Republicans’ sweeping midterm losses have left conservatives worrying that the Supreme Court’s two oldest justices are gambling with the court’s future.
Justice Samuel Alito, 76, and Justice Clarence Thomas, 78, have both signaled they have no plans to step down while Republicans still control the Senate, but legal and political experts told The Washington Post that Republicans may not have a realistic shot at winning back enough seats to confirm a conservative justice until 2033, when both men would be well into their 80s.
“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 the Ethics and Public Policy Center.
The Post noted that the prospect is likely to make many Republicans antsy, particularly those who remember Justice Ruth Bader Ginsburg’s death on the bench in 2020, which allowed Trump to replace the liberal icon with Justice Amy Coney Barrett.
Florida Gov. Ron DeSantis has already given up hope.
“Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero,” he wrote on X Tuesday night. “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).”
Republicans hold 53 Senate seats, but that drops to 52 as soon as Dec. 15, when Ohio Sen.-elect Sherrod Brown (D) is seated after winning a special election. Moderates like Susan Collins of Maine and Lisa Murkowski of Alaska would also have to be won over.
Democrats are warning that a rushed confirmation would come at a steep price. Emily Hampsten, a spokeswoman for Senate Democratic Whip Dick Durbin, said voters would hold Republicans accountable, and “Democrats could justifiably refuse to confirm any Trump nominees for the next two years.” That would threaten one of Trump’s biggest legacies, his hundreds of lower-court judges.
Georgetown law professor Steve Vladeck wrote that a lame-duck fight could even fuel the court reforms Democrats are already eyeing. “The question would no longer be whether the Court deserves to be restructured, but whether the other side has left Democrats any choice,” he wrote.
UCLA law professor Harry Litman argued that a lame-duck exit would stain any justice who tried it. “It would be the most crass and nakedly political resignation in the court’s history,” he said.
Neither Alito nor Thomas responded to the Post’s request for comment. The New York Times reported this week that Alito has told people close to him he doesn’t intend to retire immediately.
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