WASHINGTON — Senate Minority Leader Chuck Schumer, D-N.Y., is warning President Donald Trump that if Democrats take control, they have no plans to put “MAGA” judges on the courts.
“The bottom line is this: One of the reasons we want to do everything we can to take back the Senate is not to let Trump put such horrible judges — MAGA judges — on the Supreme Court and in the lower courts,” Schumer said in response to a question from NBC News about a potential high court vacancy if Democrats win in 2026.
Sen. Richard Blumenthal, Democrat of Connecticut, ranking member of the Judiciary Committee, said he also did not think a Democratic-led Senate would confirm Trump’s pick for the Supreme Court.
“Well, given the history of Trump’s nominees, I think it’s unlikely that we would support a nominee from this administration,” Blumenthal said in an interview. “Because we’ve seen this movie, we know how it ends, which is a robed politician following Trump’s orders on most important issues.”
These remarks underscore the high stakes of the 2026 election for Trump’s final two years when it comes to judicial nominees, particularly to the Supreme Court if there is a vacancy. None of the nine justices have announced plans to retire, but speculation has focused on how long the two oldest justices — conservatives Clarence Thomas, 78, and Samuel Alito, 76 — will remain on the court. Justice Sonia Sotomayor and Chief Justice John Roberts are the oldest justices, 72 and 71, respectively.
Alito told CBS News in a recent interview that he considered retiring earlier this year, but ultimately decided against it.
“It’s something that I think a person my age has to think about every term,” Alito said, while adding: “It’s too difficult to predict what the political situation will be and what a president might do in terms of his replacement.”
If Democrats take control of the Senate, they will have the power to determine which of Trump’s nominees for federal judicial posts get hearings and votes, including for a hypothetical Supreme Court vacancy.
But if Republicans maintain control, the president will maintain his gradual trajectory to fill vacancies with his preferred candidates — adding to his nearly six-year total of 290 federal judges, including three Supreme Court justices during his first term. All of these judges were confirmed under GOP Senate control.
Some Democrats say there should be no question of confirming Trump’s pick after former Senate Majority Leader Mitch McConnell, R-Ky., took a seat vacant for 10 months under President Barack Obama and let a Republican president fill it instead. (Justice Neil Gorsuch ultimately filled this vacancy).
“No, we need to do exactly what McConnell did to us,” said Senator Ruben Gallego, Democrat of Arizona.
Gallego said he doesn’t want it to become a rule that no president can have a nominee confirmed by a Senate run by the opposing party. But at a minimum, he wants Democrats to “even the scales.”
Beyond that, “I don’t think you know you want to go down this path,” the first-term Arizona Democrat said. “But you clearly know that McConnell and Trump have used, I would say, their power, whatever you want to call it, to change the makeup of the courts. And I think we need to start rolling that back.”
Sen. John Kennedy, R-La., who serves on the Judiciary Committee, said he would not count on Trump to secure a Supreme Court nominee through a Democratic-led Senate.
“I don’t think it would be impossible. You know, there’s a small possibility, a very small possibility,” Kennedy said. “But it’s possible that someone will confuse me with Brad Pitt. I mean, it’s possible, but it’s not likely.”
Kennedy, like most of the U.S. senators cited in this article, spoke before Alito’s comments were published on CBS News.
Sen. Darline Graham, R-S.C., who took her late brother Lindsey Graham’s seat on the Judiciary Committee when she was appointed to the Senate, responded directly to Alito’s remarks and linked them to his 2026 campaign for a six-year term.
“If Justice Alito chooses to retire next year, a Republican-majority Senate will be needed to vote on and hopefully confirm a nominee of President Trump to the Supreme Court,” Graham wrote on
Another open question is how a Democratic majority would approach Trump’s judicial nominees to the lower courts.
Blumenthal said one of his litmus tests for Trump’s judicial nominees in the courts is that they must be able to correctly answer who won the 2020 election, a question that various Trump nominees have refused to answer as the president persists with false claims that the election was stolen from him.
“We will stop a lot of these totally unqualified, ideologically right-wing candidates who will not answer the question of who won the 2020 election,” Blumenthal said. “Among other matters.”
Some long-memory Democrats haven’t forgotten that McConnell slowed nearly all judicial nominations during Obama’s final two years, when the Kentucky Republican first took the Senate majority lead. McConnell saw it as a reward for Democrats by abolishing the 60-vote threshold for lower court judges in 2013, which at the time was part of a rapidly escalating judicial war between the parties.
Still, not all Democrats are willing to speculate on how they would treat Trump’s judicial nominees.
Sen. Mazie Hirono, Democrat of Hawaii, another member of the Judiciary Committee, paused and laughed when asked whether Democrats would confirm a Trump-appointed justice to the Supreme Court.
“Well, I don’t know. I can’t speak for my colleagues,” she said. “Let’s just say that I would be very much in favor of a reform of the Supreme Court. (…) A reform that would allow each president to appoint two justices to the Supreme Court, and then those would move up” to high-ranking status.
Sen. Dick Durbin, D-Ill., the current ranking member of the Judiciary Committee, is retiring after this Congress. The next chairman of the panel, if Democrats gain the Senate, would be Sen. Sheldon Whitehouse, DR.I.
Whitehouse declined to answer when asked what the dynamics of judicial appointments would be if he became president.
“I don’t know,” he said.
Josh Orton, president of the progressive legal group Demand Justice, said his organization was “prepared to oppose any Trump nominee, regardless of when the vacancy arises.”
“For moral and political reasons, I see no reason for Democrats to consider a Trump nomination to the Supreme Court,” Orton said, adding that Trump wants the justices to be personally loyal to him and that he would select them on that basis. “Any casual observer knows that Trump views the Supreme Court in general as a political extension of himself – or should be. »
Last month, Trump criticized the Supreme Court at length on Truth Social for ruling against him on mail-in ballots, tariffs and citizenship rights. “The Supreme Court has truly failed our country. … These are not the people I interviewed to serve on the Supreme Court of the United States,” he wrote. “They are just a shell of themselves.”
CORRECTION (October 5, 2026, 12:55 p.m. ET): Due to an editing error, a previous version of this article incorrectly stated who ultimately filled the Supreme Court vacancy that emerged at the end of President Barack Obama’s term. It was Justice Neil Gorsuch, not Brett Kavanaugh.
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