Tuesday’s blue wave gives Democrats an unexpected foothold to leave a mark on the nation’s judicial system — including the Supreme Court.
After two years of Republicans approving President Donald Trump’s judicial picks, the Democrats in January will seize control of the confirmation process for the last two years of his presidency.
Republicans could try to ram through as many of the 21 pending conservative appointees while they still can for district and appeals courts, which have lifetime appointments and increasingly determine the fate of many presidential policies.
One of the judges confirmed in Trump’s lame-duck period in 2020, for example, was U.S. District Judge Aileen Cannon, who would ultimately dismiss the Mar-a-Lago-based criminal case against him.
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Democrats this year have criticized Trump’s judicial nominees, in part because many have declined to say Trump lost the 2020 presidential election.
Once the new session starts, Democrats could reject Trump nominees they find too extreme, negotiate for more moderate nominees or let vacancies stack up for a potential Democratic president in 2028, experts say.
Trump is “going to have to play ball with the Democratic senators,” said Russell Wheeler, who tracks judicial nominations at the progressive Brookings Institution. “I don’t think they’re in a position to be too accommodating to Trump. A few may squeak through, but not many.”
Jeremy Fogel, a former federal judge who is a member of the nonpartisan Keep Our Republic’s Article III Coalition focused on judicial independence, recalled his own Senate confirmation in 1998 with President Bill Clinton and a Republican Senate.
“We’ve been here before,” he said. “It’s not like there’s a total embargo of nominations. People who get confirmed are not as offensive to the other side. The only people who were getting through were those with bipartisan credentials. What you tend to get is more moderate people with a broad consensus that this person would be a good Article III judge. That’s my hopeful view of this.”
At the same time, the election outcome also led to speculation that the conservative Supreme Court justices Clarence Thomas or Samuel Alito could quickly resign so Trump and Republicans can confirm a successor with a similar ideology before the end of the year.
But court watchers downplayed the possibility Wednesday. Thomas is close to becoming the longest-serving justice in history. And Alito said to CBS News recently that at age 76 he had “thought about” retiring but told The Wall Street Journal he decided to stay “here for another term.”
“No justice is going to announce in the next few days that he will be stepping down at the end of the Court’s term. Justices don’t make snap decisions about retiring,” Edward Whelan, a lawyer at the conservative Ethics and Public Policy Center, said in a Substack post.
Another reason: Sen.-elect Sherrod Brown fills the empty Ohio Senate seat next month, and at least five Republicans senators — including three Trump essentially pushed out — “aren’t going to be eager to do Trump any favors.”
Florida Gov. Ron DeSantis was one Republican who pointed out that the next few weeks could be the last window for years when it comes to the Supreme Court, and that Democrats might be in control of the Senate for some time. He put the chance at “zero” that Democrats would confirm a Republican president’s pick for the high court, and “probably zero” through 2033.
The contentious confirmation showdowns over Supreme Court nominations would leave Democrats unlikely to allow Trump to fill an unplanned vacancy, such as illness or death of a conservative justices.
That could leave the court, currently with a 6-3 conservative tilt, with eight members and unable to decide cases if evenly split — a possibility Notre Dame law professor Derek Muller referred to in a social media post.
Muller half expects the next two years to look a lot like President Barack Obama’s final chapter, in which then-Senate Majority Leader Mitch McConnell blocked his court picks in an attempt to hold out on the possibility of a Republican presidential successor.
That winning bet paid off when Trump inherited an outsized backlog of nominations during his first administration, including a Supreme Court vacancy left by the death of Justice Antonin Scalia.
“I’d look at that precedent and wonder if that’s what [Democratic senators] Sheldon Whitehouse and Chuck Schumer want to do,” Muller said.
Muller noted that as of late “we expect our judges to do a lot of work, especially on executive orders and hot-button, short-fuse litigation.” A flood of court battles on constitutional issues has vastly raised the stakes and put Trump’s own legacy in jeopardy, potentially incentivizing either side to hold their ground in the two years that remain in the presidential administration.
“We’ve put a lot of strain on the courts, and understandably there’s a reason why senators and the president are very picky about who gets to those positions. It will certainly create additional strain on the judiciary,” Muller said.
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