Can Democrats Replace Sonia Sotomayor Before Donald Trump Takes Office?

Now that Donald Trump has been elected the next president of the United States, speculation has swirled around whether Democrats can replace U.S. Supreme Court Justice Sonia Sotomayor before he takes office in January.

The short answer is yes, but it comes with a significant caveat: Sotomayor, 70, would have to agree to retire.

Sotomayor is the oldest liberal justice on the Supreme Court. If she agreed to step down, it would theoretically give President Joe Biden enough time to nominate a new justice, and for Senate Democrats to push the nomination through before the next administration takes office and Republicans take control of the Senate.

There are 73 days between now and Inauguration Day 2025, which falls on January 20. And when you count four independent senators who typically vote with their Democratic colleagues, Democrats have a simple majority of 51-49 in the upper chamber, which is enough leverage for them to push through a new Supreme Court justice.

Other justices have been confirmed in less time.

Trump nominated Amy Coney Barrett to the Supreme Court 38 days before the 2020 election. Senate Republicans voted 52-48 to confirm Barrett to the high court just 30 days after she was nominated.

The move sparked fury from Democrats, who criticized their Republican counterparts for pushing Barrett’s nomination through after refusing to hold confirmation hearings for Merrick Garland, whom President Barack Obama nominated eight months before the 2016 election.

As NPR reported, two other justices since Gerald Ford’s presidency were confirmed in a similar, or shorter, timeframe. The Senate confirmed John Paul Stevens 16 days after his nomination was sent to the upper chamber, and the Senate confirmed Sandra Day O’Connor 33 days after receiving her nomination.

The record for a confirmation battle was 125 days, when Justice Louis Brandeis was nominated for the Supreme Court in 1916. But the Pew Research Center reported that with the exception of Brandeis, from the country’s founding until the early 1950s, the average amount of time that passed between a judge’s nomination and their confirmation to the court was 13.2 days.

From 1954, when Earl Warren was nominated to the court, to Barrett’s confirmation in 2020, the average is 54.4 days.

That means if Sotomayor decided to step down, Biden would have enough time to nominate someone to replace her, and for Democrats to push the nomination through if they decided to call the Senate into session.

Sotomayor has given no indication that she plans to retire. But she has faced pressure from Democrats for months, and that pressure was renewed this week after Trump won the election.

Politico’s Playbook reported Friday that Democratic senators are “actively engaged” in discussions about what to do about Sotomayor. But the outlet cited one anonymous senator as saying Democrats are grappling with having an already-crowded agenda in the closing months of Biden’s presidency and no senator wants to be the one to call on Sotomayor to step down.