The midterm elections are top of mind for Senate Republicans waiting on Justice Samuel Alito to decide whether he will step down from the Supreme Court in the coming weeks.
Alito, one of the six justices who make up the high court’s conservative majority, prefers that a GOP president appoint his successor after 20 years serving on the bench, and Republicans are gently noting that he could retire later this year with little risk to his legacy.
Senate Majority Leader John Thune (R-SD) said “our preference” is that Alito, 76, steps down while Republicans have full control of Washington, though he, like other Republicans interviewed by the Washington Examiner on Tuesday, added the decision was Alito’s alone to make.
“These guys, they make their own decisions,” Thune said. “But if you were going to do something, obviously doing it when we have an opportunity — control of the Senate and the White House and everything else — is obviously, from a timing standpoint, would be certainly our preference.”
Earlier on Tuesday, Thune said that Republicans would be prepared to confirm a successor before the midterm elections should Alito retire after the Supreme Court finishes out its current term in late June or early July.
“That’s a contingency, I think, around here you always have to be prepared for,” Thune said. “And if that were to happen, yes, we would be prepared to confirm.”
The electoral calendar is perennially discussed for a court whose oldest members are flirting with 80. Republicans also want to avoid the fate that befell Democrats in 2020, when the death of Ruth Bader Ginsburg, a liberal icon, gave President Donald Trump the chance to cement conservatives’ 6-3 majority for the court.
Alito has not publicly tipped his hand on whether he will retire, but he is reportedly cognizant of the political implications of his decision. He can either hope that Republicans keep the Senate in November, giving him more time to serve on the bench, or bow out and hand Trump a sure vote. Justice Clarence Thomas, 77, is a year older but has repeatedly shut down talk of retirement.
Right now, Republicans enjoy a favorable Senate map and a three-seat majority, but they are keenly aware that political fortunes change quickly in Washington and that Democrats could be running the chamber next year if the GOP has a bad election night.
So far, Democrats have been overperforming in special elections across the country and have a narrow path to Senate control that runs through GOP-held states such as North Carolina and Alaska.
The chatter over Alito’s retirement has been cited by Democrats as evidence that Republicans are worried about retaining control of the Senate in November.
Trump is navigating a war with Iran that has sent gas and fertilizer prices skyrocketing. Republicans must also overcome the political headwinds that incumbents normally face in a midterm year.
But Sen. John Cornyn (R-TX), an adviser to Thune who is running for reelection in Texas, made a different midterm argument in a brief interview, suggesting an Alito retirement could be a good thing for Republicans and boost GOP enthusiasm, as it did in 2016 when Trump promised evangelicals he would nominate justices who would help overturn Roe v. Wade.
“I think he’s been terrific, but if he decides to step down now and give us a chance, to give the president a chance, to nominate a fourth Supreme Court justice, that would be a great opportunity,” Cornyn said of Alito.
“I think it’d also be a great rallying point for Republicans and other conservatives,” he said.
When asked if he would advise Alito to step down, Cornyn responded: “Oh, he’s not going to take my advice, and so — he’ll do it when the timing’s right … If he decides to stay there, then I’m happy with that.”
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Sen. John Kennedy (R-LA), a member of the Senate Judiciary Committee, waved away questions about Alito as premature, and even Alito’s closest colleagues are in the dark about what he will decide, according to the New York Times.
“If he retires, come see me,” Kennedy said.
But other Republicans, particularly those responsible for ushering judicial nominees through the Senate, have already begun giving thought to who might replace him.
Sen. Chuck Grassley (R-IA), the chairman of the Senate Judiciary Committee, said that he would recommend two of his Republican colleagues, Sens. Mike Lee (R-UT) and Ted Cruz (R-TX), to Trump if Alito retires.
“I hope he doesn’t retire … but if he does retire, I’m going to suggest that either Lee or Cruz be put on the Supreme Court,” Grassley said.
Those two names would be controversial in a Senate confirmation fight, owing to their conservative bent and alignment with Trump. But Cornyn, who also sits on Judiciary, said that any nomination will be difficult, alluding to the hyperpartisanship surrounding the confirmation of Thomas and Justice Brett Kavanaugh.
“The Supreme Court nominations are always controversial and downright ugly, but I’ve been through a number of them, and we’ll muscle our way through this one,” Cornyn said.
The White House did not respond to a request for comment on whether Alito should retire or whom Trump might favor. In February, the president joked that Cruz would get “100%” support from senators who want him out of the chamber.
“He is such a pain in the a**, but he’s so good and so talented,” Trump said at an event in Corpus Cristi, Texas. “If we ever had a problem, I just pick Ted. That would solve that problem.”
Cruz has previously ruled out serving on the high court, while Lee told the Washington Examiner on Tuesday that he wants Alito to stay put “forever.”
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“He’s the best there is, the best there has been, and the best there will be,” Lee said.
On the question of whether Alito should retire this year, Lee added: “I’m not going to speak for him. Everybody’s got to make their own decision.”
