There has been much speculation that Justice Stephen Breyer will retire at the end of the current SCOTUS term (or perhaps the next), allowing his replacement to be nominated by President Biden before the 2022 mid-term election, which is pretty much what Justice Kennedy did in 2018. In today's New York Times, however, Paul Campos makes the convincing case that Breyer should instead retire immediately. The Democrats' majority in the Senate is so slender, Campos explains, that it could vanish at any moment. The change in even one seat, due to death, severe illness, or change of heart, would reinstall Mitch McConnell as majority leader, and we know what happened last time. Here is the gist of Campos's argument:
What are the odds that something like this — a senator's death, disabling health crises or departure from office for other reasons– will happen sometime in the Congress's remaining 22 months?
Alarmingly for Democrats, if history is any guide, the odds are quite high. 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.
You can read the entire oped here (paywalled).