WASHINGTON — Republicans are gearing up to cement their remake of the judiciary under newly-elected President Donald Trump and a new Senate majority, including possibly installing some more conservative Supreme Court justices.
Having already picked three Supreme Court justices in his first term – who were crucial in overturning abortion rights – Trump will have appointed a majority of the court if he gets two more.
Trump has made the Supreme Court and lower courts priorities during his first term. He worked with Senate Republicans to help reform the entire judiciary by appointing 234 federal judges.
Republicans will hold at least 52 seats in the Senate after flipping Democratic seats in West Virginia, Montana and Ohio. The number could grow, while several other races are still too close to call. Either way, they will have the power to confirm judges and justices with a simple majority.
Conservatives are primed for Supreme Court retirements, with most of the focus on Justice Samuel Alito, 74.
“I would imagine Judge Alito would want to leave DC as soon as possible,” said Mike Davis, former chief counsel for Senate nominations and leader of the conservative Article 3 Project advocacy group. “That’s who I would predict.”
The top candidates to become the next Senate majority leader — John Thune, R-S.D., and John Cornyn, R-Texas — both plan to prioritize confirming judges under Trump.
“In January, we must be ready to confirm his nominees,” Cornyn said as he listed other priorities such as passing a budget, extending Trump’s tax cuts and enacting stricter border policies.
A source close to Thune said that “confirming conservative judges will certainly be a priority,” calling Trump’s first term a “great” model to watch.
When it comes to the Supreme Court, observers have their eyes on the two most senior conservatives. Judge Clarence Thomas, who has served on the court since 1991, will turn 80 when the next presidential election takes place in 2028. He is almost the longest-serving judge of all time, a milestone he would reach that year. Alito, who wrote the 2022 ruling that overturned Roe v. Wade, has been in office since 2006 and will turn 78 ahead of the next presidential election.
Both are conservative supporters who in some ways are more aligned with the Trump wing of the Republican Party than the three justices Trump appointed in his first term. They have also both been subject to hostile criticism in recent years over allegations of ethical lapses.
“I certainly expect there will be a vacancy, maybe two,” said John Malcolm, an attorney at the conservative, Trump-allied Heritage Foundation who was among those who helped compile a list of potential Supreme Court nominees for Trump when he first ran for office. in 2016.
A Trump-appointed majority on the Supreme Court
If Trump gets two appointments, he would be the first president since Franklin D. Roosevelt to appoint a majority of justices to the court, a milestone he could reach as early as the summer of 2026, depending on the timing of his retirement.
Trump’s previous appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were instrumental in shifting the court further to the right with a 6-3 conservative majority. All three voted to roll back abortion rights and frequently joined statements invalidating the Biden administration’s actions.
Davis, a combative Trump supporter known for throwing rhetorical flames at Trump’s critics, called his three justices the “most consequential performance of his first term.”
And this time there may be new criteria.
“President Trump will build on that with even more bold and fearless legal choices,” he said. “It means judges who will follow the law and not care about what the liberal media says about them.”
If Thomas or Alito resign, Trump will likely look to the dozens of appeals court judges he appointed in his first term to find candidates to replace them, some experts believe.
Trump’s former White House counsel Don McGahn, who played a key role in judicial selections during the first term, spoke at a recent event about the importance of judges having “the courage to do the job you’ve been given ‘. He added that some of Trump’s potential Supreme Court nominees are “certainly more strident” than previous generations of conservative justices.
And among Democrats, concerns are high about whether Judge Sonia Sotomayor, 70, a lifelong diabetic, will last another four years. Some Democrats had openly questioned this year whether she should resign and bring in a liberal replacement to avoid a repeat of what happened to former Justice Ruth Bader Ginsburg, who died during Trump’s first term, leaving him the court could swerve to the right by electing Barrett.
“Sonia Sotomayor needs to retire now,” said a Democratic official who worked in the Biden administration, within hours of NBC News predicting that Trump had won the presidency.
If she does, there will be no rule prohibiting Democrats from confirming a potential Sotomayor successor during the lame-duck session. They wouldn’t need Republican votes for that. But some on the left familiar with the Senate confirmation process point out that there is no guarantee that a replacement for Sotomayor will be confirmed in time.
“I don’t think they can realistically confirm a replacement, and that would be risky,” said Alex Aronson, a former Democratic Senate staffer who now heads Court Accountability, a liberal legal group.
Sotomayor did not respond to a request for comment on her plans, passed through a Supreme Court spokeswoman.
Chuck Grassley is likely to become chairman of the Judiciary
Sen. Chuck Grassley, R-Iowa, told NBC News in September that he would seek to return as chairman of the Judiciary Committee if Republicans regain the majority. Grassley has seniority on the committee, which determines which judicial nominations the full Senate votes on.
Before the election, numerous Republican senators on the Judiciary Committee told NBC News they expected at least one, if not more, Supreme Court retirement if Trump prevailed and their party won the Senate. Sen. Josh Hawley, R-Mo., said he believes the Republican Party would look for more justices like Thomas or Alito, especially if they are the ones being replaced.
Unlike in 2016, Trump has not released a public list of potential Supreme Court nominees. But the task of identifying potential nominees is made easier for him because he now has a large pool of lower court judges he has appointed to choose from.
“He has the luxury of having appointed several excellent judges who have been judges for a number of years and therefore have a legal track record,” said Malcolm of the Heritage Foundation.
Among them is Judge Andrew Oldham of the New Orleans-based 5th U.S. Circuit Court of Appeals, who clerked for Alito. Another is Judge Amul Thapar of the Cincinnati-based 6th U.S. Circuit Court of Appeals. He was Trump’s first nominee to the appeals court in 2017. Newly elected Vice President JD Vance’s wife, Usha Vance, was a clerk for Thapar when he was a district court judge.
Other names that conservative legal insiders often mention as potential Supreme Court nominees include Judge James Ho of the 5th Circuit Court of Appeals, Neomi Rao of the US Court of Appeals for the District of Columbia Circuit and Judge Patrick Bumatay of the San Francisco established 9th US Circuit. Court of Appeal. Trump appointed them all to their current positions.
There are 47 vacancies on the lower courts — trial courts and the 13 influential appellate courts — that President Joe Biden has not filled.
But waiting in the wings are dozens of Republican-nominated judges who would have been eligible to retire with full pay in January but likely postponed doing so until there was a Republican president who could appoint their successors.
There are 83 such judges, according to Russell Wheeler, a scholar at the nonpartisan Brookings Institution who tracks judicial appointments.
Once Trump comes to power, he will likely be able to fill most of those vacancies.
The GOP will not pursue the Supreme Court’s ethics rules
Trump has already transformed the federal courts in his first term, appointing 54 appeals court judges and 174 district court judges, many of whom are closely associated with the Federalist Society, a conservative legal group. Even aside from the Supreme Court, these judges have played a major role in pushing the law to the right.
Biden has put his own stamp on the judiciary by appointing a total of 210 district and appellate court judges, including 44 appellate court judges, which falls just short of Trump’s total. His appointees have been considerably more diverse than Trump’s, and he has also picked some with experience as public defenders or civil rights lawyers.
The extent to which Trump will follow the roadmap from his first term, in which he postponed the appointment of conservative lawyers such as McGahn and legal activist Leonard Leo, remains to be seen. Neither McGahn nor Leo responded to requests for comment on whether they will offer their advice this time.
In recent years, the Democratic-led Senate has tried to impose new ethics rules and conduct investigations into reports of possible Supreme Court corruption, but has been stymied by Republicans who used the filibuster to block the bills and prevent subpoenas were enforced.
Outgoing Senate Minority Leader Mitch McConnell, R-Ky., who led Trump’s three justices through the chamber, said those efforts will likely end under a Republican Party-led Senate.
“We will stop beating up the Supreme Court every time we don’t like the decision they make,” he said.
This article was originally published on NBCNews.com
