The health of 85-year-old Supreme Court Justice Ruth Bader Ginsburg has been in the news off and on since she suffered a fall and was then diagnosed with lung cancer late last year. But as legal journalist Jeffrey Toobin points out, RBG’s plans are very clear so long as her amazing stamina allows her to function:
[I]n January, she missed oral arguments for the first time in twenty-five years on the Court, and there is no guarantee that she will be there when the Justices next hear cases, on February 19th. Still, the retirement drama regarding Ginsburg is straightforward. She will hang on for as long as she can, in the hopes that a Democratic President will appoint her successor after the 2020 election.
But as Toobin notes, there is another, less frequently discussed “retirement drama” involving 70-year-old Justice Clarence Thomas, who has been on the Court for 28 years and has made it clear to friends that he “doesn’t enjoy the job very much.” If Ginsburg is hanging on in hopes of a Democratic president, the same calculations could lead Thomas to retire right now, giving President Trump a chance to appoint a young justice who could extend the conservative hold on the Court for another generation.
Is it possible Trump has been quietly encouraging Thomas in that direction? Toobin thinks so:
Trump has shown unusual solicitude for Justice Thomas and his wife, Ginni, a hard-right political activist. The President and the First Lady had the Thomases to dinner, and then Trump welcomed Ginni and some of her movement colleagues to the White House for an hour-long discussion. …
[T]he President listened as the group asked that more of their allies be given jobs in the Administration. Trump rarely engages in this kind of cultivation, and it’s reasonable to speculate that he’s trying to persuade the Justice that his seat would be in good hands if he decided to leave.
The dynamics of a confirmation battle over a Thomas successor would be quite different from what would happen if Ginsburg leaves while Trump is still president. It’s hard to imagine any replacement who would be more conservative than the often-isolated and rigidly ideological Thomas. With Republicans holding 53 Senate seats, confirmation would probably be a foregone conclusion if Thomas were to retire this calendar year (a 2020 retirement might create uncomfortable parallels with Republican refusal to consider Merrick Garland in 2016).
Still, as Toobin notes, the most likely replacement he’d choose for either Thomas or Ginsburg will be controversial:
The President would likely nominate as a replacement Amy Coney Barrett, a forty-seven-year-old judge on the Seventh Circuit. A former professor at Notre Dame Law School, Barrett was nominated to the appeals court by Trump, in 2017, and she has already been considered for a Supreme Court seat — the one that went to Kavanaugh. Her politics appear even more conservative than Kavanaugh’s or Gorsuch’s; she has been open in her disdain for the concept of abortion rights for women. She is a devout Catholic and has, in the past, expressed a willingness to overturn precedent, which some observers think makes her even more certain than Kavanaugh and Gorsuch to vote to overturn Roe v. Wade.
If Barrett were appointed to succeed Thomas, there would be some wailing and gnashing of teeth in progressive circles. If she were appointed to replace Ginsburg, it would be a declaration of holy war.
There is one issue about Thomas’s replacement that could serve as a problem for Trump, though not necessarily one he would care much about: Replacing Thomas with Barrett would deny the Court African-American representation for the first time since LBJ appointed Thurgood Marshall more than a half-century ago, in 1967 (Thomas succeeded Marshall). There are no obvious latter-day Clarence Thomases currently available (i.e., a relatively young right-wing African-American jurist). But this factor could add to the resistance generated if Thomas retires very soon and Trump chooses among a largely white list of potential successors.