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Republicans’ loss in the U.S. Senate in the midterm elections could have far-reaching consequences for President Donald Trump’s judicial agenda, threatening his ability to reshape the federal courts and raising new questions about the future of the Supreme Court’s 6-3 conservative majority.
With Democrats expected to take control of the Senate in January, Republicans face an increasingly short window to confirm Trump’s judicial nominees, while any future Supreme Court vacancy could make the president dependent on Democratic support to nominate a replacement.
“Lawless Lawfare” author Alex Swoyer told Fox News Digital that the election results could leave the court’s longest-serving conservative justices facing a difficult decision about when to retire.
“It is likely that the justices – primarily Justices Thomas and Alito – will be stuck on the high court for at least another six years as Democrats take control,” Swoyer said. “Both in their late 60s, I understand why they might want to retire now, mid-term.”
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Supreme Court Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh laugh as they wait for their opportunity to leave the stage following inauguration ceremonies in the rotunda of the United States Capitol, January 20, 2025, in Washington, DC. (Chip Somodevilla/Pool/AFP via Getty Images)
Justice Clarence Thomas, 78, and Justice Samuel Alito, 76, are the Court’s two oldest conservatives, making their retirement decision particularly significant as Republicans prepare to lose control of the Senate.
Alito, however, confirmed to Fox News on Thursday that he has no plans to retire and is committed to serving at least the current term of the Supreme Court, with the justices expected to finalize their major decisions in late June or early July.
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Members of the Supreme Court pose for a group photo at the Supreme Court on October 7, 2022. Seated from left: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts Jr., Associate Justice Samuel A. Alito Jr., and Associate Justice Elena Kagan. Standing behind, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (USA TODAY Network via Reuters Connect)
“Although Senate Republicans were able to confirm Judge Barrett within a month in 2020, I don’t think this Republican Senate has the same work ethic or ability to get a nominee through before January,” Swoyer said.
“I think conservatives would like to see them try; however, an expert on judicial appointments told me that the Senate’s pre-recess work schedule wouldn’t give them enough time,” she added. “While a five-week deadline seems feasible, it does not appear that Senate Majority Leader John Thune would have the support to initiate such a move at this time.”
The issues extend beyond the Supreme Court. As of November 8, the federal bench had 28 vacancies, with 16 nominees awaiting confirmation for current and future vacancies, leaving Republicans with limited time to advance Trump’s picks before Democrats take control of the Senate.
Zack Smith, senior courts and constitutional lawyer at the Heritage Foundation, said Republicans should focus on confirming Trump’s remaining nominees to lower courts before their majority expires.
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Supreme Court Justice Ruth Bader Ginsburg, celebrating her 20th anniversary on the bench, is pictured in the West Conference Room of the United States Supreme Court in Washington, DC, Friday, August 30, 2013. (Nikki Kahn/The Washington Post via Getty Images)
“The top priority for Senate Republicans right now should be to confirm the lower federal court judges already nominated by President Trump. It’s going to take all senators to step up and do their part. But it’s possible,” Smith told Fox News Digital.
“As for the Supreme Court, even if a justice were to announce his retirement today, it could prove difficult to secure confirmation of a replacement before the end of the current Senate session, although Senate Republican leaders have indicated a willingness to try. However, neither Justice Alito nor Justice Thomas has indicated that they plan to retire.”
The uncertainty surrounding Thomas and Alito echoes debate over the late liberal Justice Ruth Bader Ginsburg, who resisted calls to retire ahead of the 2014 midterm elections despite concerns that Republicans could take control of the Senate and complicate efforts to confirm an Obama-appointed successor.
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Republicans won the Senate in 2014 and, two years later, refused to consider Obama’s Supreme Court nominee, Merrick Garland, after the death of Justice Antonin Scalia. Trump won the 2016 election and nominated Neil Gorsuch to Scalia’s seat in 2017.
Ginsburg remained on the bench until her death in September 2020, just weeks before the presidential election. Trump nominated Amy Coney Barrett to replace her, and the Republican-controlled Senate confirmed Barrett days before Election Day.
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Barrett’s confirmation gave conservatives a 6-3 majority on the Supreme Court, a balance that has shaped some of the nation’s most important legal decisions, including the 2022 decision overturning Roe v. Wade.
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