WASHINGTON -- Democratic control of the White House and Senate will put pressure on the Supreme Court's oldest justice, Stephen Breyer, to step aside so President-elect Joe Biden can choose his successor.
Breyer, 82, was nominated by President Bill Clinton in 1994 and is the court's second-longest-serving member, after Justice Clarence Thomas. Breyer became the senior member of the court's diminished liberal wing after Justice Ruth Bader Ginsburg's death last fall.
But her death -- which resulted in President Donald Trump naming a third justice to the court and solidifying a 6-3 conservative majority -- and the fragility of the Democrats' one-vote control of the Senate add to the push for Breyer to step down.
Erwin Chemerinsky, a liberal constitutional lawyer who is dean of the University of California at Berkeley law school, said he would urge Breyer to step aside soon. In a 2014 op-ed, Chemerinsky made the same argument to Ginsburg, who declined to retire when President Barack Obama was in office.
"Given the composition of the Senate -- one unexpected change could cost the Democrats their majority -- and the inherent uncertainty about the 2022 midterm election, Justice Breyer should consider stepping down when there is a Democratic President and a Democratic Senate to replace him," Chemerinsky said in an email. "It is his best way of ensuring that someone with his values and his views takes his place."
As soon as it was clear that Democrats won both Senate races in Georgia -- giving the party 50 seats in the chamber and Vice President-elect Kamala Harris the tie-breaking vote -- the liberal group Demand Justice also said Breyer should consider exiting.
"Justice Breyer has had a tremendous career," said Christopher Kang, the group's chief counsel. He said Breyer should appreciate the "poetic possibility" of stepping aside so Biden could nominate the first Black woman to the court, as he pledged during the campaign.
Even before the Georgia results, Breyer faced questions about when he would leave the court.
He was asked by MSNBC host Ari Melber in October whether "justices do or should think about who will replace them, and their retirement process while they are on the court."
"Of course from time to time you think about it," Breyer replied. "It's part of the aging process. It's inevitable."
But he said it was a dangerous topic because of the politics involved.
"The more the political fray is hot and intense, the more we stay out of it," Breyer said, adding that "the decisions we're making are decisions for 330 million Americans. ... So the people on both sides have to have the confidence that you, the judge, is a fair person."
But such nudges come with a job that carries a lifetime appointment. Even though Trump had already named two justices, some in the conservative legal movement speculated over the summer that Thomas, 72, or Justice Samuel Alito, 70, could retire so Trump could put a younger conservative stamp on the court.
The relative youthfulness of the president's nominees -- Justices Neil Gorsuch, 53, Brett Kavanaugh, 55, and Amy Coney Barrett, 48 -- is one factor liberals cite in hoping to reinforce their allies on the court with a younger member.
As much as they assert their independence, many justices feel a pull to retire when the party of the president who nominated them is in power, or when the president is inclined to name a like-minded successor.
Scott Lemieux, a political scientist at the University of Washington, said that in the past half-century, "strategic retirements have been more the rule than the exception."
"The only justices since 1968 who resigned while still alive and with a president they weren't positively disposed to on ideological or partisan grounds were [William J.] Brennan and Thurgood Marshall, who waited as long as they could during a 12-year run of Republican control of the White House" before resigning for health issues, Lemieux wrote in a Washington Post op-ed.
In an interview, Lemieux noted that Obama's choices for the court replaced liberal-leaning Republicans in David Souter and John Paul Stevens. Obama chose Sonia Sotomayor, now 66, and Elena Kagan, now 60.
The two justices chosen by Clinton, Ginsburg and Breyer, resisted calls to step down.
In a 2013 interview with The Post, the then-80-year-old Ginsburg predicted that Obama's successor would be a Democrat. "The Democrats do fine in presidential elections; their problem is they can't get out the vote in the midterm elections," she said.
Noting the poisonous political atmosphere a year later, she said in an interview with The Associated Press: "So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?"
Breyer has not had health concerns similar to Ginsburg's, though he gave up his bicycle after a series of accidents that resulted in broken bones. Friends and former clerks say he loves the job, and the justice is something of a happy warrior on the court, enjoying the company of even the justices with whom he disagrees.
Breyer is the ninth-oldest justice in the Supreme Court's history, recently passing Justice Louis Brandeis. In a recent interview for a series on Slate.com called the "80 most influential Americans over 80," Breyer said: "I mean, eventually I'll retire, sure I will. And it's hard to know exactly when."
Asked if society was sometimes too quick to move people out of their jobs, he answered, "I've thought sometimes that one virtue of China is they really respect old people."