Early Returns

Clarence Thomas Has a Big Decision to Make

Jonathan Bernstein's morning links.

Change is coming. Maybe.

Photographer: Andrew Harrer/Bloomberg

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 Senator 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 1 in 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.

1. Erin Mayo-Adam at the Monkey Cage on how grass-roots activists win.

2. Julia Azari on the Pennsylvania special election.

3. Good data about guns in political ads from the Wesleyan Media Project.

4. Dean Baker on Trump's picks for the Federal Reserve.

5. And my Bloomberg View colleague Francis Wilkinson on "crazy money" and the 2018 midterms

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Jonathan Bernstein at jbernstein62@bloomberg.net

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    Brooke Sample at bsample1@bloomberg.net

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