Then vs. Now · File No. 261106-948
Thune said voters deserved a say on the court in 2016. In July he said a lame-duck pick can be done
In 2016, Senate Republican John Thune said the next president should fill a Supreme Court seat, and his office said it would not support lame-duck hearings for Merrick Garland. In July, before voters handed the Senate to Democrats, the majority leader said confirming a justice in the lame-duck session 'can be done.'
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In 2016, Justice Antonin Scalia died and President Barack Obama nominated Judge Merrick Garland to replace him. Sen. John Thune of South Dakota said the seat should wait for voters 3. "Since the next presidential election is already underway, the next president should make this lifetime appointment," he said at the time 3.
Today Thune is the Senate majority leader, and voters have just given control of the Senate to Democrats. In July, before the election, Thune said that confirming a Supreme Court justice in the lame-duck session "can be done" 1. (The lame-duck session is the stretch between an election and the day the new Congress is sworn in.) His office took the opposite position in 2016 4.
Democrats will hold at least 54 Senate seats next year, and as many as 56 depending on final results in Mississippi and Alaska, the Associated Press reported 2. The new Senate is sworn in on Jan. 3 1. Until then, Republicans still run the chamber.
What he said then
The American people deserve to have their voices heard on the nomination of the next Supreme Court justice
In October 2016, weeks before that year's election, Thune's office was asked about a lame-duck vote. If Hillary Clinton won, would the Senate take up Garland's nomination after the election? A spokesman said Thune would not support lame-duck hearings and that his position had not changed 4.
From Channel GOPChuck Schumer: Democrats have won the SenateChuck Schumer · 168 plays · captioned, with the source named
It's always been about the principle of giving American people a voice.
Garland's seat stayed empty for 14 months. President Donald Trump then filled it with Neil Gorsuch 1.
The 2020 turn
Four years later, the principle bent. In July 2020, Thune said the Senate would fill a Supreme Court vacancy even in a lame-duck session after the presidential election 5. Justice Ruth Bader Ginsburg died on Sept. 18, 2020. Thune then said Trump's nominee would get a vote on the Senate floor 3.
Asked about what he said in 2016, Thune wrote in an email that he still backed the idea. Then he added a condition 3:
I still support that principle, but since the Senate majority and White House are occupied by the same party
Republicans confirmed Amy Coney Barrett eight days before Trump lost the 2020 election 1.
What he says now
In July, Thune told Punchbowl News, a Capitol Hill news outlet, that a lame-duck confirmation "can be done" and that he "certainly wouldn't rule that out" 16.
That matters because Thune's own reasons now point the other way. The 2016 position, as Republicans explained it, rested on the Senate and the White House being held by different parties 5. In 2020, Thune used the same-party test to justify moving ahead 3. Starting in January, the Senate and the White House will again be held by different parties.
No open seat, for now
No seat is open. Justice Samuel Alito, 76, said in a Sept. 30 interview, "I intend to stick around through this term," which runs through June 1. Asked whether that was a firm no to retiring after the election, he answered "Yeah" 1. Justice Clarence Thomas, 78, has not signaled that he plans to retire soon 2.
Some conservatives doubt a lame-duck push will happen. "There will not be a Supreme Court confirmation in the lame-duck period between now and January 3, 2027," wrote Ed Whelan of the conservative Ethics and Public Policy Center 1. Florida Gov. Ron DeSantis, a Republican, put the chance of confirming a successor to Thomas or Alito during Trump's term at "Zero" 12.
Republicans would also have fewer votes to work with. Sen. Jon Husted must leave his seat on Dec. 15 after losing a special election to Democrat Sherrod Brown 1. Sen. Thom Tillis of North Carolina is retiring, and Sen. Susan Collins of Maine lost her race 1. Nominees are also still waiting for seats on three federal appeals courts: the Fifth, Eighth and Tenth Circuits 7.
Democrats' answer
Senate Democratic leader Chuck Schumer, likely the next majority leader, told the AP that Democrats will block a conservative nominee. He would not say whether he would keep a vacancy open until after the next presidential election, as Republicans did in 2016 2.
The bottom line is, we're not going to allow a right-winger on the court
The White House accused Democrats of considering plans to add seats to the court. "President Trump will never let them pack the Supreme Court and ruin the independent judiciary," White House spokeswoman Lauren Bis said 2.
The pattern is plain in Thune's own words. In 2016, a Democratic president facing a Republican Senate meant voters should decide. In 2020, a Republican president working with a Republican Senate meant the vote should go ahead. Now voters have chosen a Democratic Senate, and in July Thune called a confirmation before January possible 134.
The Record
- Thune's office says he will not support lame-duck hearings for Merrick Garland, even if Hillary Clinton wins, citing 'the principle of giving American people a voice' 4
- Thune says the Senate will fill a Supreme Court vacancy even in a lame-duck session after the presidential election 5
- Days after Justice Ruth Bader Ginsburg's death, Thune says Trump's nominee will get a Senate floor vote 3
- Justice Samuel Alito says he intends to stay on the court through the term that ends in June 1
- Democrats are projected to hold at least 54 Senate seats in January, and Thune's July comment that a lame-duck confirmation 'can be done' is widely repeated 1
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Sources
- Bloomberg Law, “Trump's Ability to Shape Supreme Court Impeded by Midterms” (2026-11-04). news.bloomberglaw.com/us-law-week/trumps-power-to-shape-supr
- AP (via Boston 25 News), “Republicans rammed through Supreme Court nominees. Now Democrats will have the votes to stop them” (2026-11-06). boston25news.com/news/politics/republicans-rammed/44SQVJIINA
- Duluth News Tribune, “Thune says Trump's SCOTUS nominee will get a vote, despite senator's 2016 views on election-year vacancies” (2020-09-21). duluthnewstribune.com/news/thune-says-trumps-scotus-nominee-
- Mitchell Republic, “Rounds, Thune won't support lame-duck hearings for SCOTUS nominee” (2016-10-23). mitchellrepublic.com/news/rounds-thune-wont-support-lame-duc
- SDPB, “Thune: 'We Will' Fill Potential SCOTUS Vacancy” (2020-07-21). listen.sdpb.org/politics-public-policy/2020-07-21/thune-we-w
- Newsmax (via Yahoo News), “Senate GOP Braces for Fight if Alito or Thomas Retires” (2026-11-05). yahoo.com/news/politics/articles/senate-gop-braces-court-fig
- Reason (Volokh Conspiracy), “Don't Expect a Lame-Duck Supreme Court Vacancy (But There Are Other Nominations to Consider)” (2026-11-04). reason.com/volokh/2026/11/04/dont-expect-a-lame-duck-supreme
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