Justice Breyer retirement a story of Biden's weakness: Marc Thiessen
'Special Report' All-Star panel discusses whether Biden will fulfill his pledge of nominating a Black woman to the Supreme Court.
This is a rush transcript of "Special Report with Bret Baier" on January 26, 2022. This copy may not be in its final form and may be updated.
BAIER: Well, Justice Stephen Breyer is retiring after this term. However, that has not come from him today officially. Through sources, that is the confirmed news, and obviously everyone reacted to it today. But how it came out and what comes next is really interesting.
Let's bring in our panel, "Washington Post" columnist Marc Thiessen, Kimberley Strassel, a member of the editorial board at "The Wall Street Journal," and Jeff Mason, White House correspondent for Reuters.
Marc, let me start with you. It was quite something the way this came out, it appears from a leak somewhere. We are told that Justice Breyer told the White House last week.
MARC THIESSEN, COLUMNIST, "WASHINGTON POST": Yes, pity poor Justice Breyer who has served honorably on the high court for 28 years and he's basically been hounded out of his job by the left, and they didn't even wait for him to announce his own retirement, give him the graciousness to let him announce his own retirement, and they're already speculating about his replacement.
Look, this a story about Joe Biden's weakness. Breyer obviously didn't want to retire, but he saw the polling -- he probably saw the falling poll numbers, Biden is collapsing in the polls, and the Republicans are probably going to take the Senate. And Mitch McConnell said if Republicans take the Senate they might not confirm his successor. So he had really no choice but to move now.
But it's also a sign of Biden's weakness because he is only going to get one shot at this. He is only going to be able to replace a liberal with a liberal. Donald Trump fundamentally transformed the court. He is powerless to undue the ideological changes that Trump did with the six-three conservative majority. So this is not a moment of strength for Joe Biden. This is actually a moment of weakness.
BAIER: Here is Mike Davis, a former clerk at the Supreme Court.
(BEGIN VIDEO CLIP)
MIKE DAVIS, FORMER JUSTICE GORSUCH LAW CLERK: He has shown independence as a justice. He has been very outspoken about the Democrats pushing to pack the Supreme Court. Justice Breyer has come out and publicly said that's a bad idea. There is just no way that Demand Justice or any of these leftwing groups forced him off the bench.
He hasn't put out a statement yet, so you would have to wonder where this leak came from. It certainly wouldn't have come from the Supreme Court.
(END VIDEO CLIP)
BAIER: Jeff, it's interesting to see how the White House dealt with this today. It's likely it came from somewhere in that territory, 1600 Pennsylvania Avenue. But they didn't officially comment today, but, also, are kind of making plans for what's next.
JEFF MASON, WHITE HOUSE CORRESPONDENT, "REUTERS": Well, I'm not sure that it did come from that area in 1600 Pennsylvania Avenue, although I don't -- dispute the possibility that the outgoing -- potentially outgoing Supreme Court justice did inform the White House about this last week. It looked to me like the reporting came from people who are close to Breyer.
But, in any case, there is no one disputing it. And it is a big opportunity for President Biden. And Marc says it comes from a position of weakness. But it's certainly true that this president will not have the number of opportunities to shape the court that the previous president did. But it certainly is important to Democrats and to this White House to be able to fill this seat with Justice Breyer being the oldest member of the court and now deciding to step down.
It will lead to, of course, a big push from interest groups over the next coming weeks and months to influence the White House over that pick. But I do think President Biden will stick to his pledge to put an African American woman on the court, and that obviously will impact the list of potential nominees that he will look at.
BAIER: Yes. And the White House reiterating that today.
Kimberley, "The National Review" writes it this way, "One other political aftershock from Stephen Breyer's retirement, barring some sort of disastrous selection, Biden is likely to get his nominee confirmed on probably a party line or near party line vote. Biden and his team might start to think they've scored a big win. Most Americans are likely to yawn or nod and then say great, but I can't afford as much as I used to, and it costs an arm and leg to fill up my tank, and the stores don't have the products I'm used to seeing there, and every business I walk into is short- staffed, and" et cetera, et cetera. "It will just be another case of Joe Biden's priorities not matching the electorate's priorities."
This obviously, Kimberley, does not change the ideology. It doesn't shift, as Marc was talking about, the court. But, still, any time there is a nominee to be, that changes the political environment.
KIMBERLEY STRASSEL, "WALL STREET JOURNAL": Yes, look, there is no question that the Biden administration, and I think it did come from 1600 Pennsylvania Avenue, put this out there because they wanted to change the headlines, and they thought this was a chance to reset the national conversation. Problem is, as that editorial notes, this is going to come and go, but it's not going to change the fundamental dynamics out there.
And also remember that Democrats, too, they have never actually got as impassioned about Supreme Court nominees as conservatives have. So I think the Biden White House was looking at this as a chance for a reset. It's probably more like lay short turn blip with a ups and downs on the long road of inflation, falling economy, jittery stock market.
BAIER: Jeff, you were with the president yesterday as he was in that store and made those comments to the press pool about the situation in Ukraine, being pretty definitive about what might happen. Where do you see this White House and now this back and forth on diplomacy trying to give this letter to the Russians about what they will agree to do or not do?
MASON: Yes, and also definitive about what would not happen. President Biden made very clear yesterday, as he has before, that he has no intention of sending U.S. troops into Ukraine. Ukraine, of course, is not a member of NATO.
As far as what goes forward next, it's a little bit certainly in Russia's hands, at least in the short-term in terms of its response to the letter that was delivered today outlining the U.S. and allies' positions. And, of course, as the White House continues to say the ultimate decision lies with President Putin as to whether he intends to invade Ukraine and follow through on that or doesn't.
The White House is watching closely, and President Biden is obviously watching it closely. It would lead to a -- what he said, the biggest invasion since World War II, and it would change the world. Those were his words yesterday. So, right now I think they are just waiting to get a response to that letter.
BAIER: Right. Marc?
THIESSEN: I hope that that letter not only answered Russia's questions but included specific sanctions that the U.S. would impose, including energy and gas sanctions, banking sanctions, all the things that the Biden administration has refused so far to say publicly they would do because Russia doesn't want energy sanctions. Biden is under pressure for gas prices here at home, he doesn't want energy sanctions. Putin thinks he is bluffing. I hope he disabused him of that.
BAIER: All right, panel, thank you very much. When we come back, a pair of dramatic rescues.
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