Sonia Sotomayor Must Retire
Democrats are distressed about the conservative court, but not ruthless enough to tell the aging justice to step down in time to avoid shifting the court even farther right.
Dear readers,
On Election Day in 2006, Antonin Scalia was 70 years old and had been serving on the Supreme Court for 20 years. That year would have been an opportune time for him to retire — Republicans held the White House and the Senate, and they could have confirmed a young conservative justice who likely would have held the seat for decades to come. Instead, he stayed on the court, and I don’t recall a lot of conservative dissension about this at the time. Scalia, after all, wasn’t merely a vote on the court — he was a leading voice for conservative judicial thought, the sort of person you would eventually name law schools after, and conservatives really liked having him around, personally, to write opinions.
Scalia tried to stay on the court until the next time a Republican president would have a clear shot to nominate and confirm a conservative successor, but he didn’t make it — he died unexpectedly in February 2016 at the age of 79, while Barack Obama was president. Conservatives were nonetheless fortunate: there was divided control of government, and then-Senate Majority Leader Mitch McConnell refused to even hold confirmation hearings for Merrick Garland, Obama’s nominee to the seat. Donald Trump won that fall’s election and he named Neil Gorsuch to the seat that McConnell had held open.
But imagine for a moment that Anthony Weiner had actually stopped sexting teenagers after his first sexting-related scandal in 2011. In this alternate universe, there would have been no Weiner’s Laptop story in the final days of the 2016 presidential campaign (and thus no announcement from James Comey that he was reopening the email investigation 11 days before the election) and Hillary Clinton probably would have won. By running a couple of points stronger, she might have taken Democratic candidates across the finish line in close races in Pennsylvania and Missouri, gaining Democratic control of the US Senate. In that scenario, Clinton would have named a liberal successor to Scalia — more liberal than Garland — and conservatives would have lost control of the court, all because of Scalia’s failure to retire at the opportune moment.
Sonia Sotomayor will turn 70 this June. If she retires this year, Biden will nominate a young1 and reliably liberal judge to replace her. Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the court — playing the kind of defense that is smart and prudent when your only hope of controlling the court again relies on both the timing of the deaths or retirements of conservative judges, plus not losing your grip on the three seats you already hold.
But if Sotomayor does not retire this year, we don’t know when she will next be able to retire with a likely liberal replacement. It’s possible that Democrats will retain the presidency and the Senate at this year's elections, in which case the insurance created by a Sotomayor retirement won’t have been necessary. But 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 1993.2 In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve through age 82 or 84 — and she’ll be taking the whole Democratic Party coalition along with her in making that high-stakes bet.
If Democrats lose the bet, the court’s 6-3 conservative majority will turn into a 7-2 majority at some point within the next decade. If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade. Democrats talk a lot about the importance of the Court and the damage that has been done since the court has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren’t Democrats demanding Sotomayor’s retirement?
Well, they are whispering about it. Politico reported in January:
Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor’s retirement. But none would go on the record about it. They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election.
This is the most chickenshit thing ever. You’re worried about putting control of the court completely out of reach for more than a generation, but you can’t criticize an official who’s putting your entire policy project at risk because she is Hispanic? If this is how the Democratic Party operates, it deserves to lose.
The cowardice in speaking up about Sotomayor — a diabetic who has in some instances been traveling with a medic — is part of a broader insanity in the way that the Democratic Party thinks about diversity and representation. Representation is supposed to be important because the presence of diverse people in positions of power helps to ensure that the interests and preferences of diverse communities are taken into account when making policy. But in practice, Democratic Party actions around diversity tend to be taken for the benefit of diverse officials rather than diverse communities. What’s more important for ordinary Hispanic women who support Democrats — that there not be one more vote against abortion rights on the Supreme Court, or that Sotomayor is personally there to write dissenting opinions? The answer is obvious, unless you work in Democratic politics for a living, in which case it apparently becomes a difficult call.
I thought Democrats had learned some lessons from the Ruth Bader Ginsburg episode about the importance of playing defense on a court where you don’t hold the majority. Building a cult of personality around one particular justice served to reinforce the idea that it was reasonable for her to stay on the court far into old age, and her unfortunate choice to do so ultimately led to Amy Coney Barrett’s appointment and a string of conservative policy victories. All liberals have to show for it is a bunch of dissents and kitsch home decor. In 2021, it seemed that liberals had learned their lesson about the importance of defending the seats they hold — not only was there a well-organized effort to hound the elderly Stephen Breyer out of office, but the effort was quite rude. (I’m not sure screaming “retire, bitch” at Stephen Breyer was strictly necessary, but I wasn’t bothered by it either — he’s a big boy and he can take it.) But I guess maybe the lesson was only learned for instances where the justice in question is a white man.
A response that I’m sure I will hear to this piece is that the president is also old — much older, indeed, than Sonia Sotomayor. I am aware, and I consider this to be a serious problem. But as I’ve written, Democrats are unlikely to find a way to replace Biden with a younger candidate who enhances their odds of winning the election. The Sotomayor situation is different. Her age problem can be dealt with very simply by her retiring and the president picking a candidate to replace her who is young and broadly acceptable (even maybe exciting) to Democratic Party insiders. And if Democrats want to increase the odds of getting there, they should be saying in public that she should step down. But in order to do that, they’ll have to get over their crippling fear of being called racist or sexist or ageist.
Which is to say, it probably won’t happen.
Very seriously,
Josh
Probably about 20 years younger, to be specific. Ketanji Brown Jackson was 51 years old at the time of her nomination, Neil Gorsuch was 49, Brett Kavanaugh was 53, and Amy Coney Barrett was 48.
The latter gap proved too long for Thurgood Marshall, who could have retired in 1980 at the age of 72 but instead stayed on the court and ended up retiring in poor health in 1991, clearing the way for the conservative Clarence Thomas to replace him. If Marshall had retired in 1980, a liberal would have filled his seat, and Barack Obama would have likely nominated a replacement for that liberal judge, meaning the court would have had a liberal majority through the 1990s and 2000s.
Agree with the piece. It further reinforces one of my pet political desires in wanting term limits for all judicial appointments including for the Supreme Court. The fights high court nominees would be much less hostile if we know that they wouldn’t be on the bench for decades and sometimes throughout the end of their lives.
2 posts in less than a week is great work. Keep it up!