Bernie Sanders said he opposes any move to urge Sonia Sotomayor, the senior liberal justice on the US supreme court, to step down so that Joe Biden could nominate a younger liberal replacement before he finishes his term as president.
Sotomayor, 70, is known to suffer from health issues, and some Democrats fear a repeat of Ruth Bader Ginsburg, who died during Donald Trump’s first term – giving him a third opportunity to nominate a new justice and further shore up the top court’s conservative bent.
In his first term, Trump appointed Neil Gorsuch to replace Antonin Scalia, Brett Kavanaugh to succeed Anthony Kennedy, and Amy Coney Barrett to take the place of Ruth Bader Ginsburg, who died less than two months before the 2020 election – leaving six largely conservative judges to just three liberals.
Trump’s first-term appointees to the court were critical to overturning abortion rights and a series of other rulings that delighted conservative activists.
In an interview on NBC’s Meet the Press, Sanders, a progressive senator who identifies as an independent but usually votes with Democrats, said it would not be “sensible” to ask Sotomayor to step down while Biden is still in office.
He added he’d heard “a little bit” of talk from Democratic senators about asking Sotomayor, who is serving a lifetime appointment to the supreme court, to step aside.
“I don’t think it’s sensible,” Sanders said, without elaborating further.
No elected Democrat has so far publicly called on the justice to resign, but the idea comes amid a feverish effort by Democrats to “Trump-proof” their agenda before the Republican takes office in January.
Supreme court justices are nominated by the sitting president but face an often grueling confirmation process in the Senate. With Democrats soon to lose control of the body, the opportunity for Biden to appoint – and for Democratic senators to confirm – the time left to appoint a successor to Sotomayor is fast slipping away.
Biden appointed Justice Ketanji Brown Jackson to the supreme court. She was confirmed in 2022. However, with just two months left in office, it is unlikely that Biden and a Democrat-controlled Senate would be able to nominate and confirm a new justice to the court in time.
Democrats have previous floated the possibility of increasing the number of justices to counter the court’s political makeup. In July, Biden proposed term limits and a code of ethics for court justices, after a series of scandals relating to the conservatives Clarence Thomas and Samuel Alito called into question their impartiality.
Biden said the court had “gutted civil rights protections, taken away a woman’s right to choose, and now granted Presidents broad immunity from prosecution for crimes they commit in office”.
In a second term, meanwhile, Trump could have the opportunity to further deepen the court’s conservative leaning, as Thomas and Alito are both in their mid-70s.
Just as Democrats are considering whether Sotomayor should step down to install a replacement liberal justice, Republicans could do the same after they take power in January. “Alito is gleefully packing up his chambers,” Mike Davis, a conservative legal operative, predicted on social media this week.
Although a Republican majority in the Senate refused to take up confirmation hearings in 2016 when Barack Obama nominated Merrick Garland to replace Antonin Scalia, protesting that to do so in an election year would be unfair, they had no such problems when Trump nominated Barrett to replace Ginsburg in 2020, also an election year.
