Don't Expect a Lame-Duck Supreme Court Vacancy (But There Are Other Nominations to Consider)

There has been rampant speculation that one of the older conservative justices (namely Justice Sam Alito or Justice Clarence Thomas) might choose to retire before the end of the year so that President Trump could name a replacement while there is still a Republican majority in the Senate. But that is all it is: Speculation.

I have previously predicted that neither Justice Alito nor Justice Thomas would retire during this presidential term (let alone this year). I adhere to this view.

Today, the New York Times and Bloomberg each report that Justice Alito has reaffirmed that he is not planning to retire this year, and that this week’s election results have not altered his intentions.

From the Times:

Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats’ commanding win in Senate contests on Tuesday, which means Republicans will hold the chamber for only a short time longer.

As a result, Republicans may have missed the window for President Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.

Justice Alito shared his plans with friends after the election results were clear this week, according to two people close to the justice who spoke on the condition of anonymity.

From Bloomberg:

The 76-year-old Alito, an anchor of the court’s conservative wing, has been the subject of speculation that he might abruptly step down to let President Donald Trump fill the vacancy before Republicans relinquish control of the Senate in January. Such a move could extend Trump’s imprint on the court by letting him add a younger, conservative jurist to serve for decades.

The chatter has continued even though Alito said in an interview with Bloomberg News in late September that he had decided to remain no matter how the election turned out. “I intend to stick around through this term,” he said then, referring to the nine-month court 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 equivalent report on Justice Thomas, there is little reason to think he is going anywhere. Justice Thomas is on the verge of becoming the longest serving justice in the nation’s history. Moreover, Justice Thomas has previously said he intends to spend at least 43 years on the Court. Were he to stick to that plan, he would have several more years to go.

While there may not be a Supreme Court nomination to keep the Senate busy during the lame-duck period, there are lower court nominations 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 may be Republicans’ last opportunity to confirm conservative constitutionalist judges for some time.

Republican senators can make a difference and send a message by putting the Constitution first and confirming the originalist nominees now pending. Petty or parochial squabbles with Mr. Trump may get favorable headlines today but they will be forgotten in a week. A judicial appointment can last a lifetime.

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