NPR (“Biden says the next president may get to name two Supreme Court justices“):
President Biden on Saturday night said he expects the winner of this year’s presidential election will likely have the chance to fill two vacancies on the Supreme Court – a decision he warned would be “one of the scariest parts” if his Republican opponent, former President Donald Trump, is successful in his bid for a second term.
[…]
“The next president is likely to have two new Supreme Court nominees. Two more. He’s already appointed two that have been very negative in terms of rights of individuals,” Biden said. Trump named three justices during his term – Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett – cementing the conservative majority on the bench.
[…]
This is the second recent time Biden has mentioned potential future vacancies on the courts. He told a campaign rally last month that he would name “progressive judges” to fill vacancies. “The next president — they’re going to be able to appoint a couple of justices,” Biden said in Philadelphia at the launch of an effort to court Black voters.
“Look: if, in fact, we’re able to change some of the justices when they retire and put in really progressive judges like we’ve always had, tell me that won’t change your life when Trump justices are already gutting voting rights, overturning Roe, decimating affirmative action, and so much more,” he said that event.
Here is a list, from oldest to youngest, of the current Justices:
- Justice Thomas, 75
- Justice Alito, 73
- Justice Sotomayor, 69
- Chief Justice Roberts, 69
- Justice Kagan, 63
- Justice Kavanaugh, 58
- Justice Gorsuch, 56
- Justice Jackson, 53
- Justice Barrett, 52
If Biden wins, he’ll almost certainly get to appoint Sotomayor’s replacement. (He could potentially do that even if he loses, as she could resign on the day after the election, and Biden could rush a replacement through the current Democratic-majority Senate in much the way Trump did with Barrett when Ruth Bader Ginsburg passed.) Thomas and Alito would likely try to wait him out but that gets harder in your 70s.
Now, imagine you’re a Senator who thinks the rulings since Trump changed the makeup of the Court are a good thing, indeed. Even if you privately think—as most of them almost certainly do—Trump is a horrible human being who is otherwise unfit for the office, wouldn’t the prospect having three Biden Justices on the Court weigh heavily on your thinking?
Indeed, if Trump were re-elected, he would almost certainly replace Thomas and Alito with Justices who are 20 or so years younger. And quite possibly replace Sotomayor and Chief Justice Roberts to boot. That would make seven of the nine Justices Trump appointees.
If you think that’s a frightening prospect, consider how Trump’s co-partisans feel. That’s enough to overcome a lot of “what’s good for the country” instinct, especially if you think the makeup of the Court is a big part of that.
