Senate Republicans are unlikely to get a Supreme Court vacancy this year. They’re privately prepared for one, just in case.
A Democratic midterm triumph would carry massive implications for the final years of President Donald Trump’s presidency, including the prospect that the Senate could essentially shut down confirmations of his favored nominees. That’s a nightmare scenario for Republicans, who have viewed their reshaping of the federal judiciary as a crown jewel of Trump’s legacy.
The two oldest Supreme Court justices — 78-year-old Clarence Thomas and 76-year-old Samuel Alito — are both Republican appointees and reliable Trump allies, and key Senate Republicans said in recent interviews with POLITICO they would support filling a high-court slot this year if one opens up.
“We would proceed quickly with such a vacancy,” said Senate Majority Leader John Thune.
Signs that Republicans will need to spring into action are scarce. Alito told Bloomberg News in an interview published Tuesday that he would “stick around” at least until the court’s current term ends early next summer. Thomas, meanwhile, hasn’t publicly addressed his retirement plans in years and has otherwise given no signs of imminent plans to quit.
But if the GOP loses control of the Senate in the midterms, both men would face a mountain of pressure to consider stepping down, given the stakes. Democrats remain bitter over the Republican blockade of President Barack Obama’s final Supreme Court nominee, Merrick Garland, and could block a fourth Trump justice.
Senate Minority Leader Chuck Schumer said in an interview over the summer that part of his pitch to recruit candidates was “two words that make a huge difference: Supreme Court.” Speaking to reporters last week, Schumer indicated that Democrats would use their majority to block judicial nominees they view as too extreme.
“One of the reasons we need to make sure that we do everything we can to take back the Senate is [to] not let Trump put such horrible justices, MAGA justices, on the Supreme Court and the lower courts,” he said.
A post-Nov. 3 announcement would be the first time since the 1922 retirement of Mahlon Pitney that a Supreme Court justice announced his or her departure in the lame-duck period after a midterm election, according to the Congressional Research Service.
Such an announcement would kick off a chaotic sprint on Capitol Hill, giving Republicans just five scheduled session weeks to cobble together 50 votes for a Trump nominee.
Those in a position to act said recently they would certainly try — and there is recent precedent for doing it quickly: Amy Coney Barrett was confirmed just 38 days after Justice Ruth Bader Ginsberg’s September 2020 death.
Like Thune, Senate Judiciary Chair Chuck Grassley (R-Iowa) said “of course” Senate Republicans would try to fill a post-election vacancy.
Sen. Thom Tillis (R-N.C.), a frequent Trump critic who could single-handedly bottle up a nominee in the Judiciary Committee, said he would “absolutely” support filling an end-of-year vacancy.
“You’ve got to use your majority position to take that vote,” he said.
But Tillis was among many in the GOP who doubt senators will have a slot to fill. “I can’t think of anything other than health,” he said, that would cause a justice to quickly step down.
Thune said that if a justice had plans to retire, “They would have done it already.”
Sen. Susan Collins of Maine, another potentially pivotal vote, also left the door open to a post-election confirmation. The only Senate Republican running this year in a state won by Kamala Harris, Collins pointed to her longstanding position that “as long as it’s not close to a presidential election that we should proceed to consider nominees.”
“I don’t know why you assume there will be one,” she added. “I haven’t heard that will happen.”
Collins knows as well as anyone the perils of taking up high-court nominations in an election year. She cited the too-close-to–Election Day rule in voting against Barrett’s nomination as she stood for reelection in 2020.
But Democrats are still hammering her decision to vote for Brett Kavanaugh a month before the 2018 midterms — even after his nomination was thrown into turmoil by allegations of sexual misconduct and assault which he denied.
Troy Jackson, Collins’ Democratic opponent, posted on X this week that Collins “cannot be trusted with voting on our next Supreme Court Justice.”
The campaign-trail sparring reflects just how partisan and contentious high-court nomination battles have grown, and plenty of senators are hoping to avoid a knock-down-drag-out fight on the heels of a similarly nasty midterm campaign.
In a sign of the battle scars left from the fights over Kavanaugh, Barrett and the most recent Supreme Court confirmee — Ketanji Brown Jackson — some lawmakers said they weren’t ready to even entertain the thought of a lame-duck confirmation sprint.
“Not a hypothetical I’m ready to talk about,” said Sen. Sheldon Whitehouse of Rhode Island, who is expected to lead Democrats on the Judiciary Committee next year.
Sen. Lisa Murkowski (R-Alaska), who would be a closely watched vote, made a quick escape when she was asked about the scenario.
“Oh, gosh,” she said. “You’re giving me the chills.”
Chris Marquette contributed to this report.
