Jeffrey Toobin: Clarence Thomas may create the next Supreme Court vacancy

It looks like there could be a pending retirement from the Supreme Court — and it’s isn’t Justice Ruth Bader Ginsburg.

Jeffrey Toobin, legal analyst for CNN and The New Yorker, has made a convincing case that conservative Justice Clarence Thomas could create the next vacancy on the Supreme Court, and it’s difficult to ignore his logic.

Retirement drama

“Over the years, [Thomas] has made little secret of the fact that he doesn’t enjoy the job very much. With a conservative future of the Court secure, why wouldn’t he call it a day after twenty-eight years?” Toobin pondered this week.


According to Toobin, who graduated from Harvard Law School and worked in the independent counsel’s office investigating the Iran-Contra affair, said there are currently “two retirement dramas” affecting the Supreme Court: one that is “semi-private,” and another that is “semi-public.”

The latter story belongs to Ginsburg, who recently underwent surgery to remove a cancerous growth from her left lung. After walking away from two previous cancer scares and a heart procedure without missing so much as a single Supreme Court case, Ginsburg’s supporters couldn’t mask their apprehension when the 85-year-old missed two weeks of oral arguments in January and canceled a pair of public appearances stretching into February.

However, Toobin points to Thomas’ future as the lesser known, but “more complex drama” privately unfolding in the justice’s mind. Appointed in 1991, Thomas is the longest-tenured judge on the high court.

If he retires this year, the 70-year-old would give President Donald Trump the opportunity to appoint a young conservative replacement, and there’s almost nothing Democrats could do to stop him. Senate Republicans currently enjoy a 53-seat majority, and now that filibustering Supreme Court nominations is no longer an option, Trump would have no problem reshaping the court for decades to come.

Job dissatisfaction

Thomas hasn’t been known to relish in his position on the high court. He is uncomfortable with celebrity, and during his early years as a justice, Thomas commented that he would rather be out driving his motor home with his wife. He even told students at Chapman University in 2008 that he doesn’t even “like” being a Supreme Court justice.

However, his feelings about the judiciary may have changed recently. Toobin cited a friend of the judge who said that Thomas feels obligated to continue serving his country for as long as he is physically and mentally able. 

“I have gotten to the point where it’s like the priesthood. It’s what I was called to do,” Thomas reportedly said during a rare candid a moment at conservative gala in 2013. But despite Thomas’s newfound love for the Supreme Court, Toobin believes that Trump has been grooming the justice and quietly persuading him to retire in 2019.  

Trump rarely engages in this kind of cultivation, and it’s reasonable to speculate that he’s trying to persuade the Justice that his seat would be in good hands if he decided to leave,” Toobin predicted.

A matter of speculation

Of course, Toobin’s theory is a matter of unsupported speculation, and there are plenty of reasons to doubt his analysis. What isn’t a matter of blind conjecture, however, is how the president would respond given a sudden vacancy on the Supreme Court.

“The President would likely nominate as a replacement Amy Coney Barrett, a forty-seven-year-old judge on the Seventh Circuit,” Toobin surmised. Indeed, her credentials are practically hand-fashioned for the high court. 

A mother to seven children, two of whom are adopted from Haiti, Barrett lacks the frat boy qualities that Democrats sought to expose during the Brett Kavanaugh confirmation hearings. She graduated from Norte Dame Law School, clerked for the late Justice Antonin Scalia, and was nominated to the court of appeals by Trump in 2017.

“Whatever views she has expressed in the past, she looks like a difficult nominee to defeat,” Toobin concluded, “particularly with a loyal Republican majority in the Senate.”

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