BREAKING UPDATE on Supreme Court justice STEPPING DOWN

This is Democracy Watch. Mark, we have some major news as far as the Supreme Court is concerned. So kind of a fear that I've had as we watch the amount of time that we have between now and midterms tick away and hopefully for Democrats to retake the Senate is that we will have some Supreme Court justice decide to step down, some Supreme Court justice, maybe in their 70s, step down. Donald Trump will replace that person with somebody in their 40s and continue to cement his legacy on the Supreme Court. We now have major news from Fox here where they're reporting that Samuel Alito is not

expected to retire from the US Supreme Court this term. And so where does this leave us now with the prospect of Donald Trump being able to appoint yet another Supreme Court justice?

Yeah, this is breaking news. And this is really important for anyone who cares about the Supreme Court because, you know, right now Donald Trump controls the US Senate. And by that, I mean, yeah, technically, John Thune is the majority leader,

but Donald Trump controls the US Senate, right? He can get through any nominee, no matter how odious, no matter how terrible, through his majority in the US Senate, even though it's very narrow

What has happened in the last few months and not a lot of people have really picked this up. Is that

Democrats prospects of retaking the senate have been skyrocketing now

Initially when the when the cycle began people thought well democrats are a good chance to retake the house after all

It's three or four seats and you know when you when you look at An incumbent president in the midterms, you know democra you know The out of power party usually picks up enough, you know more than those number of seats and since then obviously We've all seen donald trump's popularity just absolutely plummet. I mean it's at levels that we've never seen before But what's been happening in the background is the Senate which because the map there is so favorable to Republicans I mean, it's really a very good Republican map. Very bad Democratic map. What's been happening? Is that slowly but surely? More and more seats that Republicans thought were safe now look really vulnerable and I'm not just talking about North Carolina

And and Maine which we're on everybody's radar to begin with I mean, I'm talking about states like Texas and Iowa and and Maine, which were on everybody's radar to begin with. I mean, I'm talking about states like Texas and Iowa and and Alaska, where right now I would say Democrats are favored to win two of those three. I'm not going to say which are the two. But if you if you said to me, you know, what is the likelihood? I'd say Democrats probably pick up two of those three. And meanwhile, Georgia looks very safe for john ossoff

Uh, which was the one seat that you saw republicans think that maybe they could they could pick up So the senate has been improving now Why do I I emphasize this in your in answering your question about sam alito? Because the fear that you had that many people were saying and also had is that justice alito would choose to retire, that, you know, he'd want to be replaced by a another conservative justice and that he would see this, this, you know, growing storm in the Senate with Donald Trump in the White House and say, you know what, I'm going

to retire now so that my successor can be confirmed during this congressional term, during this calendar year. And if Alito does not retire, then he is rolling the dice. Republicans are left with the consequences that Democrats could take control of the Senate and refuse to confirm a future justice that the President Trump might want.

And then eventually Democrats could retake the White House. And you know, then you're talking about four more years of Justice Alito having to serve on the court if he's trying to wait this out.

Okay. So in that instance, is there any other reporting about other Supreme Court justices, other conservative Supreme Court justices? I guess really what we're talking about here, given the fact that Trump has already appointed Kavanaugh, Amy Coney Barrett, and Neil Gorsuch, that leaves, that leaves,

if we're not talking about Samuel Alito, Clarence Thomas, or John Roberts, is there any reporting that might suggest what either one of those two are planning on doing?

Yeah, I don't think anyone thinks John Roberts is going to retire. I'd be surprised if John Roberts ever retires. He's the Chief Justice of the Supreme Court. He's relatively younger. You know, I won't say young, but younger. Also, I'm not sure he has quite as much commitment to who, which president replaces him.

Maybe he does. But that's not as self-evident. So I'd be shocked. I think everyone would be shocked if john roberts retired anytime soon He seems to be by all reports in good health. And like I said, he's the chief justice So I don't think he's going to walk away from that

You know clarence thomas is a name that you know would make more sense He's he is I believe the oldest justice on the court. He's been on the court, you know, since the early 1990s. And so, you know, from and you assume that he does want to be would want his replacement to be someone of his of his ideological bent, given how conservative he is. But, you know, he has drawn less attention. The assumption has been that that Justice Thomas enjoys being the most senior justice and is not looking to retire Uh, but also it was reported by cbs news

Uh that he is also not planning on retiring now. Look all of this reporting whether it's with respect to uh, Just solito justice thomas, you know No one knows what they're going to do on the last day of the term, and they could surprise everybody. So they could be telling people they're not going to retire, and then they are going to then they ultimately retire. But at least according to Fox News, in one instance, and CBS News with respect in the

other respect to both both Justice Alito and Thomas, neither of them are going to retire. And they're both going to assume that, you know, that either the Democrats won't take control of the Senate or that they're just going to plan on staying on the Supreme Court a lot longer.

I guess it's worth asking here, you know, in the event the Democrats do retake the Senate, obviously, Republicans would have a vested interest in scrambling to try and get somebody on the Supreme Court if somebody did step down, whether it's Clarence Thomas or Samuel Alito. Do you know what the quickest process that could all be? Because, I mean, if you look at Amy Coney Barrett, I believe her whole confirmation process lasted about a month. I think 27 days was the exact amount.

Could that happen even quicker in the event that Republicans lose their majority in the Senate?

Yeah, look, this is a place where I fault, you know, Democrats in the past, because we assumed that because Republicans had blocked Merrick Garland under the pretext that it was, you know, too too close to the election and there wasn't enough time and Barack Obama was a lame duck. We assumed that they were going to abide by that approach. And of course, they didn't. And you're right. Justice Barrett is the most extreme instance of of of them acting. And we just need to assume that that that would not be the most extreme action if they needed to do something on a shorter time frame in the lame duck. I mean, let's just assume the Democrats take control, you know, win,

win the elections or a landslide. and there are gonna be 51 Democratic senators, and that is clear, let's just say, on November 10th. And let's just say that, you know, one of the conservative justices, you know, ponders this and thinks about it over the holidays. And it's not until after Christmas

that the justice decides to to to to resign and but makes a resignation effective immediately. Yeah. Do you really have any doubt that that that the Senate would come back into session in between the period of Christmas and New Year's solely for the purpose of the confirmation that there would then be no confirmation hearings? It would go straight to the floor and that Republicansans would say. Oh, we don't need we don't need any uh, any debate We don't need any confirmation hearings. They move forward. Look. This is the the problem that I have with

too many democrats and it's the reason why i've drawn my critics from the left at times because I don't believe in in norms, and I don't believe that in thinking that if we act in good faith, Republicans would act in good faith. They perpetually don't act in good faith. And so I want to tell everyone that I had the privilege of writing the foreword to Brian's new book, which is actually on exactly this topic. It is about what Democrats need to have learned

from the fights of the past, where we thought that there was gonna be this sort of mutual norm adherences, and that hasn't been the case. And so we need to fight harder when we retake power, and we need to assume that Republicans are going to act

to their maximum advantage and be willing to be hypocritical at every turn. So like I said, I wrote the forward to this book first time I've ever agreed to write the forward to anyone's book. And I did so here and I'm proud to have done so. So what I'm going to ask you all to do right now is to go and preorder this book.

I have read it, but you'll have to wait a few more months until it comes out. But you can preorder it now. And please do that because once it does hit the shelves, it's going to be a very important piece of the discussion of how Democrats start to plan for what the future will be. And publishers need a shockingly long lead time. I don't understand why either, but they need a shockingly long lead time to know how many books to print, where to send them, how to arrange the distribution.

It's still a very antiquated model. So by pre-ordering, you're going to make sure that this book is printed in the right numbers and is available in the right places, and the promotions and all that can happen in a smooth way, which is going to be essential because it's tight

before the midterm election. So I prefer you go to independent booksellers always, but on this instance, I'm going to give you a pass. If it's easier for you to just get the book by going to Amazon, that's fine. Well, Brian, I hope you could put links to both an independent option and maybe the non-independent option in the description to this episode. But Brian, you know, at the risk of embarrassing you

about this, there is actually one passage in particular that I'd ask you to read to the audience because it is, you know, it is just dead on point.

Well, I appreciate that. And by the way, I'm gonna put a link to the landing page for the book, which is titled The Day After, right here on the screen and also in the post description of this video. But you're right, we have been talking about something that I laid out exactly in the book, and so I'll put that on the screen right now.

One of the great fallacies of the Biden, Obama, and Clinton years is the notion that if only the Democrats would compromise with their Republican counterparts, their goodwill would be duly reciprocated. If only they capitulate to the GOP this time, this time the right would lay down its arms and a golden era of bipartisanship would emerge. Quote, I'll hold the ball, Lucy explains to Charlie Brown, and you come running up and kick it. So I think right there, I mean, we have just, you know, you and I have spent so much time,

spilled so much ink, especially as you've written in Democracy Docket about this idea that Democrats constantly allow themselves to be rolled by Republicans, the Merrick Garland, Amy Coney Barrett situation on the Supreme Court is the prime example of exactly that, and that would be bad enough unto itself, but worse than that is not learning our lesson after we've seen this take place time and time and time again. So the whole point of the book, and in large

part the point of what you and I spend so much time trying to convey here, is that Democrats need to be willing to fight in the rare instances that we're actually fortunate enough to have some power to wield.

Yeah. I mean, Brian, this is such an important point. And like I said, it's why I think the book is so important, because we are going to be very lucky if we survive this second Trump term with a democracy still in place. We are going to be lucky if we emerge this term, frankly, with a six three Supreme Court that we currently have. Yeah, I mean, let's be honest, like that's our best case scenario right now.

And so if that happens and we are able to fend off all of the attacks on free and fair elections and we're able to, you know, keep democratic institutions in place and we're able to you know, keep um democratic institutions in place and we're able to keep the courts, you know, standing up at least some of the time for for what is right then democrats are going to need a plan and if the plan is to act like it's you know, it's 2015 again then you know, shame on us and again that is why I think this book is so important because there's not enough discussion right now

Going on in the left of center in the pro-democracy movement in the democratic party pick your nomenclature There's not enough discussion going on about what comes next and that's what your entire book's about Because we are so focused on preventing the bad stuff from happening So believe me we need to preventing the bad stuff from happening. So believe me, we need to stop the bad stuff from happening. But if we are not prepared to hit the ground running, then frankly, shame on us. We saw what Donald Trump was able to do with Project 2025. Like, we saw that. And I understand that there are going to be similar efforts on our side, but we need a conceptual framework,

and we need a conceptual framework that everyone buys into, and that's what I think your book provides people. And it is the reason why, like I said, I was so happy when you asked me if I would write the forward.

Well, I appreciate it again. I'm going to put the link to the book right here on the screen. I'm also going to put the link to Democracy Docket right here on the screen. I don't think it's lost on anybody the importance, the outsized importance that Mark has not only on this media ecosystem where his voice is absolutely necessary, but also in the courts where he is litigating nearly a hundred cases at this very moment, including nearly 30 cases right now in states across the country,

where the only thing standing between the states sending over your voter information, social security number, political affiliation to the federal government is Mark and his team. So a small step everybody watching right now can take to support his invaluable work is to subscribe to Democracy Docket. I'm going to put that link on the screen as well. I'm Brian Teller Cohen.

I'm Mark Elias. I'm Mark Elias.

This is Democracy Watch.