A Trump victory and a Democratic Senate

Would the reverse happen if Trump is elected but the Senate remains in Democratic hands?

Democrats like to think of themselves as “more responsible” than Republicans, but the pressure would be enormous to do to the Republicans what they did to the Democrats.

Republicans “essentially crossed the Rubicon” in 2016 with the Garland nomination, says Harvard law professor Noah Feldman, who has written extensively on the court’s history.

“Given that we are in a world of … controversial revolutionary decisions, neither party could give a positive vote to a presidential candidate from the opposite party,” he said.

NYU law professor Bob Bauer, who served as White House counsel for two years in the Obama administration, notes that institutional norms are not necessarily permanent.

The whole notion that “a certain process must be followed regardless of the potential impact on one party or another,” he says. “It’s not a norm if it no longer commands general adherence.”

What if Trump is elected and the Senate goes, as expected, to Republican control? The only thing standing between the nomination and confirmation of a new Trump-appointed judge would be two moderate Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine. If the Republican margin in the Senate is 52–48, their votes are not needed; JD Vance would be the tie-breaking vote for vice president even if Murkowski and Collins voted against the nominee.

So what recourse would the Democrats have in such a situation? How would they fight a Trump nomination? After all, there is no more filibustering to block a vote. Democrats abolished filibuster on lower court nominations in 2011 in response to Republicans routinely blocking judicial nominations. Republicans then abolished filibuster on Supreme Court nominations in 2017 after Trump was elected and nominated Neil Gorsuch to fill the seat left open by GOP leader McConnell after Scalia’s death.

Democrats are only honest about it when they say no to the assignment. As someone put it, “We would largely stick with the politics of personal destruction, investigating every aspect of a candidate’s life to find something that is disqualifying.”

Unforeseen circumstances

Of course, at this time, there is no vacancy on the Supreme Court.

Although the deaths of Justices Scalia and Ginsburg prove that nothing is certain, they were much older than any member of the current court. Scalia was just days away from turning 80, and Ginsburg was 87. Conversely, the oldest members of the current court are also among the most conservative. Justice Clarence Thomas is 76, and Justice Samuel Alito is 74, followed by liberal Justice Sonia Sotomayor, 70, and Chief Justice Roberts, 69.

Some of the most politically active conservative thinkers would like to see Thomas and Alito step down for younger conservative justices who could serve for decades and move the conservative needle even further to the right. They see as their “farm team” the ultra-conservative Fifth Circuit Court of Appeals, populated with former clerks Thomas and Alito whose decisions are often overturned even by current Supreme Court conservatives, including the men they once stood for clerks.

But those who know Thomas and Alito well are adamant that neither man would leave the court at this point. Several of those NPR spoke to would speak candidly only on condition of anonymity. “What would he do, go home and fly flags with his wife at the beach?” an Alito ally said, adding that the court is “Alito’s life.” As for Thomas, his friends and former clerks say he would see retirement as “giving in to his critics” and “kicking him off the field.”

So, barring retirements or unexpected health crises, the court could remain as is.

A period of dysfunction

That leaves the lower courts, which get less attention than the Supreme Court but decide many more cases. In the final year of the Obama administration, when Republicans controlled the Senate, no nominees to a regional appeals court were confirmed, although 10 circuit court judges, a small fraction of the vacancies, were. The result was that on the day Trump was sworn in, there were 105 judicial positions up for grabs.