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Neomi Rao is really happy she wrote that garbled mess of a Michael Flynn opinion. The DC Circuit judge who threw any semblance of conservative jurisprudence to the wind to offer up the result that Donald Trump dearly wanted now has to consider herself in prime position for a crack at the United States Supreme Court.
Rumors are circulating around Washington that Trump — and more to the point Mitch McConnell and Leonard Leo — may get the opportunity to install not one but two life-tenured justices on the Court while the economy burns and the plague spreads with abandon. It’s a real Hugo Black-John Harlan II double-whammy kind of thing.
The rumors that Clarence Thomas plans to retire come up every year and every year disintegrate like voting rights in the wind. In fact, we just heard from sources close to Thomas a few weeks ago that Thomas has no plan to retire. Back in 2016 there was scuttlebutt that Thomas wanted to retire after the election and there is the chance that he sees this as his last opportunity to secure the Supreme Court’s conservative majority before a Biden administration comes in.
But Thomas is very much an “I alone can fix it” kind of guy. His reasoning, if not his results, mark him as an outsider even among other conservative jurists. He doesn’t believe he can be replaced by some 40-something FedSoc gunner. At 72, he’s got a good shot to make it until after the 2024 election when America trades in its slow, plodding ascent out of the COVID recession hole by opting for a spin of the Trumpism wheel.
But the possibility of Alito retiring — supposedly the “stronger rumor” — is a different story.
Hugh Hewitt is famously and consistently wrong. His gossipy takes are routinely debunked and he just marches on without consequence awaiting the moment that the broken clock is right. But Alito is 70 and much more likely to see himself as a replacement value player. They print Alito clones by the hundreds at law schools around the country and he can easily hand over the keys.
This exchange between Elie and Mike Sacks sums it up:
But, unless something radical changes, let’s chalk this all up to conservative wishcasting. Just like Chuck Grassley constantly tweeting about judicial retirements, the White House labors under the delusion that clumsily leaking that they’re “preparing” for a Supreme Court retirement will cause one of the justices to say, “You know, I wasn’t even thinking about quitting the most important job I’ll ever have, but now you’ve got my attention!”
But for today, let Neomi have her moment looking into the mirror and saying those magical words every conservative longs to say, “Banning abortion is necessary to enforce the Voting Rights Act.”
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.