Replacing Alito or Thomas in the Lame Duck Session Would Guarantee Democratic Court Packing

The Dispatch’s Sarah Isgur points out — in response to more than a few conservatives who are clamoring for and/or to retire while there’s still a Republican Senate majority to confirm their replacements — that there is technically no need for either justice to retire before year’s end.

To be clear, I think Isgur is explaining the legal realities of the confirmation process, not necessarily advocating this course of action. The reality of “normal” SCOTUS replacement confirmations follows the same overall pattern of this hypothetical nuclear option: i.e., a justice typically formally retires upon the Senate’s confirming his or her replacement. There’s not actually an opening when the Senate votes.

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Mark Antonio Wright

Mark Antonio Wright is the executive editor of National Review.

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The Dispatch’s Sarah Isgur points out — in response to more than a few conservatives who are clamoring for and/or to retire while there’s still a Republican Senate majority to confirm their replacements — that there is technically no need for either justice to retire before year’s end.

To be clear, I think Isgur is explaining the legal realities of the confirmation process, not necessarily advocating this course of action. The reality of “normal” SCOTUS replacement confirmations follows the same overall pattern of this hypothetical nuclear option: i.e., a justice typically formally retires upon the Senate’s confirming his or her replacement. There’s not actually an opening when the Senate votes.