Are we really debating whether Democrats should want Justice Sonia Sotomayor to retire now, while Joe Biden could nominate a replacement and a Democratic majority in the Senate could confirm that choice?
Of course Democrats should want Democratic Supreme Court Justices to retire strategically, and Republicans should want Republican Supreme Court Justices to retire strategically. Overall, this isn’t a tough question. While it’s true that there’s no “too old, too big a risk” hard-and-fast bright line involved – no one thinks that Ketanji Brown Jackson should retire now that she’ll turn 54 before the November elections – it’s pretty clear that Sotomayor, who will turn 70 next month, has moved into the relatively high-risk zone.
Which is just to say that if the 2024 elections turn out to mark the beginning of a 12-year run or longer in which Democrats cannot nominate and confirm anyone to the Court, there would be a large enough risk of a Republican replacing her that the clear strategic move is to retire. The same was true for Ruth Bader Ginsburg and Stephen Breyer as early as 2012, and for Republicans it was true of Anthony Kennedy and Antonin Scalia perhaps by 2006 and for Clarence Thomas by 2018.1
While the logic holds for Justices from both parties, it’s particularly strong for Democrats. After all, Democratic majorities in the Senate confirmed (some) nominations sent forward by Richard Nixon, Ronald Reagan, and George H.W. Bush. The last Supreme Court nomination by a Democratic president confirmed by a Senate with a Republican majority happened in the 19th century, and Republicans are unapologetic about refusing at consider anyone Barack Obama might have selected to replace Scalia in 2016.
But really this isn’t about the radicalism of the Republican Party.2 Democrats do not have to invoke extraordinary threats to constitutional government should Donald Trump regain the White House to justify wanting younger Justices. It’s very simple. The Court – properly and necessarily – is a political actor. During a period of strong party polarization, that means that Democrats and Republicans, including federal judges, have very different policy positions and priorities. And given the constitutional rules of lifetime tenure, nomination by presidents, and confirmation by the Senate, there’s an extremely strong partisan interest in strategic retirements in order to safeguard, as best as possible, every seat.
In fact, that interest is so strong that for party actors it should easily override any other considerations, such as the skills of the aging jurist – and I think Sotomayor is a terrific Justice – or the possible perception of lack of respect for the Justice involved. Supreme Court Justices are not simply mindless, interchangeable votes for their party’s agenda. Absolutely not. But on many policy questions important to party actors they come close enough that the nuances just can’t matter that much compared to basic partisan and ideological orientation.
I’m somewhat skeptical that a Supreme Court confirmation fight in (say) September would have major electoral effects in November. But for what it’s worth, it does seem likely that a Court battle in the Senate would put even more emphasis on abortion and other issues that appear to be playing well for Democrats right now. And yes, that too is a perfectly valid reason for Democrats to want Sotomayor to step down.
I’m wording this as what Democrats should want on purpose. The question of what Sotomayor herself wants (or what any other Justice wants) is a personal one. But to the extent that they care about advancing the things they’ve fought for during their careers, including their time on the Court, then strategic retirement so they can be replaced by a like-minded judge is really the obvious choice. But that’s up to her.
For other Democratic party actors however, the real question is whether Justice Elena Kagan, who is only 63, should also retire. Look, there’s been a lot of dust thrown up around this question. Yes, Biden is way older (as is Donald Trump)…but whatever the merits of his re-election bid overall, any president who leaves office because of health will be replaced by a same-party vice-president. It’s true that Sotomayor’s diabetes is not reason alone (or perhaps even at all) for her to retire, but it doesn’t matter; 70 is sufficiently risky for the party, regardless of current health status. And no, it’s not the case that only women are pressed to retire strategically, as anyone remembering the pressure on Breyer can tell us.
And please don’t claim that the Court isn’t a political actor, or that treating it and the Justices as such will harm it. Nonsense.
Whether pressure on Sotomayor will be sufficient to push her into retirement is unclear. But Democrats who choose to apply pressure have nothing to apologize for. It’s the obvious move.
I wrote items to that effect about Ginsburg and Breyer in 2013 (and I think Ginsburg alone in 2011, but can’t find the blog post), Thomas in 2017, and Breyer in 2021.
My guess is that we’ve hit the point where a Democratic majority in the Senate very well might not confirm any Republican nominee. But it’s fairly certain that should Biden be re-elected while Republicans pick up the two seats they need to reach 51 that they would shut down virtually all appellate court nominations, including the Supreme Court. That’s what happened in 2015-2016, and I don’t think there are any Congress-watchers who think the next Republican majority would be more inclined to cut deals.