No, not Roberts. Sorry to disappoint.
Conservative lawyers are shaking their heads on social media, reminding friends that we go through this every year. It’s practically a summer ritual. How many times did we do the “Is this it for Kennedy?” routine before Kennedy finally decided to throw in the towel?
But there’s reason to think this year is different. 2020 is different in every other way. Why should SCOTUS be an exception?
After reading my latest Post report, @hughhewitt tells his radio audience this morning that he hears from several leading conservatives that Justice Alito, 70, is considering retirement, and adds that he also hears the Alito family is ready to leave Washington, D.C.
— Robert Costa (@costareports) July 1, 2020
Hmmm! The Post report to which Costa refers is this story, which mentioned the possibility that Alito — or Clarence Thomas — might be about to pack it in.
There are also ongoing discussions between Trump advisers and conservative leaders about the possibility of a Supreme Court vacancy in the coming months — a tantalizing prospect for Republicans who value the court above all other issues and are eager to have Trump have one more opportunity to nominate a justice before the election.
Justice Clarence Thomas, a conservative appointed by George H.W. Bush, is privately seen by Trump’s aides as the most likely to retire this year. While Thomas has not given any indication of doing so, the White House and Senate Republicans are quietly preparing for a possible opening, according to a White House official and two outside Trump political advisers who spoke on the condition of anonymity to discuss the private conversations.
“If Thomas goes, you’ve got a lot of people around this process ready to support Thapar — and McConnell ready to move his favorite through,” said one of the outside Trump political advisers, referring to Judge Amul R. Thapar of the U.S. Court of Appeals for the 6th Circuit.
Are Republicans “quietly preparing for a possible opening” out of an abundance of caution, so that they’re ready just in case Thomas or Alito shocks the world? Or are they preparing because Thomas or Alito has let it be known privately that they should prepare?
Coincidentally, CNN also has a report out this morning about the president’s fond hope that he’ll have a seat to fill soon:
It’s an alluring prospect Trump believes could galvanize both his loyal base but also provide an opportunity to improve his standing among those voters whose support he is now hemorrhaging, people familiar with Trump’s thinking said…
As President, Trump has cultivated a relationship with Clarence Thomas, who turned 72 last week and is the court’s most senior associate justice. He has invited Thomas and his wife Ginni to join him and the First Lady for dinner in the White House residence and has sent birthday wishes in past years. The Thomases were invited to a state dinner held in honor of Australia last September. An increasing number of former law clerks to Thomas have been appointed by Trump to top US courts…
Even to some inside the White House, the relationship between Trump and the Thomases has been the subject of speculation. Some aides have privately wondered whether Trump’s courtship of the pair was motivated by some political ends, like orchestrating a conveniently-timed retirement.
Maybe there’s nothing to any of it. The Court’s term is ending; inevitably the media will turn to retirement speculation. What could be juicier to them than the prospect of a partisan nuclear war over a SCOTUS vacancy with an election four months away and Trump fighting for his political life against the pandemic and civil unrest?
But look at it from the perspective of Thomas or Alito. The political world has been upended over the last three months. In February Trump was no worse than a 50/50 gamble on reelection — probably higher given that Bernie Sanders looked like the presumptive Democratic nominee. Five months later Trump is a heavy underdog against the more electable Joe Biden, with the conservative justices now facing the prospect of having to serve four more years on the Court or else resign themselves to a Democratic president appointing their successor. Liberals have spent the last four years groaning that Ruth Bader Ginsburg, whose health remains fragile, should have taken one for the team and retired while Obama was in office. Now she’s stuck having to tough it out until January — and if Trump pulls an unexpected comeback in November, she’ll likely have no choice but to let him fill her seat sometime before 2024.
Thomas and Alito are suddenly at risk of finding themselves in that same boat next year. Senate Republicans have been worried about it for awhile too. In mid-March, when the GOP was in a much better position politically than it is today, McConnell and his team reached out to older federal judges to warn them that if they had any inclination towards retirement, now was the time. Lindsey Graham made that same pitch publicly in an interview on Hewitt’s show in late May, saying, “[I]f you’re a circuit judge in your mid-60s, late 60s, you can take senior status, now would be a good time to do that, if you want to make sure the judiciary is right of center.” The smart play for a conservative judge who wants his or her seat controlled by a conservative for years to come is to quit now and let Trump and McConnell confirm a successor before January.
That logic applies even more forcefully to Thomas and Alito. And they know it.
The politics of a conservative vacancy should help the GOP electorally but probably not as much as they did in 2016. McConnell’s obviously not going to hold open a newly vacant seat pending the outcome of the election as he did with Scalia’s four years ago. He’s already vowed to fill any opening on the Court before the election, noting repeatedly that the Merrick Garland precedent doesn’t apply when the White House and the Senate are controlled by the same party. (Lindsey Graham has now adopted that view as well, although two years ago he was singing a different tune.) If WaPo is right that McConnell favorite Amul Thapar is in line for the next seat then he’d have all the more reason to ram the confirmation through. That should help Trump and the GOP at the polls by giving righties something to cheer for at a moment when cheerworthy news is in short supply. A partisan bar brawl with Democrats over the Court is good for morale.
And really, anything that changes the subject from COVID-19 and economic pain and mass demonstrations against police brutality can only help Republicans.
But the fact that the seat would be filled before Americans go to vote is a double-edged sword. In 2016, of course, Scalia’s seat remained open on Election Day, a key incentive in convincing Trump-wary righties to hold their noses and vote for him. That incentive would be absent this time, and the fact that Trump had managed to fill three seats in just four years — more than any president since Reagan, including two-termers Clinton, Bush 43, and Obama — might convince some right-leaning independents that he’s already done as much on this front as he can reasonably be expected to do. No need to hand him another four years to remake the Court when he’s already done more in that respect than any president this century.
The flaw in that logic is that it seems unlikely Ginsburg and maybe Breyer will insist on staying another four years so Trump would be able to remake the Court further if rewarded with a second term. But the flaw in that logic is that the likelihood of a Ginsburg or Breyer retirement is already priced into Trump’s political stock and it hasn’t stopped him from trailing Biden by 10 points nationally. Maybe filling a new vacancy before the election would change that by “reminding” voters that control of the Court is important, but that works both ways. It would also remind Biden-wary lefties that they’re looking potentially at a 7-2 Trump-dominated conservative SCOTUS majority by the end of 2024, which may be all the incentive they need to hold their noses and vote for Joe. And a third Trump appointment may further embolden the liberal nuts who want to pack the Court when they take back Congress, a possibility John Roberts seems worried about given his attempts to appease the left with some key rulings over the past few weeks.
But what a vacancy would mean for Trump’s chances is a secondary consideration from Thomas’s and Alito’s standpoint. If they don’t want to serve for several more years then now’s the time to bail.