Jon Tester of Montana gets hit by a caribou or whatever they have up there, if he goes? Bam, that's it for the Democratic majority. So every day Breyer stays on the court is another day Mitch McConnell gets to spin that wheel of death, and see if he gets enough votes to stop his replacement."

And any of that can happen tomorrow. So what the hell is Justice Breyer waiting for? Is he truly that indispensable? Are the Democrats anywhere near assured maintenance of their Senate majority? Is he that worried about the person Biden might pick if he steps down? Or is he letting his pride get in the way of what is best for the nation while we still have this mess of a system wherein 9 people control the fate of laws that govern over 328 million people? As long as we're stuck with only 9 justices, and we're outgunned 6-3, there is no other acceptable option for Breyer than stepping down.

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