Ex-prosecutor warns Alito close to repeating RBG’s defining mistake

Supreme Court Justice Samuel Alito has long put off plans to potentially retire from the Supreme Court, and as one former federal prosecutor argued for The Hill, this may now have set him up to make the same mistake that ended up staining the legacy of Ruth Bader Ginsburg.

James D. Zirin is a legal analyst and former federal prosecutor in the Southern District of New York, who frequently publishes columns for The Hill. In his latest piece from Tuesday, he explained how Ginsburg, one of the court's most famous liberal justices, continued working throughout the Obama administration, instead of retiring and allowing another liberal justice to replace her.

Instead, she was forced to try to wait out the first Trump administration and tragically passed away just weeks before the 2020 election, allowing Trump and the Republican Senate to swiftly confirm Amy Coney Barrett as her replacement.

"Justice Samuel Alito, now 76, may well suffer from Ginsburg syndrome," Zirin explained. "The new Senate, with its decisive Democratic majority, is unlikely to confirm a hard-right justice. But the new Senate will not be seated until January. If Alito wants to preserve his legacy for a generation, he needs to retire immediately while the MAGA Republicans still hold the majority."

He added: "But according to the New York Times, Alito has told friends he does not plan to step down before the end of the court’s term in June, even though Democrats will assume Senate control in January. Alito shared his plans with friends after the election results were clear this week. As recently as last month, the conservative Alito had rejected the idea that he would step down if Democrats took control of the Senate."

“I intend to stick around through this term,” he told Bloomberg News in October.

Unless Alito, or a different conservative justice, retires by January 3, Zirin explained, Republicans will have "probably missed their window of opportunity for Trump to name a fourth justice to the Supreme Court in the final two years of his presidency." Even if a vacancy were to emerge promptly, some observers have argued that it is already too late.

"Despite the speculation, legal experts largely agreed after Election Day that fast-track retirements would not guarantee confirmation of a successor," Zirin explained. "The Republicans hold a majority in the present Senate of 53-47. But a nominee would face the possible defection of departing Republican senators such as John Cornyn (R-Texas) and Bill Cassidy (R-La.), who were defeated in primaries by Trump-backed challengers."

He continued: "In addition, there is Sen. Susan Collins (R-Maine), a moderate who lost on Tuesday. She claims Justice Brett Kavanaugh misled her on overruling Roe v. Wade during his stormy confirmation hearing. And there is the maverick Sen. Lisa Murkowski (R-Alaska), who may desert the fold. The group may have had little appetite to help Trump steamroll a nominee of his choice."