Why wait for the October Surprise to upend the US presidential election? Why not one in July? Why not the retirement of Justice Clarence Thomas?
There are rumours — and denials — swirling in Washington this week, as the days following the conclusion of the Supreme Court’s term last week are often used by justices to announce they are stepping down (Justice Anthony Kennedy, whose seat was filled by Brett Kavanaugh, retired in July 2018.) And so, there is speculation that Justice Thomas (72) the longest-serving (he was confirmed in 1991) and most ardent conservative on the court, will take his leave in the coming days.
Why? So President Trump, working with Senate Leader Mitch McConnell, whose record of securing confirmation of judicial appointments is unsurpassed, can ensure a conservative retains that seat for years to come after the November election. In other words, an insurance policy for a continuing conservative majority on the court if Trump is defeated in November, and if the Senate flips Democratic.
Why? To prevent Joe Biden, if he wins the election, and especially if the Senate goes Democratic, from safely replacing liberal Justices Ruth Bader Ginsburg (87) and Stephen Breyer (81). Also, if Justices Thomas or fellow conservative Samuel Alito retire over the next four years they could place their seats in liberal hands, changing the balance on the Court.
The speculation is that conservatives — and possibly even President Trump — are pressuring Justice Thomas to do the right thing now for one of the highest callings of the conservative cause.
If this happens, how will Republicans handle it? Senator McConnell has made clear that nothing will impede his determination to get the Senate to fill any Supreme Court vacancy from now until the current Senate adjourns at midnight on 2 January 2021 – including either before or after the election.
In 2016, McConnell prevented President Obama from filling the vacancy caused by the death of Justice Antonin Scalia in February of 2016. He saw no reason why a Senate controlled by one party should confirm the Supreme Court nominee of a president of the other party in an election year. “Lets’ let the American people decide," McConnell said. McConnell ran out the clock on Obama, and the Scalia seat was vacant until the newly elected president, Donald Trump, could nominate Neil Gorsuch just 11 days after taking office, with Gorsuch confirmed 54-45 by the Republican-controlled Senate in April 2017. In 2019, McConnell said that with the Senate and White House aligned, there is no reason to delay confirmation, even in a presidential election year.
The catch? Aside from the contortionism and hypocrisy involved, the current Senate has several Republican Senators fighting for their political lives in November. The composition of the Supreme Court, and all the issues it addresses — most especially, the issue of a woman’s right to choose — is as hot politically as ever.
Would the hyper-politicisation of a Supreme Court nominee just weeks before a presidential election serve the re-election bids of endangered Republicans Susan Collins in Maine, Cory Gardiner in Colorado, Martha McSally in Arizona, Steve Daines in Montana, Thom Tillis in North Carolina?
In other words, are there 51 Republican votes in the Senate to confirm a Trump nominee to the Supreme Court in the month before the election — an unprecedented politicisation of the court?
And does President Trump want — does he need, as the polls show him at risk of defeat — the campaign adrenalin hit of a renewed pro-life, pro-Second Amendment Supreme Court to turbo-charge his re-election in November?
But, hey, if it's just a rumour, there’s nothing to it, right?