When Republicans took a beating in the midterms, there was no denying that the clock started ticking on the Supreme Court's conservative majority. Democrats will take firm control of the Senate in January, and they’ll probably hold it for at least six years. That leaves Republicans with one narrow window to protect the conservative majority on the court, and it's closing fast.
The math is simple. If Justice Samuel Alito, who is 76, or Justice Clarence Thomas, who is 78, steps down soon, Senate Republicans can confirm a replacement during the roughly 60-day lame-duck session. If either seat opens after January, there’s no reason to believe Democrats will even give a Trump nominee a vote.
"If a Republican is elected president in 2028, that president will not be able to appoint any justices or judges until Republicans regain the Senate," Ed Whelan, a conservative legal expert who clerked for the late Justice Antonin Scalia, wrote on X. "Given the deep hole, that might not happen until 2033."
A Republican could win the White House and still spend years watching empty seats collect dust. And trust me, Democrats will have no qualms about doing that. Remember, Ruth Bader Ginsburg stayed on the bench through Barack Obama's entire presidency, brushing off calls to retire while her party controlled the Senate. She died weeks before the 2020 election, and Trump replaced her with Amy Coney Barrett. Don’t think for a second Democrats will hesitate to block any Supreme Court nominee from Trump or even a Republican successor. Missing this opportunity to replace Alito and/or Thomas risks shrinking or losing the conservative majority.
Thankfully, Senate Majority Leader John Thune (R-S.D.) said he would support a quick confirmation process during the lame-duck session.
"It can be done," Thune said. "You're talking about basically 60 days post-election in the lame duck… I certainly wouldn't rule that out."
He even called filling a vacancy "the top priority" for Senate Republicans. So the votes are theoretically there, and if the will is there, we can make it happen.
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Alito, however, threw cold water on the idea that he'd retire this year. He told Fox News on Thursday that he isn't retiring and plans to serve at least through the end of the current term in late June. He has every right to make that call, and he has earned the respect of every conservative in America. But by the time that term ends, Democrats will hold the gavel, and Trump's ability to replace him with a conservative will be gone.
Now, the real question is, what about Clarence Thomas?
Conservatives love Clarence Thomas. He has spent more than three decades defending the Constitution, enduring smears from the media and the left that would have broken a weaker man. It would be great if he could live forever and serve on the Court indefinitely. That's just not how it works.
Nobody on the right wants to see him go. But if he retired now, Republicans could secure that seat and keep the conservative majority intact that much longer. A younger originalist confirmed in the lame duck could carry his legacy forward for decades, long after the current Senate majority becomes a footnote.
I hate being so torn on this, but the reality of the situation is really sinking in. Asking a man to give up the work he loves, after everything he has given the country, feels wrong. Watching the Court slip away because the timing didn't line up would feel even worse.
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