With the two oldest members of the Supreme Court having been appointed by Republicans, Justices Clarence Thomas and Samuel Alito, should he win the presidency, President Biden could reshape the composition of the Supreme Court into the next decade and beyond if either Thomas or Alito leave the bench in a Biden second term. Democrats are salivating at that possibility.
Something has been overlooked in President Biden’s victory in 2020. If Donald Trump had won, he would have had the opportunity to appoint a fourth SCOTUS nominee to replace Stephen Breyer, whose seat was filled by Biden with the 2022 nomination of Kitanji Brown Jackson. Had Breyer retired under a second Trump presidency, the Supreme Court would now have a 7-2 Conservative Majority.
Why is this important? Pressure is now being openly placed by Democrat/Liberal interests on Justice Sotomayor, who is 69 and suffers from diabetes, to retire before this November’s presidential election. If she does, President Biden can appoint her replacement while he still has a Senate majority to confirm his potential nominee.
Before you say that this is some conspiracy theory, many Democrats are already saying the quiet part out loud. This starts with 78-year-old Sen. Richard Blumenthal (D-CT), who recently said, “I’m very respectful of Justice Sotomayor. I have great admiration for her. But I think she has to weigh the competing factors. We should learn a lesson. And it’s not like there’s any mystery here about what the lesson should be. The old saying—graveyards are full of indispensable people, ourselves in this body included.”
In the Washington Post, columnist Jim Geraghty recently cited Democrat activist-journalist Nate Silver on his Substack, saying, “Sotomayor should retire. This is a much higher-stakes decision than nearly everything else I’ll discuss … this year. And it is not a close call.”
Why the hand-wringing and pearl-clutching on the part of Democrats? Their memories are long enough to remember that former President Barack Obama tried to convince once-revered Ruth Bader Ginsburg to retire back in 2013. She didn’t, and when she passed away in 2020, just before the end of Trump’s first term, it allowed him to nominate Amy Comey Barrett, which the Republican-controlled Senate confirmed before January 6.
This gave the court its current 6–3 Conservative majority. Justice Barrett was an influential voice in overturning Roe v. Wade with its controversial June 24, 2022, Dobbs v. Jackson’s Women’s Health Organization decision.
All this came into clear focus recently when the Arizona Supreme Court threw out its previous 15-week abortion law signed in 2022. In its place is a statute that dates back to 1864, when Arizona was a territory, not even a state, making abortion virtually illegal in the state. Before the decision, Trump took credit for Dobbs and said abortion is where it should be, with the states, not the federal government—a sensible policy position. But it has complicated the issue for Republican Senate candidate Kari Lake, who previously stated she was for the near-total ban but has now pragmatically flip-flopped on the issue in her Senate bid. The mainstream media has pounced on Lake, as seen in this CNN video.
By age, this is the current composition of the Supreme Court.
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Justice Thomas, 75.
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Justice Alito, 73.
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Justice Sotomayor, 69.
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Chief Justice Roberts, 69.
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Justice Kagan, 63.
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Justice Kavanaugh, 58.
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Justice Gorsuch, 56.
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Justice Amy Coney Barrett, 53.
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Justice Brown Jackson, 53.
Supreme Court Justices Clarence Thomas (Pictured left) and Samuel Alito.
(Photos by Chip Somodevilla and Alex Wong/Getty Images)
At ages 75 and 72, respectively, did Thomas and Alito stay on the court during Biden’s term to deny Biden the opportunity to appoint their replacements? Or would have one or both retired during a second Trump term had he been reelected in 2020? If Trump serves a second non-consecutive term starting in 2025, he will get to name their replacements when they decide to retire. With Chief Justice Roberts and Justice Sotomayor, both ages 69, could Trump nominate as many as five justices before he leaves office, if reelected, by 2029?
This is a very interesting question to ponder. Would Democrats heads explode at that possibility? Have Democrats even considered that possibility? They clearly have.
Should Biden be reelected, can Thomas (who Democrats have mounted several attempts over the years to remove from the bench) and Alito remain on the Supreme Court for four more years? That seems unlikely if history is our guide. If Biden gets to nominate two replacements for these two justices with conservative judicial philosophies, he will reshape the composition of the Supreme Court. It will move from a 6–3 Conservative majority to a 5–4 Liberal majority. Can you even consider the consequences of such a shift, especially on social issues like abortion or Trump cases related to January 6 that could come up in the years to come?
That makes the 2024 races in the Senate even more consequential. The Senate could be the last barrier to Biden appointing more nominees that check DEI checkboxes, like Jackson, who can’t even define what a woman is. It could reshape the composition of the Supreme Court well into the next decade and beyond.
Under the Constitution, the Senate has the power to confirm Supreme Court nominees. With its current 51 – 49 majority, Senate Majority Leader Chuck Schumer and Democrats would likely rubber stamp any potential Biden/Democrat Supreme Court nominees post-2025. That makes the 2024 Senatorial elections even more crucial as well. Replacing ultra-liberal Schumer, possibly with someone like Republican Senator Rand Paul (D-KY), could have a profound impact compared with Kamala Harris being the potential tie-breaking vote in a Senate split 50 – 50 in a potential Biden second term. While Paul would make an excellent Senate Majority Leader, I’d love to see Senator John Kennedy, a long-time sparring partner of Judiciary Committee Chair Dick Durbin (D-IL) in that position.
Think about the consequences had then-Senate Majority Leader Mitch McConnell not successfully blocked Barack Obama’s nomination of Merrick Garland to the Supreme Court in 2016. (Years from now, this will be McConnell’s most lasting legacy of his term as Senate Majority Leader.) Based on Garland’s lawless record as Biden’s Attorney General, especially persecuting and prosecuting Biden’s political opponents and enemies, can you imagine the nightmare of Garland sitting on the court with a lifetime appointment? The prospect at this point is simply too frightful to contemplate.
Thankfully, Republicans have a very favorable Senate electoral map in 2024. At this point, Republicans will likely flip control of the Senate, even if Biden (or his replacement should he be forced from the ticket between now and November 5th) is elected. Republicans will likely come out of the 2024 election with at least a slim 51 – 49 majority. In a best-case scenario, Republicans in a Trump popular vote landslide could end up with a solid 54 – 46 majority. This illustrates the importance of Democrat power brokers and insiders forcing a Sotomayor retirement before November.
As President Obama once said, “Elections have consequences” when he won the presidency in 2008. It held true in 2014, when Republicans won a remarkable nine seats in the Senate, which enabled McConnell to block Garland’s potential nomination to the Supreme Court. Then in 2020, it led to Biden’s win, setting up his disastrous presidency with the Afghanistan withdrawal debacle that needlessly cost the lives of 13 American servicemen and servicewomen, the worst inflation since the Carter Administration, and brewing wars in Ukraine and the Middle East that could spark even wider conflicts.
These are the profound consequences of the stakes in the 2024 elections and why a second Biden term would be a disaster for America and our civil liberties, more so than a potential second Trump term.