Republicans’ loss of the U.S. Senate in the midterm elections could have far-reaching consequences for President Donald Trump’s judicial agenda, threatening his ability to reshape the federal courts and raising new questions about the future of the Supreme Court’s 6-3 conservative majority.
With Democrats set to take control of the Senate in January, Republicans face a shrinking window to confirm Trump’s judicial nominees, while any future Supreme Court vacancy could leave the president dependent on Democratic support to install a replacement.
“Lawless Lawfare” author Alex Swoyer told Fox News Digital, the election results could leave the court’s oldest conservative justices with a difficult decision over when to retire.
“It’s likely the justices — mainly Justices Thomas and Alito — are stuck on the high court for at least six more years with Democrats taking control,” Swoyer said. “Both in their late 70s, I could see why they may want to retire now, midterm.”
Justice Clarence Thomas, 78, and Justice Samuel Alito, 76, are the court’s two oldest conservatives, making their retirement decisions particularly consequential as Republicans prepare to lose control of the Senate.
Alito, however, confirmed to Fox News on Thursday that he has no plans to retire and is committed to serving through at least the current Supreme Court term, with the justices expected to wrap up their major decisions in late June or early July.
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“While Senate Republicans were able to confirm Justice Barrett in a one month timeframe in 2020, I don’t think this GOP Senate has that same work ethic or ability to push a nominee through ahead of January,” Swoyer said.
“I think conservatives would like to see them try; however, a judicial nominations expert told me the Senate work calendar ahead of the holidays would not afford them enough time,” she added. “While a five week window seems workable, it doesn’t appear like Senate Majority Leader John Thune would have the support to usher such a move at this time.”
The stakes extend beyond the Supreme Court. As of Nov. 8, the federal judiciary had 28 vacancies, with 16 nominees awaiting confirmation for current and future vacancies, leaving Republicans with limited time to advance Trump’s picks before Democrats take control of the Senate.
Zack Smith, a senior legal fellow for courts and the Constitution at the Heritage Foundation, said Republicans should focus on confirming Trump’s remaining lower-court nominees before their majority expires.
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“The top priority for Senate Republicans right now should be confirming the lower federal court judges President Trump has already nominated. It will take all Senators showing up and doing their part. But it is possible,” Smith told Fox News Digital.
“As for the Supreme Court, even if a Justice announced his or her retirement today, it could prove difficult to get a replacement confirmed before the end of the current Senate, although Senate Republican leadership has indicated a willingness to try. However, neither Justice Alito nor Justice Thomas has indicated any plan to retire.”
The uncertainty surrounding Thomas and Alito echoes the debate over the late liberal Justice Ruth Bader Ginsburg, who resisted calls to retire before the 2014 midterms despite concerns that Republicans could take control of the Senate and complicate efforts to confirm an Obama-appointed successor.
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Republicans won the Senate in 2014 and, two years later, refused to consider Obama’s Supreme Court nominee, Merrick Garland, following Justice Antonin Scalia’s death. Trump won the 2016 election and appointed Neil Gorsuch to Scalia’s seat in 2017.
Ginsburg remained on the bench until her death in September 2020, just weeks before the presidential election. Trump nominated Amy Coney Barrett to replace her, and the Republican-controlled Senate confirmed Barrett days before Election Day.
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Barrett’s confirmation gave conservatives a 6-3 majority on the Supreme Court, a balance that has shaped some of the nation’s most consequential legal decisions, including the 2022 ruling overturning Roe v. Wade.
