Supreme Court Justice Samuel Alito has repeatedly put off any decision about retiring, and one former federal prosecutor argues that the delay may now set him up to repeat the mistake that stained the legacy of Ruth Bader Ginsburg. The stakes are structural: justices on the nation's highest court hold lifetime appointments, so the timing of a vacancy — and which party controls the Senate that confirms a successor — carries consequences that outlast the White House making the choice.

James D. Zirin, a legal analyst and former federal prosecutor in the Southern District of New York who writes regularly for The Hill, made the case in a column published Tuesday. He recalled that Ginsburg, one of the court's most famous liberal justices, kept working throughout the Obama administration rather than retiring and allowing a fellow liberal to be named as her replacement. Instead, she attempted to wait out the first Trump administration and tragically passed away at 87, just weeks before the 2020 election, allowing Trump and the Republican Senate to swiftly confirm Amy Coney Barrett as her successor — a confirmation completed just eight days before Election Day.

"Justice Samuel Alito, now 76, may well suffer from Ginsburg syndrome," Zirin explained. "The new Senate, with its decisive Democratic majority, is unlikely to confirm a hard-right justice. But the new Senate will not be seated until January. If Alito wants to preserve his legacy for a generation, he needs to retire immediately while the MAGA Republicans still hold the majority."

According to the New York Times, however, Alito has told friends he does not plan to step down before the end of the court's term in June, even though Democrats will assume Senate control in January. The Times reported that Alito shared those plans with friends after the election results became clear this week. As recently as last month, the conservative justice had rejected the idea that he would resign if Democrats took control of the Senate. Alito joined the court in 2006 as an appointee of President George W. Bush and is one of six Republican-appointed justices on the current nine-member bench.

"I intend to stick around through this term," Alito told Bloomberg News in October.

Unless Alito, or a different conservative justice, retires by January 3, Zirin argued, Republicans will have "probably missed their window of opportunity for Trump to name a fourth justice to the Supreme Court in the final two years of his presidency." Trump appointed three justices during his first term — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — making a fourth the potential next addition to a bench where Republicans already hold six seats. Even if a vacancy were to emerge promptly, some observers contend it may already be too late. Supreme Court nominees have been confirmable by simple majority since 2017, which is why even a small group of defectors could determine the outcome of a vote.

"Despite the speculation, legal experts largely agreed after Election Day that fast-track retirements would not guarantee confirmation of a successor," Zirin explained. "The Republicans hold a majority in the present Senate of 53-47. But a nominee would face the possible defection of departing Republican senators such as John Cornyn (R-Texas) and Bill Cassidy (R-La.), who were defeated in primaries by Trump-backed challengers."

He continued: "In addition, there is Sen. Susan Collins (R-Maine), a moderate who lost on Tuesday. She claims Justice Brett Kavanaugh misled her on overruling Roe v. Wade during his stormy confirmation hearing. And there is the maverick Sen. Lisa Murkowski (R-Alaska), who may desert the fold. The group may have had little appetite to help Trump steamroll a nominee of his choice."