“If Judge Sotomayor Resigns, Can Biden Get His Pick Through the Confirmation Process? Can Mitch McConnell and Senate Republicans stop it or would it pass because Democrats have the majority?”
— Deb Jennings, Walnut Creek, California
Hello Deb,
In theory, Judge Sonia Sotomayor could resign and be replaced by a Democratic candidate before President-elect Donald Trump takes office at the end of January. Democrats still hold a slim majority in the Senate during what is known as the “lame duck” period.
But a replacement for Sotomayor appears unlikely in the waning days of the Biden administration. For starters, The Wall Street Journal reported that the judge himself has no plans to resign. Even if she wanted to, it’s far from certain that a replacement — let alone a good replacement — would be confirmed, even if Democrats still hold power until the new Republican Senate majority takes over in January takes over.
If both Sotomayor and Senate Democrats planned to replace her, she would have had to resign at the end of the last term in July. Again, it’s not technically too late for that to happen, although in such a hypothetical scenario it would take a significant amount of political will from Democrats to push through a replacement before Trump comes to power – the kind 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 appointee Justice Ruth Bader Ginsburg died.
With Republicans set to control the presidency for at least four more years, Democrats are right to worry about another Ginsburg scenario. Ginsburg was, of course, much older (87) than Sotomayor (70) is now, and a cancer survivor to boot. It’s a morbid calculation for both the Justice Department and Democrats to ponder, but one created by lifetime appointments to the nation’s highest court. If Sotomayor stays and something happens over the next four years, the 6-3 Republican supermajority on the court could become an even more insurmountable 7-2.
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This article was originally published on MSNBC.com
