President Donald Trump’s window to appoint another Supreme Court nominee may have closed, as Democrats have secured a Senate majority that could block any appointee he makes in the second half of his term, legal analysts told Newsweek. Democrats are picking up at least seven Senate seats in Iowa, Kansas, Maine, North Carolina, Ohio, South Carolina and Texas after the midterms, with races in Alaska and Mississippi remaining too close to call. One of the most significant impacts of a Democratic Senate is the ability to deny Trump a Supreme Court nominee if one of the nine seats becomes open in the next two years.
Any Trump-appointed justice would need Senate confirmation, and Democrats could block any justice he appoints. While justices were historically confirmed on bipartisan lines, the process has become much more partisan in recent years. The 2016 battle to confirm Merrick Garland, who former President Barack Obama appointed after the death of Justice Anton Scalia, reshaped Supreme Court confirmation battles.
Republicans refused to confirm a new justice in a presidential year, hoping that Republicans would flip the presidency. They got their wish, and Trump was able to appoint Justice Neil Gorsuch upon taking office in 2017. In 2020, Republicans confirmed Justice Amy Coney Barrett, after the death of Justice Ruth Bader Ginsburg, despite Democrats arguing the 2016 precedent means Republicans should not have confirmed her in an election year.
Trump also appointed Justice Brett Kavanaugh to the bench during his first term. During Trump’s second term, the president has not been able to appoint any more justices. Some Republicans have hoped some of the older conservatives on the bench, such as Justice Samuel Alito or Clarence Thomas, could retire before the midterms to give Trump a chance to appoint a younger justice, who would easily be cleared by the GOP-controlled Senate and could serve for decades.
But neither justice has retired or indicated they plan to do so. Now, with the prospects of a Democratic-held Senate come 2027, Trump’s chances of appointing another conservative justice appear to be slipping. Democrats will have at least 54 Senate seats in January, giving them the ability to block Trump nominees.
Daniel Urman, a law professor at Northeastern University, told Newsweek he believes it’s likely that Democrats would block a Trump appointee. Urman said there is a “slim chance” that Trump could try to negotiate with Senate Democrats to nominate a more moderate pick if a vacancy opens up. He wants Justices who are loyal to him, and never vote against his preferred laws and policies,” he said.
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