WASHINGTON – Supreme Court Justice Samuel Alito, the subject of much retirement speculation this year, made clear weeks ago that the outcome of the midterm elections would not affect his decision to stay on the bench.
"I intend to stick around through this term," Alito, 76, told Bloomberg as the court began a new term last month.
Still, Republicans’ loss of the Senate to Democrats prompted more conjecture about whether Alito or Justice Clarence Thomas, 78, would immediately retire so President Donald Trump could nominate a younger conservative before Democrats take over the Senate in January.
"Alito and Thomas can resign today. Right now," MAGA influencer Joey Mannarino posted on social media. "Ram it through the Senate."
Alito: Will Trump get a fourth Supreme Court justice?
The Senate isn’t just turning blue next year. Democrats may have gained enough seats to make it difficult for Senate Republicans to return to power before 2032, Florida GOP Gov. Ron DeSantis warned.
"Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: Zero," DeSantis posted on social media. "Chance of confirming a worthy successor during a hypothetical GOP admin 2029-2033: probably zero."
Nick Xenakis, a former top Democratic aide on the Senate Judiciary Committee, said it’s theoretically possible for the Senate to confirm a new justice before the end of the year. But success would depend on who Trump nominates, whether any issues arise in the vetting process and how good Trump’s post-election relationship is with Republican senators.
"I just think there’s a lot of unknowns about whether that’s possible right now," said Xeankis, an attorney at Covington & Burling.
'High risk' of losing confirmation battle
Edward Whelan, a conservative legal commentator and expert on confirmation battles, sees a rough road ahead for any Trump nominee.
Three Senate Republicans who are leaving at the end of the year after policy disputes with Trump – John Cornyn, Thom Tillis and Bill Cassidy – won’t be eager to back a MAGA nominee, Wheelan wrote on his blog.
Two other Republican senators – Alaska’s Lisa Murkowski and Maine’s Susan Collins, who lost her reelection bid – are also unlikely to support a Trump pick, he said. (Collins voted against the nomination of Justice Amy Coney Barret, the third of Trump's nominees in his first term.)
"Anyone contemplating the decision (to retire) would recognize that there is a very high risk that the Senate would not be able to confirm a nominee in the lame duck," Wheelan wrote.
'Close to nil'
Steve Vladeck, a professor at Georgetown University Law Center and critic of the 6-3 conservative court, put the odds of Thomas or Alito quickly stepping down at "close to nil."
In addition to the practical considerations, Vladeck said such a move would be "institutionally catastrophic" and further motivate Democrats to change the makeup of the court.
"There couldn’t be a more visible confirmation of every critic’s claim that the Court is just partisan politics by other means," Vladeck wrote on his blog. "The question would no longer be whether the Court deserves to be restructured, but whether the other side has left Democrats any choice."
At his age, Alito told CBS News in an interview that aired last year, he must think every year about whether it's time to retire. Alito said he decided against it this year because he thought he could still make a valuable contribution.
Thomas, who will become the longest-serving justice if he is still on the bench in May 2028, has not spoken publicly about how long he intends to remain on the court.
Justice Sonia Sotomayor, 72, a Democratic appointee, has diabetes and was the subject of retirement speculation at the end of former President Joe Biden’s term. But she hasn’t given any signal that she will step down.
Remembering Merrick Garland
Any openings – created by retirements or deaths – during the remainder of Trump’s term will remind Democrats of what happened when Senate Republicans refused to consider President Barack Obama’s nomination of then-Judge Merrick Garland after Justice Antonin Scalia died in February 2016.
"I imagine there’s going to be opposition in the Senate Democratic caucus to confirming anyone in the next two years," Xenakis said.
Sen. Sheldon Whitehouse, the Rhode Island Democrat who is expected to take over the Senate Judiciary Committee, has not said whether he would consider a Trump nominee if there’s an opening.
But in a statement after the election, Whitehouse said voters sent a message that "they don’t want a Supreme Court, captured by the billionaire class, selling out our democracy."
"We are ready for the hard work ahead," Whitehouse said, "to fix what’s badly broken and set a course for a new, brighter future for the country."
This article originally appeared on USA TODAY: What's next for Trump and the Supreme Court after Democratic blue wave
