One huge question in next week’s elections is whether Democrats will win control of the Senate for Donald Trump’s last two years as president. In the current Senate, Republicans hold 53 seats, and Democrats (including the two independents who caucus with them) have 47. Thirty-five seats are up for election: the 33 “Class 2” seats and the two seats in Florida and Ohio that Marco Rubio and J.D. Vance left in 2025 and that Ashley Moody and Jon Husted, respectively, hold.
As I write this, one reputable poll tracker counts 46 Democratic seats, 46 Republican seats, and 8 toss-ups. So the Senate is very much up for grabs.
In four elections in the past 40 years—two when a Republican was president, two when a Democrat was—a president’s political party has lost control of the Senate in the midterms: 1986, 1994, 2006, and 2014. Each loss was significant for the president’s judicial appointments in the last two years of his term, but 1986 and 2014 were far more consequential than the other two. Let’s take a look at those four losses and then address what is at stake for the next two years.
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1986: In 1986, as today, Republicans held 53 seats in the Senate. Ronald Reagan’s approval rating in a Gallup poll in late October was a robust 63%. Yet Democrats managed to win a net 8 seats in the Senate. They defeated seven Republican freshmen who had been swept into office in the Reagan wave in 1980, and they picked up two open seats in Maryland and Nevada, while losing an open seat in Missouri. So Democrats had a 55-seat majority when the Senate convened in 1987.
The Democrats’ large majority (which was reduced to 54 to 46 after a death in March 1987) enabled their historic 58-42 defeat of Robert Bork’s Supreme Court nomination in 1987. Joe Biden, as chairman of the Judiciary Committee, was able to delay Bork’s hearing until after the August recess so that the Left could develop its political campaign against him. And Democrats provided all the votes necessary to defeat Bork, as only two Democrats voted for his confirmation.
A year earlier, in September 1986, the Senate had confirmed William H. Rehnquist as chief justice by a vote of 65 to 33 and Antonin Scalia as associate justice by a vote of 98-0. If Republicans had continued to control the Senate in 1987, Bork would probably have been confirmed. Strom Thurmond as chairman would have scheduled a prompt hearing. The six Republican senators who voted against Bork would have been much less likely to do so if the political environment were more favorable to Bork and if their votes mattered.
In short, Republicans’ loss of control in the 1986 midterms probably accounts for how we ended up with Justice Anthony M. Kennedy rather than Justice Robert H. Bork.
1994: In Bill Clinton’s first term, Democrats took a very comfortable 56-seat majority into the November elections. In their campaigns, Republican Senate candidates made an issue out of Clinton’s appointments of liberal judicial activists. And in a shocking Election Night, Republicans gained eight seats to win control of the new Senate, and they also gained 54 seats in the House to take control of that body for the first time in decades.
Clinton had the good fortune to have two Supreme Court appointments (Ruth Bader Ginsburg and Stephen Breyer) in his first two years. No vacancy arose in 1995 or 1996, and even if one had, Senate Republicans were so wedded to the practice of deference to the president on judicial nominations that Clinton would not have faced much difficulty in getting another Supreme Court nominee confirmed.
Republicans did force Clinton to abandon a small number of his lower-court picks (e.g., Peter Edelman and Samuel Paz). But they were still learning to use their majority muscle. Eager for re-election, Clinton, in an extraordinary episode, pressured one of his own judicial appointees to reverse a ruling for a criminal defendant.
Clinton managed to get 73 lower-court judges confirmed in those two years—lower than his total of 126 in his first two years, to be sure, but still considerable.
2006: Republicans had a 55-seat majority going into Election Day in 2006, but they managed to lose six seats (including three very close races in Missouri, Montana, and Virginia).
Like Clinton in 1993 and 1994, George W. Bush had appointed two Supreme Court justices (John Roberts and Samuel Alito) in 2005 and 2006. Senate Democrats were determined to use their majority to fight hard against any Supreme Court nominee if a vacancy arose in 2007 or 2008. Indeed, in a prominent speech to a group of liberal lawyers in July 2007—more than 15 months before the 2008 presidential election—Senator Chuck Schumer declared:
I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.
As Senate Republicans did in 1995 and 1996, Senate Democrats put the kibosh on some of Bush’s lower-court nominations and struck deals on others. The Senate confirmed 68 lower-court judges in 2007 and 2008. That number exceeded the 52 judges that the Republican-controlled Senate was able to confirm in 2005 and 2006. But the raw numbers can give a false sense of Bush’s success. The confirmations of Roberts and Alito, the failed nomination of Harriet Miers, and the fight over the Democratic filibuster of judicial nominees consumed much of the Senate’s time in 2005 and 2006. The judges confirmed in 2007 and 2008 were on the whole much less conservative than those confirmed in 2005 and 2006. In short, a Republican-controlled Senate would have confirmed a much larger and much more conservative cohort of nominees.
2014: The Senate elections at the halfway point of Barack Obama’s second term were of monumental significance for judicial nominations. Democrats went into the elections with 55 seats but lost 9. Under new Senate leader Mitch McConnell, Republicans had a 54-seat majority beginning in 2015.
On Justice Antonin Scalia’s death in February 2016, Senate Republicans used their majority control to obstruct any effort by Obama to fill the seat (just as Joe Biden in 1992 and Chuck Schumer in 2007 had threatened to do). By keeping the Scalia seat open, McConnell not only handed a Supreme Court vacancy to Donald Trump in 2017; he also helped bring about Trump’s election.
If they had retained control of the Senate, Democrats would have had an easy time confirming an Obama nominee to Scalia’s seat, and Hillary Clinton would probably have been elected president in November 2016.
Ironically, Ruth Bader Ginsburg asserted back in 2014 that if she resigned that year, Obama “could not successfully appoint anyone I would like to see in the court” because the filibuster remained available for Supreme Court nominees. I stated at the time that “I won’t argue with Justice Ginsburg on this one,” but I was being coy because I didn’t want her to retire under Obama. I thought that there was a lot of room for Obama to select a very liberal nominee whom Republicans wouldn’t filibuster, and I also thought, as Democratic leader Harry Reid did, that Democrats would abolish the filibuster in the middle of a Supreme Court confirmation battle if Republicans did resort to it.
The switch in party control in 2015 also had great impact on lower-court nominations. Senate Democrats had abolished the filibuster for lower-court nominations in November 2013, so their majority would have enabled them to fill all lower-court vacancies in 2015 and 2016. But under McConnell’s direction, the Senate confirmed a total of only 20 appellate and district judges in those two years, and it preserved 100 or so vacancies for President Trump.
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The intense escalation of the confirmation wars over the last decade means that the stakes in the midterm elections are high.
If Democrats win control of the Senate, they will be strongly disposed not to confirm a single Trump nominee to any court in 2027 and 2028. It would take a very one-sided deal in their favor—e.g., Trump names five judges Democrats want in exchange for being able to get one of his picks confirmed—to dislodge them from that stance, and even then they wouldn’t trust that Trump would stick to his side of the deal. (Even after the Senate has confirmed a nominee, the president has discretion not to appoint that person.)
In this scenario, it’s farfetched that any sitting justice would retire. If a justice were to die—even if early in 2027—Democrats would keep the seat open through the 2028 elections.
By contrast, if Republicans retain control of the Senate, there should be plenty of room to continue to confirm Trump’s nominees. The margin of control would matter in some instances. If the margin of control is tiny—say, 51-49 or 50-50 with Vice President Vance’s tiebreaking vote being decisive—the very small number of senators who want to constrain Trump would be able to do so, especially on a Supreme Court nominee. I think that an excellent Supreme Court nominee could still be confirmed, but the White House would have to display some deftness. Conversely, a narrow margin would make it very difficult for Trump to go rogue by, say, nominating an unqualified crony.
Whether a justice would retire in this scenario is anyone’s guess—and I have learned my lesson that justices and those close to them aren’t fond of guessing. The most obvious candidates are Clarence Thomas, who is 78, and Samuel Alito, 76. Those close to Justice Thomas give the strong impression that he will never retire. I hope that they are wrong, as I confess that I don’t see anything admirable in his risking making the same mistake that Justice Ruth Bader Ginsburg made—dying during the term of a president who is sure to nominate someone who has a very different judicial philosophy.
(In this last part, I draw heavily on a recent post of mine on National Review’s Bench Memos.)
It won't matter whether Thomas dies during a future Democrat administration. The Democrats have already stated their intention to pack the Court, whether or not there are any vacancies. If Thomas dies, they will replace him with an ultra-liberal. If he lives, they will appoint two ultra-liberals to new seats. (This assumes the Democrats also control the Senate.)
Ed,
Everything you write is true. And yet, if I lived in a toss-up state I could not vote for someone likely to confirm a Todd Blanche or Emil Bove or worse to the Court. Roe is gone, and barring an unlikely Democratic supermajority in the Senate it is likely to stay gone at the Federal level, which as you know has been vacated as a battleground by Trump’s GOP, even for surefire electoral winners like a national standard of care that would end elective post-viability “terminations”, which as you also know are still presently legal for anyone with a plane ticket to any number of jurisdictions. No. No again, the forty years I reflexively voted R in order to “get better judges” have passed. There could likely be an enormous downside were my new voting strategy to win the day nationwide, but that risk (to born and preborn alike) must now be weighed against the enormous risk I see in today’s GOP. I choose the morally despicable (that’s fixable) over the side that now seems to reject the very concepts of right and wrong. So there we are. This Reaganite lifer would vote D, this year, in any Federal Senate toss up. I hope I don’t come regret it. Lord, have mercy.