The off-off-year elections didn’t go as Republicans had hoped. Indeed, they seemed to go quite poorly. What does this mean for next year’s Senate races? It’s not good, and judges who want to be replaced by conservatives should be paying attention. In short, we cannot take a Republican Senate for granted next Congress, which means any judge who wants to be assured a conservative successor needs to send his or her letter to President Trump by May 1 for a guaranteed confirmation of a conservative successor.
The Senate seats potentially most at play are probably Maine and North Carolina for Republicans and, for the Democrats, Georgia and New Hampshire (if John Sununu wins the Republican primary). On top of that, Republicans could need to spend a lot of money defending territory in Iowa, Ohio, Texas, Alaska, and Kentucky if Democrats land the right — or Republicans land the wrong — candidates. So we’ll probably hold the Senate, but don’t assume it, especially after last night.
As I have noted elsewhere, even if we hold the Senate, the 2026 map means it’s likelier than not that Republicans enter the next Congress with fewer seats than the 53 they have now. Which means the deciding votes to get to a majority will be Lisa Murkowski and Susan Collins (hopefully!). This will be a tremendous change in terms of the kind of judicial nominee President Trump can make compared to now, when the deciding vote is Mitch McConnell, for whom the younger and more conservative a nominee, the better.
Any senior-eligible Republican who has any interest in being replaced by a conservative should consider what that dynamic means after Tuesday’s elections. He or she simply cannot, in good conscience, assume that Trump will have the ability to pick a worthwhile replacement in 2027. Staying on through the midterm elections then means a solid likelihood of putting off retirement until 2029 at the earliest. It’s a gamble where every day the odds grow worse.
But what does it mean to go senior before the next Congress? In the past, very astute judges have missed the train because no one was willing to tell them the schedule. Well, we won’t know the schedule for sure until Senator Barrasso releases next year’s Senate calendar, but we can make some educated guesses based on the timing of holidays and elections. Here they are.
First things first: Confirmations should take place before the lame duck. It’s a fool’s errand to try and be replaced during the lame duck period. It’s almost impossible to keep retiring and defeated senators around. Any lame-duck confirmation will be a near-run thing, an action of last resort, and a prudent judge would avoid it.
This means a replacement will want to be confirmed before October 1 or October 8, depending on when the Senate breaks for the elections, but the safer bet is October 1. For a circuit nominee, the very latest day on which cloture can be filed on him is September 27. (27 – cloture filed; 28 – intervening day; 29 – cloture invoked; 30 – confirmation.) For cloture to be filed on September 27, he’d need to hit the Floor on September 24. The odds are high that the week of September 14 will be a recess week for the Jewish high holidays, which means the first markup to report out on September 24 would be September 10, assuming the Senate comes in the day after Labor Day. (It’s also possible that the August recess will continue through the week of September 7 and the Senate will work through the Jewish holidays.)
One way or another, it won’t be possible to have a September hearing and be confirmed as a circuit judge if the Senate breaks for the elections on October 1. If it does so on October 8, you can move all those dates forward a week, and it allows for a September 9 hearing.
But remember: this is all for a single circuit judge. Any more will be taking their chances in the lame duck because of the 30 hours of post-cloture time.
This all means that reliably catching the last train out of the station means having a hearing in July. The last possible hearing date in July will be July 29, which means paperwork would need to be in to the Judiciary Committee by July 1.
How long it takes to vet a nominee varies from case to case, of course, but a reasonable number is a month to vet and a month to select, so, if all cylinders are firing, a replacement can be picked and vetted in two months. This means that the process would need to start on May 1 in order to have a replacement who can be replaced on the likely last Senate session day before the 2026 election. This means that May 1 is the final drop date to announce senior status and be replaced before the 2026 midterms.
Again, that train only has room for one, and this assumes no significant countervailing Senate priorities.
It’s likely there will be plenty of time in session through July. Any vacancies starting in January, then, will probably move at a reasonable clip for spring and summer confirmations. But recall the math above: a month to select, a month to vet, and 28 days in Committee before a hearing. This means a January announcement means an April hearing at the soonest and — with Easter — confirmation could be as late as May. So even if a judge moves quickly to announce retirement in the New Year, it could take five months.
The other late possibilities don’t inspire confidence. A nominee with a July 8 hearing will only be confirmed before the fall if the Senate is in the week of August 3. (I wouldn’t bet on it.) This means the process for a reliable July confirmation will have to start in April. So if a judge wants to be replaced by August, she needs to notify the White House by the end of March, at the latest.
Which means, in plain English, these are the two pertinent deadlines for a senior-eligible judge:
April 1: Deadline to send letter for replacement before August recess
May 1: Deadline to send letter for replacement before the elections
The earlier, the better. These numbers no longer work if there’s a sudden glut of vacancies at the same late time. In that case things get moved off into the lame duck and an uncertain future.
Indeed, it’s worth considering what happened four years ago. Glenn Youngkin won the Virginia governorship, and Republicans very nearly did the same in New Jersey. The Red Wave was coming, and politically astute liberal judges like David Hamilton (Seventh Circuit), Diane Wood (Seventh Circuit), and Thomas Ambro (Third Circuit) all announced their senior status after the election. Other savvy politicos on the bench, like Andy Hurwitz (Ninth Circuit) and Sidney Thomas (Ninth Circuit), followed suit in the new year. Frankly, had the Red Wave, in fact, materialized and given Republicans the Senate, we had arrows in our quiver to stop some of their replacements. So even then, they almost waited too long by seeing what happened in Virginia and New Jersey.
There’s a saying that’s apparently popular with the New Right: you have to know what time it is. I can’t speak for the way they use it, but for any judge who wants to be replaced by a conservative, it’s time to elect senior status.