Isgur's no-vacancy Supreme Court theory
Archived — this story has rotated out of today’s deck. It is kept here in full.
The gist
SCOTUSblog editor Sarah Isgur said Trump can nominate and the Senate confirm a justice without a vacancy.
Former Scalia clerk Ed Whelan pushed back, warning the Senate would eviscerate itself.
Background
Sarah Isgur is editor of SCOTUSblog, a site that tracks the U.S. Supreme Court, and an ABC News contributor. Ed Whelan, a former clerk for the late Justice Antonin Scalia and a top official in the Justice Department's Office of Legal Counsel under George W. Bush, disputed her claim. The exchange came as The Washington Post reported that Republican midterm losses would raise pressure on Justices Samuel Alito, 76, and Clarence Thomas, 78, to retire while Republicans still control the Senate.
How it unfolded
- Nov 5, 2026Sarah Isgur posted that Trump can nominate someone to the Supreme Court and the Senate can confirm without a vacancy, and that Trump can wait to sign the commission any time in the next two years.
- Nov 5, 2026Ed Whelan pushed back, writing that under the same theory Trump over the past two years could have nominated and the Senate confirmed five Supreme Court justices and ten judges for every court of appeals.
- Nov 5, 2026The Washington Post reported that the GOP's midterm losses would raise pressure on Justices Samuel Alito, 76, and Clarence Thomas, 78, to retire while Republicans still control the Senate.
Key terms
- SCOTUSblog
- A law blog written by lawyers and scholars that tracks cases before the U.S. Supreme Court from filing to decision.
- clerk
- A lawyer who assists a judge by researching legal issues and drafting opinions for cases before the court.
- Office of Legal Counsel
- A U.S. Justice Department office that advises the attorney general and executive agencies on legal questions and reviews legislation and executive orders.
Source: Wikipedia
Who’s saying what
- Analysts
- Isgur argued Alito doesn't need to retire because Trump can nominate and the Senate confirm without a vacancy, then sign the commission any time in the next two years.
- Caution
- Whelan called it an awful practice and said the Senate would eviscerate itself in allowing it.
- Official
- Alito told Politico last month he has no plans to step down during the lame-duck session and intends to stick around through this term.
Still unverified
Alito has been the focus of months of retirement rumors; Isgur speculated that the Trump administration might pressure conservative Justices Clarence Thomas and Samuel Alito to retire.