The GOP’s sweeping losses in the midterm elections Tuesday set up an unsettling possibility for the party: If they don’t act now to confirm a new Supreme Court justice, they may not have another chance for years to come.
That prospect is likely to ramp up pressure on the court’s two oldest conservatives — Justice Samuel A. Alito Jr., 76, and Clarence Thomas, 78 — to retire during the lame-duck period, while Republicans still have the votes to get a nominee confirmed by the Senate. The new Senate, in which Democrats will hold a majority, is seated on Jan. 3.
Alito, who joined the court in 2006, said last month he has no plans to retire during the lame-duck session. Thomas has said in the past he has no plans to step down from the court. He joined the court in 1991 and could become the longest-serving justice in its history in 2028.
But given the magnitude of Democratic inroads in the Senate, legal and political experts said it could be 2033 before Republicans have a realistic shot at winning back enough seats in that chamber to approve a conservative justice.
At that point, Alito and Thomas would be well into their 80s. Neither responded to a request for comment.
“I think both are making an implicit bet that they will live long enough … so that a Republican president can replace them with someone ideologically similar,” said Ed Whelan, a conservative attorney and senior fellow at Ethics and Public Policy Center.
This is likely to make many Republicans antsy, particularly those mindful of the lesson of liberal Justice Ruth Bader Ginsburg, who died while still on the bench at 87, in September 2020.
Ginsburg’s death allowed Republicans to move the court in a more conservative direction when they confirmed Justice Amy Coney Barrett to replace her weeks later. President Donald Trump nominated Barrett to replace Ginsburg, and over the vociferous objections of Democrats, Senate Republicans quickly muscled the nomination through just ahead of the 2020 presidential election.
Trump remade the court with three picks in his first term — Barrett, Neil M. Gorsuch and Brett M. Kavanaugh — who pushed the court sharply to the right.
The Supreme Court’s conservative 6-3 supermajority has delivered historic opinions on abortion, affirmative action, religious rights and much more that have thrilled Republicans. A younger replacement for Alito or Thomas could lock that advantage in for years to come.
Liberals accused Republicans of hypocrisy for rapidly confirming Barrett after they blocked President Barack Obama’s nomination of Merrick Garland for 11 months in 2016, saying it was too close to the presidential election to confirm him. Trump won the White House and Garland’s nomination was scuttled.
Some observers think the window has already closed for Trump to nominate a fourth justice, which would allow him to leave a mark on the Supreme Court that few presidents have enjoyed.
Republicans control 53 seats in the upper chamber, compared to 47 held by Democrats. But that split will shift to 52-48 as soon as Dec. 15, when Ohio Senator-elect Sherrod Brown (D) is seated as a result of special election. A handful of moderate Senate Republicans like Maine’s Susan Collins and Alaska’s Lisa Murkowski might also have to be persuaded to back a Trump pick.
The margin of error is thin enough that Florida Gov. Ron DeSantis (R) posted on X on Tuesday night that Trump likely won’t be able to get a suitable nominee confirmed.
“Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero,” DeSantis wrote. “Chance of confirming a worthy successor during a hypothetical GOP admin 2029-2033: probably zero (GOP won’t be able to recapture enough seats in 28).”
Harry Litman, a law professor at UCLA and a former U.S. attorney, said the optics of a justice retiring during the lame-duck session would also tarnish his or her reputation.
“It would be the most crass and nakedly political resignation in the court’s history,” Litman said.
Emily Hampsten, a spokeswoman for Sen. Dick Durbin (Illinois), the Democratic whip and a member of the Judiciary Committee, said a lame-duck nominee would create a backlash among voters and Democrats.
“The American people will hold them accountable in 2028, and Democrats could justifiably refuse to confirm any Trump nominees for the next two years,” Hampsten said.
That would curtail one of Trump’s other biggest legacies — the nomination of hundreds of lower court federal judges.
Steve Vladeck, a Georgetown law professor, wrote on his blog that a lame-duck confirmation fight might also backfire on the GOP by building support for court reforms that Democrats are already eyeing during the next Congress.
“The question would no longer be whether the Court deserves to be restructured, but whether the other side has left Democrats any choice,” Vladeck wrote.
Gabe Roth, executive director of the reform group Fix the Court, said he thinks only small reforms will be possible while Trump is still president over the next two years.
“Democrats would do well to focus on areas within the realm of court reform where there’s already strong bipartisan support,” Roth said. “That includes banning stock trading in the federal courts, adding more lower court judgeships to relieve ballooning caseloads, improving workplace conduct protections for judiciary staff and making access to court records free.”
Speculation over whether Alito would retire flared over the summer when NPR published an erroneous account saying he was planning on stepping down. The story was later retracted.
Alito said during a round of interviews to promote his new book last month that he had no plans to retire during the current term, which will end in June or July. The justice said he has more to contribute to the court, but did consider whether to continue each term.
“I intend to stick around through this term,” Alito said in the interview before the Supreme Court’s new term began last month. “I made that decision many months ago.”
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