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Sotomayor retirement redux


A journalist from Bloomberg News wanted to interview me today about whether I still believed, as I argued in an LGM post a couple of years ago, that Sonia Sotomayor should retire from the Supreme Court no later than the summer of this year.

I told her that if anything my belief in this position is stronger now than it was way back in 2022, before we knew what we know now about what the political situation in this country would be before the 2024 election.

We now know that:

(1) Donald Trump has, conservatively speaking, something close to a coin flip chance of being re-elected (or “re-elected; if you remember that when it comes to the American right wing EAIAC you’ll seldom go far wrong) to the presidency.

(2) The odds of Democrats holding the Senate in January of 2025 are poor, comparable to trying to draw an inside straight. With Manchin retiring, and with almost all the competitive races featuring a Democratic incumbent, this is a real bad bet at this time. It’s not impossible, but it would require a blue wave election.

(3) The ongoing radicalization of the Republican party means that it will be close to impossible for Joe Biden, if he’s re-elected, to fill a vacancy on the Court if Republicans have even a two or three seat majority in the Senate.

Meanwhile, Sotomayor, who has been without doubt the best justice on the Court in the 15 years she’s been on it, will turn 70 this summer. She has a problematic health history, including Type I diabetes, and a many-decade-long very heavy smoking habit that she broke a dozen years ago.

In addition, in a less dysfunctional political system we would want to make it routine for a 70-year-old to retire from the SCOTUS, especially after a 15-year tenure. The idea that the Court should be filled with 80-year-olds who have been there for 30 years or more is a very bad one, and a pure product of an absurd system, featuring life tenure along every incentive to abuse it, from staying far too long, to strategic retirements that have no justification other than their strategic nature.

The reporter asked if perhaps some Democrats are hesitant to suggest Sotomayor retire because they’re afraid of accusations of misogyny and/or anti-Latina bias. I told her that there’s no doubt people are worried about that: just look at the preposterous allegations that were made, some by commentators on this very blog, at the time people were trying to suggest in the gentlest possible terms to RBG that she retire before the Republicans stole her seat.

The case for Sotomayor’s retirement is not as epidemiologically compelling, but, given developments over the last decade, it’s even more politically compelling than the arguments that Ginsburg so selfishly and tragically ignored, at the cost of a permanent stain on her legacy.

We can only hope that Sotomayor is wiser and more public-spirited than her distinguished predecessor.

*The case for Elena Kagan retiring is not as compelling, but still pretty strong. Note as well that either of them could make their retirement contingent upon the confirmation of a successor, so as to avoid the possibility of a vacant seat.

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