Right Now Could Be the Safest Time for Sonia Sotomayor to Retire

Sonia Sotomayor was confirmed and sworn in as a Supreme Court Justice in August 2009. That means this August will be her 15th year on the court. But there’s another landmark coming up before that, one that Josh Barro says ought to make Sotomayor and Democrats think carefully about retirement. In June Sotomayor will turn 70.

Why does that matter? As Barro points out, that’s exactly how old Antonin Scalia was in 2006. Had he resigned that year with 20 years on the court, a GOP president and a GOP controlled Senate could have replaced him with a younger conservative. Instead, Scalia stuck around and, as we all know, in Feb. 2016 he died. Barack Obama was president at the time but fortunately the GOP controlled the Senate so no moderate or liberal replacement for Scalia was confirmed. Trump won the next election and Neil Gorsuch eventually took the seat held open for him by Mitch McConnell.

Something very similar happened to Justice Ruth Bader Ginsburg. Ginsburg was confirmed and sworn in in August 1993. Ginsburg had chances to retire during Barack Obama’s tenure but she chose not to take them. She may have been waiting for Hillary to be elected in 2016 at which point she could retire and feel confident Clinton would nominate a very liberal replacement. But again, her plan didn’t work out. Trump was elected and Sotomayor was forced to hang on until the next Democratic President (and Senate) came around. But as we all know, she didn’t make it. She died in office in 2020 and was replaced by Amy Coney Barrett a little more than a month later.

The point is, Justices sometimes hang on to those lifetime appointments in ways that can wind up shifting the direction of the court or requiring a pitched political battle to avoid doing so. So with Sotomayor now turning 70 and with a real chance the GOP could win the White House, the Senate or both, Sotomayor is taking a risk her party may not want her to take.

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.

Given the risks, why aren’t Democrats calling on her to retire? Barro notes that Politico reported more than a year ago that some Democrats were talking about this behind the scenes. But no one was willing to go on the record.

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. There is a firm belief that a Senate controlled by Republicans will simply not confirm a Biden-picked Court nominee should he run and win reelection. Should a vacancy occur under a Republican run Senate with a Republican in the White House, it could expand the current 6-3 conservative majority into an even more powerful 7-2 split.

Given the stakes, you’d think someone would speak up. Even if they weren’t willing to do so a year ago, they must be nervous now that all of the polls show Biden trailing Trump and stuck with mid-30s approval ratings. So why stay silent now? Barro points the finger at identity politics.

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 think he’s absolutely right about this. No one wants to call for the justice who argued it mattered to have a “wise Latina” making the decisions to step down. In fact, I think you can see the same dynamic in play with Democrats stubborn insistence on sticking with Joe Biden despite the evidence a lot of Americans are concerned about his age. The alternative to Biden is Kamala Harris, someone polls suggest is even less popular. Are there other Democrats on the bench who might perform better? Possibly, but no one is going to make the case for skipping over Harris because that would be politically untenable on the left. It simply can’t be done and anyone who tries is likely to wind up getting canceled by progressives in their own party.

Anyway, it’s interesting to think about. The biggest risk Democrats might be taking this year might not be sticking with Biden. The biggest risk might be quietly sticking with Sotomayor and risking a future 7-2 Supreme Court.