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Spokane, Washington  Est. May 19, 1883

Justice Stephen Breyer’s retirement a loss of a ‘learned jurist,’ sets up Senate battle, local experts say

Spokane tribal member and attorney Margo Hill greets U.S. Supreme Court Justices Sandra Day O’Connor and Stephen Breyer in July 2001 in Spokane.  (Torsten Kjellstrand/The Spokesman-Review  )

A visit from U.S. Supreme Court Justices Stephen Breyer and Sandra Day O’Connor to Spokane tribal land in the summer of 2001 meant more than just the sharing of culture, said Margo Hill, a local attorney and professor who helped plan the visit to Wellpinit two decades ago.

It was a recognition that tribal sovereignty and judicial systems were legitimate.

“There’s so many Supreme Court justices that don’t always understand federal Indian law,” Hill, a member of the Spokane Tribe of Indians who is now an associate professor of urban and regional planning at Eastern Washington University, said. “It’s a very complex area of law.”

Breyer, who is expected to formally announce his retirement on Thursday, observed the tribe’s therapeutic courts that day. He broke bread with tribe elders. And, Hill said, the Massachusetts native appeared to understand the importance of treaty rights – an expertise that was exemplified 18 years later when he authored a decision in favor of a Yakama Nation fuel importer in a dispute over Washington gas tax laws.

Hill’s assessment of Breyer, who has served nearly 28 years on the nation’s highest court, as a contemplative and well-read jurist was shared by others who had their own experiences with him.

Arguing a case that he admitted “only a lawyer can love” before the U.S. Supreme Court, Spokane attorney Dan Johnson found himself answering a detailed question from Breyer in 2013.

It was couched, in that stately Washington D.C. courtroom nine years ago, with a warning: “If I understand your argument … ” began Breyer, who appeared to hold the same position as Johnson about lengthy prison sentences under a provision in federal law.

But before continuing, Breyer said something that made the courtroom chuckle.

“It’s not as friendly a question as you might hope,” Breyer said.

Johnson, now a district judge in Lincoln County, recalled the moment in an interview Wednesday. Breyer’s next question, referencing a provision in federal law that Johnson wasn’t arguing but that would two years later be overturned under Supreme Court scrutiny, was indicative of Breyer’s meticulous style and imaginative questioning, Johnson said.

“On a lot of other cases I’ve seen, he would ask more of a policy-oriented question than directly on the issue,” Johnson said.

Dan Morrissey, the former dean of Gonzaga School of Law who once worked for the federal government’s Securities and Exchange Commission, called Breyer “a learned jurist” who had been a solid member of the court’s liberal bloc on issues including abortion and affirmative action.

“He’s written quite a bit about the importance of our democracy,” Morrissey said. “I’m not so sure how he would feel about the polarization of our society.”

That polarization is likely to quickly rear its head in what is anticipated to be a protracted confirmation battle.

Breyer’s retirement immediately prompted questions about President Joe Biden’s pick to succeed him. The president had pledged during his campaign to appoint a Black woman to the court, a promise that could prove pivotal to keep as Biden looks at the Democratic Party’s tenuous control of the Senate, said Alison Gash, an associate professor of political science at the University of Oregon specializing in the courts, gender and race.

“I think if he veered away from what would be a really historic nomination to the court, it would be disastrous,” Gash said.

With a majority hanging on the concurrence of Sens. Kyrsten Simena and Joe Manchin, Democrats who split with the party on a move to bypass the filibuster for voting rights legislation, Gash expects the Biden administration to put forward a name that has already been scrutinized by the pair. That would make it difficult to argue the appointee wasn’t qualified, Gash said, and speed up a process that Democrats likely won’t want to delay until the midterm elections.

“Those two senators are making it really difficult, and so the narrative of Biden not being able to achieve what he attempted to achieve is complicated by the structure of the Senate being what it is,” Gash said.

Gash mentioned Judge Ketanji Brown Jackson, a Harvard University graduate who once clerked for Breyer and received an appointment to the U.S. Court of Appeals for the District of Columbia Circuit last year, as a likely candidate. Simena and Manchin both voted to confirm Jackson for that position in a 53-44 vote that also swayed Sens. Lisa Murkowski and Susan Collins, two Republicans often targeted by Democrats on close votes.

Sen. Patty Murray, D-Washington, tweeted Wednesday that she hoped Biden would keep his commitment to nominating a Black woman to the bench.

“Justice Breyer has led an exemplary & distinguished career in public service. I’m grateful to him for all that he has done for our country,” Murray wrote on Twitter. “I support (the president’s) pledge to nominate the first Black woman to the Supreme Court. The Court should reflect the diversity of our country.”

One issue that likely won’t dominate Supreme Court confirmation hearings, for the first time in decades, is abortion, Gash said. The court already heard arguments on a challenge to Roe v. Wade earlier this year, and the legal landscape on what has proven to be a signature issue in past confirmation hearings will likely change by the time a new judge takes the bench. It’s possible Breyer read the tea leaves from that oral argument, other recent conservative decisions by the court and failed attempts to pass progressive legislation in Congress in making his decision to retire now, Gash said.

“Regardless of the reason, he certainly couldn’t have waited much longer given the risks of what we know was going to be a pretty treacherous nomination process,” she said.

Hill said ideology is less important than an understanding of the law, particularly as it relates to the complicated sovereignty issues tribes present in the West. She pointed out that Justice Neil Gorsuch, a nominee of President Donald Trump, joined with the liberal bloc of voters in the Yakama Nation case. Gorsuch spent his early life in Colorado.

After the 2001 visit, Hill said she received a personal “thank you” note from Breyer. That shows that the cultural exchange meant something to him, she said, and she hopes whomever fills that seat shows the same dedication to the job and understanding tribal communities.

“I hope that we get a judge that’s very intelligent, that understands case law and does the work,” Hill said.