A forgotten ‘veto’ rule could lock conservatives out of courts until 2033

The GOP’s disastrous midterm performance has wide-ranging political implications, but as some Republicans have noted, one of the most long-term impacts involves the fact that President Donald Trump will lose a key power that has allowed him to leave his stamp on the country for decades. According to Politico, once the Democrats take their House and Senate majorities in January, Trump will suddenly be unable to force through far-right judicial nominees that could reshape the courts for decades.

“Trump has already, over the course of his two terms, appointed nearly 300 judges who, collectively, will pull the federal bench to the right for a generation,” explains Politico. “His second-term judges, in particular, have often proven to be outliers even among the conservative judiciary. But the lame-duck president will be able to confirm few, if any, new judges once Democrats formally take over the Senate in January.” This new reality is dawning on Republicans. As longtime conservative courtwatcher Ed Whelan posted on Wednesday, “Trump will not be able to appoint any justices or judges during his last two years in office (absent one-sided deal in favor of Dems).”

What’s more, according to Politico, Democrats’ Senate gains — particularly in longtime conservative strongholds — could impact the judiciary there for decades. As the outlet elaborates, “Assuming the Senate maintains its longstanding ‘blue slip’ rule giving senators veto power over judicial nominees in their state, newly elected Democrats will have the ability to block appointments in states like Texas, Kansas and South Carolina until 2033 — even if the GOP manages to regain control of the chamber and a Republican keeps the White House in 2029.” Ironically, a Republican ‘blue slip’ may have helped contribute to the GOP’s midterm losses. As of this writing, Sen. Cindy Hyde-Smith (R-MS) is narrowly trailing in her too-close-to-call race against Scott Colom, a Democrat she blocked from the bench in 2023 after his nomination by President Joe Biden.

Florida Gov. Ron DeSantis also predicted Tuesday that after the lame-duck period ends, Republicans “probably” won’t have the numbers to confirm a conservative justice until at least 2033, considering the unlikely math the party faces for retaking the Senate. “Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero,” he said. And while there have been rumors that one of the justices could step down to allow for a quick lame-duck confirmation, both have said they have no plans to retire now. Should a vacancy arise during a coming Democratic presidency, this may give them a chance to chip away at the Supreme Court’s current conservative majority.

“On the House side,” notes Politico, “the looming Democratic takeover means an abrupt end to the half dozen attempts conservative members made to impeach judges who ruled against the Trump administration in various court fights since Trump returned to office last year. GOP leaders never seriously entertained those impeachment calls, despite vocal support from Trump and prominent allies like Elon Musk.”