Senate Dems discussing plan to replace Justice Sotomayor before Trump and GOP take over

By 
 November 9, 2024

Many Democrats have still not come to terms with the fact that President-elect Donald Trump was able to fill three Supreme Court vacancies in his first term, including that of liberal icon Justice Ruth Bader Ginsburg, who was replaced by conservative-leaning Justice Amy Coney Barrett.

Now, fearful of similar opportunities in Trump's imminent second term with an incoming Republican Senate majority, some Democrats are quietly pushing for progressive Justice Sonia Sotomayor to immediately retire so that President Joe Biden and the Democratic Senate can swiftly replace her, Fox News reported.

Swapping out Sotomayor, 70, with a younger progressive jurist before the Senate and White House change hands is technically feasible and would lock in a left-leaning vote for decades, but it would likely take substantial cooperation and coordination from multiple parties on a condensed timeframe and could be completely disrupted by any unanticipated obstacle.

"Urgent" push by Dems to quickly replace Sotomayor

Politico Playbook reported on Friday that Senate Democrats are having a "hair-on-fire moment" right now over the prospect of President-elect Trump and a new Senate Republican majority "revving up the old conveyor belt of conservative judicial nominees" over the next two years, including for any potential vacancies on the Supreme Court.

Thus, there is now an "urgent conversation" happening behind closed doors about trying to convince Justice Sotomayor to step down so that President Biden and Senate Democrats can make use of the lame-duck period to force through a progressive replacement while they still have the capability to do so.

However, some Democrats acknowledge that they are contemplating a "risky play" that will require close coordination of multiple moving parts on a short and crowded timeline, and nobody wants to go out on a limb as the one to publicly, or even privately, try to coerce Sotomayor to resign.

One unnamed Senate Democrat fretted to Politico that if Sotomayor did decide to retire, which would have to occur almost immediately, "she can sort of resign conditionally on someone being appointed to replace her. But she can’t resign conditioned on a specific person. What happens if she resigns and the nominee to replace her isn’t confirmed and the next president fills the vacancy?"

Another anonymous senior Democratic source told the outlet, "We would have to have assurances from any shaky senator that they would back a nominee in the lame duck, because what do you do if she announces she’s going to step down and then [independent West Virginia Sen. Joe] Manchin doesn’t support her and then [Republican Sens.] Susan Collins and Lisa Murkowski back off and say they’re not going to support a new nominee? Do you just rescind that letter?"

A Sotomayor replacement is technically possible but realistically unlikely

Newsweek reported that, at least technically, Senate Democrats and President Biden have sufficient time to pull off a last-minute scheme to oust and replace Justice Sotomayor with a like-minded but much younger judge before President-elect Trump and Senate Republicans take over in January.

Whether such an accomplishment is realistically possible, however, is another story, as the Senate Democrats will only retain their current 51-49 majority for just shy of two more months.

It's not entirely out of the question, to be sure, as Trump and the Republicans took just 30 days to nominate and confirm Justice Barrett ahead of the 2020 election after Justice Ginsburg -- who Democrats similarly but unsuccessfully pressured to retire when former President Barack Obama could replace her -- suddenly passed away.

And there were a couple of other justices in the modern era who were nominated and confirmed on shortened timelines, including Justice John Paul Stevens in just 16 days in 1975 and Justice Sandra Day O'Connor in 33 days in 1981.

That said, since the 1950s, the average length of time from nomination to confirmation for a Supreme Court justice is around 54 days, and given the approaching holidays and an already packed schedule for the roughly two-month lame duck period, Senate Democrats would need everything to go perfectly and avoid even minor obstacles to achieve this particular feat of replacing Sotomayor at the last moment.

As such, per Politico Playbook, the more likely scenario is that Senate Democrats forgo their wishful thinking about the Supreme Court and instead focus on confirming a couple dozen remaining Biden nominees to the district and circuit courts in the limited time they have left.

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