Sen. Ted Cruz (R-Texas) said back in February that he believed there would be another Supreme Court vacancy in 2017. As a former Supreme Court clerk and member of the Senate Judiciary Committee, Cruz is well-connected and highly credible when it comes to SCOTUS rumors.
Today, the possibility of another vacancy got a big boost from Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee, who said he expects one of the current justices to resign or retire this summer. As chairman of that committee, Grassley’s word is probably as good as Cruz’s.
Grassley didn’t hint at which justice he expects to resign, but the most likely candidates are Anthony Kennedy, Stephen Breyer, and Ruth Bader Ginsburg. Kennedy is 80 years old, Breyer is 78, and Ginsburg is 83. (There has been some talk that Clarence Thomas was considering retirement, but his wife blasted those rumors.)
I would put my money on Kennedy. Ginsburg is as hard left as they come, and she would never resign under a Republican president who would replace her with a constitutionalist. Breyer is not quite as radical as Ginsburg, but he’s still pretty far left. Had Hillary Clinton won, he may have resigned, but I doubt he will under Trump. That leaves Kennedy, who likes to think he’s a constitutionalist — even though he put the Constitution through the shredder in cases like Planned Parenthood v. Casey and Obergefell v. Hodges — and would want a Republican president committed to appointing a constitutionalist to replace him. Politico also reported two weeks ago that President Trump and his kids have been cultivating a relationship with Justice Kennedy and his kids.
Trump has said repeatedly that he expects to be able to appoint at least two justices during his term. He, of course, issued a list of candidates from which he would pick and fulfilled his promise with the appointment of Justice Neil Gorsuch. He has sent mixed signals, however, on whether his second appointment would come from the same list. He would do well to stick to his word and appoint another constitutionalist if another vacancy does come.
In the meantime, prepare yourselves. As I explained in February, if Kennedy is the one retiring, he represents the swing vote on the court, and the Left will go berserk. Mitch McConnell will need to hold as firm as he did during the Merrick Garland and Gorsuch nominations.
Conservatives are watching.