Democrats should be doing some serious soul searching and reflecting on why a majority of American voters rejected Kamala Harris and other Democratic candidates on Tuesday, and I’m sure some of them are doing just that. 

There are also some on the left, however, who can’t seem to face up to reality quite yet. 

HAHAHAHA now they want Biden to put Harris on the Supreme Court before he leaves: pic.twitter.com/2KuWE5L1wm

— End Wokeness (@EndWokeness) November 8, 2024

There are just a few problems with Bakari Sellers’ idea. 

First, there’s not an opening on the Supreme Court at the moment, so Biden would have to convince one of the three progressives on the Court to step down. Justice Ketanji Brown Jackson was just appointed two years ago, so she’s not going anywhere. Elena Kagan and Sonia Sotomayor have been on the bench since 2010 and 2009, respectively, but Kagan is only 64-years-old and could conceivably do the job for another decade. 

There’ve been calls from progressives demanding the 70-year-old Sotomayor step down for months now, starting with an April column by progressive commentator Medhi Hasan, who argued that Sotomayor should retire and let Joe Biden appoint a much younger candidate who could remain on the Court for decades instead of risking another Ruth Bader Ginsberg situation. 

With Joe Biden trailing Trump in several swing states and Democrats also in danger of losing their razor-thin majority in the Senate, are we really prepared for history to repeat itself? Sotomayor will turn 70 in June. Of course, only Sotomayor knows the full status of her health, still it is public knowledge that she has had type 1 diabetes since she was seven; had paramedics called to her home; and is the only sitting justice to have, reportedly, traveled with a medic. To be clear: she could easily – and God willing – survive a potential Trump second term and still be dishing out dissents from the bench come 2029.

But why take that risk? Why not retire now? Why not quit the bench at the same age that justices in Belgium, Australia and Japan are forced to do so?

Sotomayor has shown no inclination to step down, but even if Sotomayor was willing to fall on her sword and step down ahead of Trump’s inauguration, Sellers plan suffers from another flaw: the animosity between the Biden and Harris camps, which has spilled out into the open after Trump’s victory on Tuesday. 

Finger-pointing advisers to Vice President Harris and President Biden agree on one thing: President-elect Trump’s victory is the other one’s fault.

Why it matters: Biden premised his presidency on preventing Trump from returning to the Oval Office: He failed. So, someone needs to bear the blame.

• In response to Trump’s decisive victory, aides in both camps are blaming the other for being more responsible, according to interviews with more than a dozen people in the White House and Harris’ campaign.

Alex Thompson’s Axios story is a fun read, full of sniping from both Team Harris and Team Biden. But it also begs the question; why would Biden appoint Harris to the Supreme Court if Sotomayor suddenly announced her resignation? 

There’s another flaw in Sellers’ argument, at least from a progressive perspective. 

Even if Sotomayor did step down, “it’s far from clear that Senate Democrats would have the votes to confirm a replacement,” said Alex Aronson, executive director of Court Accountability and former Senate Judiciary Committee staffer.

Democrats have a slim 51-49 edge in the Senate until the newly elected lawmakers take office in January. Sen. Joe Manchin III, a Democrat turned independent from West Virginia who caucuses with his old party, said in March that he wouldn’t vote for any judicial nominee who lacked Republican support. He then softened his position and agreed to move forward on judicial nominees without Republican support in some instances.

“This is my own little filibuster,” Manchin told Politico at that time.

Imagine if Sotomayor did retire, but Democrats couldn’t get her replacement confirmed before Trump takes office and Republicans take control of the Senate. Trump start his second term with a bow-wrapped gift from the left: the opportunity to craft a 7-2 majority on the Supreme Court. 

That would be a huge gamble for Democrats, and I don’t think it’s likely to happen. Sotomayor’s future with the Court is entirely in her hands, and if she were inclined to step down so Biden could appoint her replacement she most likely would have announced her resignation at the end of the Court’s last term. If she suddenly has a change of heart, Biden has no real reason to nominate Harris, who, by the way, is already 60. That’s not particularly old for a Supreme Court justice, but I’m guessing many Democrats would prefer a nominee in their 40s or 50s to provide more longevity on the bench. 

Sellers’ idea is nothing more than wishful thinking, and though I wouldn’t be surprised to see more Democrats push for Sotomayor to step down and let Biden appoint her replacement, I doubt she’ll acquiesce to their demands. Given the odds that such a move would blow up in the Left’s face and give Trump a Supreme Court pick on his first day, though, I’m more than happy to see the Democrats give it a go. 

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