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“If Justice Sotomayor resigns, could Biden get his pick through the confirmation process? Could Mitch McConnell and Senate Republicans hold it up or would it get through because Democrats have the majority?”
— Deb Jennings, Walnut Creek, California
Hi Deb,
In theory, Justice Sonia Sotomayor could resign and be replaced by a Democratic nominee before President-elect Donald Trump takes office in late January. Democrats still have a slim Senate majority during what’s known as the “lame duck” period.
But a Sotomayor replacement seems unlikely to happen in the waning days of the Biden administration. For one thing, The Wall Street Journal reported that the justice herself has no plans to step down. Even if she wanted to, it’s far from certain that a replacement — much less a good replacement — would be confirmed, even though Democrats still hold power until the new Republican Senate majority takes over in January.
If both Sotomayor and the Senate Democrats were intent on replacing her, she should’ve stepped down at the end of this past term in July. Again, it’s technically not too late for that to happen, though in such a hypothetical scenario it would take a significant amount of political will from Democrats to push through a replacement before Trump takes office — the sort of political will (and in that case, hypocrisy) that led Senate Republicans to confirm Trump appointee Amy Coney Barrett in the fall of 2020 after Democratic-appointed Justice Ruth Bader Ginsburg died.
With Republicans set to control the presidency for at least another four years, Democrats are rightly concerned about another Ginsburg scenario. Ginsburg, of course, was much older (87) than Sotomayor (70) is now, and a cancer survivor to boot. It's a morbid calculation for either the justice or Democrats to ponder, but one that lifetime appointments to the nation's highest court have created. If Sotomayor stays, and something happens over the next four years, the court's 6-3 Republican supermajority could become an even more insurmountable 7-2.
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