Strategic retirements are creepy and just remind me how partisanship is skewing the highest court's decisions not to mention the judicial branch all the way down to local. Ever since the last D appointment feigned not knowing what a woman is, I'm, even more than ever, highly disinclined to support Josh's thesis. We don't need more of that on the bench.
More of what? Very liberal justices on the bench? That’s a perfectly acceptable thing to want, but it has nothing to do with strategic retirements more generally.
I would also prefer to go back to the better days when people didn’t think about the court in highly political terms, but that ship has sailed. It would take replacing 4-5 members of the court not named Roberts or Kagan with clones of Roberts and Kagan. There is no world in which the Federalist Society whispers those names in Donald J Trump’s ear.
1. The standard time for a justice to reture is right after the end iof the term. So, much as I want her to retire, for the reasons Josh suggests, I'm not concerned that she hasn't, yet. If we get past July 4 and she hasn't, I'll be worried.
2. I might just be seeing what I want to see, but some of Sotomayor;'s dissents this term have a but more of a DGAF quality that leads me to think she is at least contemplating stepping down.
I think this is unreasonable position, but Democrats have a history of ignoring clear, easy to meet requests from Manchin and then being shocked when he breaks with them.
Sotomayor could make her retirement contingent on confirmation of a replacement, similar to what Justice Breyer did, so I don’t really think there’s any risk here. I also don’t believe that it would be difficult to confirm a successor. Jackson got three Republican votes, and the three senators who voted for her (Romney, Murkowski, and Collins) don’t have stronger reasons to be obstinate now than they did then. Manchin has said he doesn’t want to vote for judges who have only Democratic support, but, again, I believe that a replacement nominee, with similar positioning to Jackson, will similarly get a handful of Republican votes, and therefore likely also be acceptable to Manchin. Sinema can do whatever she wants.
You are right about contingent retirement and I agree that the successor would probably be confirmed, but bizarre and unpredictable dramas do have a way of breaking out at these hearings.
The politics would be good and they'd *probably* get a new justice confirmed, but I'd rather that the result wasn't in question, and that they had enough time to nominate a second justice if there's a problem confirming the the first one.
These confirmation battles can really fly off the rails, as everybody knows.
Manchin said that before he announced he was retiring. I don’t think Manchin or Sinema would be an issue. Depending on the nominee it could be trickier for Tester or Rosen or Brown depending where they are in their races.
I don't think it's a hard vote for Democrats. It basically codes as a vote on abortion, and abortion is one of the party's most favorable issues in swing states. Indeed, a confirmation fight would make abortion a more salient issue in the election, which would be good for Democrats broadly.
It sucks that we have to do cost benefit analysis hinging on Justices' chance of death. Sorry though, we have a poorly designed SC nomination system and a Republican party without a shred of honor that makes it necessary.
Anyone who is mad that Sotomayor should retire should direct that ire towards convincing lawmakers to improve the nomination system and (because right now Dems are the only party who are sometimes trying to make things better) get more Democrats elected
I don't think that's a bad system. Imagine the alternative where it was known in advance if a president would get to appoint a justice. There would be considerable pressure for them to announce who they will appoint during the campaign and the resulting justices would be more partisan and presidents would be less able to tack.
Had Reagan explicitly promised to put Bork on the bench I doubt he could have easily backed down. I suspect H.W. Bush would have appointed someone more extreme than Souter etc..
The great thing about making appointments contingent upon death or retirement is that our norms about not speculating too publicly about people's deaths limit the pressure on presidential candidates to make specific promises about who they will appoint.
I don't need to imagine - this was the case in 2016, and there were no promises made regarding who would be nominated.
The differences between a judge that would be nominated by a liberal one nominated by a conservative are vastly greater than any differences within those groups. It's much more important to make sure that the balance of liberal and conservative justices are reflective of the people's will than it is that the justices are nominated without your concern about political influence.
It’s also worth noting that if she dies under divided government, then during the time her seat remains vacant, the Fifth Circuit Court of Appeals would have even more of a free reign to block laws they don’t like and uphold clearly unconstitutional laws that they favor (like Texas trying to compel speech by social media companies). Litigants who want to appeal their rulings would have to convince three of the six conservatives to reverse them. If Roberts get replaced by someone more right-wing, that could be a very tall order. There’s a chance that Court cracks down on lower court judges dictating national policy before we get to that scenario. There’s also a chance that a Democratic president could try to make a recess appointment if she dies during their term and under a GOP Senate. But even if she avoids getting replaced by a conservative, progressives could suffer some big losses for years until her replacement is finally confirmed.
Susan Wild - a vulnerable representative from Pennsylvania whom I’ve given twenty bucks to here and there in the past - just did a tweet about a 78 year old white senator telling a 69 year old Latina to retire. Aargh!!
I wish there were a way to switch SS back to the New York appellate court. She could still feel like she was doing meaningful work, and the stakes would be lower.
Keeping up the pressure on Sotomayor only makes it harder for her to retire and causes worse outcomes if she does.
Sotomayor isn't an idiot. She is well aware of the political realities. So you aren't informing her of anything she doesn't already know. And the more public pressure she is under the more any retirement looks like a tactic undertaken for partisan advantage and any SCOTUS justice is going to worry about how their legacy will be seen as well as how other justices on the court will view that choice. Not to mention the fact that no one likes to feel pressured.
And sure, justices have and do take politics into account but it's at least frowned upon and seen as distasteful and the more one undermines that norm the more likely conservative justices will be to play the same game. Sure, they already do that to some degree but why undermine the norm without any gain?
Doesn't matter how justified you think undermining such a norm is by the other side's behavior it will encourage them to feel justified to take it further. And sure, sometimes that may make sense, like when the democrats eliminated the fillibuster for SCOTUS confirmations. But why the hell would you do it when it doesn't get you anything?
Look, if I was Sotomayor's personal friend sure I might try to urge her in this direction but random politicians making public calls don't actually have any grip on someone with a lifetime appointment. They only seem likely to make her bristle at them.
When to retire from the Supreme Court is, and ought to be, Justice Sotomayor's personal decision. She has been a good justice and shows no signs of intellectual deterioration or declining motivatation that I am aware of. And I say that as a conservative generally in substantial agreement with recent Supreme Court decisions that lean on relatively strict interpretation of the language and historical environment of the Constitution and laws, particularly those that push back on lazy legislators who defer excessively to the executive branch and expect the courts to fix their errors or, worse, complete their work.
The basis of law under the Constitution is the Congress and state legislatures. If the the courts determine that existing law is inadequate, or discard a law as in conflict with constitutional limits, it is a matter for the people and their elected legislatures to resolve with new or improved laws they think necessary. It is essentially dishonest to game the system by treating the federal courts as a multilevel super-legislature to correct Congressional mistakes and omissions, to be manipulated by staffing decisions for relatively short term tactical reasons as nearly every comment attempts to justify.
(And it is, of course, the job of the people to change out their legislators if they do not like the results, and if necessary, to elect legislators who will propose constitutional amendments and then to ratify them if necessary.)
Republicans can always count on the "better angels" of Democrats to do their work for them.
Strategic retirements are creepy and just remind me how partisanship is skewing the highest court's decisions not to mention the judicial branch all the way down to local. Ever since the last D appointment feigned not knowing what a woman is, I'm, even more than ever, highly disinclined to support Josh's thesis. We don't need more of that on the bench.
More of what? Very liberal justices on the bench? That’s a perfectly acceptable thing to want, but it has nothing to do with strategic retirements more generally.
I would also prefer to go back to the better days when people didn’t think about the court in highly political terms, but that ship has sailed. It would take replacing 4-5 members of the court not named Roberts or Kagan with clones of Roberts and Kagan. There is no world in which the Federalist Society whispers those names in Donald J Trump’s ear.
Perhaps wanting liberalism too much leads to illiberalism
I understand your distaste. Unfortunately, it’s also why Republicans continue to dominate Dems in strategy because they have no similar reluctance
A couple of things worth noting:
1. The standard time for a justice to reture is right after the end iof the term. So, much as I want her to retire, for the reasons Josh suggests, I'm not concerned that she hasn't, yet. If we get past July 4 and she hasn't, I'll be worried.
2. I might just be seeing what I want to see, but some of Sotomayor;'s dissents this term have a but more of a DGAF quality that leads me to think she is at least contemplating stepping down.
For exmaple:
https://www.supremecourt.gov/opinions/23pdf/23a814_febh.pdf
A retirement this late in the election cycle is already risky. Manchin and Sinema would have to vote for Sotomayor's successor and Manchin at least has given ample advance notice that he doesn't want to vote for a SC nominee in the months leading up to an election: https://www.reuters.com/world/us/manchin-would-not-back-supreme-court-confirmation-right-before-2024-election-2022-02-15/
I think this is unreasonable position, but Democrats have a history of ignoring clear, easy to meet requests from Manchin and then being shocked when he breaks with them.
Sotomayor could make her retirement contingent on confirmation of a replacement, similar to what Justice Breyer did, so I don’t really think there’s any risk here. I also don’t believe that it would be difficult to confirm a successor. Jackson got three Republican votes, and the three senators who voted for her (Romney, Murkowski, and Collins) don’t have stronger reasons to be obstinate now than they did then. Manchin has said he doesn’t want to vote for judges who have only Democratic support, but, again, I believe that a replacement nominee, with similar positioning to Jackson, will similarly get a handful of Republican votes, and therefore likely also be acceptable to Manchin. Sinema can do whatever she wants.
You are right about contingent retirement and I agree that the successor would probably be confirmed, but bizarre and unpredictable dramas do have a way of breaking out at these hearings.
Let Manchin break. The Biden Admin should lean on the 2 pro-choice GOP senators as well as retiring ones like Romney.
Also, a SCOTUS confirmation fight would be good for Democrats at this point in the cycle.
It would be good for Biden. More ambiguous for certain Senators.
If it were cast (accurately) as being a debate about abortion it would be good for Brown and Tester
The politics would be good and they'd *probably* get a new justice confirmed, but I'd rather that the result wasn't in question, and that they had enough time to nominate a second justice if there's a problem confirming the the first one.
These confirmation battles can really fly off the rails, as everybody knows.
Manchin said that before he announced he was retiring. I don’t think Manchin or Sinema would be an issue. Depending on the nominee it could be trickier for Tester or Rosen or Brown depending where they are in their races.
I don't think it's a hard vote for Democrats. It basically codes as a vote on abortion, and abortion is one of the party's most favorable issues in swing states. Indeed, a confirmation fight would make abortion a more salient issue in the election, which would be good for Democrats broadly.
It sucks that we have to do cost benefit analysis hinging on Justices' chance of death. Sorry though, we have a poorly designed SC nomination system and a Republican party without a shred of honor that makes it necessary.
Anyone who is mad that Sotomayor should retire should direct that ire towards convincing lawmakers to improve the nomination system and (because right now Dems are the only party who are sometimes trying to make things better) get more Democrats elected
I don't think that's a bad system. Imagine the alternative where it was known in advance if a president would get to appoint a justice. There would be considerable pressure for them to announce who they will appoint during the campaign and the resulting justices would be more partisan and presidents would be less able to tack.
Had Reagan explicitly promised to put Bork on the bench I doubt he could have easily backed down. I suspect H.W. Bush would have appointed someone more extreme than Souter etc..
The great thing about making appointments contingent upon death or retirement is that our norms about not speculating too publicly about people's deaths limit the pressure on presidential candidates to make specific promises about who they will appoint.
I don't need to imagine - this was the case in 2016, and there were no promises made regarding who would be nominated.
The differences between a judge that would be nominated by a liberal one nominated by a conservative are vastly greater than any differences within those groups. It's much more important to make sure that the balance of liberal and conservative justices are reflective of the people's will than it is that the justices are nominated without your concern about political influence.
It’s also worth noting that if she dies under divided government, then during the time her seat remains vacant, the Fifth Circuit Court of Appeals would have even more of a free reign to block laws they don’t like and uphold clearly unconstitutional laws that they favor (like Texas trying to compel speech by social media companies). Litigants who want to appeal their rulings would have to convince three of the six conservatives to reverse them. If Roberts get replaced by someone more right-wing, that could be a very tall order. There’s a chance that Court cracks down on lower court judges dictating national policy before we get to that scenario. There’s also a chance that a Democratic president could try to make a recess appointment if she dies during their term and under a GOP Senate. But even if she avoids getting replaced by a conservative, progressives could suffer some big losses for years until her replacement is finally confirmed.
Susan Wild - a vulnerable representative from Pennsylvania whom I’ve given twenty bucks to here and there in the past - just did a tweet about a 78 year old white senator telling a 69 year old Latina to retire. Aargh!!
I wish there were a way to switch SS back to the New York appellate court. She could still feel like she was doing meaningful work, and the stakes would be lower.
Myrna Perez promotion, Sonia back in nyc, who says no?
Keeping up the pressure on Sotomayor only makes it harder for her to retire and causes worse outcomes if she does.
Sotomayor isn't an idiot. She is well aware of the political realities. So you aren't informing her of anything she doesn't already know. And the more public pressure she is under the more any retirement looks like a tactic undertaken for partisan advantage and any SCOTUS justice is going to worry about how their legacy will be seen as well as how other justices on the court will view that choice. Not to mention the fact that no one likes to feel pressured.
And sure, justices have and do take politics into account but it's at least frowned upon and seen as distasteful and the more one undermines that norm the more likely conservative justices will be to play the same game. Sure, they already do that to some degree but why undermine the norm without any gain?
Doesn't matter how justified you think undermining such a norm is by the other side's behavior it will encourage them to feel justified to take it further. And sure, sometimes that may make sense, like when the democrats eliminated the fillibuster for SCOTUS confirmations. But why the hell would you do it when it doesn't get you anything?
Look, if I was Sotomayor's personal friend sure I might try to urge her in this direction but random politicians making public calls don't actually have any grip on someone with a lifetime appointment. They only seem likely to make her bristle at them.
When to retire from the Supreme Court is, and ought to be, Justice Sotomayor's personal decision. She has been a good justice and shows no signs of intellectual deterioration or declining motivatation that I am aware of. And I say that as a conservative generally in substantial agreement with recent Supreme Court decisions that lean on relatively strict interpretation of the language and historical environment of the Constitution and laws, particularly those that push back on lazy legislators who defer excessively to the executive branch and expect the courts to fix their errors or, worse, complete their work.
The basis of law under the Constitution is the Congress and state legislatures. If the the courts determine that existing law is inadequate, or discard a law as in conflict with constitutional limits, it is a matter for the people and their elected legislatures to resolve with new or improved laws they think necessary. It is essentially dishonest to game the system by treating the federal courts as a multilevel super-legislature to correct Congressional mistakes and omissions, to be manipulated by staffing decisions for relatively short term tactical reasons as nearly every comment attempts to justify.
(And it is, of course, the job of the people to change out their legislators if they do not like the results, and if necessary, to elect legislators who will propose constitutional amendments and then to ratify them if necessary.)