Pardon me for highlighting what should be obvious: The upcoming midterm elections for Senate seats will have a massive impact on the fate of judicial nominations in the last two years of Donald Trump’s presidency.
1. If Democrats win control of the Senate (as the pessimist in me anticipates), they likely will not confirm—or even bother to hold hearings on—any of Trump’s judicial nominees in 2027 and 2028. That blockade would of course include any currently pending nominees who don’t get confirmed in the post-election lame-duck session.
In this scenario, it’s farfetched that any sitting justice would retire. In the event that a justice dies, Democrats would almost surely keep the seat open through the 2028 elections. Never mind their cockamamie claim in 2016 that the Constitution requires the Senate to hold a hearing and have an up-or-down vote on a Supreme Court nominee.
The only scenario in which Democrats would confirm a judicial nominee would involve some sort of one-sided deal with the White House: e.g., pick five district judges we want, and we’ll let you have one. I’d especially worry about a deal over a Supreme Court nomination. If Democrats offered to fund one of Trump’s vanity projects in exchange for being able to pick his Supreme Court nominee, mightn’t he be tempted by the offer? The good news is that any deal would be very difficult to enforce (how does whoever goes first ensure that the other party does what it has promised?), so it probably couldn’t even be negotiated in the atmosphere of intense mutual distrust and hostility that would prevail.
For what it’s worth, the last time that a president lost same-party control of the Senate in a midterm election was in 2014. The Republican-controlled Senate confirmed 22 of Barack Obama’s nominees in 2015 and 2016—two appellate judges, 18 district judges, and two judges on the Court of International Trade.
2. If Republicans retain control of the Senate, there should be plenty of room to continue to confirm Trump’s nominees. But if the margin of control is tiny—say, 51-49 or 50-50 with Vice President Vance’s tiebreaking vote being decisive—the very small number of senators who want to constrain Trump would be able to do so, especially on a Supreme Court nominee. I think that an excellent Supreme Court nominee could still be confirmed, but the White House would have to display some deftness. Conversely, a narrow margin would make it very difficult for Trump to go rogue by, say, nominating an unqualified crony.
Whether a justice would retire in this scenario is anyone’s guess. The most obvious candidates are Clarence Thomas, who is 78, and Samuel Alito, 76. Those close to Justice Thomas give the strong impression that he will never retire. I hope that they are wrong, as I confess that I don’t see anything admirable in his risking making the same mistake that Justice Ruth Bader Ginsburg made—dying during the term of a president who is sure to nominate someone who has a very different judicial philosophy.