One of the rituals of the end of every Supreme Court term involves rumors of court retirements. Last year, of course, the long-awaited retirement of Justice Anthony Kennedy was announced on June 27, giving Donald Trump his second SCOTUS appointment in less than two years. This year there are no red-hot rumors; the two most likely retirees, Ruth Bader Ginsburg and Clarence Thomas, have both emphatically denied any plans to step down for the foreseeable future. Eighty-year-old Stephen Breyer is just now reaching the average age of retirement for the last 11 justices, but he’s not showing any signs of slowing down either. And the rest of the justices are relatively young, ranging from Samuel Alito at 69 down to Neil Gorsuch at 51.
But just in case someone springs a surprise, President Trump just made it very clear that he would not hesitate to fill an election-year opening on the court despite the precedent set by his party in the Senate in 2016, when it held open the late Antonin Scalia’s seat for many months, denying Obama appointee Merrick Garland a hearing, much less a vote. The Hill has the story:
President Trump on Monday said he would make a nomination to the Supreme Court if there’s a vacancy before the 2020 presidential election.
“Would I do that? Of course,” Trump said in an exclusive interview with The Hill when asked if he would try to fill a high court vacancy during election season….
“If there were three days left, I’d put somebody up hoping that I could get ’em done in three days, OK?” he continued.
Like Mitch McConnell, Trump claims this is not any sort of flip-flop:
[T]he president denied that his position was an about-face, since Republicans control both the Senate and the White House.
“They couldn’t get him approved. That’s the other problem because they didn’t have the Senate. If they had the Senate, they would have done it,” Trump said of Democrats.
This angle makes it sound like Democrats were somehow responsible for Garland’s shabby treatment, but whatever. From the Republican point of view, they stole this Supreme Court seat fair and square.
But even if Trump and McConnell were concerned about looking like hypocrites, they’d have no choice but to fill a Supreme Court vacancy this year. The GOP’s Christian-right and Federalist Society backers would stage a riot if their heroes passed up the opportunity to solidify a conservative majority on the court, particularly if it looks like the Trump presidency could be coming to an end. And Trump’s right: If it had to happen in three days, they’d make every effort to go from nomination to confirmation in that time. It’s that big a deal.