Dem
47
GOP
53
On Tuesday, NPR's long-time Supreme Court reporter, Nina Totenberg, reported that Justice Samuel Alito was retiring. No one was shocked. Many people expected it. Only it wasn't true. Very embarrassed, Totenberg soon retracted her scoop. She then wrote and published an abject apology. Of course, if he does retire in July, she will look prophetic.
Many people have speculated that Alito will indeed retire this year because he knows that Donald Trump will then appoint a younger version of himself and the Senate will quickly confirm him. That window might close on Jan. 3, 2027, when a potential Democratic Senate would never confirm any Trump nominee in hopes that a Democrat will be elected president in 2028.
Strategic resignations, like Alito's would be, usually come in June or July, to give the new nominee time to clear the Senate before the Court's term starts on Oct. 1. Alito could yet make an announcement in July, although the window for getting a confirmation would be smaller since the Senate is usually not in session much of August.
Another (riskier) strategy could be for Alito to make no announcement until after the midterms. If Republicans hold the Senate, there is no need for him to retire until 2028. He seems to enjoy his work supporting the Republican Party in every way he can. Then he could hang on until July 2028, retire, and still be sure of getting a conservative successor. In this plan, if Democrats win the Senate on Nov. 3, Alito could make an announcement in mid-November that he is retiring for a newly discovered "health problem." Then there could be a lame-duck session of the Senate in December to confirm Trump's new nominee. That is a bit risky because there wouldn't be a lot of time to get the job done and Democrats would stall as best they can, even though they couldn't filibuster. They could certainly yell to the moon how partisan this is and use that in their 2028 campaigns.
Clarence Thomas is in a completely different situation. He is already the second-longest serving justice in history. He is 78. If he hangs on until 2028, and there is no reason to believe he can't do that, he will become the longest-serving justice in history. Take that, libs. Of course, he would then run the risk of not being replaced by a conservative in 2028 if the Democrats control the Senate then. But Thomas is not really a dyed-in-the-wool Republican the way Alito is. He is just a man with a very big chip on his shoulder and is only looking out for himself. We would be surprised if Alito was still on the Court on Dec. 31 if Democrats win the Senate and would be surprised if Thomas retired this year under any circumstances. (V)