Could Trump Make Pre-Emptive SCOTUS Nominations?

Does a president need to wait for a vacancy to send names to the Senate? Could Biden tie Trump's hands by doing so during the lame-duck session?

With Donald Trump’s big win and the Republicans’ taking back the Senate, activists and pundits have been trying to pressure Justice Sonia Sotomayor to retire and allow Joe Biden to nominate and the Democratic Senate to confirm a younger successor while they’re lame ducks. It doesn’t seem to be working—the 70-year-old is in good health aside from the diabetes she’s managed all her life and she’s enjoying writing epic dissents as leader of the Court’s left-wing bloc—but it has gotten Republicans in turn thinking about their most senior justices.

Justice Clarence Thomas is 76, while Justice Samuel Alito is 74, meaning they may not survive eight more years (through the White House term of a Democrat who wins the 2028 election). They surely want to avoid the fate of the late Justice Ruth Bader Ginsburg, holding on too long and being replaced by someone antithetical to their jurisprudence. Plus Thomas has already served 33 years—tenth-longest in history; he would become the longest-serving in May 2028—while Alito wrote the opinion that overturned Roe v. Wade, so what else is there?

But it’s unseemly, and offensive to the respect that these jurists have earned, to try to get them to retire with a crass reference to actuarial tables and political strategery. Even if health watches over octogenarian justices have become an unfortunate part of our polarized discourse, keep your morbid calculus to yourself. If nothing else, the justices are smart people and fully realize what’s at stake; trying to gold-watch them off would only insult and anger them.

But I wonder if President Trump couldn’t (or shouldn’t) move preemptively to get any nomination fight(s) out of the way and assuage the nervous prognosticators. Imagine if he issued the following statement: