President Donald Trump’s ability to set his judicial agenda is under threat after the Republicans lost their majority in the U.S. Senate at the midterms, and it’s all down to two Supreme Court justices.
The president’s plans to remake the federal courts are in jeopardy, raising questions about whether the Supreme Court can maintain its 6-3 conservative edge. As Democrats are due to assume control of the Senate in January, the window for Republicans to put through Trump’s nominees is closing. Should a seat on the high court open up down the line, the president may have to count on Democratic backing to confirm a replacement.
Alex Swoyer, who wrote Lawless Lawfare, told Fox News that the outcome of the election could force the court’s oldest conservatives into a hard call on their retirement. “It's likely the justices — mainly Justices Thomas and Alito — are stuck on the high court for at least six more years with Democrats taking control,” Swoyer said. “Both in their late 70s, I could see why they may want to retire now, midterm.”
With Republicans set to cede the Senate, the decision by the two oldest conservatives, 78-year-old Clarence Thomas and 76-year-old Samuel Alito, carries extra weight. The New York Times reported that after the midterms, Justice Alito has made it clear to those close to him that he has no intention of resigning anytime soon.
“While Senate Republicans were able to confirm Justice Barrett in a one-month timeframe in 2020, I don't think this GOP Senate has that same work ethic or ability to push a nominee through ahead of January,” Swoyer said.
“I think conservatives would like to see them try; however, a judicial nominations expert told me the Senate work calendar ahead of the holidays would not afford them enough time,” she added. “While a five-week window seems workable, it doesn't appear like Senate Majority Leader John Thune would have the support to usher such a move at this time.”
By Nov. 8, 28 openings in the federal judiciary and 16 nominees awaiting confirmation for present and future vacancies gave Republicans little time to move on Trump’s selections. Zack Smith of the Heritage Foundation noted that even if a justice announced their retirement today, “it could prove difficult to get a replacement confirmed before the end of the current Senate, although Senate Republican leadership has indicated a willingness to try.”
“However, neither Justice Alito nor Justice Thomas has indicated any plan to retire.”
The situation with Thomas and Alito recalls the case of the late Ruth Bader Ginsburg. The liberal justice defied pressure to leave her post ahead of the 2014 midterms, despite fears Republicans would take the Senate and make it harder to confirm an Obama pick. She was on the bench until she died in September 2020, a matter of weeks before the presidential vote. Trump put forward Amy Coney Barrett, and the Senate had her confirmed in short order before Election Day.
