There has been widespread speculation that one of the senior members of the conservative wing (specifically Justice Samuel A. Alito Jr. or Justice Clarence Thomas) might decide to step down before year’s end, enabling President Trump to appoint a successor while Republicans still hold a Senate majority. Yet this remains simply conjecture.
I have previously suggested that neither Justice Alito nor Justice Thomas would depart during this presidential term, not to mention this calendar year. I continue to endorse that forecast.
Today, both the New York Times and Bloomberg convey that Justice Alito has reiterated his plan not to retire within the year, and that the recent election outcomes have not changed his resolve.
From the Times:
Justice Samuel A. Alito Jr. has told intimate colleagues that he does not intend to resign from the Supreme Court in the near term, despite Democrats’ commanding victory in Tuesday’s Senate contests, which means Republicans will hold the chamber for only a short time longer.
Consequently, Republicans may have forfeited the opportunity for President Trump to name a fourth or perhaps a fifth justice to the Supreme Court during the final two years of his presidency.
Alito reportedly discussed his plans with friends after the election results were known this week, according to two individuals close to the justice who spoke on the condition of anonymity.
From Bloomberg:
The 76-year-old Alito, a cornerstone of the court’s conservative bloc, has been the focus of chatter that he might abruptly resign to let President Donald Trump fill the vacancy before Republicans relinquish control of the Senate in January. That scenario could extend Trump’s influence by enabling him to appoint a younger, conservative jurist who could serve for decades.
The chatter has persisted even though Alito told Bloomberg News in a late-September interview that he had decided to stay on no matter how the election turned out. “I intend to stick around through this term,” he said then, referring to the nine-month session that runs through June. “I made that decision many months ago.”
Alito indicated that stance hasn’t changed despite the Democratic takeover in Tuesday’s election, said the person, who asked not to be identified discussing a private conversation with the justice on Wednesday.
While there is no parallel report about Justice Thomas, there is little reason to think he plans to depart. Thomas is on the cusp of becoming the longest-serving justice in the nation’s history. Moreover, he has previously stated his intention to spend at least 43 years on the Court; if he follows through, there would still be several years left for him to serve.
Although there may not be a Supreme Court nomination to occupy the Senate’s attention during the lame-duck session, there are lower-court confirmations to consider, including nominees for the U.S. Courts of Appeals for the Fifth, Eighth, and Tenth Circuits. As Michael Fragoso notes in the Wall Street Journal, the lame duck could represent Republicans’ last chance for some time to confirm conservative constitutionalists to the bench.
Republican senators can make a difference and send a message by placing the Constitution first and advancing the originalist nominees now pending. Petty or parochial squabbles with Mr. Trump may grab favorable headlines today, but they will be forgotten in a week. A judicial appointment can last a lifetime.
