The Senate Is ‘prepared’ To Confirm A Supreme Court Justice — And Ted Cruz Might Be The Pick

Well, folks, it looks like the Senate is getting its confirmation ducks in a row — because if Justice Samuel Alito does finally decide to hang up his robes, Majority Leader John Thune wants you to know they are ready.

Thune told the Washington Examiner that Senate Republicans are fully prepared to move on a Supreme Court nominee should a vacancy arise. “That’s a contingency I think around here you always have to be prepared for. And if that were to happen, yes, we would be prepared to confirm,” Thune said. He further clarified that any confirmation vote would happen before November’s midterm elections, which, given the political stakes, makes all the sense in the world.

But let’s back up, because none of this happens without Alito actually walking out the door first, and we’ve been watching that particular slow-motion drama unfold here at Above the Law for months now. The retirement speculation really got legs back in February, when The Nation‘s Elie Mystal published a piece laying out the Alito retirement case methodically. (Alito’s forthcoming book, So Ordered: An Originalist’s View of the Constitution, the Court, and the Country, is set to drop on October 6, the day after the Supreme Court’s 2026-27 term begins. You know… right when justices get stuck in D.C. hearing oral arguments, making it a strange choice for a book tour. Unless, of course, you don’t plan to be hearing oral arguments.)

That framing caught fire, and the speculation has been building ever since. CNN’s Joan Biskupic later reported that Alito has been pondering stepping down, and it’s well known that his wife, Martha-Ann, is eager for him to retire, as she acknowledged in a surreptitiously taped conversation at a Supreme Court event. Meanwhile, prediction markets have the odds of an Alito retirement before the end of the year at above 50 percent — Kalshi at 50.6 percent and Polymarket at 53 percent.

What’s particularly interesting is Mystal’s original read on why Alito would retire now, if he does, and it maps almost perfectly onto the political urgency animating Thune’s comments. As Mystal wrote, “Alito watches TV. He reads the papers. With Republican poll numbers flagging, I don’t think he wants to roll the dice and be forced to hang around on the court should Republicans lose the Senate this fall. I think he’s leaving while Republicans still have the political power to replace him with another Sam Alito who is 30 years younger.”

That’s the throughline here, and it’s worth dwelling on for a moment. Because right now, the GOP holding the Senate is not exactly a sure thing. Kalshi traders currently price Democrats as the slight favorites to retake the Senate, with the most likely single outcome being Democratic control of both chambers, a scenario traders assign a 50% probability. History is not kind to the incumbent party at midterms under the best of circumstances, and 2026 is not the best of circumstances. An unpopular trade war hammering consumers, gas prices climbing, and an economy that has rattled markets badly enough to give everyone 2008 flashbacks they didn’t ask for is not exactly the formula for a rousing midterm defense.

Which means if Alito is indeed reading the papers, he’s seeing the same numbers everyone else is seeing. The window to get a reliable conservative confirmed is open right now. Thune is essentially signaling the same thing from the other end of Pennsylvania Avenue: we are ready, come on down. Whether that quiet urgency is landing at One First Street is, for now, anyone’s guess.

Now, here’s where things get truly entertaining. Even as Thune is publicly declaring readiness, Politico reports that Senate Republicans haven’t actually started having serious conversations within the conference about the logistics of a confirmation battle. Which, hilarious.

But perhaps the most delicious detail in all of this is who may be at the front of the line if Trump gets to pick another justice: Senator Ted Cruz of Texas. According to Politico, Cruz may be a frontrunner for the nod. And Trump himself floated the idea during a stop in Texas earlier this year, joking that Cruz would get unanimous support from his Senate colleagues. And honestly, the reasoning is fucking spot on — as Trump put it, “they want to get him out of there.”

A Senator-to-Supreme-Court pipeline is not unheard of (Hugo Black, for example) but the notion that Cruz’s colleagues would be thrilled to confirm him to a lifetime appointment primarily as a means of removing him from their daily lives is a level of petty legislative calculus that feels very on-brand for this particular moment in American politics. One does wonder whether “unanimous support” would survive the actual confirmation hearings, but that’s a problem for another news cycle.

Republicans currently hold 53 seats in the Senate, and Supreme Court confirmations require only a simple majority, meaning Trump would have a comfortable margin to confirm a nominee without needing any Democratic votes. So the math works… for now. Whether the will is truly there, whether Alito actually walks out the door before the midterms, and whether Ted Cruz ends up trading one high-profile job for another remains to be seen. But the Senate, at least officially, is ready.

Or so they say.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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