Alito 'playing footsie' with retirement as GOP considers 'political suicide' move: experts

A Supreme Court expert says Justice Samuel Alito flirted with retirement this fall, but Republicans are nearly out of time to confirm a replacement.

On Legal AF’s “Unprecedented” podcast, Lisa Graves told host Michael Popok she believes Alito was “playing footsie with the idea of retiring or not.” Her evidence was the timing of his book tour, which he set for the fall instead of around his 20th anniversary on the court early this year. She added that Alito also seems to relish his role, and that she is still preparing for a possible vacancy.

Alito has publicly said he has no plans to retire for the time being.

Graves said Democrats have no filibuster to stop a lame-duck nominee, since Republicans removed it for Supreme Court picks and can confirm with 51 votes or a tie broken by the vice president. The bigger obstacle, she said, is the clock. She noted Amy Coney Barrett went from nomination to a vote in roughly 35 days and said Alito would have to announce in the coming week. Once the Senate leaves for Thanksgiving, she said, a confirmation this year becomes very hard, though not impossible.

Popok floated a scenario in which Solicitor General John Sauer, President Donald Trump’s former criminal defense lawyer, takes Alito’s seat before Jan. 3. He said Graves has ranked Sauer at the top of the short list. Graves answered that justices tend to favor their own former clerks and Sauer never clerked for Alito, but that Trump mainly wants a loyalist. She said she worries Republicans will try to push someone through.

Popok called such a move “political suicide” for Senate Republicans and predicted Sens. Thom Tillis and John Cornyn would oppose it. Graves was more doubtful, saying Republicans made noise during Todd Blanche’s confirmation and then fell in line.

Graves said it sounds like Alito and Justice Clarence Thomas face some pressure to go now, because a Democratic presidency could delay a Republican-appointed successor until 2033. Her sense is that Thomas wants to stay through May 2028 to set the record for longest service.