Democrats enjoyed an extraordinary Election Day yesterday and will have 54 to 56 seats in the incoming Senate. I’m going to avoid recriminations here and just outline what this means for judicial confirmations in Trump’s last two years, in the years that follow, and in the Senate’s lame-duck session this year.
I’ll keep it short. Here’s what I foresee:
1. No Supreme Court justice is going to decide to retire during the last two years of Donald Trump’s presidency. If a vacancy somehow arises, Trump will not be able to get a nominee confirmed.
2. If a Republican candidate wins the presidency in 2028, he will very likely still face a Democratic majority in the Senate, perhaps for the entirety of his presidential term. If he does, no Supreme Court justice is going to decide to retire while that majority persists. If a vacancy somehow arises, the president will not be able to get a nominee confirmed. Such a president will also have zero or few lower-court appointments.
3. A Democratic candidate who wins the presidency in 2028 will likely have a substantial Democratic majority in the Senate and will have an easy time getting a Supreme Court nominee confirmed. Sonia Sotomayor turns 75 in 2029. Look for her to retire no later than 2031. Don’t discount the possibility of involuntary vacancies that could significantly alter the ideological composition of the Court.
4. If Clarence Thomas and Samuel Alito want to avoid being replaced by someone with a very different judicial ideology, they might not be able to retire before 2033. Justice Thomas will turn 85 in 2033. Justice Alito will turn 83 that year.
(I wrote right after Trump won election in November 2024: “I expect Alito to announce in the spring of 2025 that he will retire from the Court. I think it very likely that Thomas will do the same in the spring of 2026.”)
5. There will not be a Supreme Court confirmation in the lame-duck period between now and January 3, 2027. No justice is going to announce in the next few days that he will be stepping down at the end of the Court’s term. Justices don’t make snap decisions about retiring.