Republicans’ loss of the U.S. Senate in the midterm elections could have far-reaching consequences for President Donald Trump’s judicial agenda, threatening his ability to reshape the federal courts and raising new questions about the future of the Supreme Court’s 6-3 conservative majority.
With Democrats set to take control of the Senate in January, Republicans face a shrinking window to confirm Trump’s judicial nominees, while any future Supreme Court vacancy could leave the president dependent on Democratic support to install a replacement.
“Lawless Lawfare” author Alex Swoyer told Fox News Digital, the election results could leave the court’s oldest conservative justices with a difficult decision over when to retire.
“It’s likely the justices â mainly Justices Thomas and Alito â are stuck on the high court for at least six more years with Democrats taking control,” Swoyer said. “Both in their late 70s, I could see why they may want to retire now, midterm.”
Justice Clarence Thomas, 78, and Justice Samuel Alito, 76, are the court’s two oldest conservatives, making their retirement decisions particularly consequential as Republicans prepare to lose control of the Senate.
Alito, however, confirmed to Fox News on Thursday that he has no plans to retire and is committed to serving through at least the current Supreme Court term, with the justices expected to wrap up their major decisions in late June or early July.
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“While Senate Republicans were able to confirm Justice Barrett in a one month timeframe in 2020, I don’t think this GOP Senate has that same work ethic or ability to push a nominee through ahead of January,” Swoyer said.
“I think conservatives would like to see them try; however, a judicial nominations expert told me the Senate work calendar ahead of the holidays would not afford them enough time,” she added. “While a five week window seems workable, it doesn’t appear like Senate Majority Leader John Thune would have the support to usher such a move at this time.”
The stakes extend beyond the Supreme Court. As of Nov. 8, the federal judiciary had 28 vacancies, with 16 nominees awaiting confirmation for current and future vacancies, leaving Republicans with limited time to advance Trump’s picks before Democrats take control of the Senate.
Zack Smith, a senior legal fellow for courts and the Constitution at the Heritage Foundation, said Republicans should focus on confirming Trump’s remaining lower-court nominees before their majority expires.
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“The top priority for Senate Republicans right now should be confirming the lower federal court judges President Trump has already nominated. It wi
