Alito Says He’s Staying Put as Democrats Plan Judicial Blockade 

Alito’s October Surprise

Justice Samuel Alito said that he plans to stay on the bench through the current Supreme Court session, part of a rare spate of interviews he gave in recent days to promote his new book.

“I intend to stick around through this term,” he told Bloomberg Law. “I made that decision many months ago.” The current Court term will end in June. 

The comments run counter to Republicans’ break-glass plan, should Democrats take the Senate: Coerce Alito and Justice Clarence Thomas, both in their seventies, to step down so they can be replaced by younger conservatives during the lame duck.

“It’s too hard to predict what the political situation will be and what any president might do with respect to a replacement,” Alito told CBS when asked about the strategy.

It’s not, in fact, hard to imagine what kind of nominee President Donald Trump would replace the two with, though their reluctance to retire does put Republicans at some amount of risk. If Democrats win the Senate, Alito and Thomas would have to survive until Republicans win it back to maintain the right-wing supermajority on the Court. Alito is 76 and Thomas 78.

If Democrats do get a majority in the upper chamber this November, leadership is saying they won’t greenlight Trump’s judicial nominees, still smarting from Republicans’ theft of Merrick Garland’s seat and ramming through of Justice Amy Coney Barrett’s nomination just before the 2020 election. 

“The bottom line is: One of the reasons we want to do everything we can to take back the Senate is not let Trump put such horrible justices — MAGA justices — on the Supreme Court and the lower courts,” Senate Majority Leader Chuck Schumer (D-NY) told NBC.

Schumer’s inclusion of lower courts is notable, as vacancies there are certain. During his two terms, Trump has appointed nearly 300 federal judges across district and appellate courts (plus his three appointments to the Supreme Court). These courts dwarf the Supreme Court in the number of rulings they issue. 

These dynamics up the ante for Democrats to not only win a Senate majority, but a Sen. John Fetterman (D-PA)-proof majority. Fetterman became the first Democrat to return a “blue slip,” which lets district court judge nominees from their home states be considered in committee, this June. He’s not alone, though, in his willingness to let Trump reshape the federal judiciary in his image: 19 Democrats have voted to confirm at least one Trump judge in his second term.

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