Paul Campos, a law professor at the University of Colorado Boulder, remembers how this story went last time, and he’s begging for a different ending.
“Sotomayor has been an outstanding justice,” he said. “But the Ruth Bader Ginsburg precedent ought to be extremely sobering. … The cost of her failing to be replaced by a Democratic president with a Democratic Senate would be catastrophic.”
At 69, Sonia Sotomayor is the oldest justice on the Supreme Court to have been picked by a Democrat. And now, Democrats may be about to lose the Senate, White House or both. But on the left, there is little open debate about whether she should retire.
The relative silence recalls the almost total lack of pressure on Ginsburg to retire exactly one decade ago. Ginsburg, seemingly betting she would outlive a Republican-held Senate and then Donald Trump’s presidency, died of pancreatic cancer at age 87, just weeks before Joe Biden won the 2020 election. When Trump nominated her replacement, Amy Coney Barrett, and she was confirmed on Oct. 26, he cemented the 6-3 conservative majority that then took less than two years to fully overturn Roe v. Wade, among other seismic jurisprudential shifts.
Fearing a repeat of history, a handful of people who were critical of Ginsburg’s judgment, are wearily reprising their warnings ― including Lucas Powe Jr., a Supreme Court historian at the University of Texas at Austin.
“I would love to see Sotomayor retire,” Powe said. “I would love to trade her for a 50-year-old justice.”
Outside of a handful of commentators and journalists, though, few others are eager for Sotomayor to go. Her fierce dissents and willingness to speak sharply about her frustration with the conservative majority have made her one of the most admired voices on the left. She is also the first and only Latina on the court, a milestone Democrats are wary of sullying by pressuring her to step down.
You have the votes right now, and you’re not going to have the votes a year from now. It’s really that simple.Paul Campos, law professor at the University of Colorado Boulder
Sotomayor is still youthful by the skewed standards of the Supreme Court, where the current average age is 63. The average retirement age for recent justices is in the 80s, and since 1970, the average tenure has lasted about 28 years. When proponents of court reform propose mandatory term limits, they usually suggest a maximum tenure of 18 years. Sotomayor, who was appointed by President Barack Obama in 2009, has served on the court for only 15 years.
Working at such a relentless pace at almost 70 “isn’t what I expected,” she said at a public appearance in January. “What choice do you have but to fight the good fight? You can’t throw up your hands and walk away. …That’s an abdication. That’s giving up.”
Although she took the unusual step of traveling with a medic in 2018 ― a precaution possibly related to her Type 1 diabetes ― it’s not clear whether she was dealing with a serious health concern.
And the fact that she is younger than Justices Clarence Thomas, 75, and Samuel Alito, who is about to turn 74 ― two conservatives who, naturally, face no political pressure to retire under Biden ― breeds resentment around calls for her to step down while they remain.
“Sotomayor is probably thinking, ‘I can outlive a Trump presidency,’” Powe said.
She may also be sensitive to the perception that she is timing her retirement for partisan purposes, he added. She and Barrett are in the midst of a publicity tour to promote the concept of civility.
But there is a nightmare scenario for Democrats in which Trump would get to appoint his fourth ultraconservative justice if the Democratic Senate does not act now. Today, Democrats have a 51-49 majority in the Senate ― one more vote than they had two years ago, when they successfully confirmed Ketanji Brown Jackson to replace Justice Stephen Breyer, who retired at age 83.
“You have the votes,” said Campos, who began to lead the calls for Breyer to retire in 2021. “You have the votes right now, and you’re not going to have the votes a year from now. It’s really that simple.”
Democrats face brutal odds for holding on to the Senate in November. Pickup opportunities are scarce.They are defending three seats in states Biden lost to Trump in 2020 ― Montana, Ohio and West Virginia. They also must defend five seats in states where Biden’s margin of victory was smaller than his national margin (Arizona, Michigan, Nevada, Pennsylvania and Wisconsin).
If Democrats lose the Senate, there aren’t many opportunities for Democrats to flip seats in 2026 and 2028, when it’s anyone’s guess who will win the presidency.
Campos wonders what exactly Democrats hope will happen in the meantime. To him, it seems as though they’re thinking, Maybe it won’t be that bad – the same wish-casting that surrounded Ginsburg.
“Sotomayor is a test case” of whether the party had learned the right lesson, he said. “Are people going to get real or not?”
Not everyone who previously called for Ginsburg to retire agrees with him.
“I do not think Justice Sotomayor should retire now,” said Erwin Chemerinsky, dean of the University of California at Berkeley School of Law.
In 2014, Chemerinsky tried to shock Democrats out of complacency with headlines like “Love Ya Ruth, But It’s Time to Go.”
“A crucial difference is that Justice Sotomayor is just 69 years old,” he said. “I think that is quite different from when I urged Justice Ginsburg and Justice Breyer to retire. Both were in their 80s.”
What worries Chemerinsky is not how old Sotomayor will be when the stars next align for the Democrats but how willing they are today, in an election year, to replace her with someone equally progressive.
“With the slim Democratic majority, there is no assurance that a replacement would get confirmed,” he said. (Presumably Biden, if he wanted to gauge his level of support in the Senate, could simply ask.)
What choice do you have but to fight the good fight? You can’t throw up your hands and walk away.Justice Sonia Sotomayor, speaking in January
Morbid conversations like these are the tradeoff for lifetime tenure. In the modern era, justices leave the Supreme Court only by dying or resigning. And only one of those is something they can do strategically.
Breyer did it, retiring in 2022 after 27 years on the court. (This week, he called for age-based term limits for justices.) Former Justice Anthony Kennedy retired after persuading Trump to consider his former clerk, Brett Kavanaugh, as his replacement before retiring in 2018 at age 82.
Although Justice Antonin Scalia had the bad fortune to die while Barack Obama was president, in February 2016, then-Senate Majority Leader Mitch McConnell contrived to hold his seat open long enough for Trump to win the presidential election in November and then name Scalia’s successor, Neil Gorsuch.
Ginsburg had no such luck. Her failure to choose her moment allowed Trump to name Barrett just weeks before he lost reelection, with disastrous consequences for liberals.
When the court heard Dobbs, the 2022 case that overturned Roe v. Wade, Chief Justice John Roberts reportedly tried to corral enough votes to save the constitutional right to an abortion but fell one short. The leak of the draft decision in May 2022 is widely believed to have been an attempt to shut his efforts down.
“We’re in a situation where somebody like Gorsuch could be the median vote,” Campos said. “And we’re supposed to keep this demure silence about whether Sotomayor should step down. It wouldn’t kill us if [Elena] Kagan would too.” Kagan, 63, has served on the court for 13 years.
Campos is struggling to start these conversations in the circles that matter. In 2021, he led the drumbeat for Breyer’s retirement with a New York Times opinion article titled “Justice Breyer Should Retire Right Now.” When he pitched a similar op-ed in 2022, the Times passed, he said.
But there is one conversation he finds himself engaged in again and again: the fatalistic kind, where Democrats wonder why it even matters to preserve Sotomayor’s seat on a 6-3 court.
“That’s like asking, ’What does it matter to give up another touchdown in the second quarter when we’re already down 14 points?” Campos said. “At some point, you have to make your comeback.”
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