Should Sonia Sotomayor Retire?
Of party, duty, age, and political roulette.
Josh Barro takes to The Atlantic to argue “Sonia Sotomayor Should Retire Now.” He bases his appeal on counterfactuals:
On Election Day in 2006, Justice 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 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.
He didn’t make it—he died unexpectedly in February 2016, at the age of 79, while Barack Obama was president. Conservatives nevertheless engineered some good fortune: 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 named Neil Gorsuch to the seat that McConnell had held open.
But imagine for a moment that Hillary Clinton had won the 2016 election, as many expected. By running a few points stronger, she might have taken Democratic candidates across the finish line in close races in Pennsylvania and Missouri, resulting in Democratic control of the 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.
You see where this is going:
Justice Sonia Sotomayor will turn 70 in June. If she retires this year, President Joe Biden will nominate a young 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 death or retirement of conservative judges and 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 in 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 bench until the party once again controls them. That could be just a few years, or it could be longer. Democrats have previously had to wait as long as 14 years (1995 to 2009). In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve until possibly age 78 or even 82 or 84—and she’ll be forcing the whole Democratic Party to make that high-stakes bet with her.
In a theoretical world, of course, Supreme Court Justices are impartial arbiters, not partisan actors. Alas, we do not live in that world. While it’s doubtful that Trump wins and is followed by a Republican successor—Republicans haven’t won back-to-back elections since George W. Bush in 2000 and 2004 and have only won the popular vote once since 1988—anything is possible, I guess.
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 it 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 incredibly gutless. You’re worried about putting control of the Court completely out of reach for more than a generation, but because she is Latina, you can’t hurry along an official who’s putting your entire policy project at risk? If this is how the Democratic Party operates, it deserves to lose.
Again, in a theoretical world, this is crass and bizarre. Sotomayor is not a Democratic Party operative and has no duty to listen to those who are. In that world, the very suggestion is offensive. But, again, that’s not the world we live in and, indeed, speculation about the retirement of Justices who hit a certain age has become routine.
The cowardice in speaking up about Sotomayor—a diabetic who has in some instances traveled 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 different sorts of people in positions of power helps ensure that the interests and preferences of various communities are taken into account when making policy. But in practice, Democratic Party actions regarding diversity tend to be taken for the benefit of officials rather than demographic groups. What’s more important for ordinary Latina 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.
While I am admittedly not party to the conversations deep inside the bowels of the Democratic establishment, I would be shocked if Sotomayor’s status as The First Latina Justice was really that big a factor whether to approach her to urge her to step aside. If anything, it would simply increase the pressure (as was the case when Thurgood Marshall retired) to replace her with another Latina.
I thought Democrats had learned a lesson 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 bench 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 this stubbornness is a bunch of dissents and kitsch home decor. In 2021, it seemed that liberals had indeed learned their lesson—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 was a big boy, and he could take it.) But I guess maybe the lesson was learned only for instances where the justice in question is a white man.
Again, I think Barro overstates the identity politics issue here. While there was certainly a bit of hero worship around The Notorious RBG, there was plenty of talk about her retirement. The earliest indicator I can find in the OTB archives is from February 2011. She was a month shy of 78 at the time— eight years older than Sotomayor is now. There are multiple posts on the idea in the years after that, with an increasing sense of urgency. In July 2014, the late Doug Mataconis lamented that “Liberals Still Think They Can Guilt Trip Ruth Bader Ginsburg Into Retirement.” By November 2018, he was begging Democrats to just “Leave Notorious RBG Alone.”
Regardless, in terms of pure party politics—and the consequences of having a Trump-appointed replacement rather than one appointed by Obama—the critics were certainly right. Most notably, of course, Roe was finally overturned. (Then again, Dobbs was 6-3, so it arguably would have happened regardless.)
Barro concludes,
One obvious response to this argument 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 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 (maybe even 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. In order to do that, they’ll have to get over their fear of being called racist or sexist or ageist.
Of course, a 69-year-old Justice retiring would actually lead to yet another round of questioning as to why the 81-year-old President doesn’t do the same.
I’m less doctrinaire than my late co-blogger Doug on this matter. While Supreme Court appointments are for life and Sotomayor has every right to stay in what is, after all, a dream job so long as she’s fit to do it, it’s perfectly fair for her co-partisans and others who share her judicial philosophy urge her to step aside for a younger replacement.
I’m roughly 12 years younger than Sotomayor and am unlikely to retire anytime soon. A colleague who turned 80 in December has announced his retirement at the end of this academic year but we wouldn’t have pushed him out had he not done so. But I’m old enough to remember when it was routine—even mandatory—to retire at 65, or even 62. In particular, all three of the Big Three network news anchors retired in rapid succession in the early 1980s.
Of course, college professors and news readers don’t have the final say on the law of the land. Balancing an individual Justice’s desire to fulfill that awesome role with the realities of American politics is a strange and dangerous game of roulette.
Could’ve stopped at “Josh Barro.”
Barro was once a gay Republican. His judgment has not since improved, consisting mostly of robotically-contrarion I’m Not Like The Other Girls clickbait.
Would that we would stop giving attention-seeking pundits what they want.
Life is fleeting. Any one of the Justices could have an issue at any time–even the younger ones could end up with cancer, ALS, or who knows what else.
I have never cared much for this type of chess-playing, it involves way too many “what ifs” to feel anything but speculative.
and
Sotomayor and the other justices certainly have ideological worldviews, and those worldviews often align with partisan interests, but if you look at the totality of their rulings, I think you’ll find they aren’t simplistic partisan actors. So I think Barro and, perhaps, you make the mistake of wrongly assuming they are partisan actors who intend to serve partisan interests as opposed to their own judicial philosophy and worldview. Barro’s expectation, therefore, that they should put partisan interests above all else and strategically retire to take one for the team, is based on that questionable assumption.
And the problem is, if that assumption is wrong, then partisan high-pressure tactics to try to get Sotomayor to retire could backfire.
I feel a lot of sympathy for RBG. She’s guilty of the “crime” of believing what almost everyone else also believed at the time—that Clinton would win in 2016. The people who also thought Clinton would win now blame RBG for not having the foresight they also lacked. RBG wanted her successor to be picked by the first female President, and yeah, that’s some hubris, but it was something most everyone expected would happen.
That it didn’t happen is not RBG’s fault, it’s Clinton’s, for running a crappy campaign, for ignoring Wisconsin, and many other things that were in her control that would have given her the small margin necessary for victory. And to the usual suspects, no, I don’t want to relitigate the 2016 election and the investigation into her mishandling of classified info (aka, “her emails.”)
@Andy:
To a large degree, I think this is a distinction without much difference. Unlike many commenters here, I don’t think the Republican- or even Trump-appointed Justices are simply partisan hacks ruling for whatever benefits the party and/or Trump. Indeed, there’s plenty of evidence the other way. At the same time, even the most centrist of modern Justices (O’Connor and Kennedy come to mind) have clearly demonstrated an interest in timing their retirements such that a member of their appointing party appoint their successor.
@James Joyner:
Alito is. The others, even Thomas, aren’t on the same level of hackery.
@Andy:
The time for RBG to retire was not before 2016, but before 2014, when Republicans captured the Senate. At that point, there was no consensus that Clinton was guaranteed to win the presidency; most people didn’t even anticipate Trump would be a candidate, let alone win the GOP nomination.
@Andy:
Clinton’s campaign was good enough to win 90+% of black voters. Maybe there’s something seriously wrong with the demographics in America that are apparently too ignorant to figure out on their own that Trump — who could not pass a background check for most jobs — was and is cartoonishly unfit.
Point of fact: she campaigned in Wisconsin more than once in the 2016 cycle. Hillary-bashing men have always fallen hook, line, and sinker for the endless barrage of lies and smears about her. That’s how the crappy voting decisions of crappy white people (including a supermajority of white men, a group that never manages to reflect on or take responsibility for their awful politics) gave us Trump.
But true, people need to leave RBG alone. Elections have consequences, and Americans have gotten the court they earned.
@DK:
Wise Pure RussiaGate level cope.
Yes. And she should do that talk show circuit explaining exactly why she has done this.
If we want reform of the court, the way to do it is to be so crass and partisan and blatant that it triggers the Republican outrage machine, and then Republicans in congress are pressured into supporting reform that would also affect their justices.
Also, Kagan should start vacationing with Soros.
@Paul L.: Trump publicly told Russia to steal emails and his campaign met Russian operatives in Trump Tower. Now, after giving Putin the greenlight to attack Europe, Trump is reportedly thinking of bringing back former convict Paul Manafort, who admitted giving data to the Kremlin — to help America’s enemies target their propaganda attacks.
Trump is a Putin-puppet traitor (and rapist) who colluded with Russia to undermine the United States and its allies, and he is still doing so.
One of many reasons Republicans are so divided and have so alienated voters they’re struggling to cope with mounting electoral losses since 2018.
@DK:
So you believe Clinton’s email were private and the public had zero right to review them?
Outside of Mueller’s purview: Same Russian operatives met with DNC operatives and Fusion GPS before and after the Don Jr. meeting.
I am still waiting to be told the Federal Law that makes it illegal to share private campaign polling data with a hostile foreign government.
And now the cries of WhatAboutism.
@Andy:
Indeed. Now, I will reinforce what Dr. Joyner noted with the addition that, as she herself put it, a wise Latina might need to think in terms of what proactive moves she might need to make to preserve the impact of her own judicial philosophy to the extent she will be able to. Dr. Joyner has already noted justices who appear to have taken such proactive approaches, so I need not labor on.
For my own interests, I’m completely neutral on whether she needs to or even should retire. She’s her own moral agent and is intitled to think 70 is too early to pack it in. As to her health issues, I have myriad health issues (my current file at the clinic that serves me is roughly the size of a volume of what used to be the Yellow Pages for a major urban area), but even I am not inclined to see my mortality as immanent. She’s probably at least as likely to roll a pass as I am over the ensuing years.
President Biden is still strong, smart and sharp and will be victorious over obese and mentally declining Trump who has one foot at Death’s door and can’t walk down a ramp.
Strong, smart, sharp and wise Latina Sonia Sotomayor has nothing to worry about.
Your reminder that Paul L by his own admission is not interested in honest discourse:
”I don’t want to convince anyone. I want to see how people will go to defend what I see as indefensible.”
@Andy:
There are many plausible reasons why Hillary Clinton lost in 2016, but 2 reasons seem pretty clear to me:
(1) Trump had to run the table in seven-to-ten swing-ish states … and he did.
(2) The voters, despite knowing of Trump’s mendacity, malevolence, and lifetime of business corruption and multiple bankruptcies … voted for him anyway.
Far too many people let the voters off the hook.
@Erik:
Honest discourse is determining the limits that a person will go to to defend their position.
Changing the subject when confronted with something inconvenient to your argument or talking point is not Honest discourse .
@DK:
At least you are predictable in blaming everyone and everything but Clinton and her campaign for the 2016 loss.
Yes, clever wording there. She only went there during the primary phase, when she was still fending off Bernie. Note the date on the article you linked to – March 2016. She never went there in the general, and the campaign neglected the Midwest as a whole, assuming it was safe and ignoring the local party officials who were trying to warn them. Instead, it spent time trying to run up the score in states like Arizona that didn’t matter.
But yes, it’s all someone else’s fault, Clinton and the campaign’s strategy had nothing to do with it.
@Just nutha ignint cracker:
I agree. The justices aren’t stupid, and they aren’t ignorant of the political landscape. That’s why I think attempted pressure campaigns to bully them to retire are foolish and probably counterproductive. On the one hand, no one likes to be bullied into a decision or appear to be bullied into a decision, and on the other hand, the people attempting to pressure the justices don’t actually have any leverage or influence.
@al Ameda:
– HL Mencken
I’m sorry, but blaming voters is lazy.
The entire job of a politician in a democracy is to convince enough people to vote for you so that you can get into office, gain political power, and exercise it. There’s a reason that candidate selection and the campaign vision, strategy, and implementation all matter for winning.
I have no stomach for demanding anything from Sonia Sotomayor. May she live as long as Notorious RBG. Or longer.
The problem is fundamentally a political one, and we need to solve it politically. We need to be very clear on our support for both a democratic process and rule of law. We need to build support for these things.
I don’t know that wanting Sotomayor displays disrespect for rule of law or democratic processes, but I have definitely seen such attitudes among a few of my fellow travellers.
It always reminds me of the characters of Boromir and his father Denethor, who want to use The One Ring to defeat Sauron. Well, the others in the fellowship want to defeat Sauron, too, but have the understanding that using the Ring would only create a new Sauron in its place, and not really improve things.
I don’t think of Boromir as a “bad guy”. He’s just wrong about something important.
@Andy:
I understand your point. However, sometimes the voters deserve to be blamed, that is is of course unless you believe in an enduring ‘Wisdom of The People,’ wherein The People are always right. Which I do not. Sometimes The People collectively have wisdom, sometimes they dont. Electing Trump was not the best moment for The People.
@al Ameda: Ayup! When push come to shove, the voters in swing states elected Trump. True enough!
@DK: If Clinton had won a few 10s of thousands of voters who voted for Obama in Philadelphia, Pittsburgh, Detroit and Milwaukee she would have easily won.
She had a rally in Philadelphia with Obama days before the election. Too late
@DK: If Clinton had won a few 10s of thousands of voters who voted for Obama in Philadelphia, Pittsburgh, Detroit and Milwaukee she would have easily won.
@Andy:
This. Barro and like-minded people should leave Sotomayor and RBG alone. If voters want a better SCOTUS, we should just vote better.
This is empirically false. Aside from investing heavily in media and GOTV in Wisconsin, Iowa, and Minnesota, Clinton spent a lot of time and effort in Pennsylvania, including spending the last day of her campaign there.
But Hillary haters have always been impervious to facts and wedded to saying things about her that are provably untrue. That’s how we got Trump.
Someone once said that if it were somehow found out that Columbus “discovered” America in 1493, people would still always believe the year was 1492. Some are wedded to the lazy “Hillary lost because she didn’t wear a cheesehead in Wisconsin” lazy narrative, and no amount of reality will get them to budge. It is what it is.
@al Ameda:
This. Voters are always to blame. We are not potted plants with no agency. We are a self-governed people. If voters choose to vote for terrible candidates, then voters are responsible for their stupid and bad choices. This infantilization of the American people is not only patronizing, but an actual impediment to democracy.
No one is responsible for saving us but us.
Notice that people who say it was wrong to pressure RBG into retiring, or that it’s wrong to pressure Sotomayor now, are never able to counter the consequence-based argument. If RBG had retired in the 2009-14 period, the Court would still be 5-4 today rather than 6-3. Period, end of story. They have no real answer to this point, all they can do is distract from it by invoking all their lofty principles about respecting the justices’ personal decisions and trying not to make the Court more partisan than it already is (as if that ship didn’t sail ages ago). Meanwhile, the Court just drifts further and further to the right. It’s the same thing third-party voters do, appeal to their smug moralism and ignore the way their “moral” decisions objectively lead to worse outcomes.
If a few years from now Sotomayor has been replaced by another far-right justice and the Court has become 7-2, I’m sure the pundits giving disapproving frowns now will still have learned nothing and will still be talking about how ridiculous and hyper-partisan we were being for warning them.
@Robert Shift:
The convention was held there.
@al Ameda:
Considering my perfect candidate is never on the ballot, much less never wins, I always have fundamental disagreements with a majority of my fellow Americans. I disagree with most people on more things than I agree with them on. That’s the reality of living in a diverse society of 330 million people.
I have, for example, a much more favorable view of Biden than most Americans. That is a difference of opinion and perspective, not a matter of right and wrong or who is more wise.
Democracy isn’t about the people being “right” because what is “right” is entirely subjective, especially when the actual diversity of preferences and views is artificially crammed into a binary choice between two candidates “chosen” by a minority of the country in a flawed system that often produces candidates that a majority of Americans don’t like.
@DK:
In fourteen hundred and ninety three, Columbus sailed across the sea.
I don’t know where you get this 1492 thing from.
“History doesn’t repeat, but it often rhymes.” — Mises, Ludvik von (1905, Cacophony)
@Kylopod:
Yes, we (I) don’t have an answer to your hypothetical speculation about consequences. The problem with your consequence-based argument, however, is that you would actually need to show that pressuring Justices into retiring actually works for it to be valid. And no one has shown that. What I’m arguing is that publicly pressuring Justices to retire, especially by strident partisans, almost certainly doesn’t work and is likely counterproductive—meaning that the consequence-based argument probably works in the opposite direction of what you’re suggesting.
@DK:
Well, I know you’re wedded to your position that Clinton did nothing wrong; it was all someone else’s fault. Again, I’m not interested in relitigating that with you, but I do think the vast majority of evidence shows quite the opposite. Even many Democratic political insiders and stalwarts – Axelrod, Mook, Tanden, Carville, Penn, and probably others I’m forgetting – agree that Clinton made serious errors and failures during the campaign.
@Andy:
I think it worked with Breyer.
@James Joyner:
Cite? Seriously, what can you point to in the case of Alito, Kavanaugh, or Barrett (or even that wholly-owned subsidiary, Thomas) as counter-evidence?
@Paul L.:
…which is why you answered a question about Trump’s crimes with some bizarre comment about Hillary Clinton’s emails, yes?
@Andy:
This was almost a reasonable position in the days before Fox News and billionaire disinformation campaigns leveraging self-segregated news consumption. You can’t convince people who literally never get a straight presentation of what you said.
@Andy:
No, that way lies madness. Hitler was not right. Pol Pot was not right. These are facts. If you disagree, I’m not sure where we can agree on anything.
I would never in a million years have pegged you as a Postmodernist.
@DrDaveT:
Dishonest and bad faith. I didn’t bring up the subject of Clinton’s emails. I just responded to someone who claimed they were stolen and private so no one had the right to see them.
@Kylopod:
Ah, but you see, you’re wasting your breath. Facts like these don’t matter to Hillary haters. In their Clinton Derangement Syndrome fog, she neglected Pennsylvania and that’s that. Doesn’t matter that this is verifiably an obvious lie.
Men who are triggered by Hillary have invented an alternate reality of fake facts about her, and the cocoon is impenetrable. These men are why Trump became president.
Nice use of those archives!
If SCOTUS is just a really cool job that goes to deserving persons, then they should never resign unless they want to.
If Justices are political leaders of the country, then they have an obligation to make some calculation as to how their retirements might have implications for the country (which one would expect to be guided, at least in part, by their own political POV).
Given their vast power, I think that they have some responsibility to consider how staying or going could matter.