Dem
47
GOP
53
Many observers are expecting Justice Clarence Thomas (76) will soon ride off into a golden sunset in the quarter-million dollar luxury bus a supporter gave him. Justice Samuel Alito (74) is expected to follow soon after. Both of them are assured that they will be replaced by justices at least as conservative as they are, if not more so. If Kamala Harris had won, they would have had to sit it out for 4 more years at least. Now they are free to go.
For Thomas, who has a large chip on his shoulder, having the wealthy Republican megadonors who pretend they enjoy his company suddenly drop him like a lead balloon will be painful. But surely deep inside he always knew they were giving him free luxury vacations and stuff just to have the opportunity to give him their view of the world. Alito, for his part, can always write a tell-all book that will make him enough money that he can pay for his own fishing vacations without outside help.
There is already lots of speculation about which names The Federalist Society will serve up to Donald Trump on a silver platter and instruct him to nominate. One name that comes up in most lists is that of Allison Jones Rushing, who currently serves on the U.S. Court of Appeals for the Fourth Circuit, in Virginia. She is very conservative and only 42, so she could serve on the Supreme Court for at least 40 years, and maybe 50 as lifespans increase. If she replaces Thomas, there will be five women—a majority—on the Supreme Court for the first time in history. Trump could use that to try to convince women to think he is their hero (see below for more). It is possible that cases might arise in which the five women actually stick together (e.g., some nonpolitical cases relating to discrimination against women). They might even bond over them.
If Thomas and Alito retire, Trump will have named five of the nine justices. It will be the Trump court for generations to come. Five is not a record, but it is a lot. George Washington and Franklin Delano Roosevelt each got eight justices confirmed. But Trump would tie William Howard Taft and Andrew Jackson, each of whom had five. The next highest is Dwight D. Eisenhower with four.
But Trump might be able to beat Taft and Jackson. Justice Sonia Sotomayor is 70 and has severe diabetes. If she does not make it to Jan. 20, 2029, Trump would get a sixth pick. But she could foil him if she wants to. If she resigned this week, Joe Biden could pick a successor and Majority Leader Chuck Schumer (D-NY) could try to confirm her in the upcoming lame-duck session of the Senate. However, this would require one of Sens. Joe Manchin (I-WV) or Kyrsten Sinema (I-AZ) to vote with the Democrats, something that they haven't always consistently done. Will Sotomayor retire now, knowing that Trump will be president until Jan. 20, 2029? Of course not. She plans to live forever, just like Ruth Bader Ginsburg.
On Monday, Sen. Bernie Sanders (I-VT) said that he does not support urging Sotomayor to step down. Since the governor of Vermont is a Republican, Sanders (83) is also planning to live forever, just like Dianne Feinstein. Feinstein was older, but her governor was a Democrat.
If Sotomayor retired, would she have to go home and sit around like a potted plant? We don't know, but we suspect that if she asked her alma mater, Yale Law School, if they needed someone to educate the new generation of lawyers about constitutional law, they might be able to find a spot for her. Or she could surely find a job at some other top law school, write a book, or work for some foundation she likes. (V)