It might be time for Clarence Thomas to hang it up. Well, that is, if Republicans build on their Senate majority.
No one can replace the conservative jurist. Just choosing an adequate successor seems like an impossible task in light of the colossal contributions Thomas has made to originalist jurisprudence. That is why he might prefer to quit while there’s a chance to replace him with someone who won’t destroy his life’s work.
Don’t misunderstand. Thomas clearly has plenty of good years on him. His mind is still brilliant and his pen sharp. The problem isn’t even that the justice just celebrated his 70th birthday this past June. The worry comes courtesy of the GOP. If Donald Trump doesn’t win in 2020 or of Republicans lose the Senate that year, Thomas could find himself in a similar situation to that of 85-year-old Ruth Bader Ginsburg today.
This is the last thing his adoring army of law clerks wants to hear, of course. On the 25th anniversary of his Supreme Court confirmation, Berkeley Law Professor John Yoo insisted Thomas had merely reached “halftime” in his career. That may be true. It does nothing to change the fact that, unless future generations suddenly get super-conservative, subsequent congressional classes are likely to move farther and farther to the left, making even half as qualified a justice less and less likely.
Thomas shouldn’t spend his golden years doing planks and pistol squats or leg lifts and lunges in a slow-motion slugfest with Father Time like RBG. The justice should spend it on the open road behind the wheel of his beloved RV. Therefore, he ought to retire while Mitch McConnell is still majority leader.
For this grand judicial bargain to work, Republicans need to pick up two seats at very least. They need to insure against a parliamentary sabotage posed by pro-abortion Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine.
First, add two senators. Any combination of the would-be will do — Mike Braun of Indiana and Marsha Blackburn of Tennessee or Kevin Cramer of North Dakota and Patrick Morrisey of West Virginia.
Second, find a nominee. The White House has some names lying around. If Thomas likes the candidate, he steps down. If Thomas protests, Republicans pick again until they find the right fit.
The next justice won’t compare. They can never compare even if the nominee were some kind of constitutional cyborg designed by Leonard Leo at the Federalist Society and assembled in the bowels of the Heritage Foundation.
But losing Thomas the man is more manageable than losing his legacy altogether. If Republicans hold the upper chamber then, the judge should head for the exit. His country needs him too much for him to stick around and risk everything on the politicking skills of Senate Republicans.
