Democrats just took the Senate, and the conservative legal world is melting down over a question it spent a decade insisting was perfectly normal: what happens when the other party controls who gets a Supreme Court seat? According to Fox News, the answer is that two aging justices might be "stuck" on the bench. Imagine being trapped in a lifetime appointment.
The Panic Is Already Setting In
Fox News Digital ran a piece this week with a headline that essentially says Trump's Supreme Court majority "faces looming threat" now that the Senate is going blue in January. The Republican judicial pipeline, so carefully built over years, is about to hit a wall.
The piece quotes "Lawless Lawfare" author Alex Swoyer saying Clarence Thomas and Samuel Alito are "likely stuck on the high court for at least six more years." Both are in their late 70s. Thomas is 78 and Alito is 76. The suggestion is that maybe they should retire right now, mid-midterm, before the gavel changes hands.
Note the framing. Serving on the highest court in the country for life, with a salary, a staff, and the power to rewrite American law, is described as being "stuck." Somebody get these poor men a sympathy card.
Alito Has Already Said No
Here's the part that makes the whole panic piece a little awkward. Alito told Fox News on Thursday that he has no plans to retire. He plans to serve through at least the current term, with the big decisions expected to wrap up in late June or early July.
So the story is basically a conservative commentator wringing her hands about a retirement that the guy in question has just publicly declined to do. Zack Smith of the Heritage Foundation even noted that neither Thomas nor Alito has signaled any plan to leave.
That's the whole drama. A looming threat that consists of two men not doing something they've said they won't do.
A Five-Week Window and No Appetite
Could Republicans jam a nominee through before January? Swoyer says it doesn't look like it. She points out that Amy Coney Barrett was confirmed in about a month back in 2020, but says she doesn't think this Senate has "that same work ethic or ability." That's a Fox contributor saying Republican senators are too lazy to do the one thing they've built a movement around.
She adds that a judicial nominations expert told her the holiday calendar doesn't leave enough time. Even a five-week window that sounds workable, she says, doesn't seem like something Majority Leader John Thune has the support to pull off.
So the plan, such as it is, involves a retirement nobody has announced, a nominee nobody has named, and a Senate that reportedly can't be bothered. Cunning.
The Lower Courts Are the Real Scramble
The less glamorous problem is the rest of the federal bench. As of Nov. 8, the judiciary had 28 vacancies, with 16 nominees waiting on confirmation for current and future openings. Republicans have a shrinking runway to fill them before Democrats take over.
Smith's advice is that the top priority should be confirming those lower-court picks, and that it "will take all senators showing up and doing their part." Read that again. The strategy for protecting a generational project depends on senators showing up to work.
This is the machine that was supposed to be unstoppable. It now needs a reminder to attend.
Ginsburg Haunts the Whole Debate
The piece leans on a familiar ghost. Ruth Bader Ginsburg resisted calls to retire before the 2014 midterms, when Republicans were poised to take the Senate. She stayed until her death in September 2020, and Trump replaced her with Barrett days before Election Day, locking in the 6-3 majority that later overturned Roe v. Wade.
In between, Republicans refused to even consider Merrick Garland in 2016 after Antonin Scalia died. That gambit is why Neil Gorsuch sits where he does. Fox quotes a Democratic senator who claims the GOP "stole" two seats and wants the court expanded.
So the same movement that blocked a nominee for most of a year, then rammed one through in about a month, is now worried about fair play in the other direction. Funny how the rulebook changes depending on who's holding it.
The Dingo Take
"It's likely the justices are stuck on the high court for at least six more years." Stuck. Lifetime tenure, no accountability, and the power to overrule Congress, and the complaint is that it might last too long. Nobody is stuck here except a conservative legal movement that built its entire strategy on timing and now has to live with the clock it created.
Look, the hypocrisy is the whole story. Republicans held a seat open for most of a year in 2016 because the election was coming. Then they sprinted through Barrett in a month in 2020 with the election even closer. Now they want a graceful, orderly exit before the other side gets a vote. You don't get to burn down the norms and then act wounded when someone else holds the matches.
And for the record, the justices can do whatever they want. Alito says he's staying. Thomas hasn't said a word. If they decide to hang on and let the voters have a say in who replaces them, that's called democracy. It's a strange thing to treat as a threat.
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