Terrified Republicans look to the Supreme Court

Rome. Ted Cruz, who overnight found himself the sole Republican state legislator in Texas, immediately got to the heart of the matter: from January onwards, forget about federal judicial appointments; we will no longer be able to appoint our own judges to the Supreme Court; the Democratic-controlled Congress will impeach the President and members of the Administration. Trump’s family members will be investigated; it will end very badly. Among ultra-conservative activists, the message was immediately taken on board: John Thune, the outgoing Senate leader, must put fifty or even sixty nominations to a vote straight away. We must act quickly, by December. Some are even suggesting that Supreme Court Justices Samuel Alito and Clarence Thomas announce their resignations today, so that Donald Trump can immediately nominate their successors and the Senate can proceed with hearings and their confirmation. Midterm-driven pipe dreams. Even if entirely legal, with a vote like the one last night, the move would seem like a sort of mini-coup. Moreover, who can guarantee that the outgoing moderate Republicans—those whom Trump has cursed (notably the Texan John Cornyn, sacrificed because the President preferred Ken Paxton, who was swept aside by the former seminarian Talarico)—will play along and give their final assent to the White House’s orders? No one. In fact, with cooler heads prevailing, the Grand Old Party is looking to the future. They are running the numbers, checking the register. At the Supreme Court, the situation is as follows: Clarence Thomas, appointed by Bush senior, is 78. Samuel Alito, chosen by Bush junior, is 76. Chief Justice John Roberts is 71. 

For at least two years, to maintain the six-to-three majority, nothing should therefore be changed. The problem is that with a Senate in which the Democrats hold 55, perhaps 56 seats, it is likely that they will manage to retain this majority even in 2028. And indeed in 2030. That makes it four years already, provided, of course, that a Republican president returns to the White House. The justice who seemed on the verge of stepping down was Alito, even though he had denied the rumours in an interview with Bloomberg News at the end of September: “I’m staying”, at least until the session that ends next June. “I made this decision many months ago” and, according to his friends, he has not changed his mind now, following the blue tsunami that has swept across America. Immediately, on social media dominated by MAGA supporters, he too became a RINO (Republican in Name Only), a label pinned on anyone who dared to dissent from Trump or hinder his agenda in any way. Alito’s alleged fault is that he did not resign an hour after CNN had confirmed the liberal triumph in the Senate, thereby allowing the president to appoint a bold, young, hyper-conservative to the Court. This gives an idea of the far-from-defeatist mood amongst a large section of the electorate that remains fiercely pro-Trump. Should Alito step down after the new Congress is sworn in, the choice of his successor would still fall to the incumbent president. Of course, to have the nomination approved, he would need to put forward candidates who are at least moderate, but the proposal would be his. And in any case, even without Alito, there would still be five conservative judges out of nine, three of whom were appointed by the current occupant of the White House (Neil Gorsuch to replace Antonin Scalia, Brett Kavanaugh to replace Anthony Kennedy, and Amy Coney Barrett to replace the liberal Ruth Bader Ginsburg). Ted Cruz, however, envisages another scenario: the Democrats, he says, will simply refuse to consider any nomination, leaving the Court with one (or two) fewer judges until the 2028 election. That way, they can make the choice themselves. This scenario is by no means impossible. In 2016, when Scalia died suddenly and the balance of power on the Court could genuinely have shifted, Obama nominated the moderate progressive Merrick Garland. The then Republican Senate Majority Leader, Mitch McConnell, refused to bring the nomination before the committee: ‘It’s an election year; the next president will decide,’ he said. McConnell changed his mind four years later: Bader Ginsburg died in September, the elections were scheduled for forty days later, and hearings for Judge Barrett were hastily organised.

But rather than the Supreme Court, the Republican camp is probably more interested in consolidating its hold on federal judges across the various circuits before the Democratic Party’s predictable boycott takes effect.