85 year-old Supreme Court Justice Ruth Bader Ginsburg was hospitalized today after she broke 3 ribs falling in her office. Everyone, I hope, wishes her a speedy recovery, but given the recent Republican gains in the Senate, speculation about her replacement is natural.
According to the political prediction market PredictIt, Justice Ginsburg is far-and-away the most likely justice to retire next. She stands at 72%; behind her, at 31%, is the conservative Justice Clarence Thomas.
It’s not inconceivable that Ginsburg would seek retirement during this current Trump term. If so, he will likely replace her with the conservative pro-life Amy Coney Barrett, who was among the people considered for the seats that eventually went to Justice Gorsuch and Justice Kavanaugh. PredictIt gives Barrett at 40% chance of being the next Justice. The next most likely pick is Britt Grant at 15%.
Barrett is a smart play; several people, myself included, floated the possibility of Kavanaugh being withdrawn and replaced with Barrett during the controversy around his alleged sexual assault. Barrett is very conservative, and the new seats picked up by the GOP on Tuesday will give the party enough room to lose moderates like Susan Collins and still push Barrett through. The “optics,” as much as I hate that term, are also great for Barrett: Justice Ginsburg is a feminist icon and replacing her with another middle-aged white man like Gorsuch or Kavanaugh – who could be sunk by sexual assault allegations -- would be difficult.
If Justice Ginsburg chooses to retire, Barrett is the most likely replacement, and conservatives should be very happy with that result. Trump should not mess up this opportunity by nominating a moderate. He now has a cushion in the Senate that he can use to get another real conservative and secure a Supreme Court advantage for years to come.