Republicans are weighing whether elderly Supreme Court Justices Clarence Thomas and Samuel Alito could announce their retirements right after next month’s midterm election, according to Politico, and whether that would help or hurt the party.
On one hand, a departure could let President Donald Trump fill the seats with younger justices. On the other, if the announcement comes after Republicans lose both chambers of Congress, it could look “political” and give Democrats cause to fuel an expansion of the court, something Republicans dread, Politico reported.
Thomas, 78, is the oldest and longest-serving justice, with nearly 35 years on the bench. If the George H.W. Bush appointee stays through May 2028, he will pass Justice William Douglas as "the longest-serving justice in history." Alito, 76, a George W. Bush appointee, has been the focus of the most speculation about retirement.
The question has grown more urgent as polling shows Democrats with a serious chance of winning back the Senate, which would let them block any Trump nominee.
“If Democrats retake the Senate, the pressure on Alito to retire during the lame duck from conservatives will be immense,” UCLA law professor Rick Hasen wrote Tuesday. “If Sam Alito sees Democrats take the Senate, I think you got at least a 50-50 chance that he retires between November and January,” Alex Wagner said last month on the “News Not Noise” podcast.
Alito himself has said otherwise. In an interview Bloomberg published Tuesday, he said, “I intend to stick around through this term,” adding that he made that decision “many months ago.”
Some Republicans say they "could confirm a replacement" in the lame-duck session.
“We would proceed quickly with such a vacancy,” Senate Majority Leader John Thune told Politico, though he said that if a justice were going to step down, “they would have done it already.”
A conservative lawyer granted anonymity told Politico: “If [Republicans] lose the Senate, the chance of Thomas and Alito outlasting a Democrat presidency and a Democrat-controlled Senate, I think, is diminished.” The lawyer added that “you’re going to see, on the legal side, a lot of shoulda, woulda, coulda,” like the pressure Democrats put on Justice Stephen Breyer to resign during President Joe Biden’s term.
Another attorney close to several conservative justices, also granted anonymity, said he doubts either would leave quickly, in part because it could reinforce perceptions of the court as political.
“I don’t think stepping down a day after the election or announcing you’re going to retire effective on confirmation of your successor is something that they would be interested in doing,” they told Politico.
They cautioned, "I just think that anyone concerned about fueling the threat of court packing would see this as incendiary. … I would be shocked."