Trump Braces for Potential Democratic Senate Takeover

Hi, I'm Sally Helms. Inflammation. It is something I've been seeing a lot of people talk about, especially on TikTok. And according to them, inflammation. Basically, the whole problem with our health. It causes heart problems, anxiety, acne. It is maybe even the root of all diseases. So how accurate That's this week on Unexplainable.

Hey everyone, Ellie here, wishing you a happy Friday. So there were two stories this week. That both gave us fascinating insights into the US Supreme Court and the dynamic and interactions between and among the justices. Now, the first one, the bigger one, which you likely saw, was the New York Times ongoing coverage.

Of these memos that the Times reporters, Adam Liptak, who's fantastic, and Jody Cantor, also a great reporter, that they got from within the Supreme Court. They got these internal memos. Circulated among the justices in this case back in 2016, that the New York Times tells us was sort of the origin point for the modern shadow docket.

avenue where the Supreme Court considers cases on an expedited basis without full briefing. There's been plenty of valid criticism of the shadow docket. You've surely heard some of that from Steve Vladik. who is a powerful opponent of the Shadow Docket or the way that it's been used, I should say. This is a remarkable piece of reporting by the New York Times, but also a shoddy.

piece of reporting by the times. Now I'm going to discuss it more fully. If you happen to be listening to this on Friday morning, I'm hosting on Sirius XM channel 124 from 9 to noon Eastern. So if you want to hear my full thoughts, check in then. In short, This is a great piece of reporting in that they got these memos. I mean, gosh, this is what reporters are supposed to do. They penetrated the inner, inner sanctum of the US Supreme Court and showed us exactly word for word.

How these justices were communicating on a very important issue back in 2016. So bravo and kudos to them for that. However, if you look at the way they wrote up their articles and you look at their numerous articles and you listen to their podcasts where they talk about this. The reporting is really out of context with respect to the Shadow Docket itself, misleading and I think inaccurate as to what the Shadow Docket is and is not.

And it's frankly just politically biased. It casts the conservatives as evil, lazy, angry, bad guys, and the liberals as brave, stoic heroes. it it struck me as I was reading it and I had one of those moments of Am I alone in this? And sure enough, I ended up I was not. Uh SCOTIS blog, a very fair, down the middle authority on Supreme Court, has a

powerful takedown of the article. Uh Jack Goldsmith, a conservative, but absolutely a fair thinker, a fair-minded guy, a credible guy. We have him here on Cafe at times. also had a an important takedown of the piece and advisory opinions. A conservative leaning-ish podcast also takes it down. So it's great reporting, but it's also sloppy at the same time. Again, if you want to hear my fuller thoughts on that.

Check out Sirius XM today. Now the second story was a little less high profile. This has to do with justice Sonia Sotomayor. Now she was giving a talk at the University of Kansas. And she discussed an opinion, a concurring opinion written by Brett Kavanaugh in September 2025. In this really, I think.

outrageous ruling, I agree with Sotomayor, that allowed immigration agents to make temporary short-term stops of people and to question them based on their use of English or their lack of English proficiency, based on their apparent ethnicity, based on their presence at locations like car washes or Home Depots.

I share Justice Sotomayor's criticism of this ruling. I said on air, basically Brett Kavanaugh is giving the green light to racial and ethnic profiling. Here's what Justice Sotomayor said in her talk at the University of Kansas, quote. I had a colleague in that case who wrote, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. End quote.

Now that part is what Justice Sotomayor ended up apologizing for, and rightly so. A couple problems with what she said. First of all, Her comments here are basically that a colleague, Justice Kavanaugh, his legal analysis, his legal opinion should be discredited because, quote, this is from a man whose parents were professionals, end quote.

So the logic there is, well, if a person's parents were professionals, then they don't really know. They can't really be credited. That's bull crap analysis. That first of all, that's the kind of identity politics that has turned people off, some people off. from the Democratic Party. And second of all,

Think about how that applies. Think about let's say Justice Sodomayor, she I don't believe she has children of her own, but her colleagues on the Supreme Court do. So are Justice Jackson's children, when they become professionals, maybe lawyers, maybe something else, or Chief Justice Roberts' children, who are professionals out there, is their word to be discounted because their parents were quote, professionals are the

Words of Chelsea Clinton to be discounted because her parents were absolutely quote professionals. Um that's a ridiculous analysis. From Justice Sotomayor. The other thing her comments does is it kind of gives away the gig a little bit here. Because if you hear these justices talk in their official remarks, and these were off-the-cuff remarks, in their official remarks, it's always

All that we consider is the law, the facts and the law. We faithfully apply the facts and the law. But what Justice Sotomayor is saying here is. Well, we also bring in our own life experiences, perhaps our emotions, things we know from growing up, people we know. And I think that's true. I I think that's undoubtedly true, but they never admit that out loud. So I think this was sort of a moment of candor.

By Justice Sotomayor. Now, to her credit, Justice Sotomayor apologized. Here's what she said: quote, at a recent appearance, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague, meaning to Justice Kavanaugh. And bravo to Justice Sotomayor here for doing this. It's increasingly rare.

that we see anyone apologize, never mind to apologize in a real way as she did here. I think she recognized, look, we all make mistakes. She was speaking uh extemporaneously, and I applaud her for apologizing. I wish we saw more of this. from both sides. And by the way, I'm a huge fan of Justice, Soto Mayor.

I can't say I know her super well, but I argued a handful of cases in front of her when she was on the second circuit. Um I actually write a a uh half a chapter about one of those cases in one of my books. I forget which one. But um, she was is remarkable on the bench. She's a great questioner. She's a superlative writer. I read her writing and I'm jealous of how good it is.

And she's just a cool person. Um, everyone who knows her says the same. I went to a wedding about four years ago, four or five years ago, that she officiated. Um, it was the wedding of one of her former clerks who I've sort of mentored over the years.

And she did a beautiful job at the wedding. You know, it was a lot of lawyers and law adjacent types at the wedding. And she made an effort to not make it all about her. She knew she'd be drawing a lot of focus, but she wanted the focus to be on the couple. And so she did the ceremony, you know, the vows and all that. It was actually a

joint ceremony. Um the bride is Jewish and the the groom is Chinese and his family i is Chinese American. So she blended the two really beautifully. And then we all thought she'd be whisked off. But she stayed and she partied. She was great. Don't get me wrong. I'm not saying she drank or anything like that. But she hung out and she was socializing and being

lovely to people. I had a nice five-minute chat with her. We talked about people from the SDNY world we knew in common. The groom had told her that she was mentioned in the my book that had just come out. So we had a laugh about that. I'm a huge fan of hers and um I I think if I had to hang out with anyone Justice and and

spend a night at a bar or something. I don't know why I keep mentioning this drinking stuff. It's not like she's some kind of drinker, but spend a night at a restaurant uh with somebody would be just a soda my R. So I think she's great and I think it's great that she issued this apology. Okay, finally, on to this week.

Peace. Here we go. It's all but a mathematical certainty that Democrats will take the House in November's midterms. And with President Donald Trump's polling numbers perilously low and dropping steadily, an even bigger potential prize has come into focus for Democrats. The U.S. Senate, with its constitutional power to confirm or block appointments, to the Justice Department and the Supreme Court. Trump seemingly has accepted this new reality and begun to act accordingly.

Recent history and present measurables tell us that the Democrats are primed to seize majority control of the House in November. The current margin is slim: 219 Republicans, 213 Democrats. And that's after both representatives Anthony Gonzalez and Eric Swalwell left, won independent and four vacancies. Trump currently sports subterranean approval ratings in the low to mid-30s.

And Democrats consistently lead Republicans by about five to six percentage points in polling on a generic 2026 midterm ballot. And with Virginia's adoption this week of a heavily gerrymandered redistricting scheme, Democrats held a slight overall electoral advantage among all states that have rejiggered their district maps for the upcoming House midterms.

Those numbers dovetail with a bedrock historical trend. The party of the incumbent president has lost House seats in every midterm over the past 20 years. With a maximum loss of sixty-three seats, Barack Obama and the Democrats in twenty ten, a minimum loss of nine, Trump in twenty eighteen, and an average loss of thirty-one seats. In 2026, a Democratic gain of just five seats, which would be the smallest in over two decades for an opposition party, would ensure a House majority.

That'll be a big deal, of course. A Democratic controlled House can block Trump's legislative initiatives. House Democrats surely will hold hearings and issue subpoenas, including perhaps to the president himself, on everything from the Epstein files to war powers.

And in theory, a majority Democratic House can impeach Trump for his most extreme abuses of power, notwithstanding potential squeamishness after two prior failed impeachments and the practical near impossibility of a two-thirds majority to convict in the Senate. And now, unexpectedly, control of the Senate is genuinely in play for the 2026 midterms. Republicans currently hold a 53 to 47 margin, but that majority is realistically in doubt.

Prediction markets are deeply imperfect, but also probative of broad trends, and they've taken a drastic turn in recent weeks. Throughout 2025 and early 2026, both Polymarket and Calci, the two leading prediction markets, had Republicans comfortably favored to hold the Senate by likelihoods running from 70 to 80 percent.

But suddenly in mid-March, shortly after Trump careened into war with Iran, the odds flipped. Both leading markets now have Democrats slightly favored by a 52% to 55% likelihood to take control of the Senate. Indeed, Trump seems attuned to the potentially catastrophic loss of the upper house of Congress. His recent spate of firings and unsubtle shoving of key players towards the exit door suggest he understands that the Senate might not remain a turnstile for his appointments after the midterm.

In March and April, Trump abruptly fired in quick succession two fiercely loyal, if preposterously inept partisans: DHS Secretary Christy Noam and Attorney General Pam Bondi. Both deserve to go, but this was a quick trigger even for Trump. Consider that during his first term, Trump mercilessly flayed Attorney General Jeff Sessions in public, calling him, quote, scared, stiff, and missing in action, beleaguered and disgraceful.

But nonetheless left him in place until after the twenty eighteen midterm. The president can still get his replacement nominees confirmed now for the time being. Mark Wayne Mullen breezed through the Senate in April on a party line plus one Democrat vote to succeed Noam at DHS. But if the Senate flips to Democratic control, he'll have a miserable time getting successors approved for Bondi and potentially other key nominees.

Cash Patel might be next up. The Atlantic reported this week that notwithstanding the statutory 10-year term for the FBI director, Trump has grown sick of Patel's tipsy diva tactics. and has recently considered firing him. Patel in turn has reportedly grown, quote, deeply concerned about his job security, apparently for good reason. Of course, this week Patel filed a defamation lawsuit against the Atlantic, which has vigorously defended its reporting.

As with Bondi, if Trump dumps Patel now, he can install a new FBI director relatively smoothly while Republicans still hold the Senate. But if he waits until after midterms, the Democrats might take control and block any candidate who is remotely as unqualified and partisan as Cash Patel. Of course, the Supreme Court poses the highest stakes of all. The two oldest justices are Trump's most reliable stalwarts, Clarence Thomas, who's 77 years old, and Samuel Alito, who is 76.

CBS News reports that neither are planning to retire in 2026, but that hasn't stopped Trump from cajoling them to step aside. Last week, the president disposed with the subtleties that typically accompany back channel surrogate campaigns to persuade justices to retire while an ideologically aligned president holds office. and said it all right out loud. Quote, I think he, meaning Alito, is one of the great justices of all time, Trump proclaimed on Fox Business.

Plainly in anticipation of nominating a far younger replacement, Trump added, quote, It'd be nice to say now I have somebody for 40 years, end quote. Trump provocatively referenced Justice Ruth Bader Ginsburg, who declined to retire during Obama's presidency and then died in office at the end of Trump's first term, enabling Trump to nominate Amy Coney Barrett in her place.

The president reportedly has developed a short list of candidates in their forties and fifties to replace Thomas or Samuel Alito. If either were to step down now or over the summer, Trump could assuredly get the replacements confirmed quickly in the Senate. Amy Coney Barrett, for example, went from nomination to confirmation in just twenty-seven days in twenty twenty, with Trump in the White House and Republicans controlling the Senate.

But if either justice waits until after midterms to retire, it's essentially a coin toss that Democrats take the Senate. From there, could Democrats stonewall for the better part of two years? after they got burned so badly by Republican Senator Mitch McConnell, who blocked Obama's nomination of Merrick Arland without a floor vote for eleven months in twenty sixteen, which held that seat open for replacement by Trump's pick Neil Gorsuch in twenty seventeen.

Don't be surprised if Democrats take just as hard a line against any post midterm Trump nominee. Viewed in one light, Trump's recent conduct bears his hallmark tendencies towards impulsivity and emotionality. But it also reflects the rational realization that things have gotten bad enough for Republicans that the Senate, previously viewed to be safe, could well flip, jeopardizing the president's ability to install key appointees in his own cabinet for the next few years.

And on the Supreme Court for decades to come. Trump is breaking some of his own China now, and this might be his last chance to replace it. Thanks for listening everyone. Stay safe and stay informed.