Call & Times

Justice Thomas has all judicial eyes on him

- By JONATHAN BERNSTEIN Bloomberg View Bernstein is a Bloomberg View columnist.

The one person who may be feeling the most pressure after the special election in Pennsylvan­ia isn't Paul Ryan or Mitch McConnell. Sure, they're both in danger of losing their respective majority statuses in November's midterm elections, but they already knew that. Nor does anything change for President Donald Trump. No, the one person who should be feeling the most pressure is Supreme Court Justice Clarence Thomas.

It was clear last spring that Thomas — if he really cares about the principles he's fought for on the court — should step down before Trump leaves office. But with what was then a 52-48 Senate majority for the Republican­s, a 2018 playing field that featured lots of vulnerable Democrats, and few endangered Republican Senate seats, there was no real hurry for him to act.

That's changed. Most analysts still believe Republican­s are more likely than not to keep their Senate majority, but it's no longer a sure thing. After Alabama's special election, the majority is down to 51-49, and normally endangered Democrats in West Virginia, North Dakota, Missouri, Indiana and other states are looking safer (though hardly safe). Republican­s entered the 2018 cycle with one difficult seat to defend in Nevada. It's now at least possible to imagine them losing in Arizona, Tennessee, Texas and Mississipp­i's second seat, an election in November to replace resigning Sen. Thad Cochran. There's even the possibilit­y of a second election in Arizona, given that Senator John McCain has yet to attend a Senate session since December and could still resign this year.

If the chances of a Democratic majority in the next Senate were remote a year ago, they're now probably somewhere between a 1-in-5 or a 1in-3 chance. Which means the pressure is on Thomas to act very soon if he wants to guarantee his replacemen­t will be named by Trump.

Sure, it's possible a Senate with a Democratic majority would confirm a Trump Supreme Court nominee, but the urge to get revenge for Merrick Garland, whom Barack Obama nominated and a Republican majority refused to consider, would be intense. If there's a Democratic majority, I'd say there's almost no way they would confirm anyone in 2020, and it's unlikely they would do so in 2019. And of course it's way too early to know whether Trump will be re-elected, let alone what would happen in subsequent elections.

It's entirely possible that the next few months will be the last chance for Thomas to be replaced by a Republican president with a Republican Senate for some time. Thomas will be 70 in June. He would be 80 before a two-term Democrat elected in 2020 would leave office. He's been on the court since 1991. He certainly seems partisan enough that he probably cares a lot about who replaces him. There's no right or wrong thing to do in these circumstan­ces; if Thomas is willing to live with the risk, as Justices Ruth Bader Ginsburg and Stephen Breyer have been, then he has every right to stick around.

I'm assuming the calculatio­ns are different for Justice Anthony Kennedy, who is already 81 but may not have strong feelings about being replaced by a Republican. If that is important to him, however, the incentives are of course even stronger for him. But I'm fairly sure there are a lot of Republican court-watchers who are rooting hard for two confirmati­ons this summer.

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