Keep the Pressure on Sotomayor to Retire
Some New York politicians are circling the wagons around her, but their arguments for her to stay on the court are unconvincing.
Dear readers,
It seems I’ve gotten people talking a little bit.
Last month, I wrote that Justice Sonia Sotomayor ought to retire from the Supreme Court, for the good of the progressive legal project. She’ll be 70 on Election Day, and if she doesn’t retire before then, she may not have a good opportunity to retire until many years from now. We’ve seen in the past — not just with Ruth Bader Ginsburg — that elderly justices don’t always make it until the next good retirement opportunity, which can sometimes be more than a decade away. The best thing Sotomayor can do to secure her legacy and increase the likelihood that liberals can gain ground on the court in the future is to retire after 15 years of service, enabling Biden to appoint a younger, liberal judge to replace her and serve for decades to come.
The Atlantic republished my piece a few days after it ran here, and on March 19, Politico reporter Hailey Fuchs asked White House press secretary Karine Jean-Pierre about it during a gaggle onboard Air Force One:
MS. FUCHS: In a — in a new book, former Supreme Court Justice Stephen Breyer expresses his concern about the direction of the Supreme Court. A new article in The Atlantic also calls for Justice Sonia Sotomayor to retire. Where does the White House stand, kind of, in a post-Dobbs world on Supreme Court reform? And has the White House considered asking Justice Sotomayor to retire?
MS. JEAN-PIERRE: Look, that’s a personal decision for her to make. That is something that — (laughs) — that she has to make. It’s not something that we make — we — we lean in on or get involved in. So, I’m not even going to address that — that question.
I don’t blame Jean-Pierre for demurring.1 The public pressure for Sotomayor to resign should not come from the White House — that would look like too much of a naked power play to score a new appointment. The Biden White House never demanded Stephen Breyer’s retirement either, at least not publicly. But lots of other people did, and they should send the same message now to Sotomayor.
What Sotomayor needs to hear from Democrats is that we will be disappointed if she doesn’t retire — that if she doesn’t, it would force the rest of us to gamble our policy project on whether or not she’ll be alive and healthy in 12 years.2 If, as she says, every progressive loss at the high court “traumatizes” her, then the best thing she can do to prevent further trauma for anyone who shares her values is to step down now, allow a younger replacement to be appointed, and ensure we do not get in a situation where her death turns a 6-3 conservative majority on the court into a 7-2 majority. She should hear that message — loudly — from voters, from activists, and from the Democrats we have elected to Congress to speak on our behalf.
Sen. Richard Blumenthal has inched gingerly toward sending that message, telling reporters for NBC News:
I’m very respectful of Justice Sotomayor. I have great admiration for her. But I think she really 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.
Matt Ford of the New Republic describes Blumenthal’s comments as macabre, but it’s really just reality that is macabre. This country’s legal future depends in significant part on when Supreme Court justices happen to die, and if you care about that legal future, you need to make smart strategic choices about reducing the likelihood of any justice’s ill-timed death. The situation is weird and uncomfortable, but it is not complicated — as Blumenthal says, there is no mystery about what the lesson of Ruth Bader Ginsburg’s death should be.
Now that a sitting senator has all but said Sotomayor should retire, the predictable backlash has started, and it’s very unconvincing.
Rep. Nydia Velazquez, a Democrat who represents New York City, started the pushback on Blumenthal: “Forcing the only Latina on the Court to retire isn't going to get us a liberal majority back. I believe we can win this November, but based on your comments Senator it seems you've given up.”
I would say three things in response to this.
The first is that nobody is forcing anyone to do anything — for better or worse, Sotomayor’s choice about retirement is hers alone. This is about convincing her that the interests of the people she went to Washington to fight for are best served by her retirement.
The second is that when a new liberal can be seated on the Supreme Court doesn’t just depend on whether Joe Biden is re-elected this November. Democrats’ path to retain control of the Senate requires them to sweep a set of challenging races across Montana, Ohio, Nevada and elsewhere. Even if Biden wins — and I think the presidential race is pretty close to a toss-up right now — it’s likely he will enter 2025 with a Republican Senate majority. I doubt that a Republican-controlled Senate will confirm any Biden appointee to the Supreme Court, and I am certain that a Republican-controlled Senate will not confirm any Biden appointee to the Supreme Court who is similarly as liberal as Sotomayor.
And the third thing I’d say is that Biden, obviously, might lose. Trying to win the election and trying to future-proof liberals’ grip on a piece of the Supreme Court in the event we lose the election are not mutually exclusive strategies — we should do both. Going on a wing and a prayer and hoping we’ll win every election is the Ginsburg strategy from 2014, and we should have learned that it was a bad one.
Of course, Velazquez notes that Sotomayor is Latina. Former New York City Council speaker Melissa Mark-Viverito is more explicit, saying that calls for Sotomayor to retire reflect that “Latina/o representation is seen as inessential, unimportant & and dispensable by many.” This argument — that once a specific Latina is on the court, we must support her retaining her seat indefinitely, even if that puts Democrats at risk of facing a 7-2 conservative court majority, and even though Biden could name a younger Latina judge to succeed her — is a perversion of what “representation” is supposed to be for. A representative court is desirable because it is supposed to be more likely to produce policy that meets the needs of the public it represents; for Democrats, that’s supposed to be liberal policy. But if Democrats interpret “representation” as a mandate to prioritize the presence of one specific person at the court, even at the risk of losing another seat to conservatives and producing fewer liberal policy outcomes, then representation isn’t doing what it’s supposed to do.
Velazquez and Mark-Viverito, like Sotomayor, are prominent and successful progressive Puerto Rican women from New York, and it’s understandable that they would feel a personal stake in her personal career.3 But what I would urge Democrats to remember is that discussions about the Supreme Court should not be about what’s best for Sonia Sotomayor or what she deserves — the conversation should foremost be about all of us, the public. We have a right to demand that public officials put our interests first. And when the best thing they can do for our interests is retire, we should feel free to say that, regardless of their ethnicity. Latinas are not exempt from practical calculus about the choices that will produce the best court outcomes for liberals in the long run.
I have seen people, including Ford, say it’s sort of pointless to tell Supreme Court justices when they should retire. I’m not so sure. Certainly, progressive groups invested a lot of money and energy into the effort to pressure Breyer to step aside, and I assume they did so because they thought it might have an impact. I find it puzzling and depressing that they are not mounting a similar effort here.
And I don’t get the premise. Why would we think the justices are not susceptible to influence from people whose values and agenda they share? The justices are people, just like the rest of us, and I assume they want to be liked and respected, especially by people they see as on their “team.”4 So I really do think it’s worth a shot for liberals to tell Sotomayor what Blumenthal gently tried to tell her: Thank you for your service, we think you’re great, please retire now so we can secure your seat and pursue your project for decades to come. Perhaps, if she hears this enough, it will help her come to the conclusion that retirement would be the wise course of action.
But I worry that if the dominant message she hears about herself this year is the one Ginsburg was hearing circa 2013 — we love your dissents, you are an irreplaceable treasure, your mere presence and voice on the court is victory enough for us as liberals — then that will make it more likely she will stay. Therefore, I encourage more Democrats to join Blumenthal in sending a polite but insistent message of “please, retire.”
Very seriously,
Josh
I do think it’s important to note that Jean-Pierre did demur. She could have said Sotomayor is a progressive icon and should stay on the court. She didn’t say that because, presumably, Biden and his team realize what I realize — that it does not serve liberal or Democratic interests for her to stay on the court and increase the risk that her seat will eventually fall into conservative hands.
As I wrote previously, if Democrats lose the presidency or the Senate this fall (or both) she’ll need to stay on the court until the party once again controls both. That could be just a few years, or it could be a while — for example, Democrats have previously had to wait 14 years from 1995 to 2009, and 12 years from 1981 to 1993.
It is understandable, but the other side of that coin is legacy, and I would encourage anyone who feels similarly about Sotomayor’s career to consider her legacy as well.
This last part — that it’s powerful to hear from people who you believe share your values — is the rebuttal to the dumbest argument I’ve been hearing in response to calls for Sotomayor to retire: that people should instead call on Clarence Thomas to retire. The thing is, we’re not just arguing that Sotomayor should retire — we’re arguing that Sotomayor should think Sotomayor should retire, given Sotomayor’s own expressed values. The argument is that Sotomayor’s retirement would help advance the progressive liberal project, and she should retire since she cares deeply about that project. It is of course true that, if Thomas retired today, that would be a far bigger boost to the progressive liberal project. But Thomas does not want the law to move in a progressive direction. What good is it to point out to him how he can help out the other side?
Republicans can always count on the "better angels" of Democrats to do their work for them.
Strategic retirements are creepy and just remind me how partisanship is skewing the highest court's decisions not to mention the judicial branch all the way down to local. Ever since the last D appointment feigned not knowing what a woman is, I'm, even more than ever, highly disinclined to support Josh's thesis. We don't need more of that on the bench.