As some on the left call for Supreme Court Justice Sonia Sotomayor to retire so she could be replaced before President-elect Donald Trump takes office, President Joe Biden and the outgoing Democratic Senate majority have dozens of judicial vacancies left to fill.
Some Democrats have called for Sotomayor to step down in the wake of Trump's win, citing the late Justice Ruth Bader Ginsburg's decision not to step down before she passed away under Trump, allowing him to fill her seat with conservative Justice Amy Coney Barrett. Politico reported Friday that Senate Democrats were already shirking away from the idea of attempting to replace Sotomayor in the lame-duck session. According to the report, no senator is willing to publicly call on Sotomayor to retire and there is some consternation over the Democrats’ ability to whip votes in favor of replacing the justice should she retire.
Democrats would need a simple majority to successfully nominate a new justice, though this would hinge on Sens. Joe Manchin, I-W.Va., and Kyrsten Sinema, I-Ariz., who have stood in the way of significant parts of the Democratic agenda in the past.
The opportunity Democrats have to fill judicial vacancies, however, goes well beyond Sotomayor. There are currently 41 vacancies in the federal judiciary, 40 district court seats and one circuit court opening. According to the American Constitution Society, another 26 vacancies, including five circuit court seats, are expected to open up in the near future.
Judiciary Chairman Dick Durbin’s, D-Ill., office indicated that he “aims to confirm every possible nominee before the end of this Congress.”
“Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame duck session given that we have a number of nominees on the floor ready for a vote, and others still moving through Committee,” a spokesperson for the office said.
Senate Majority Leader Chuck Schumer, D-N.Y., and Sen. Elizabeth Warren, D-Mass., have released similar statements calling to move quickly to confirm as many federal judges as possible before control of the Senate changes hands.
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Russell Wheeler, a senior fellow at the Brookings Institution, suggested that despite support from many Democratic senators, they might not be able to push through that many judges.
“It really depends less on what tactics they have available to them and more on how willing they are to use them,” Wheeler told Salon. “Democrats let through 13 Trump nominees after it was clear that he had lost the election. Fair play means that you should let through at least 13 Biden nominees but that logic doesn’t work anymore.”
The other issue is that it’s not clear whether Democrats will even be able to cobble together a majority to confirm nominees. Earlier this year, Manchin indicated that he would refuse to vote for any judicial nominee that didn’t have Republican support. If Manchin is not on board to confirm nominees, that means that every other senator who caucuses with Democrats will need to vote to confirm nominees.
The other potential independent defector is Sinema. While Sinema has created her “own little filibuster” like Manchin has, it’s not clear whether she will be on board with pushing through as many nominees as possible in the lame duck session. Her office did not immediately respond to a request for comment for this article.
Manchin and Sinema aren’t the only senators who caucus with Democrats that could halt judicial nominees, however. The recently re-elected senator from Nevada, Jacky Rosen, said before the election that she wouldn’t vote for the nominee for the Third Circuit Court, Adeel Mangi. Her colleague from Nevada, Sen. Catherine Cortez Masto, said the same thing ahead of the election.
Wheeler said the number of nominees Democrats are able to get through comes down to “how many Democratic Senators will be willing to vote for some of these controversial nominees” and what “road blocks” Republicans set up. “Let’s wait and see what happens on November 12,” Wheeler added.
“I think it would be irresponsible to try and predict what could happen in this lame duck,” Wheeler said. “The Republicans really have no incentive to play along.”
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