Here’s a scenario, far from improbable: Dems flip the Senate in the fall of 2026, and Alito and Thomas immediately announce their retirements. The GOP majority, in office from Election Day through the New Year, rushes through confirmation of two 35-year-old MAGA judges, and gets them appointed before the Dems take over the Senate. Is there anything the Dems could do to prevent this monstrosity?
Ruth Bader Ginsburg died on September 18, 2020. Her replacement, Amy Coney Barrett, was sworn in on October 27, 2020. The makeup of the Senate now is quite similar to the makeup then. So, IMO, the answer to your question is, unfortunately, no.
Honestly, I think the main constraint in that scenario would be time. The lame duck session would last for two months, including Thanksgiving, Christmas, and New Year’s. That’s not much time to hold hearings on two nominees, considering that Democrats will drag their feet as much as possible, and there’s always a chance that some legit scandal could come to light.
I doubt it will happen that way, though. I think the likeliest scenario is that Alito retires with plenty of time to go before the election, and Thomas doesn’t go anywhere in the next two years because he is within striking distance of being the longest-serving justice ever, and he would have retired before now if he didn’t care about that.
But that’s sort of the question: how much foot-dragging do you figure is possible?
ETA: ninja’ed on my first point …
Good thinking, but …
If the Rs don’t much care about precedent or thoroughness [Narrator: they don’t], the “hearings” could last about 10 minutes each.
The only thing that might matter is the ability of Dems who’re in the right position in the Senate wiring diagram to drag their feet as you say. Who are they and what might they do over determined R opposition? My bet is “not much”.
If it becomes obvious in Nov (or even before) that the voters have (or will) thoroughly repudiated the trumpist fascist project, there will be a full press smash-and-grab on the part of the trumpists to ensure their grip on the power and money survive the new Congress. The time between them coming to this conclusion and the seating of the new Congress will be chaos with them “flooding the zone” both in terms of the news cycle and bureaucratic and legal activities with actual substance.
I think Thomas dies in office. Like his mentor, Scalia.
The grift ends when he leaves office. So of course he’s not going to retire.
If there’s a Dem rout in the midterms it might sow chaos as the Pubs jockey for position. Some Pubs might want one last meal at the trough if they’ve been voted out (Susan Collins, if we’re lucky).
The main thing stopping it isn’t time. It’s the egos of Alito and Thomas. They aren’t looking out primarily for the good of the Republican party, for the good of the MAGA movement, or even for the good of Donald Trump. They’re first and foremost looking out for themselves. They may eventually retire if extreme personal circumstances arise, but I can’t imagine either one retiring for anything other than personal, not political, reasons.
ETA: They may very well decide to hang on in a situation where it would be prudent to retire (see RBG as the prime example), but they would never retire in a situation where it isn’t prudent for them personally.
You may very well be correct, but the OP distinctly asked what would happen if, in fact, both of them do retire immediately following Election Day 2026.
Real world - very little. I think their best move would be to threaten to pack the court if the next presidential election goes their way but Republicans might not find that threat credible either because they think Republicans will have rebounded in two more years or because they know the Democrats have feet of clay.
You are correct. I can think of one scenario that might stop things. If we’re assuming the senate flips, one of those seats is likely to be John Cornyn’s. Cornyn sits on the judiciary committee, and could, as a final gesture of defiance to the administration for not being endorsed by Trump, decide to vote with the Democrats on the committee to not advance any nominations to the floor of the senate.
Thomas is solely looking out for himself but Alito, IMHO, is motivated by ideology. He’d be more likely than Thomas to step down if he got to pick his replacement and help shape the future of the court.
If some trumply benefactor paid them enough, they’d step down to be replaced by some 35yo hand-picked fascists whose confirmation would be waved (waived) through during the lame duck session.
But absent a lot of untraceable money, neither of those guys are leaving the bench alive.
Cornyn is not going to jeopardize his future wingnut welfare payments for a little stab at Donald Trump. He may try to hold out a bit for a raise, just so he feels appreciated, but he’s going to be a good little soldier for the movement, which goes on regardless of who is at the head of government or the ticket, and sees the Supreme Court as its most important possession.
Don’t forget that the Republicans changed the rules is 2017 so that Supreme Court justices cannot be filibustered. That effectively takes away the Dems best delay tactic.
Well if I’m elected president in 2028, my first official act as King would be to arrest Roberts, Alito, and Thomas and throw them in the clink. Illegal of course, the king can do no wrong they say.
It just has to be official.
Don’t worry, it’s a Republican policy to not confirm any Supreme Court justices in an election year.
Only if a Democrat is President.