WASHINGTON (AP) — President Donald Trump has led a transformation of the Supreme Court that ushered in a conservative supermajority, but he will soon face an emboldened Democratic-led Senate that is preparing to play hardball on his judicial nominations.
Senate Minority Leader Chuck Schumer, who is expected to return as majority leader next year, promised in a statement interview with the Associated Press that Democrats will stop Trump from installing a “right-winger” on the Supreme Court and that they will “not allow any crappy appointments” elsewhere on the federal bench or in Trump’s cabinet.
Democrats will hold at least 54 seats next year and up to 56 depending on final results in Mississippi and Alaska, which will give them a significant majority to block Trump’s nominees or simply ignore them.
After years of being on the losing side very partisan confirmation fights against Republicans, particularly against Supreme Court nominees, Democrats will be under considerable pressure to use the same type of aggressive tactics.
That virtually erases any prospect that Trump might add to his imprint on the court he created during his first term by appointing three of the current justices. In the past, Trump had privately mused that he might end up appointing as many as seven people to serve in a nine-person seat by the end of his second term, according to a person with knowledge of those comments.
Schumer declined to say specifically whether he would maintain a Supreme Court vacancy until after the next presidential election, as former Senate Republican Leader Mitch McConnell did it in 2016paving the way for Trump to nominate the first of his three Supreme Court picks.
“At the end of the day, we’re not going to allow a right winger to get on the field,” Schumer said.
The White House said Thursday that “extremist Democrats have a history of politicizing the Supreme Court, even considering packing the Court with liberal justices.”
“President Trump will never let them pack the Supreme Court and ruin the independence of the judiciary,” White House spokeswoman Lauren Bis said.
Neither of the Court’s two oldest justices, Samuel Alito, 76, or Clarence Thomas, 78, have publicly indicated they will retire soon. Lifetime appointments typically come with a move away from political upheaval, even the scale of Tuesday’s elections, where Democrats regained control of the House and Senate.
“I think the justices need to know that if they were to retire now, just before the Democrats enter the Senate, there would be enormous, unprecedented pressure to make serious changes to the court,” said Dale Carpenter, a law professor at Southern Methodist University Law School.
Alito has publicly mulled retirement in recent months, telling the Associated Press that he does not know “how long I will be able to continue doing this work”. But he also said he would stay on the field until the term ends next summer and told Bloomberg he would not resign during a lame duck period.
Meanwhile, Thomas is closing in on a record term and would become the longest-serving justice in the nation’s history if he serves until May 2028.
Trump showed unusual deference to Alito and Thomas, even as he attacked other justices who ruled against him, praising them both for their legal acumen and refusing to say whether they should resign so the president could appoint their successors.
In an interview with Fox News in April, Trump said he had a shortlist of potential candidates but said he did not know if he would have another vacancy this year, citing Alito’s “very good physical health.”
Democrats’ sizable margins in the Senate will also hamper Republican efforts to regain ground in the 2028 elections, where the Republican Party will defend states like Wisconsin, North Carolina and Iowa, where Democrats made significant gains on Tuesday.
“Chance of confirming a worthy successor to Justice Thomas and/or Alito during President Trump’s term: zero,” Florida Governor Ron DeSantis posted on X after Tuesday’s election. “Chance of confirming a worthy successor during a hypothetical 2029-2033 GOP administration term: probably zero (GOP will not be able to reclaim enough seats in 28).”
Historically, some justices have timed their retirement with the president in mind who would appoint their successor, but that is far from the only consideration in their decision-making.
Former liberal justice Ruth Bader Ginsburg is famous resisted efforts by progressives to retire when President Barack Obama was in office and died during the final year of Trump’s first term, allowing him to replace her with conservative Justice Amy Coney Barrett.
Barrett would join the majority opinion in 2022 in Dobbs v. Jackson Women’s Health Organization, which erased the constitutional right to abortion.
Even if there were a surprise vacancy on the Supreme Court in the coming weeks, lame confirmations while Republicans remain in power are not a sure thing.
Trump effectively forced Sen. Thom Tillis of North Carolina to withdraw from his re-election bid. That seat was won Tuesday by the state’s former governor, Democrat Roy Cooper. The president also opposed two Republican incumbents in their primaries, Sen. Bill Cassidy of Louisiana and Sen. John Cornyn of Texas. The Democrats won these seats. Maine Sen. Susan Collins, another Republican who lost, attributed her defeat in part to Trump.
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