Justice Samuel Alito’s decision to remain on the Supreme Court could leave President Donald Trump with a problem conservatives had hoped to avoid if Republicans lose control of the Senate in November.
Salon’s Heather Digby Parton argued in her latest column that Alito's decision to remain on the bench while Trump still has a Republican Senate could end up giving Democrats a valuable opportunity. Should the Democrats take control of the chamber and Alito leave the court during the last two years of Trump's term, they would then have the power to decide whether his replacement is confirmed.
It has become more difficult for the Republicans to ignore that possibility as a number of the Senate races grow more competitive in the run-up to the midterm elections on Nov. 3.
In a recent interview with CBS News, Alito, who is 76, said that he had been thinking about retiring at an earlier date this year. While the Republicans were in control of both the White House and the Senate, conservative groups had openly urged both Alito and Justice Clarence Thomas, who is 78, to step down so that Trump could replace them with a number of much younger conservative judges.
Alito chose otherwise.
“I think I can still make a contribution,” he told CBS chief legal correspondent Jan Crawford, continuing: “And it’s hard to give up the opportunity to do something that I think will be good for the Constitution and good for the country as long as I’m able to do it.”
Alito stated that political considerations had not influenced his decision, on the grounds that it was impossible to predict what the political landscape would be like in the future or who a president might choose to replace him.
However, Parton pointed out that the timing might turn out to be important.
The Republicans now have the Senate with a vote total of 53 to 47, which means Trump can send his Supreme Court nominees to a majority that supports him. In order to take control of the Senate, the Democrats will need a net gain of four seats, and in several states where the Republican Party was previously considered to have a safe majority, the races have become more competitive.
A Democratic Senate that takes office in January would make it very difficult for Trump to replace Alito with another conservative justice who can be counted on. The Senate leaders have broad powers regarding whether a Supreme Court nomination has a hearing or a vote.
During his first term, Trump nominated three justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, thus helping to establish the Court's present 6-3 conservative majority.
Alito has been one of the most significant members of the Court. He authored the 2022 decision in Dobbs v. Jackson Women’s Health Organization that reversed Roe v. Wade and has on numerous occasions supported expanding presidential authority.
According to CBS, Alito is very good at putting together five-member majorities in cases that are closely divided. However, Alito showed no signs that succession planning was having an effect on him.
“We have tried to restore the original structure of the government as it was set out in the Constitution,” he told CBS. “But that’s an ongoing project.”
It is that unfinished project which could keep Alito on the court long enough to potentially upset Trump's plans.
