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Another Supreme Court Vacancy This Summer?

Supreme Court Building

Speaking at a town hall in Iowa yesterday, Senate Judiciary Committee Chairman Chuck Grassley hinted that we could see another Supreme Court vacancy coming by the end of the current term of Congress:

MUSCATINE — During a visit to Muscatine Tuesday morning, U.S. Sen. Chuck Grassley, R-Iowa, the chairman of the Senate Judiciary Committee, said he expects a Supreme Court Justice resignation within the year.

“I would expect a resignation this summer,” he said.

An upcoming resignation has been “rumored,” he said, but he did not name a justice. The question was posed to him during a question-and-answer session at Kent Corporation headquarters, by Kent employees, National Association of Manufacturers members and elected officials at Kent Corporation headquarters.

A person would likely be nominated from the same list from which recently appointed Justice Neil Gorsuch was chosen, Grassley said, most of whom he said are well-qualified.

“I don’t know about racial and ethnic divisions, but there’s some very good females on there that would make good Supreme Court Justices as well,” he said.

When questioned about the possibility of more resignations, he said it could be possible, but hearings would likely not be held during an election year. When former President Barack Obama nominated Merrick Garland to take the place of the late Justice Antonin Scalia, Grassley and other Republicans opposed holding hearings until the election was over.

“If there’s a vacancy in the last year of a presidency, people ought to have a voice,” he said.

The obvious caveat here is that Grassley could be guessing as much as anyone else when it comes to this subject. In the end, the only person who knows whether or not a Supreme Court Justice is considering retirement is that Justice and perhaps some members of their family. It’s also possible that the Justice in question has discussed the possibility with some of his or her fellow Justices, or with their clerks, but it’s unlikely that any of those people would leak any such speculation to the press or to other players in Washington politics. Therefore, unless the Justice in question has discussed the matter directly with Grassley, which seems unlikely, or with the President and others at the White House, which isn’t necessarily out of the question, any speculation about who, if anyone, might be retiring, is just that, speculation. It’s also worth noting that all of the then-sitting Justices had hired their full slate of clerks for the term beginning in October 2017 as of January of next year. Typically, if a Justice is thinking of retiring they will hold back on hiring clerks since a retired Justice is only given the budget to hire one clerk rather than the four clerks permitted for an active Justice. Of course, this doesn’t discount the possibility that a Justice might change their mind about retirement after hiring their clerks, or that circumstances such as health might necessitate retirement after that decision. However, in the past, the clerkship hiring watch has been a good guide when it comes to speculating about impending retirements on the nation’s highest Court.

Despite these caveats, as Ed Morrissey notes this morning, there have been rumors bouncing around Washington, D.C. since the debate over the Gorsuch nomination began in the Senate that Justice Anthony Kennedy could retire at the end of the current term. Kennedy has been on the bench since he was confirmed in early 1988 after having been nominated in late 1987 in the wake of the failure of the Robert Bork nomination and the withdrawal of the nomination of Judge Douglas Ginsburg amid revelations that he’d smoked marijuana with students while a Law Professor at Yale. Since Justice Scalia’s passing, he has been the longest-serving Justice on the Court, a position that gives him the responsibility of assigning opinion-writing duties when the Chief Justice is not in the majority or the dissenting group. At eighty years old, and eighty-one as of this coming July, Kennedy is the second-oldest Justice on the Court after Ruth Bader Ginsburg. Given all of that, it’s entirely possible that Kennedy has reached the point where he’d like to enjoy some time off the bench enjoying retirement and family.

It’s also possible that Grassley could be right, but that the potentially retiring Justice could be someone else. It’s unlikely that any of the younger Justices — Justices Kagan, Sotomayor, Justice Alito, and Chief Justice Roberts — are going to retire at this point. That leaves the older Justices, which includes Kennedy and also Justices Ruth Bader Ginsburg (84 years old), Stephen Breyer (currently 78 and turning 79 in August), and Thomas (currently 68 and turning 69 in June). Quite honestly, it seems unlikely that either Justice Ginsburg or Justice Breyer would retire voluntarily (i.e., for anything other than a medical reason) while a Republican was President, so let’s cross them off the list for now. That leaves either Kennedy or Thomas. While Thomas is younger than Kennedy, there has always been some speculation that he may choose to retire while still healthy, perhaps to spend more time on what has been his long-standing summer habit of traveling the country with his wife in an RV, often showing up in random Facebook photos at an RV park in the middle of nowhere out West. At the same time, it’s worth noting that if Kennedy retires, Thomas would become the longest-serving Justice and that would give him the tenure authority that Kennedy now enjoys. In the end, we won’t know for sure unless and until we hear from a Justice themselves.

Assuming we do get a vacancy, it would be the second for President Trump in a very short period of time and would be the first to be fully considered by the Senate under the new rules that apply since the Republican majority employed the nuclear option to end the filibuster for the nomination of Supreme Court Justices. If the retiring Justice is indeed Kennedy, this would be especially significant given the fact that Kennedy has been the swing vote on the Court between the conservative and liberal blocs on a number of issues for several years now, ranging from abortion and affirmative action to LGBT rights, where he has played an important role dating back more than a decade to the case of Romer v. Evans and up to 2015’s Obergefell v. Hodgeswhich voided remaining state laws outlawing same-sex marriages. With the requirement for sixty votes to end debate on a nomination no longer applicable, Republicans in the Senate would be able to proceed forward to confirmation of whoever the President chooses to nominate, and there would be little if anything Democrats would be able to do to stop it. This was the main reason why some observers were warning Democrats not to push a filibuster on Gorsuch and force Republicans into pressing the nuclear button to confirm him, because they will essentially be powerless to stop the confirmation of a Justice that could have a far more substantial impact on the ideological direction of the Court for a generation to come.

H/T: Ed Morrissey

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    It’s really rather bizarre that Ginsburg and Breyer didn’t retire while Obama was president, given their advanced age. I guess they were counting on Clinton winning the election but a heck of a gamble.

    Like or Dislike: Thumb up 8 Thumb down 1

  2. MBunge says:

    @James Joyner:

    Let’s remember that there was great resistance from liberals to the suggestion that Ginsberg step down to let Obama pick a younger replacement. And that resistance was based largely on love for an internet meme.

    Mike

    Like or Dislike: Thumb up 2 Thumb down 11

  3. CSK says:

    @James Joyner:

    Retrospectively it looks like the two made a very bad bet. But…didn’t practically everyone, with good reason, expect Clinton to win? I certainly did. I didn’t even bother to watch the returns that night.

    Like or Dislike: Thumb up 6 Thumb down 0

  4. James Joyner says:

    @CSK: Yes, I expected it as well and dismissed the possibility well into the evening, seeing the early returns as outliers. Still, they’re so old that they ought to have retired regardless.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. @James Joyner:

    Based on some of her comments, Ginsburg was clearly assuming that Clinton would win the election and likely would have retired this summer if that had happened. I wrote several times about pressure from liberals on her to retire while Obama was in office, written both before and after the 2012 election, and the off-the-record response from Ginsburg’s office was basically “Hell, no.”

    At this point, one could see them holding out until at least after 2020 in the hope that Trump is a one-term President. At that point, Ginsburg would be 88 years old. The oldest person to ever serve on the Supreme Court, by the way, was Oliver Wendell Holmes Jr., who retired in 1932 and ended up being replaced by Justice Cardozo notwithstanding the fact that the President who made the nomination was a Republican, Herbert Hoover.

    Like or Dislike: Thumb up 2 Thumb down 0

  6. James Pearce says:

    The obvious caveat here is that Grassley could be guessing as much as anyone else when it comes to this subject.

    He’s guessing about the timing, sure, but it’s inevitable that another spot will open up, and it’s smart to have a plan in place to deal with it. That way they’re not caught flat-footed ala Scalia.

    Like or Dislike: Thumb up 1 Thumb down 2

  7. @James Pearce:

    GIven that we’ve got four Justices older than 65, and two older than 80, yea another retirement at some point during Trump’s Presidency is inevitable. Whether it’s this year or later is the question.

    Like or Dislike: Thumb up 2 Thumb down 1

  8. Moosebreath says:

    @James Joyner:

    Justice Ginsburg discussed retiring in 2014 and said that she did not think a replacement for her could have been confirmed in 2013:

    “I asked some people, particularly the academics who said I should have stepped down last year: “Who do you think the president could nominate and get through the current Senate that you would rather see on the Court than me?” No one has given me an answer to that question.”

    Like or Dislike: Thumb up 7 Thumb down 0

  9. MarkedMan says:

    Bear in mind that in today’s Republican Party, no senator could safely vote for a Democrats nominee, whether it occurs in year 1 or year 4. The RWNJ machine would swing into full gear and make their lives sheer hell. As the Garland nominee proved, no Democratic appointee will be confirmed unless the Dems also hold the Senate

    Like or Dislike: Thumb up 6 Thumb down 0

  10. al-Alameda says:

    @Doug Mataconis:
    @James Joyner:
    If Ginsburg had retired for reasons of health early in Obama’s 2nd term, I believe that Merrick Garland would probably have been acceptable to McConnell at that time, because Garland is moderate and because Garland is not young.
    Keep in mind, that’s assuming that he would not have held the seat open for 2 years (pending 2014 mid-terms) or 4 years (pending the 2016 election), and that’s not a sure thing.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. gVOR08 says:

    @MBunge: Let’s see, you wrote:

    Let’s remember that there was great resistance from liberals to the suggestion that Ginsberg step down to let Obama pick a younger replacement.

    And @Doug Mataconis: wrote:

    I wrote several times about pressure from liberals on her to retire while Obama was in office, written both before and after the 2012 election

    Who to believe?….. Oh, Doug.

    Like or Dislike: Thumb up 7 Thumb down 0

  12. Tony W says:

    @James Joyner:

    It’s really rather bizarre that Ginsburg and Breyer didn’t retire while Obama was president, given their advanced age. I guess they were counting on Clinton winning the election but a heck of a gamble.

    Based on Garland’s nomination, resigning might have been an even bigger gamble.

    Like or Dislike: Thumb up 4 Thumb down 0

  13. @al-Alameda:

    It’s worth noting that the GOP didn’t control the Senate until 2015. Confirmation would have been a potentially easier process if she had retired between 2009 and 2014 when Democrats controlled the Senate.

    Like or Dislike: Thumb up 2 Thumb down 2

  14. CSK says:

    @Doug Mataconis:

    Power is very seductive, and a supreme court justice wields tremendous power, for good or ill. We could all be over-thinking this. Maybe Ginsburg stays on just because…she enjoys the power and what she can do with it.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. teve tory says:

    At this point, one could see them holding out until at least after 2020 in the hope that Trump is a one-term President. At that point, Ginsburg would be 88 years old. The oldest person to ever serve on the Supreme Court, by the way, was Oliver Wendell Holmes Jr.,

    All she has to do is hold out til January 1, 2020. Because the highly principled McConnell surely wouldn’t let trump replace a Supreme Court justice in an election year, right? I mean, the Will of The People must decide, everyone knows that.

    Like or Dislike: Thumb up 5 Thumb down 0

  16. Weasler says:

    The rumor is it’s Breyer. Couple that with Ginsburg dropping out in a year or so, and we can shelve liberalism for the next generation.

    Like or Dislike: Thumb up 2 Thumb down 6

  17. Weasler says:

    Dream on if you think Trump will not be reflected. He most definitely will – you’ll see.

    Like or Dislike: Thumb up 2 Thumb down 8

  18. Weasler says:

    Let’s hope the hag retires tomorrow.

    Like or Dislike: Thumb up 3 Thumb down 13

  19. MarkedMan says:

    @Weasler: “reflected”?

    Like or Dislike: Thumb up 3 Thumb down 0

  20. george says:

    @Weasler:

    Depends upon whether the Dems can come up with a charismatic candidate; I’m certain that Obama for instance would have beaten Trump this year. I get this from talking to relatives who voted for Obama twice, for Trump this time, but who said their first choice would have been Obama a third time – and these are people who don’t follow politics at all (like most of the population), but vote on who they like the best on a personal level. Obama they liked. Both Trump and Clinton they disliked, but Trump was livelier, so they went with him. Crazy way to choose, but that’s what a lot of people do (and even more don’t bother voting at all).

    The next election (probably true for the last few decades actually) will be determined not by policies or how people feel about issues, but by who has the most charismatic candidate. When was the last time the least charismatic candidate won … maybe Nixon? Even Bush the elder won because he was more charismatic than Dukakis (though neither were high on the charisma scale). The GOP is stuck with Trump for 2020. The Dems have time to look for someone more charismatic than him (yeah, that’s being cynical, but it seems to be the way it works if you go by results rather than theory/philosophy/ideology).

    Like or Dislike: Thumb up 3 Thumb down 1

  21. KM says:

    What I’m waiting for is the inevitable backtracking on “balance”. After all, it was considered imperative to make sure “Scalia’s seat” went to a conservative, so much so the GOP broke rules and precedents left and right to deny Obama his constitutional duty. Will those same people say the soon-to-be vacant seat is a liberal seat and Trump needs to nominate one to replace a liberal judge? Or are we going to see even more rank hypocrisy with them bleating “We Won!!11!” and conservatives drooling over complete court dominance?

    Three guesses and the first two don’t count.

    Like or Dislike: Thumb up 9 Thumb down 2

  22. Davebo says:

    @Weasler:

    Trump is already being reflected, and it’s reflected in his abysmal approval ratings.

    Like or Dislike: Thumb up 6 Thumb down 2

  23. Jen says:

    @al-Alameda: If Ginsburg had retired and Garland had been the choice, yes, he would have likely been confirmed.

    He’s not as liberal as she is, and it would not have flipped the balance of the Court.

    I read “Sisters in Law” about Sandra Day O’Connor and RBG, and RBG really wants someone in her mold to follow her. It’s unlikely, given a whole lot of factors.

    Like or Dislike: Thumb up 3 Thumb down 0

  24. wr says:

    @James Joyner: “It’s really rather bizarre that Ginsburg and Breyer didn’t retire while Obama was president, given their advanced age. I guess they were counting on Clinton winning the election but a heck of a gamble.”

    Um,, James? Did you happen to notice what happened when there was a vacancy on the court under Obama? Google “Neal Gorsuch” and read for yourself.

    Like or Dislike: Thumb up 5 Thumb down 0

  25. wr says:

    @Doug Mataconis: “It’s worth noting that the GOP didn’t control the Senate until 2015. Confirmation would have been a potentially easier process if she had retired between 2009 and 2014 when Democrats controlled the Senate.”

    Maybe she should have just turned down the original appointment, and then there wouldn’t have been any problem.

    Like or Dislike: Thumb up 3 Thumb down 0

  26. Gustopher says:

    Retired justices don’t have a very long lifespan. This is a job that people generally don’t want to retire from, and I’m not going to begrudge Ruth Bader Ginsburg or Stephen Breyer for being like the vast majority of the justices in the last fifty years.

    That said, my guess is that this story is entirely made up.

    But, failing that, I’ll put in a dark horse guess for Gorsuch — he secretly hates cafeteria duty, and wants out. He’s checked off “be a Supreme Court Justice” from his bucket list and wants to move on to climbing Mt. Everest, driving a Lamborghini while blindfolded, and hosting “The People’s Court”.

    Like or Dislike: Thumb up 3 Thumb down 0

  27. Justice Ted Cruz and Justice William Pryor says:

    It is very likely that Kennedy will be the one to retire. After that Ruth Bader Ginsburg will kick the bucket in time. When she does kick the bucket President Trump will get another nomination. Stephen Breyer is roughly 80 years old so Trump may have yet even another bite at the apple.

    When you add Gorsuch to Thomas and Alito and then add two more Trump nominees it is possible that we can get rid of such atrocious decisions as Roe vs Wade and Obergfell. Momentum is definitely on the side of the good guys.

    I am so glad we got rid of the filibuster. That means President Trump can nominate a true conservative such as William Pryor or Ted Cruz.

    Like or Dislike: Thumb up 1 Thumb down 11

  28. al-Alameda says:

    @Weasler:

    Let’s hope the hag retires tomorrow.

    Let’s hope you get a life outside your mother’s basement and blackout drapes by tomorrow.

    Like or Dislike: Thumb up 5 Thumb down 0

  29. Just 'nutha ig'nint cracker says:

    It’s possible that Grassley knows; on the other hand, it’s likely that he was simply blowing smoke for what he perceived to be a pro partisan crowd.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. teve tory says:

    I expect breyer or kennedy or RGB will falter, and we’ll get a conservative majority. 78, 80, and 84 with 2 bouts of cancer. An insurance company would bet against them. So frankly i think the odds are better than even that Roe will get jacked. One of the reasons i spent all my savings to move from a red state to a blue state is that people in the red states suffer the most when conservatives get power.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. Kylopod says:

    @Weasler:

    Dream on if you think Trump will not be reflected. He most definitely will – you’ll see.

    I may not be exactly much of a Trump fan, but I will concede he is no vampire.

    Like or Dislike: Thumb up 4 Thumb down 0

  32. Kylopod says:

    @george:

    The next election (probably true for the last few decades actually) will be determined not by policies or how people feel about issues, but by who has the most charismatic candidate. When was the last time the least charismatic candidate won … maybe Nixon? Even Bush the elder won because he was more charismatic than Dukakis (though neither were high on the charisma scale).

    1. You are talking about “charisma” as if it’s an objectively definable and measurable quality–a very questionable assumption (especially if you’re applying it to someone like Trump, who is not in any way whatsoever the traditional image of a candidate with “charisma”).

    2. Nixon’s election and landslide reelection are indeed a serious flaw in the theory that the more charismatic candidate always wins, and while you seem to be arguing that he’s the exception that proves the rule, the fallacy in your argument is that charisma isn’t necessarily the ultimate reason those other candidates won. Reagan certainly had charisma, but almost any Republican would have beaten Carter in 1980. Same with Obama in 2008, wrt Democrats. And while Bush Sr. in 1992 wasn’t quite as hapless as Carter, he still had fairly low approval ratings and was facing the effects of a recession, not to mention a near-mutiny within his own party, so it’s quite plausible that someone of less charisma than Bill Clinton would have beaten him.

    3. The economy is doing fairly well right now, thanks to 8 years of solid Democratic governance, but the country is overdue for a recession, something that Trump’s policies could easily hasten. And that’s not to mention the innumerable things that could go wrong on the foreign policy front. But what if the economy continues to hum along or even improve, and the world isn’t in the process of cracking open and swallowing us all by 2020? In that case it’s likely Trump will be easily reelected, even with a thin record of accomplishments and obvious incompetence. I’m not saying the “charisma” of his Democratic opponent is irrelevant, but it’s at least tad more secondary than you’re suggesting.

    Like or Dislike: Thumb up 1 Thumb down 0