Now Sonia Sotomayor Really Needs to Retire

Listen, Jack: We're probably going to lose this election.

Dear readers,

Back in the spring, I wrote a couple of newsletters urging Sonia Sotomayor to retire from the Supreme Court. These newsletters kicked off some news cycles in which this idea was debated — at one point, after one of my articles re-ran in The Atlantic, Karine Jean-Pierre even addressed it aboard Air Force One — and one of the anti-retirement arguments raised in this debate was that Democrats should simply win the election, so that we would retain the ability to replace Justice Sotomayor with a younger liberal judge at a later date.

For example, after Connecticut Sen. Richard Blumenthal gently suggested Sotomayor might consider retiring to avoid an eventual Ruth Bader Ginsburg-type situation, Rep. Nydia Velázquez threw the election argument at him: “I believe we can win this November, but based on your comments Senator it seems you've given up.”

This wasn’t a good argument at the time, but it’s an even worse argument now, given how sideways this whole campaign is going for Democrats. We are probably going to lose the presidential election. If Joe Biden remains our nominee, we might lose it very badly. And he may drag down-ballot candidates down with him. Amid the recent turmoil, the Cook Political Report has declared the Michigan Senate race a toss-up, and it’s possible that after a bad night, Republicans will have a majority of 53 or 54 seats rather than 50 or 51. That would make it very difficult for us to retake the Senate and replace Sotomayor anytime soon, even if we win the presidential election in 2028.

If we are really fucked after this election — looking quite possible at this rate! — then we’ll at least want to have solidified our grip on the Supreme Court seats we have. But we can’t do that unless Sotomayor agrees to retire.

U.S. Vice President Joe Biden (left) stood with U.S. Supreme Court Justice Sonia Sotomayor after taking the oath of office during the official swearing-in ceremony at the Naval Observatory on January 20, 2013 in Washington, DC. At the time, he was 70 years old and she was 58. (Photo by Kevin Lamarque-Pool/Getty Images)

I should note that Rep. Velázquez, who represents parts of Brooklyn and Queens, is 71 years old. She has served in Congress for nearly 32 years. And unsurprisingly, she is part of the crew that says we should stop talking about whether Biden should withdraw in favor of a younger candidate. As I have watched Democratic members of Congress dither over the last two weeks, I have often wanted to scream into a pillow. Most of them are acting out of timidity — they clearly believe in private that the party would be better off replacing Biden, but they fear the career consequences of saying so publicly.¹ (As Matt Yglesias heard from one Democrat on the Hill, one problem with trying to fix a problem is that you end up with ownership of it.) But another reason they hesitate to urge Biden to exit the campaign is that the idea that old people have earned the right to hold onto their jobs forever and ever has become institutionalized in Congress, especially on the Democratic side of the aisle.² You don’t have to be young to realize Biden has aged out of suitability to be our candidate — Sen. Peter Welch, for example, is 77, and he gets it — but for some elderly members of Congress, I imagine that talk about how Joe Biden (or Sonia Sotomayor) should step aside raises uncomfortable questions about whether they ought to hang it up, too.

It’s not just Democratic elected officials who think about elderly public servants through a frame of what we owe them for all they’ve done for us. Many Democratic voters seem to look at it this way, too. It is alarming how little reputational damage Ruth Bader Ginsburg has suffered for her choice to remain on the court in 2014, when she could have retired to be replaced by a younger Obama appointee. That is, Saint Ruth of the Devotional Candle did so much for us with her fiery dissents, and so if her failure to retire followed by her tragic death led to a permanent rightward shift in the court, we can’t blame her for that. Similarly, if Sotomayor doesn’t retire, and then dies in office in 2034³ before Democrats have an opportunity to replace her, and gets replaced by a young judge nominated by President J.D. Vance, resulting in a 7-2 conservative majority on the court? Her reputation among MSNBC viewers will probably remain intact, too.

So I’m not sure Sotomayor really faces legacy risk in the way Biden does. But if she actually cares about policy outcomes, the time for her retire is now.

Very seriously,

Josh

1. In the most egregious example, Virginia Rep. Don Beyer said on a private call for senior House Democrats that Biden “really has trouble putting two sentences together,” is “probably” a much weaker nominee than Kamala Harris, and that in his “perfect world,” Biden would not just step aside as a candidate but resign, so Harris could seek election as an incumbent president; then, after his comments leaked, he put out a statement saying “I support President Biden. I support the Biden-Harris ticket.”

2. Part of how these members get the idea that one should be able to stick around forever is that many of them have ultra-safe districts like Velázquez’s and can stick around forever if they care to — if Joe Biden drags down the ticket and the House majority slips far out of reach, that will be unfortunate, but they won’t be out of a job.

3. Choosing to stay on the court at age 70 when you seem to be in perfectly good health and then dying at age 80 before you’ve gotten had another good chance to retire? Antonin Scalia did it.