After 28 years, some conservatives think it’s time for Clarence Thomas to retire. He’s the longest-serving Supreme Court justice, and at age 72 remains young enough to enjoy what he loves to do, which is traveling the country anonymously in his RV with his wife, Virginia, and their two dogs.
A year ago, when rumors first surfaced that Thomas might be mulling retirement, he gave a very general Shermanesque statement to shut down the speculation. This time, crickets. That’s because this time it’s about more than Thomas and wanting to lock in another younger acolyte on the right.
Now it’s also about ginning up the base for President Trump’s re-election, and those ubiquitous anonymous sources familiar with the president’s thinking report that he thinks nominating a woman to the Supreme Court might be just the tonic he needs to revive his standing with women voters.
The legal website Above the Law dubbed the folks pushing retirement rumors “conservative wishcasters,” noting they got a huge boost when conservative radio host Hugh Hewitt upped the ante by telling Washington Post reporter Robert Costa that the “stronger rumor” is that Samuel Alito, 70, the second most conservative member of the court after Thomas, is “going to quit.”
Costa wasted no time tweeting that out, and now the rumors are firmly rooted in the mainstream media. How Justices Thomas and Alito handle the pressure—whether they might consider taking one for the team, whether they even care—we don’t know. Alito’s family, according to Hewitt, is ready to leave Washington, and Thomas’ spouse, Virginia, is said to favor her husband’s retirement.
We did hear from Carrie Severino, president of the Judicial Crisis Network and a former law clerk for Thomas, who told Breitbart that the rumor of Thomas retiring is false with “one hundred percent certainty.” She noted that Thomas is “the leader of the conservative wing of the Court,” and that he and Alito “are really at the top of their game. I would find it hard to imagine either of them saying, ‘Okay, it’s time to hang up my spurs.'”
Appointed by George W. Bush, Alito has been on the court 14 years, half as long as Thomas, who has been the far more significant figure. Thomas was narrowly confirmed after a charged hearing—presided over by Joe Biden—over sexual harassment claims, and his anger and bitterness over what he called “a high-tech lynching” has never left him. Yet he has achieved senior status on the court, speaks out more in oral argument than in past years, and as the court has moved to the right is authoring more majority opinions in addition to his dissents.
“I’m sure they’d be thrilled, and Donald Trump would be thrilled if he stepped down,” says Dan Goldberg with the Alliance for Justice Action Campaign. “I have no doubt that they think it’s a good idea. But do they really think vulnerable senators running for re-election want to vote right before an election in the middle of a pandemic for someone endorsed by Trump and endorsed by the Federalist Society with a record of overturning the Affordable Care Act, and who is hostile to abortion rights and LGBTQ protections? Do they think Susan Collins, Cory Gardner, Joni Ernst and Thom Tillis want to take that vote right before the election?”
Trump would argue yes, and he has Amy Coney Barrett at the top of his list. Barrett, 48, is on the Seventh Circuit of Appeals, appointed by Trump. She was the runner-up to Justices Gorsuch and Kavanaugh, and her personal story as a strong practicing Catholic, mother of seven, including five biological children, one with special needs, and two children adopted from Haiti, make her a compelling figure on Trump’s side in the culture war.
Trump likes the idea of being the first Republican since Ronald Reagan appointed Sandra Day O’Connor to put a woman on the Supreme Court.
A news alert last week that Chief Justice John Roberts was hospitalized sent shock waves through Supreme Court-watchers. Turns out it was a weeks-old fall that the court kept quiet until a member at the private club where Roberts took the tumble tipped off The Washington Post. It wasn’t a seizure that caused Roberts to fall, the court said. But if Roberts were incapacitated for whatever reason, Trump would likely elevate Kavanaugh to chief justice and Senate leader Mitch McConnell would ram through a third Trump conservative justice. That would be a high-octane twofer to rally Republicans.
The Senate of course would have to confirm Kavanaugh as chief justice, so he would have to go through another confirmation hearing. And this time he would have a record to defend. After voting to uphold an anti-abortion law in Louisiana that the court overturned, “Susan Collins could not vote for him with a straight face,” says Goldberg. “They could just do it (confirm him), but it wouldn’t be a political bonanza.”
McConnell’s great political skill is having no shame. He withstood the battering he took for holding the late Justice Scalia’s seat open for a year without giving even a hearing to President Obama’s nominee, Merrick Garland.
McConnell’s drive to fill the federal courts has been relentless, and whatever happens on Nov. 3, there will be a lame duck session of Congress after Election Day with the Republicans controlling the Senate.
If there were an opening on the Supreme Court after an election in which Trump is defeated and the Democrats win the Senate, is there any doubt that McConnell would seek to fill it in the lame duck session? Whatever surprises Trump may have, Democrats won’t be safe from McConnell’s perfidy until Jan. 5, when the new Senate is sworn in.