There’s no inkling here from Jeffrey Toobin that Thomas is thinking of resigning, only that some conservatives are chattering about it strategically. In fact, to the extent that Toobin’s aware of Thomas’s own inclinations, they point towards him staying.
But his argument is worth thinking about. Thomas is the oldest member of the Court’s conservative wing. If you’re worried about the White House changing hands in 2020, and you should be given that Trump’s ceiling on job approval seems to be in the low 40s, the price of Thomas passing on retirement now is potentially needing him to serve another full decade in order to have a Republican president appoint his successor. Which means you’re asking him to become the longest-serving justice in American history before he steps down.
With fifty-three Republicans now in the Senate (and no filibusters allowed on Supreme Court nominations), President Trump would have a free hand in choosing a dream candidate for his conservative base if Thomas were to retire this year. The summer of 2019 would seem an ideal time to add a third younger conservative to the Court (along with Neil Gorsuch, who is fifty-one, and Brett Kavanaugh, who is fifty-four). It’s true that Mitch McConnell, the Senate Majority Leader, would likely violate his Merrick Garland rule and try to push through a nominee in 2020, an election year, but 2019 would be much easier to navigate. So, many conservatives are asking, why shouldn’t Thomas leave now?…
But will Thomas retire? Over the years, he has made little secret of the fact that he doesn’t enjoy the job very much. With a conservative future of the Court secure, why wouldn’t he call it a day after twenty-eight years? Because, according to his friends, he feels an obligation to continue doing the job for as long as he is able, regardless of the political implications of his departure. Of course, no one except Thomas knows for sure what he will do, and that leaves his decision open to speculation.
Good point there about the urgency in Thomas leaving this year if he’s planning to quit rather than next year. McConnell has already hinted that he’ll break his own “Merrick Garland rule” by seeking to confirm a new justice in a presidential election year, but that hypocrisy will stink on ice. Even some of his own Republican colleagues feel bound by the 2016 precedent. If Thomas is thinking of going, it should be this year rather than next.
Thomas circa 2019 isn’t perfectly analogous to Ruth Bader Ginsburg circa 2015. Liberals have been grumbling since election night three years ago that RBG should have quit while Obama was in office rather than forge ahead in her 80s, with her health iffy, and trust that O would be succeeded in office by a Democrat. Now they’re on a knife’s edge, knowing that Ginsburg’s death would trigger a nuclear war over the Court’s future ideological balance. Thomas, however, isn’t in his 80s. He’s “only” 70 years old, younger than Ginsburg and Breyer despite the fact that he’s been on the Court longer than either. There’s no indication he’s in poor health. It’s quite possible that he’ll be able to serve another decade. And needless to say, he’s no squish jurisprudentially such that the idea of replacing him is attractive to righties. Trump’s not going to appoint anyone more conservative than Clarence Thomas.
But Ginsburg isn’t the only analog to consider. The man whom Thomas replaced, Thurgood Marshall, also tried to tough it out until his health failed him. The result was that he was forced from office when a Republican was in the White House, leaving Bush 41 to replace a liberal legend with one of the most devout conservatives ever to sit on the bench. If Thomas decides to journey on he runs the risk of a reprise in the opposite direction, with a Democratic president avenging Marshall by appointing a far-left justice to succeed Thomas. And it’s not as though leaning on him to retire now would be depriving him of a standard term on the Court. He’s been there 28 years, which places him in the top 20 percent of longest-serving justices in history.
So how lucky do you feel? Should he stay or go?
Toobin thinks it’s a fait accompli that Trump will appoint Amy Coney Barrett to succeed him. Eh. That’s how I’d bet if I had to bet, but appointing Barrett in this case would mean the Court would lack a black member for the first time since the civil rights era. Trump may have no choice, though: There are no young black conservative judges on the bench that I’m aware of who’d be an obvious potential replacement for Thomas. Janice Rogers Brown was a favorite of Republicans for years but she’s nearly as old as Thomas himself is. Same goes for former Michigan Supreme Court justice Robert Young. A Thomas vacancy might point Trump towards McConnell favorite Amul Thapar; Thapar is Indian, not black, but “the first Indian justice” would at least be a talking point which the White House could use to counter the criticism of having no African-Americans on the Court. Then again, if there’s any president who’s unlikely to care about identity-politics criticism, it’s Trump. So maybe it’ll be Barrett after all.