WASHINGTON – Republicans are preparing to overhaul the judiciary under President-elect Donald Trump and a new Senate majority, including appointing several more conservative Supreme Court justices.
Trump, who picked three Supreme Court justices who were critical in overturning abortion rights in his first term, would have appointed a majority of the court if he picks two more.
Trump made the Supreme Court and lower courts a priority in his first term. He worked with Senate Republicans to help reshape the entire judiciary by naming 234 federal judges.
Republicans will pick up at least 52 seats in the Senate, flipping seats held by Democrats in West Virginia, Montana and Ohio. The number could rise, with several other races still too close to call. In any case, they will have the power to approve judges and justices by a simple majority.
Conservatives are bracing for Supreme Court retirements, with most attention being paid to 74-year-old Justice Samuel Alito.
“I think Justice Alito is going to want to get out of D.C. as quickly as possible,” said Mike Davis, a former top candidate adviser for the Senate GOP who runs the conservative Article 3 Project advocacy group. “I would predict that.”
The top contenders to be the next Senate majority leader — Rep. John Tune, R-Texas, and John Cornyn, R-Texas — both plan to favor confirmation judges under Trump.
“Come January, we should be ready to confirm his nominees,” Cornyn said, citing other priorities such as passing a budget, extending Trump’s tax cuts and implementing a tougher border policy.
A source close to Thune said that “confirmation of conservative judges will certainly be a priority” and called Trump’s first term a “great” model to watch.
When it comes to the Supreme Court, observers have their eyes on the two oldest conservatives. Judge Clarence Thomas, who has served on the court since 1991, will be 80 years old at the next presidential election in 2028. He is close to becoming the longest-serving justice of all time, which he will achieve that year. Roe v. Alito, who wrote the 2022 decision that overturned Wade, has been in office since 2006 and turns 78 before the next presidential election.
Both are conservative stalwarts who, in some ways, are more in line with the Trump wing of the GOP than the three justices Trump appointed in his first term. Both have come under hostile scrutiny in recent years over allegations of ethical misconduct.
“I certainly expect there will be one vacancy, probably two,” said John Malcolm, a conservative lawyer at the Heritage Foundation, a Trump ally who helped compile a list of potential high court nominees when Trump first ran. . in 2016.
Supreme Court majority appointed by Trump
If Trump receives 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 in the summer of 2026, depending on when he retires.
Trump’s previous appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were instrumental in moving the court further to the right with a 6-3 conservative majority. All three have voted to repeal abortion rights and have regularly joined in rulings invalidating the actions of the Biden administration.
Davis, a staunch Trump supporter known for throwing rhetorical fire at Trump’s critics, called his three justices “the most consequential achievement of his first term.”
And this time there may be new criteria.
“President Trump will build on this with bolder and more fearless judicial choices,” he said. “That means judges who will follow the law and don’t care what the liberal media says about them.”
If Thomas or Alito resign, some experts say, Trump will likely turn to the dozens of appeals court judges he appointed in his first term to find replacements.
Trump’s former White House adviser, Don McGahn, who played an important role in court selections in the first term, spoke at a gathering. recent event about the importance of judges having “the courage to do what you’re told to do.” He added that some of Trump’s potential Supreme Court nominees are “certainly tougher” than the previous generation of conservative justices.
And among Democrats, concerns are high about whether Justice Sonia Sotomayor, 70, a lifelong diabetic, will make it. wait four more years. Some Democrats have openly wondered this year whether he should step down and secure a liberal replacement to avoid a repeat of what happened to former Justice Ruth Bader Ginsburg, whose death during Trump’s first term allowed him to swing the court to the right. Barrett chooses.
“Sonia Sotomayor needs to retire,” a Democratic official in the Biden administration said hours after NBC News predicted Trump would win the presidency.
If she does, there are no rules barring Democrats from endorsing a potential Sotomayor successor in a lame-duck session. They won’t need any Republican votes to do that. But some leftists familiar with the Senate confirmation process say there is no guarantee Sotomayor’s replacement will be approved in time.
“I don’t think they can realistically approve a replacement, and it would be risky,” said Alex Aronson, a former Democratic Senate staffer who now runs the liberal rights group Judicial Accountability.
Sotomayor did not respond to a request for comment on her plans through a spokeswoman for the Supreme Court.
Chuck Grassley is likely to become the Chairman of the Judiciary
Sen. Chuck Grassley, R-Iowa, told NBC News in September that he would seek to return to the Judiciary Committee chairmanship if Republicans win back the majority. Grassley has experience on the committee that determines which judicial nominees the full Senate votes for.
On the eve of the election, a large number of Republican senators on the Judiciary Committee This was reported by NBC News they expected at least one, if not more, Supreme Court retirements if Trump won and their party won the Senate. Sen. Josh Hawley, R-Mo., said he believes the GOP will try to find more justices like Thomas or Alito, especially if they are replacements.
Unlike in 2016, Trump has not released an open list of potential Supreme Court nominees. But his task of identifying potential candidates is made easier because he now has a deep pool of lower court judges to choose from.
“He has the luxury of appointing several outstanding judges who have already been judges for several years, so they have judicial experience,” said Malcolm of the Heritage Foundation.
Among them is Judge Andrew Oldham of the 5th U.S. Circuit Court of Appeals in New Orleans, who is a law clerk for Alito. Another is Judge Amul Thapar of the 6th US Circuit Court of Appeals in Cincinnati. In 2017, he was nominated by Trump to the first court of appeals. Usha Vance, wife of Vice President-elect JD Vance, was Thapar’s secretary when he was a district court judge.
Conservative legal insiders often mentioned as potential Supreme Court nominees include Judge James Ho of the 5th Circuit Court of Appeals, Neomi Rao of the U.S. Court of Appeals for the District of Columbia Circuit and San Francisco-based 9th U.S. Circuit Judge Patrick Bumatay. Court of Appeals. Trump appointed all of them to their current positions.
there is 47 vacancies lower courts—trial courts and 13 prestigious appellate courts—that President Joe Biden did not fill.
Dozens of Republican-nominated judges are waiting in the wings, delaying that until after a Republican president, who could retire with full pay in January but would likely appoint his own successors.
There are 83 such judges, according to Russell Wheeler, a scholar at the nonpartisan Brookings Institution who tracks judicial nominees.
Once Trump takes office, he will probably be able to fill most of these seats.
The GOP will not follow Supreme Court ethics rules
Trump has already reshuffled the federal courts in his first term, appointing 54 appeals court judges and 174 district court judges, many with close ties to the Federalist Society, a conservative legal group. Even if we leave aside the Supreme Court, those judges have one main role playing at pushing the law to the right.
Biden did own badge Across the judiciary, the appointment of a total of 210 district and appeals court judges, including 44 appellate judges, is slightly less than Trump’s total. His appointees have been significantly more diverse than Trump, and he has also chosen those with experience as public defenders or civil lawyers.
It remains to be seen how closely Trump will follow the road map from his first term, when he gave a reprieve to conservative lawyers like McGahn and activist Leonard Leo in his judicial appointments. Neither McGahn nor Leo responded to requests for comment on whether they would offer their advice this time around.
In recent years, the Democratic-led Senate has tried to introduce new ethics rules and launch investigations into reports of potential Supreme Court corruption, but they have been stymied by Republicans who use the filibuster to block bills and prevent subpoenas.
Senate Minority Leader Mitch McConnell, who steered Trump’s three judges through the House, said those efforts would end under a GOP-led Senate.
“We will stop beating the Supreme Court every time we don’t like a decision they make,” he said.