Keeping That SCOTUS Majority May Mean Some Hard Choices, And Soon
It just takes a cursory look
at the ages of current Supreme Court justice to notice that Democrats
have a distinct disadvantage, for now. That’s because its two oldest
justices, Ruth Bader Ginsburg at 86 and Stephen Breyer at 80, are both
long past the time when normal working folks typically trade in their
work boots for fedoras and beach sandals.
But SCOTUS is
no ordinary job, and these are not ordinary times. Both Ginsburg and
Breyer know the politics behind any potential retirement plans, and both
are doubtless planning to cling to their jobs like a pair of good
dentures until it’s no longer humanly possible, or a Democrat is elected
president, whichever comes first.
After Ginsburg and
Breyer the age count drops a decade, and next up is conservative
Clarence Thomas at 70, and after him another Republican appointee,
69-year-old Samuel Alito. With Roberts (Republican) and Sontomayor
(Democrat) both virtual spring chickens at 64, barring something
unforeseen, any thoughts of the court’s immediate future likey rests on
its four oldest justices.
Should President Donald Trump
get another SCOTUS pick, the conventional wisdom says it’ll likely be
to replace Ginsburg, whose health problems of late have had Democrats
pledging to donate any organ necessary to keep her alive and ticking.
However, after a brief health scare, the Nortorious RBG is back on the
bench, seemingly as strong as ever. While I certainly wish Justice
Ginsburg a long and happy life, I also wish she would just retire
already. But she’s a tough old bird, that one, with a workout routine
that would have most of us eating her dust. Most of all, she’s an
idealogue with a mission to NOT allow conservatives to gain a 6th
justice, and thus an overwhelming majority even should the
squirrely-of-late Roberts decide to pull
a belated “David Souter” on America. It’s a dedication and a thought
process I actually admire, and hope conservative justices share.
For his part, Thomas had conservatives on edge last
week when he had to quash his own retirement rumors. "I have no idea
where this stuff comes from," he said
in response. "One of the things you have to get used to in this
business ... is that people can say things about you and for you that
have nothing to do with you."
Fox
News reported that the court’s only black justice - who would set an
impressive court record as the longest serving ever in 2028 (take that,
libs) - has no plans to retire “even in 20 or 30 years.”
If
true, that’s great. But where did the rumors come from? As a
conservative, I’d be lying if I said that even rumors of Thomas’
retirement make me more than a little nervous. Consider where we were in
mid-2016, just before Donald Trump won his improbable victory: Anthony
Kennedy was the liberal-leaning “middle” vote, but originalist stalwart
Antonin Scalia had just died unexpectedly, leaving only three
conservatives on the court (yes, I’m generously calling Roberts a
“conservative”). Leftists were just one election away from having a 5-4
majority, and if Kennedy had retired, a 6-3 super-majority. In an age
where the courts unconstitutionally but nevertheless de facto rule,
where some district judge in Arizona can legislate virtually anything
from the bench, America was just a few thousand rust-belt votes away
from essentially being over.
But thankfully - and I believe Providentially -
despite the liberal media, the loony left and the hand-wringing squishy
“Never Trump” faux-conservatives, Trump did win, and we were rescued
from the brink. Has everything gone smoothly? Of course not. Sure, the
borders are still a sieve, but if you think a Democratic president
wouldn’t have thrown them wide-open, I’ve got an Arizona fence section
signed by Hillary to sell you. No, not everything has gone as we would
have liked, but even the squishys are on board with the two SCOTUS seats
and Trump’s record-setting pace of lower court confirmations. It’s
unprecedented, and it’s something that will make the next Democrat
presidential victory slightly more bearable. After all, conservative
know how to challenge executive actions through the courts too.
So yeah, we’re exponentially better off now than we would
have been had Hillary won, even if Trump loses in 2020. Nevertheless,
getting complacent would be a yuge mistake. A year and a half from now,
there’s a 50-50 chance we could be dealing with just that - a Democratic
presidential victory. Should Ginsburg and Breyer both retire at that
point, age will be replaced with youth and the clock will again be on
the left’s side. Sure, we’d presumably still have five justices, but
should one of those decide to retire or be forced by a medical setback
to step down, we’ll be right where Democrats find themselves now.
If I could wave a magic wand and get a message to Justice Thomas, I would say this:
You’ve
had a remarkable run and we’re forever in your debt. If you’ve got 20
or 30 more years in you, more power to you. However, if there is
anything at all to those rumors, and you’re even thinking about
retirement, please consider doing it in the next year, when you can be
safely replaced by a younger conservative justice.
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