Supreme Court unlikely to see justices retire before Trump takes office

Washington — President-elect Donald Trump's victory Tuesday has stirred up whispers astir whether Justice Sonia Sotomayor should measurement down from nan Supreme Court to let President Biden to nominate a successor earlier Republicans return power of Washington.

But immoderate changes successful nan creation of nan nation's highest tribunal are improbable successful nan coming months, moreover arsenic lawmakers return for a lame-duck convention to decorativeness their business earlier Trump is sworn successful for a 2nd word and nan GOP assumes nan Senate majority.

Sotomayor hasn't responded publically to nan chatter astir a retirement, and she did not return a petition for remark astir her future. She remains an progressive questioner during oral arguments and has go known for biting dissents successful hotly contested cases. 

At 70, she is not nan oldest personnel of nan Supreme Court — Justice Clarence Thomas is 76 and Justice Samuel Alito is 74 — and she is recently into her tenure arsenic nan senior-most personnel of its wide wing, a position she assumed pursuing nan retirement of Justice Stephen Breyer successful 2022.

Sotomayor, nan first Hispanic justice, is besides a decade younger than Justice Ruth Bader Ginsburg was erstwhile she faced unit to measurement down from nan Supreme Court successful 2013 and 2014.

Ginsburg, who was treated for early-stage colon crab successful 1999 and pancreatic crab successful 2009, rejected immoderate proposal that she discontinue to let then-President Barack Obama to sanction a successor while Democrats had power of nan Senate. She remained connected nan Supreme Court until her death successful September 2020, aft which Trump, nearing nan extremity of his first term, selected Justice Amy Coney Barrett to capable her seat. Barrett's confirmation by nan GOP-led Senate widened nan Supreme Court's blimpish mostly to 6-3.

With a 2nd word for Trump connected nan horizon, and Democrats losing power of nan Senate travel January, erstwhile Republicans will hold astatine slightest 52 seats, progressives are fearful of a repetition of what happened pinch Ginsburg's seat.

"We person nary thought really agelong it will beryllium until personification who shares Justice Sotomayor's jurisprudence, her values will beryllium successful a position to beryllium nominated again," Molly Coleman, executive head of nan People's Parity Project, a progressive judicial group, told CBS News. "Of people we each want to dream for nan best, but unluckily we've been near successful a position wherever that's each we tin do."

The circumstances of much than a decade agone are different from today, making it acold from a judge point that moreover if Sotomayor were to retire, nan Senate would corroborate her replacement earlier nan GOP takes over. For one, Democrats presently person a constrictive 51-49 majority, which includes nan 4 independent senators who ballot pinch nan party. 

One of those senators, Joe Manchin of West Virginia, told Politico successful March that he would not support nominees who do not person GOP support.

"Just 1 Republican. That's each I'm asking for. Give maine thing bipartisan. This is my ain small filibuster. If they can't get 1 Republican, I ballot for none. I've told [Democrats] that. I said, 'I'm sick and tired of it, I can't return it anymore,'" Manchin, who is retiring from nan Senate, said.

He later appeared to somewhat reverse course, voting successful September to beforehand nan information of a campaigner for a national appeals court. A spokesperson for nan legislator told Axios astatine nan clip that Manchin learned guidance to nan nominee was based connected really nan White House handled nan process, not qualifications.

Erwin Chemerinsky, nan dean of nan University of California Berkeley Law School, said location is not capable clip for a successor to beryllium nominated and confirmed by nan Senate by early January. Incoming House and Senate members will beryllium sworn successful connected Jan. 3, and nan results of nan predetermination will beryllium reaffirmed by Congress connected Jan. 6.

"Joe Manchin made clear he would not ballot for immoderate nominee without Republican support and nary Republican would ballot for a Biden nominee to switch Sotomayor. Sotomayor retiring now would apt conscionable springiness Trump a vacancy to fill. It is wholly different from whether Ginsburg should person retired successful summertime 2014 earlier nan election," he told CBS News successful an email.

Chemerinsky wrote successful September 2014 that Ginsburg should person retired that summertime and warned her determination not to "could extremity up hurting her ineligible legacy." Democrats had power of nan Senate astatine that time, but mislaid it pursuing nan November 2014 midterm elections.

Even immoderate progressive groups that called for unfastened discussions astir Sotomayor's early connected nan tribunal months agone are recognizing that nan model has closed.

"The reality is it's excessively late. It's excessively precocious for Democrats to beryllium having this conversation. It's excessively precocious to beryllium launching a unit campaign. The vessel has sailed," Coleman, of nan People's Parity Project said. 

She said discussions should person happened earlier this twelvemonth and warned nan consequences of waiting whitethorn beryllium "catastrophic."

Instead, wide judicial defense groups are turning their attraction to nan confirming Mr. Biden's remaining nominees to nan national territory and appeals courts. There are presently 47 unfastened seats connected nan national bench, and 17 nominees are awaiting Senate action. There will beryllium different 20 vacancies successful nan coming weeks, and 11 nominees are pending for those seats.

"Hand wringing astir nan chartless doesn't thief anyone correct now," said Maggie Jo Buchanan, managing head of nan judicial group Demand Justice. "Right now, we are firmly focused connected nan truth that location are still 30 pending Biden nominees earlier nan Senate that deserve, and need, confirmation. The Senate should beryllium focused connected moving late, moving weekends to get these talented individuals connected nan bench."

Trump saw immense occurrence pinch judicial confirmations during his first term, appointing 234 jurists to nan Supreme Court, national courts of appeals, territory courts and U.S. Court of International Trade. But Mr. Biden is closing in connected that number, pinch 213 appointments truthful far.

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• Supreme Court of nan United States
• Sonia Sotomayor