Political battles surrounding the membership of the nation’s high court have been among the most raucous of Beltway affairs.
Few things in Washington, D.C., generate as much as excitement and intrigue as a Supreme Court confirmation showdown. For decades, since theof then-Supreme Court nominee Bob Bork in 1987, political battles surrounding the membership of the nation’s high court have been among the most contentious and raucous of Beltway affairs.
Which is why it’s rather curious that very few outside the most fervid of court-watchers seem to be discussing the distinct possibility that there could be one or two Supreme Court vacancies after the current term ends this summer. Justice Samuel Alito is 75 years old—and will be 76 by the end of this term. Justice Clarence Thomas is 77 years old—and will be 78 by term’s end. Alito just celebrated 20 years of service on the high court, and Thomas would mark 35 years of service this October—nice round numbers. Alito has aset for release this October, around the start of the next Supreme Court term. That isn’t anywhere near dispositive—Justice Amy Coney Barrett published a book last September, and Justice Neil Gorusch has released two books since he was confirmed to the court in 2017—but it has, the two most principled conservative justices currently sitting on the high court. It stands to reason that they would like to be replaced by ideological fellow travelers—something that likely requires a like-minded president and a like-minded U.S. Senate majority. As the late Justice Antonin Scalia, who was very much an ideological fellow traveler,in a 2012 interview, “I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25–26 years. I mean, I shouldn’t have to tell you that, unless you think I’m a fool.”Republicans currently hold a 53-47 majority in the Senate. What’s more, they face a remarkably favorable map this November: The GOP is defending very few swing-state Senate seats, and it will have enticing Senate pickup opportunities in Georgia, Michigan, Minnesota, and New Hampshire. But to paraphrase theout of Washington is that there is a chance Democrats retake not merely the nearly evenly divided House, but the Senate as well. Those odds are below 50%—the online exchange Polymarket, for instance,That wouldn’t just spell doom for the final two years of President Donald Trump’s second term. It would be potentially calamitous for the future of the Supreme Court as well. Does anyone think that Sen. Chuck Schumer and his Democratic caucus are not prepared to stall and refuse to confirm any prospective Trump nominee to the high court?they are prepared to do that. If Republicans lose the Senate this November and Thomas and Alito stick around through the 2028 presidential election, they will in essence be wagering on Republicans maintaining the White House and winning back the Senate.than they have Supreme Court nominations—from Justices William Brennan , Harry Blackmun , and David Souter , to some of the more milquetoast Trump selections such as Barrett and Brett Kavanaugh. The track record is not exactly inspiring. And because Thomas and Alito are the two finest conservative jurists on the high court, there is little to no room for improvement, from a constitutionalist perspective—there can only be regression.plenty of outstanding potential justices-in-waiting. My former boss Judge James C. Ho of the U.S. Court of Appeals for the Fifth Circuit, a former Thomas clerk, is likely the single most principled originalist of all current lower-court federal judges. His Fifth Circuit colleague Andrew Oldham, a fellow stalwart, happens to have the corresponding symbolism of being a former Alito clerk. D. John Sauer, the outstanding current U.S. solicitor general, is a former Scalia clerk and a rapidly emerging dark horse contender. There are other possible rock-solid nominees as well. Far be it from me to encourage Clarence Thomas or Samuel Alito, each a hero of the American republic, to retire. But the timing does seem right. And as a political issue, a September confirmation showdown in the Senate Judiciary Committee could serve to boost Republican enthusiasm at the ballot box in November. In fact, it could be just what the doctor ordered.
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