By Dan Calabrese
I would like nothing better than for Clarence Thomas to live forever and to serve on the Supreme Court until it’s no longer needed because Jesus Christ has commenced His thousand-year reign.
Thomas is, has been and will continue to be a great Supreme Court Justice. I’m probably with you in enjoying the fact that he drives the left so crazy, but the real importance of Thomas’s service is outstanding jurisprudence and commitment to the Constitution. I wish we had nine of him. I wish they were all immortal.
I guess I said all that up front because I don’t want people who look at headlines but don’t read columns screaming at me for hating on Clarence Thomas. I would no more hate on Clarence Thomas than I would root for a certain awful football team that plays in a backwater village on the wrong side of Lake Michigan. (And I’m not talking about the Bears, although I have little use for them either.)
But before we celebrate the idea that Brett Kavanaugh will complete a conservative Supreme Court majority built to last yet another generation, I think we need to remember something.
President Trump could lose re-election in 2020. I know, I know . . . he’s gonna win! I love your enthusiasm. He could lose. It’s not impossible.
So let’s say he loses, and President Harris serves two four-year terms. By the end of the Harris presidency, Justice Thomas is 84 years old, and we hope – we hope! – a Republican president would succeed her. We also hope he lives that long. God willing, he will. God didn’t spare Antonin Scalia’s life during the Obama presidency. Nothing is ever guaranteed.
What I’m saying is that, assuming Kavanaugh does get confirmed, we have a reasonably solid conservative majority that seems entrenched for the mid-term if not the long term. Chief Justice Roberts is 63. Justice Gorsuch is 50. Kavanaugh is only 49. But Justice Alito is 68, and as we’ve been discussing, Justice Thomas is 70.
The age chart, on paper, presents a bigger problem for the liberal Justices. RGB is 85, while Justice Breyer is 80. The Clinton appointees are starting to look as long in the tooth as Bill himself. The Obama appointees – Kagan and Sotomayer – are only 58 and 64 respectively, and there’s no reason to think either of them is going anywhere during a Trump presidency.
So we could be looking at the prospect of RGB trying to wait Trump out until she’s 91. That’s if the next election goes our way. But if Trump is not re-elected in 2020, then certainly Thomas and possibly Alito start moving into the phase where they’re powering forward for the sake of the Court’s ideological balance.
Scalia tried to wait out Obama and he didn’t make it, but Mitch McConnell saved the country, and how many times will you be able to say that?
What a Kavanaugh confirmation will do is make the present conservative majority more solid, even it it remains only a margin of one in sheer numbers. Kavanaugh seems more likely to function as a reliable conservative than as a “swing Justice,” although there are reasons to think Chief Justice Roberts fancies himself in the latter role. Maybe the balance doesn’t really change that much at all.
But the idea that a conservative majority is locked in for a generation is silly. A lot could happen to change that, although there’s always the chance Justice Thomas could consider whether it’s time to let President Trump replace him with, er . . . Amy Coney Barrett?
If he did, it would only be about the ticking of time, not about his value to the Court. That is without question.
By the way, tomorrow is promised to no one. Not even Brett Kavanaugh. Not even you. Not even me.
Have a nice day!