Dems missed the window to Trump-proof a SCOTUS seat
Meanwhile, Trump may end up nominating a majority of the Court on his own.
⚖️ Public Notice is possible thanks to paid subscribers. If you aren’t one, please click the button below to sign up and support our independent journalism. ⚖️
After the shock of Donald Trump’s victory last week, Democrats are trying to figure out whether it’s possible to Trump-proof a Supreme Court seat. Though conservatives already hold a 6-3 supermajority, a 7-2 supermajority would be even worse. So, it’s unsurprising that Sonia Sotomayor Should Retire Discourse is back in the news.
Justice Sotomayor is 70, making her the third-eldest justice, and she lives with Type-1 diabetes. Were she to step down or pass in the next four years, Trump would get to name her replacement. Given all that, the sense of urgency is understandable — especially considering the likelihood Clarence Thomas and/or Sam Alito retire sometime over the next two years and open the path for President-elect Trump to nominate two more justices (and hence a majority of the Court).
People have been making legitimately thoughtful arguments about the need for one of the liberal justices to retire for quite some time now. Former Justice Stephen Breyer stepped down in 2022 after a concerted effort to get the then 83-year-old to do so.
Democrats are right to be concerned, given the cautionary tale of Justice Ruth Bader Ginsburg, who resisted calls to retire and died in late September 2020, allowing Trump to nominate her replacement. Sen. Mitch McConnell, who refused to allow President Barack Obama to fill Justice Antonin Scalia’s seat because it was an election year, got over those qualms and rammed through the confirmation of Justice Amy Coney Barrett even though people had already begun voting in the 2020 election.
It’s likely the speed with which Coney Barrett was confirmed has led to this round of wishcasting — that somehow it would be possible to nominate and confirm a new justice before the new Congress convenes on January 3, 2025. Coney Barrett’s confirmation took only 30 days, with Trump nominating her on September 26, 2020, only eight days after Ginsburg passed, and the Senate confirming her on October 26, 2020, only eight days before the general election.
It’s tempting to think that the math could work similarly for Democrats to replace Sotomayor. There are seven weeks until the new Congress is seated — three weeks longer than it took for Coney Barrett — so why not give it a shot?
Regrettably, several reasons make it unlikely that Democrats could pull this off.
For better or worse, there’s no appetite for sudden change
First, and the most insurmountable obstacle, is that Justice Sotomayor does not seem inclined to retire. People close to the justice told CNN that she has no plans to step down. If Sotomayor does not want to leave the bench, there’s really nothing that can be done to force her to do so. It would not feel great bullying any senior citizen out of their long-held, well-earned dream job, but it feels especially bad to insist that Sotomayor, arguably both the most passionate and most progressive member of the bench, should be shunted aside.
The next issue, if Sotomayor were to agree to retire, is timing. On paper, Democrats have three weeks more time to get this done than Trump did with Coney Barrett. However, the peculiarities of the Senate calendar over the holidays creates a problem. As Jay Willis explained over at Balls & Strikes, while the Senate will reconvene this week, they’ll recess again for the week of Thanksgiving, and then it typically adjourns for good on December 20. That recess and adjournment basically eat up those extra three weeks. It’s a compressed timeframe that would leave no room for error and would require buy-in from all Senate Democrats and the White House.
A note from Aaron: Working with brilliant contributors like Lisa requires resources. To support our work, hit the subscribe button and become a paid subscriber.
And that’s the third problem. There doesn’t seem to be any significant appetite on the part of Senate Democrats to make this happen. No Democratic senator has come forward to openly call for her to retire. Only Bernie Sanders has commented on it, and he told Meet the Press that he doesn’t think it’s “sensible.” Additionally, Democrats have not been great at realizing the grave crisis the conservative Supreme Court presents, making it hard to imagine they’d fall into lockstep the way Senate Republicans did for the Coney Barrett nomination.
Indeed, nearly a week has already passed since the election, and there’s no sign of a consensus emerging. This stands in contrast to the period following Ginsburg’s death, when McConnell literally called Trump the night of her death to demand he appoint Coney Barrett.
Who to name as Sotomayor’s replacement is also a problem, even if the other issues were resolved. While the Democrats have a deep bench of very qualified people who could step into her seat, what they don’t have is an equivalent to the Republican list of Federalist Society hardliners that can be spun up any time a judicial vacancy is contemplated.
Biden also can’t really pull from anyone currently on the federal bench anywhere, as doing so would just create another vacancy that would need to be filled as well. So, that would knock out Judge J. Michelle Childs. Childs was one of three finalists for the spot that eventually went to Justice Ketanji Brown Jackson, but she currently sits on the DC Circuit Court of Appeals. But the other 2022 finalist, Leondra Kruger, is on the California Supreme Court, so nominating her wouldn’t pose that problem.
Over at CNN, Bakari Sellers suggested that Vice President Kamala Harris could replace Sotomayor. This is a weird pundit fixation — you might recall Biden being quizzed by reporters in 2019 about whether he would nominate Barack Obama to a Supreme Court seat if elected. But there is no evidence that either Harris or Obama wants to sit on the bench, and with Harris, it feels like an odd consolation prize mindset.
Finally, the Democrats have roughly 30 other judicial confirmations in the pipeline, and they need to wrap up as many of those as possible, as every unfilled seat is an opportunity for Trump. Those roles aren’t as sexy as Supreme Court seats, but they’re important and easier to fill.
Thoughts and prayers
Hopefully, the worst case scenarios are avoided, Justice Sotomayor has no trouble weathering Trump’s second term, and Democrats can regain control of the White House and Senate in 2028. But the way Mitch McConnell handled the Merrick Garland and Amy Coney Barrett nominations is a cautionary tale for Democrats: we truly have no sense of the lengths the GOP will go to in order to remain in control of the courts.
The right has treated the capture of the federal courts like a total war for the last several decades, with little regard for rules but with great success. While Democrats may be knocked back on their heels right now, hope is not a plan. Republican scheming has already allowed them to lock down generational control of the Court, and it’s not inconceivable Trump could end up nominating a supermajority all on his own.
That’s it for today
We’ll be back with more tomorrow.
Your support is appreciated. If you aren’t already a paid subscriber, click below to become one.
Thanks for reading.
Regarding the Supreme Court Justices, I must ask the obvious question to liberals and dems - why not chuck the high road just this one time in history to save democracy eh? JB needs to do a few things in the remaing time he has: 1 Executive orders - nominate 4 justices, eliminate the filibuster, KH breaks the tie and we have a more balanced SC. 2. Second ExO - cap the number of SCJ to 13. Third ExO- term limits of 10-15 years. 4. Enshrine these in the Constitution.
I know you may say - wait a minute - this is overstepping the reach of the President - like THAT hasn't happened before? The President of the US now has complete IMMUNITY for official acts . He NEEDS to do this - and you and I and everyone else need to protest loudly NOW. Every day he waits, we come closer to losing our democracy. Come on people - let us do this!!!!
The situation with Soto can also be solved in a similar way - we should not just sit back and let them run over us like they are doing. Why are we allowing this?
The Democratic party needs new leadership, especially in the Senate. Chuck Schumer - still - hasn't grasped the danger we're in. He's talking a good game about confirming judges before January but I guarantee you he won't make the tough choice of keeping the Senate in session, disrupting their leisurely work schedule or making sure all 51 Senators are available - notably difficult since two of four independents, the fully checked out Sinema and the closet Republican Manchin may not even bother attending, given they are both headed out the door. Manchin may not even vote to confirm even if he is there. Once again the party will fail and they'll all just shrug and say, "well, we tried." As for Biden riding to the rescue, he's bitter he had to step aside and once again seems unwilling to do anything other than wring his hands. We're F*****.