Republicans’ major losses on Tuesday could have long-term consequences for the Supreme Court, several prominent conservatives warned. They argued that a Democratic Senate majority could prevent President Donald Trump from replacing Justices Clarence Thomas or Samuel Alito with conservative nominees.
Florida Gov. Ron DeSantis said on X that if Republicans lost the seats where prediction markets strongly favored Democrats, Democrats could end up with 55 Senate seats. He added that the chances of confirming a successor to Thomas or Alito during Trump’s term would be “zero,” and suggested a future Republican president might also struggle to get a nominee confirmed.
Democrats took control of the Senate Tuesday night and held 54 seats as of midday Wednesday. DeSantis was among several conservatives who argued that replacing Alito, 76, and Thomas, 78, with justices of a similar ideological outlook could prove extremely difficult.
Ed Whelan, a conservative legal scholar and former clerk to Justice Antonin Scalia, wrote that Trump was effectively blocked from appointing federal judges or Supreme Court justices during the final two years of his term.
Even if a Republican wins the presidency in 2028, Whelan said, that president may not be able to make judicial appointments until Republicans regain the Senate. Given the size of their losses, he suggested that could take until 2033.
Whelan also said a justice stepping down during the upcoming lame-duck session was unlikely, and that Republicans would have difficulty finding the 51 votes needed for confirmation.
He noted that if Sherrod Brown wins Ohio’s Senate seat, he would take office in early December, leaving Republicans with a 52-48 majority. Whelan said Republican senators including Susan Collins and Lisa Murkowski would be unlikely to back a Trump nominee, while John Cornyn, Thom Tillis and Bill Cassidy might not be inclined to help the president. Utah Sen. John Curtis and others, he added, could also be wary of nominees Trump strongly supports.
Conservative author Hans Mahncke responded to DeSantis by noting that Thomas would turn 85 in 2033 and Alito would turn 83. He said there was no reason to assume they would leave the court by then, but argued that the broader concern remained: both justices would eventually need successors, and he believes the country would suffer if they were not replaced by similarly conservative jurists.
Denny Burk, dean of Boyce College at the Southern Baptist Theological Seminary, also described the election’s potential consequences for the Supreme Court as significant.
