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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Well, by now you know that Justice Stephen Breyer is retiring. We will talk in this segment about his legacy and who might replace him. Justice Breyer was a guest on this show in 2011. I listened back to that segment yesterday and heard something that turns out to be really relevant today to the rule of law and January 6th. Breyer was recalling, 11 years ago, one of the most controversial decisions of his time on the bench, Bush versus Gore in the year 2000, which stopped the recount of the very close vote in Florida that the Gore campaign had wanted.

It was what Gore did when he lost that case that Breyer wanted to talk about. This begins with the end of my question. I guess you marvel there, at what Mr. Gore did after that decision, right?

Justice Stephen Breyer: I think he said, "Don't trust the court." Just as interestingly enough, after the Guantanamo decisions, President Bush said, "I'll follow that decision." It was against him. He said, "I don't have to agree with it." There are really 200 years of history that go behind that. What I found most interesting, I was in dissent in Bush v. Gore. I thought it was wrong, a lot of people thought it was wrong. It was certainly unpopular, at least half the country thought, very unpopular. I heard Senator Harry Reid, the majority leader in the Senate say the following, "I agree with this completely, he said that the most remarkable about part of that decision is very rarely remarked, despite its unpopularity."

I think he probably thinks it was wrong. I certainly did. Despite all that, people did follow it. They did not throw sticks or rocks in the street, they did not shoot themselves, they did not have riots where people died.

Brian Lehrer: "They did not have riots where people die" after the Supreme Court made the final decision, giving the election to George W. Bush. What a contrast, obviously, to what Donald Trump was impeached for, inciting such a riot after the Supreme Court and about 60 other courts gave him no findings of election fraud or election improprieties. With that, we welcome WNYC's Jami Floyd, who, as our legal editor, has been on the show so many times to talk about the Supreme Court. Hi, Jami, thanks for joining us at this historic moment.

Jami Floyd: Good morning, Brian. Thank you for having me.

Brian Lehrer: Can we start with that Stephen Breyer clip from 2011? Much more chilling to hear that today than it was when it first aired.

Jami Floyd: Prescient. What many people may not know about Stephen Breyer is that his scholarship, his expertise as a Harvard professor, as a judicial theorist, is in what we know as administrative law, which sounds boring, but it's not. It's critically important. It's all about the executive and the ways in which the executive is supported or is not and the rules of the executive branch. That is his area of expertise. He's written many books about that as a professor and even as a judge. He believed very much in our democracy and the history of it, that the strength of it is only to the extent in which it retains its legitimacy, as he said so eloquently on your show.

Justice Stephen, who also dissented in Bush v. Gore, went further to say that he felt the court lost its legitimacy on that day, Brian. "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is clear. It's the nation's confidence in the court as an impartial guardian of the rule of law." That's Justice Stephens after Bush v. Gore, but it is true. Justice Breyer continued to believe in our democracy and that transition of power, I think for him, that peaceful transition after that six-week uncertainty, underscored for Breyer that we functioned well and can do so if we choose to do so.

Brian Lehrer: I gather you've met Justice Breyer or know him a little bit?

Jami Floyd: Very little. He went to Stanford, undergrad, and was a Bay Area man. His brother had a law firm there for which I very briefly worked. In that way, I first met Justice Breyer, and then again a couple of times when I worked in Washington, DC over the years. He is an incredibly accomplished person, as no one will be surprised to hear. If you just met him and didn't know any of that, you would be very taken with his very mild-mannered, unassuming, absolutely lovely and kind demeanor. A little known fact, he's married into British aristocracy. [chuckles] Having spent some of his educational time overseas, then also some of his work life overseas, and met his wife there.

They've been married since I think about 1965 or '67. They have three adult children, both very lovely, unassuming people. She's a psychiatrist, I think, or a psychologist. An interesting life, well-lived I would say, Brian.

Brian Lehrer: We often lump all these Justices together as being either in the liberal or conservative wings. How would you start to describe the legacy of Stephen Breyer as a Supreme Court Justice as an individual?

Jami Floyd: We do like to call them liberals or conservatives. They don't like those labels. For us, as lay people, they're helpful. I wouldn't say he's a moderate liberal. He is a coalition builder, he really believes in, or believed in until the last confirmation of Coney Barrett, Justice Amy Coney Barrett, in the ability to form compromise. Though he's very unassuming and a mild-mannered person, he is well-known, and closer court watchers than I have written quite a bit about this, Jeffrey Toobin, Nina Totenberg, that behind the scenes Justice Breyer was the person who could build those coalitions, who could get that extra vote for a five-four majority in what we call the liberal wing.

That was really his great contribution on the court . Also just, apparently, a lovely person to have as a colleague. Though, again, a very methodical and practical thinker, he wrote some very important decisions. We can talk about those if you like. That's how I would describe him as a colleague and as a Justice on the court.

Brian Lehrer: He is obviously a very deep thinker about democracy. That conversation that we had in 2011 holds up so well today. There are a lot of eternal ideas in there, maybe we'll re-air the whole thing one of these days. Go ahead and pick out one of those decisions that he wrote, if you want to single one out as an example of Breyer's legacy.

Jami Floyd: Sure. That's very difficult. [laughs] I think the one I'd have to mention if you asked me to single out one would be the 2016 decision striking down the Texas abortion law. It was being copied by other states. Justice Breyer found in the majority that the law resulted in the closure of clinics throughout the state, as many as half the clinics in the state of Texas, without any safety justification, without any presented safety justification by the state. This meant more travel for women, delay, cost for women, with no reason. This effectively reaffirmed Roe versus Wade. This is why I think Justice Breyer stayed as long as he did, in the hopes that he could continue with that line of jurisprudence.

That, I think, is one of his most significant decisions, I think he would say so as well. It is a very well-reasoned and well-written decision, and now we know a very important precedent.

Brian Lehrer: I guess we should mention in the context of abortion rights in the Supreme Court, for anybody wondering, although Senate Majority Leader Chuck Schumer says he hopes to have a confirmation done for whoever is nominated to succeed Justice Breyer a very quickly, like in a month, he's going to stay until the end of this term. He will be the one who gets one of the nine votes on these Texas and Mississippi abortion cases, right?

Jami Floyd: That's correct. There are other two cases, and very key cases. The Mississippi argument was very deeply disturbing for abortion rights proponents. Many people saw in the arguments back in December, that the questioning from the Conservative Justices suggested that they seem primed to overturn Roe versus Wade, a 50 year precedent. All of the cases that have come since, the one I just cited, Casey before that, these many planned parenthood cases. Of course that would radically change abortion access for women in the United States. It's very different, Brian, with Justice Breyer staying through the end of the term than it would be if a justice suddenly died, as we've had happened, because then you have a vacancy. The composition of the court is different and very often justices or the chief justice will put a case aside until the next term.

We saw it when Justice Kavanaugh came on, the new justice can participate. Here we don't need to do that and I don't expect that to happen. I do think Justice Breyer will participate and that is why I think he stayed on.

Brian Lehrer: Listeners, we will get with Jami Floyd to President Biden's campaign promise to appoint the first Black woman Supreme Court Justice and who might be on the shortlist for that, as well as who Jami would like to see him name, which you have gone public with. We will get to that. Listeners, you can chime in too. Do you want to nominate anyone for the Supreme Court to replace Justice Breyer, or anything you want to say or ask about his legacy or what comes next? 212-433-WNYC. 212-433-9692 or tweet @BrianLehrer. Before we get to who might come next, let's stay for a minute on Breyer's decision to retire.

On one level, was he trying to avoid what happened with Ruth Bader Ginsburg dying during Donald Trump's term after she did not retire when she was ill during Obama's term?

Jami Floyd: We'll never know. Maybe we'll know, maybe he'll tell us. I would think he won't. He's rather circumspect about these things and he wouldn't want to cast aspersions on Justice Ginsburg. I will say that I think it's a very thoughtful and generous thing for him to retire, as I wrote in my post on Medium today. I think he understands the critically important moment in which we stand, that it's very important with the Roberts Court skewing to the far right, with President Trump having appointed three conservative justices, to give President Biden in the executive--

Again, remember that Justice Breyer is an expert in the balance of power, in the role of the executive and it is the role of the executive to balance power when it is askew. What we need now is a recalibration of the court and he is giving President Biden this opportunity to make this appointment. We saw the Justice Ginsburg, some would say malady, with her failure to retire. There's another excellent example, that is of Justice Marshall, Thurgood Marshall, who was asked by Jimmy Carter very gently to consider retiring. Jimmy Carter did not push too hard when Justice Marshall said, "I've only been on the bench for 10 years, I'm going to stay." He was then only in his 60s. Of course, we now know that Jimmy Carter had only one term and the Republicans enjoyed a long run after that.

Justice Marshall's health began to fade and fail at the very tail end of that Republican era and he did not make it to 1992. He retired in 1991. He lived just long enough, Brian, to see the confirmation of Clarence Thomas, and in his seat. That is another great instructive moment. Now, should we fault Thurgood Marshall? Should we fault Ruth Bader Ginsburg? I would never be so bold. I would never be so arrogant as to fault a Supreme Court justice who chooses to stay on and continue to serve this country in so important a role. I do believe that Justice Breyer was instructed by those very key examples in our history.

Brian Lehrer: Elections have consequences, as I guess we see on both sides of the aisle. Thurgood Marshall replaced by Clarence Thomas, Ruth Bader Ginsburg replaced by Amy Coney Barrett, so infuriating for people who think those justices were important to their rights. President Obama tried to do a similar thing when Antonin Scalia died, nominating Merrick Garland. We know Mitch McConnell succeeded in blocking him, but elections have consequences. All right, let's get to those potential nominees. There is one name, it seems to me just in this first-day press coverage, being mentioned above all others, and that's federal appeals court judge Ketanji Brown Jackson. Can you tell us a little bit about her and if you think she is almost a foregone conclusion nominee?

Jami Floyd: I don't want to say a foregone conclusion. You know Brian, I never like to predict.

Brian Lehrer: It's a good practice.

Jami Floyd: It's a good practice and it served me well over the years. It first has to be said that this is not going to change, whether it's judge Brown Jackson or any other judge then justice. It's not going to change the courts' conservative majority, or we could say supermajority, because Breyer is one of only three liberal justices now. That may be part of the reason he's leaving. As we've just said, it does give Biden the chance to have his nominee considered by this more favorable Senate that he has. It does mean a new colleague and a younger colleague for the other liberal, Sonia Sotomayor and Elena Kagan, who are themselves relatively young.

To speak specifically to your question about Judge Brown Jackson, she's only 51. She does serve on the DC Circuit, which is the premier feeder to the US Supreme Court, three of the current justices came from that court. She's incredibly impressive. She has the finest credentials of anybody on the shortlist. She did fill Merrick Garland's seat, by the way.

Brian Lehrer: On that court.

Jami Floyd: Yes, on that court, a little bit of interesting history there. Maybe a little bit of a wink and a nod to the Senate. I think she's obviously the number one possibility. She's the safest bet. There is really nothing to detract from her nomination, except to say that she hasn't been on the court for very long, but nor was Clarence Thomas. He had just been nominated himself. I think she's quite stellar. I would say anyone who wants to put their money on that possibility is making a very safe bet with Judge Brown Jackson.

Brian Lehrer: Let's take a phone call from someone who has someone that they would like to see. Kelly in Rhinecliff, you're on WNYC. Hi, Kelly.

Kelly: Hi.

Brian Lehrer: What you got? Who you got?

Kelly: Can you hear me?

Brian Lehrer: I can hear you.

Kelly: Wow. Longtime listener, first-time caller. Anita Hill, come on.

Jami Floyd [laughs] I love it.

Kelly: Jami, I really want to hear what you have to say about that.

Jami Floyd: We all know that Anita Hill and Joe Biden have, and I imagine this is why you're bringing it up, tell me if I'm wrong, the history of meeting in the unfortunate circumstance of the Clarence Thomas nomination, or confirmation hearing. Not the first round, but the second round, in which Anita Hill was brought forward to the committee after allegations against Clarence Thomas of sexual harassment in the workplace. Many people don't remember that there were two rounds. He went first through the regular round of confirmation hearings.

Then after it was reported by Nina Totenberg and Juan Williams and others that Ms. Hill, Anita Hill, now Professor Hill was behind these allegations, and others, there then turned out to be others. She was asked to testify and was a reluctant witness, reluctant. I imagine, if you're still with us, that is why you make that particular suggestion. Although Anita Hill is a brilliant scholar, a legal theoretician of great renown. Even without that history, she would be deserving of consideration. I imagine that also informs your suggestion.

Brian Lehrer: There's an age question here. I don't know her exact age, but I think they want to try to confirm somebody who can be there for many more decades.

Jami Floyd: I wrote in my post today that we have some ageism involved in our nomination process. Anita Hill is 65 years old. To my view, that's a positive. I believe you should have some experience before you become a Supreme Court justice. Not just legal experience, life experience. Somehow we've started to skew way down toward 40. I do agree with you, Brian. It is probably, as I wrote in my post, not the case that someone who is 65 would be seriously considered. I do love the ironic suggestion of Anita Hill. I think it's a brilliant one and I thank the caller for it.

Brian Lehrer: To the point of Joe Biden's promise during the campaign to nominate a Black woman to the Supreme Court, which of course would be a first in American history. Joseph in Queens, I think, has push back to that promise. Joseph, you are on WNYC, hello. Joseph, are you there? Joseph in Queens.

Jami Floyd: I'm on the edge of my seat. I want to hear what Joseph has to say.

Brian Lehrer: Joseph twice. Joseph, do you want to do it? Maybe he can't hear me.

Jami Floyd: We can get him back.

Brian Lehrer: Well, what he told the screener is that this goes against Martin Luther King's content of their character, not the color of their skin. I imagine we're going to be hearing that from Republicans all over the country.

Jami Floyd: I have a response to that.

Brian Lehrer: Go.

Jami Floyd: Martin Luther King said, "I have a dream that one day my four little children will one day live in a nation where they will not be judged by the color of their skin, but instead by the content of their character. I have a dream today." I'm paraphrasing, but I'm pretty close. "I have a dream that one day." We're not there yet, Joseph. Wer'e not there. "One day." I think what Joe Biden is saying is, since we are not there, we have to, as I wrote in my post, bend our democracy. The moral arc bends toward justice, and we have to bend it there. We have to pull down on the arc to bend it towards justice, to borrow again, from Dr. King.

I know this is controversial. I'm not suggesting it isn't, but he did make that promise. For him to go back on it, I think would be dreadful for him with his Black constituency and with, let's move to another name on the list, Brian, James Clyburn, who is not the name on the list, [laughs] but his pick, who is J. Michelle Childs. She is on the US district court for South Carolina, and she is also thought to be a contender, and she is Clyburn's pick. It's an unspoken secret, he's lobbying for her. The interesting thing of about this, Brian, is that Joe Biden made the promise right before the South Carolina primary. There's a lot of political machination behind all of this.

Brian Lehrer: Where Congressman Clyburn's endorsement was so key in turning rout Black voters for him, and really that South Carolina primary turned around the whole primary every season for Joe Biden when Bernie Sanders had been in the early lead. All right, Jami, a third name. Your pick for who Joe Biden should nominate. Drum roll.

Jami Floyd: [laughs] My pick is the wonderful Sherrilyn Ifill. She's the President and Director-Counsel of the Legal Defense Fund. The NAACP. The Legal Defense Fund. Now, I realize this is, it's an outside pick. I get it, but I want everyone to cast their mind back to the selection of Thurgood Marshall, who was also the Director Counsel of the Legal Defense Fund. President Johnson widely regarded as, after Lincoln, the greatest president on civil rights, made a courageous pick in the selection of Thurgood Marshall as the first African American Justice of the US Supreme Court. I'm asking Joe Biden to consider making a similar courageous selection here.

I do agree that the other judges we've talked about, and we didn't talk about Leondra Kruger, who is a California Supreme Court justice, also very accomplished. They're all wonderful women, accomplished women, solid judges and jurors, but I think we need a civil rights thinker, a constitutional advocate. I think we need someone who is not a judge. I think we need to break the mold a bit, as we've done in the past with Earl Warren, with Sandra Day O'Connor. Even justice Breyer, if you look at his background, broke the mold a bit, and I think the court has served well when we step away from the elitism of Harvard, Harvard DC circuit, [laughs] and we do it a little differently.

It's not just because she's Black. It's not just because she's a woman, and it's not just because she leads the LDF, but it's because she's had a career, a 30 year career of commitment to civil rights, to constitutional rights and to human rights. That's what we need, not just on the court right now, but in our democracy right now, which is terribly fractured. I would take the chance, Joe Biden. Step out, make a historic, an historic and courageous nomination. When there's a tie, Kamala Harris will break it.

Brian Lehrer: [laughs] I'm glad you're mentioned Kamala Harris because there's buzz he should appoint Kamala Harris to the Supreme court. She was the California attorney general. She was in the Senate, she's colleagues with all those people or was, in the Senate, so she would get confirmed. Then he could name his own next vice president, setting himself up, however, for a potential reelection run in 2024. Then the other populist name that keeps coming up is Michelle Obama. You want to debunk both of those?

Jami Floyd: Well, I don't want to debunk either of those women, but I do want to say that I think Kamala Harris has a very good shot at the presidency, so I'm not sure that she would say yes to the Supreme Court. Similar conversations were heard about Hillary Clinton, you will remember. I don't know if they were had behind the scenes, but I don't know that she would've taken the seat because they're political animals, and Michelle Obama is not. [laughs] She's obviously hugely savvy politically, but I think she's enjoying the life she's leading. They sacrificed so much for this country already. I don't know that she wants to then take a life appointment on the US Supreme Court.

I don't want to take it away from her if she wants it, Joe Biden can discuss it with her, but there's so much that she's doing in her public life that she would then have, you have to give it all up to be a us Supreme Court judge. You can write, you can speak, but you can't make Netflix movies, [laughs] and you're not going a con and you're not-- There are all kinds of things you can't do, starting schools in other countries and such. I think that Michelle Obama is living her best life right now, and I don't know that she's going to walk away from that best life for the boring robes of the US Supreme Court.

Brian Lehrer: One more call. Chuck in Manhattan you're on WNYC. Hi Chuck.

Chuck: Hi. I'm a little afraid. I hate to say that, but is it possible that Mitch McConnell and his cronies along with Joe Manchin, can stop this appointment and maybe bully Biden into the next cycle of his election term?

Jami Floyd: It's a really good question, Chuck. Biden does have a more favorable Senate as we've said, 50/50 Dems to Republicans. The tiebreaker is vice president Harris, unless she's the nominee.

Brian Lehrer: There's no filibuster for Supreme Court Justices.

Jami Floyd: That's right. The key difference this time is Republicans are not in control, and Schumer said that he's going to get this done quickly. All delivered at speed. That phrase we hear so often, but you are right. Everyone is watching Mitch McConnell. He was asked yesterday, is he going to try and block Biden's pick? Here's what he said, "We don't know who the nominee is yet." That's what he said. [laughs] That's kind of a maybe, to me. Your question is very well put. The thing is, I keep hailing back to Lyndon Johnson, who just got things done. You know they didn't want to confirm Thurgood Marshall, a Black man, in 1967, but he got it done.

This president needs to get this done, whomever he puts forward, it needs to get it done. I do think Joe Biden understands the Senate. He knows these senators. He understands how it works. He may not be as tough as a Lyndon Johnson, or as profane, [laughs] or as nasty, but I think he does understand how to get it done. As I said, the composition is different. I'm hopeful, Chuck, that it will happen.

Brian Lehrer: We've just got a minute left, but on all of that, two thoughts. One, I'm guessing that whatever Black woman is nominated, if it is Black woman, the Republicans will try to paint her as an angry radical, because there's such a history of that. Two, there's an important number, which is that Joe Manchin has voted for all 42 of Joe Biden's judicial nominees to date. Maybe what we see with Joe Manchin and Build Back Better, and Joe Manchin and the filibuster, does not apply here?

Jami Floyd: I'm so glad you said that. I didn't want to leave that part of Chuck's comment aside. I do not think that Manchin would make the mistake of siding with the Republicans on the Black female nominee, or any Biden nominee. I think he will get in line on the Democratic side of this debate. I don't think we're going to have much crossover either way, and I would not be surprised to see Kamala Harris, if she's not the nominee, casting the tie vote.

Brian Lehrer: WNYC legal editor Jami Floyd, thanks for all the history. Thanks for all the analysis of today.

Jami Floyd: Always fun, Brian. Talk soon.

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