Republicans’ loss of the Senate in the midterms could complicate President Donald Trump’s efforts to reshape the federal courts. It may also put the Supreme Court’s 6-3 conservative majority in sharper focus, especially if a vacancy opens.
Democrats are due to take control in January, leaving Republicans with limited time to confirm Trump’s judicial nominees. After that, a Supreme Court replacement could require Democratic support.
Alex Swoyer, author of “Lawless Lawfare,” said the change in Senate control may weigh on the retirement decisions of the court’s two oldest conservative justices, Clarence Thomas, 78, and Samuel Alito, 76. She suggested they might consider retiring while Republicans still hold the Senate, though both could remain on the court for years.
Alito said Thursday that he has no plans to retire and intends to serve through the current Supreme Court term, which is expected to conclude in late June or early July.
Swoyer said Republicans may struggle to confirm a nominee before the new Senate takes over. Although the Senate confirmed Justice Amy Coney Barrett in about a month in 2020, she questioned whether the current Republican majority could move as quickly. The weeks before the holidays may not leave enough time, she said, and Senate Majority Leader John Thune may not have the support needed to push a confirmation through.
The challenge extends beyond the Supreme Court. As of Nov. 8, there were 28 vacancies in the federal judiciary, with 16 nominees awaiting confirmation for existing or upcoming openings.
Zack Smith, a senior legal fellow focused on courts and the Constitution at the Heritage Foundation, said Republicans should make confirming Trump’s lower-court nominees their immediate priority. It would require senators to attend and work together, he said, but remains possible.
A Supreme Court vacancy could be harder to fill before the current Senate’s term ends, Smith added, even though Republican leaders have said they would try. Neither Thomas nor Alito has indicated plans to retire.
The situation has drawn comparisons with the late Justice Ruth Bader Ginsburg, who declined to retire before the 2014 midterms, despite concerns that a Republican Senate might make it harder for President Barack Obama to confirm her successor.
Republicans won control of the Senate in 2014. After Justice Antonin Scalia died in 2016, they declined to consider Obama’s nominee, Merrick Garland. Donald Trump won the presidency that year and nominated Neil Gorsuch to replace Scalia in 2017.
Ginsburg remained on the court until her death in September 2020, weeks before that year’s presidential election. Trump nominated Barrett to succeed her, and the Republican-led Senate confirmed her shortly before Election Day.
Barrett’s confirmation established the court’s current 6-3 conservative majority. That balance has shaped major rulings, including the 2022 decision overturning Roe v. Wade.
