A conservative legal heavyweight argued President Donald Trump could lock in a Supreme Court pick even without a vacancy, and a prominent conservative lawyer quickly pushed back.
Sarah Isgur, editor of SCOTUSblog and an ABC News contributor, weighed in Thursday as The Washington Post reported that the GOP’s midterm losses would raise pressure on Justices Samuel Alito, 76, and Clarence Thomas, 78, to retire while Republicans still control the Senate.
“Alito won’t retire in the lame duck and he doesn’t need to,” Isgur posted. “Trump can nominate someone to the Supreme Court and the senate can confirm without a vacancy. Then Trump can wait to sign the commission any time in the next two years. The question isn’t Alito, its Cornyn/Tillis/Thune.”
Alito, the focus of months of retirement rumors, told Politico last month that he has no plans to step down during the lame-duck session.
“I intend to stick around through this term,” he said.
Isgur argued a retirement isn’t needed anyway, suggesting the real question is whether Sens. John Cornyn (R-TX) and Thom Tillis (R-NC), both on their way out, along with Senate Majority Leader John Thune (R-SD), would go along.
Ed Whelan, a former clerk for the late Justice Antonin Scalia who served as a top official in the Justice Department’s Office of Legal Counsel under George W. Bush, countered that the same theory would open the door to far more.
“Yes, and under same theory Trump over past two years could have nominated, and the Senate could have confirmed, five Supreme Court justices and ten judges for every court of appeals,” Whelan wrote. “That would be an awful practice, and the Senate would eviscerate itself in allowing it.”
The Office of Legal Counsel has long held that a president may nominate, and the Senate may confirm, someone for a vacancy expected during that president’s term. But if the anticipated vacancy never comes, the confirmed nominee can’t be appointed, according to a 1986 opinion.
Whelan has also criticized a 2022 OLC opinion that let President Joe Biden sign Justice Ketanji Brown Jackson’s commission before her predecessor retired, calling it “deeply defective.”
“Trump probably doesn’t care much what happens to the Court when he is no longer president,” Whelan wrote. “He probably prefers to have Alito and Thomas on the Court through his presidency, as he shouldn’t be confident that anyone he would be able to get confirmed would be as much to his liking.”
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