Democrats Senate Takeover Threatens Trump Court Legacy

Clear Facts

• Democrats will take control of the Senate in January, ending Republican confirmation power over President Trump’s judicial nominees.
• Justices Clarence Thomas, 78, and Samuel Alito, 76, are the court’s oldest conservatives and could remain on the bench for at least six more years.
• The federal judiciary currently has 28 vacancies, with 16 of President Trump’s nominees still awaiting confirmation before the Senate majority changes.

With Democrats gaining Senate control after the midterm elections, Republicans face a narrow window to confirm President Trump’s judicial nominees before their power evaporates.

The shift raises questions about the future of the Supreme Court’s 6-3 conservative majority.

“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,” said Alex Swoyer, author of Lawless Lawfare.

“Both in their late 70s, I could see why they may want to retire now, midterm.”

Justice Alito has already stated he has no plans to retire and will serve through the end of the current term.

“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 added.

Senate Majority Leader John Thune is unlikely to have the support needed to rush a Supreme Court nominee through the limited calendar before the holidays.

“The top priority for Senate Republicans right now should be confirming the lower federal court judges President Trump has already nominated,” said Zack Smith of the Heritage Foundation.

“It will take all Senators showing up and doing their part. But it is possible.”

The situation mirrors the 2014 midterms, when concerns over a potential Republican Senate takeover led to calls for liberal Justice Ruth Bader Ginsburg to retire before Democrats lost their majority.

Ginsburg stayed on the bench until her death in September 2020, allowing President Trump to appoint Amy Coney Barrett and secure the current conservative majority.

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