NewsMacroLegal Expert Elie Honig: Trump Has Picked His Last Supreme Court Justice

Legal Expert Elie Honig: Trump Has Picked His Last Supreme Court Justice

Author: Alternet·

Key Takeaways

  • •Elie Honig said President Trump is unlikely to see another Supreme Court nominee confirmed while Democrats control the U.S. Senate.
  • •Democratic resentment stems from Mitch McConnell's 2016 blockade of Merrick Garland's nomination and the swift 2020 confirmation of Amy Coney Barrett.
  • •Justices Samuel Alito, 76, and Clarence Thomas, 78, reportedly have no intention of retiring during the lame duck session.
  • •Honig stated that any vacancy arising in the previous 22 months would almost certainly have allowed Trump to seat a replacement through the Senate.
  • •Although justices can legally resign at any time, Honig argued that an Alito retirement right after the midterms would be viewed as overtly political and leave a lasting mark.
Legal Expert Elie Honig: Trump Has Picked His Last Supreme Court Justice

Former federal prosecutor Elie Honig said President Donald Trump is unlikely ever to get another Supreme Court nominee through the Democratic-held U.S. Senate, pointing to lingering Democratic resentment over how Sen. Mitch McConnell (R-Ky.) handled past vacancies on the high court.

McConnell argued at the time that, with a presidential election looming, former President Barack Obama could not be permitted to confirm another justice — even though the vote was still a year away. Obama's eventual nominee, Merrick Garland, never received so much as a Senate hearing for the seat left open by Justice Antonin Scalia's death. Yet months before Trump's failed 2020 election bid, Republicans pushed through one of their conservative judges — Amy Coney Barrett, seated after Justice Ruth Bader Ginsburg's death — denying President Joe Biden the same opportunity. Democrats, Honig suggested, likely have a score to settle on that front.

Conservative Justices Samuel Alito, 76, and Clarence Thomas, 78, have no intention of retiring during the lame duck session. Justices hold lifetime appointments, meaning a vacancy can open only through a justice's death or a decision to step down — which is why the retirement plans of two of the court's senior conservatives carry such weight.

"Had there been a vacancy at any point over the last 22 months, and people were primarily focused on Alito and Thomas, then Donald Trump could have chosen a replacement. And that person almost certainly would have sailed through the U.S. Senate," Honig explained.

He said the tables have turned now that Democrats have taken control, and agreed that Democrats still remember McConnell's "double-cross of 2016."

"Democrats remember that, and they're looking for revenge," Honig said, citing specific senators who are eager to pull the same maneuver on the GOP.

"So, I think that window has closed. I don't think we're going to see Donald Trump get another Supreme Court nominee through, even if there is a vacancy," he added.

His remarks prompted CNN host Wolf Blitzer to ask whether either justice could announce a retirement mid-term, allowing a new justice to be confirmed during the two-year lame duck session.

"Theoretically, yes. There's nothing in the law or Constitution preventing Alito, Thomas or anyone else from resigning today," Honig said. "But it's good to see our new reporting, because I've been speculating up until now that that would absolutely not happen. And I think our reporting confirms that it would be so obviously inconspicuously political for an Alito to retire now in the wake of these midterms."

He added that, as much as justices like to insist they are above politics, retirements are calculated. For Alito to step aside now "would be a mark for him that he could not escape."

With both justices signaling they intend to stay put and the confirmation power now resting with Senate Democrats, the questions ahead are how long that stance holds — and how Democrats would use their majority if a seat does open.