Democrats are distressed about the conservative court, but not ruthless enough to tell the aging justice to step down in time to avoid shifting the court even farther right.
Agree with the piece. It further reinforces one of my pet political desires in wanting term limits for all judicial appointments including for the Supreme Court. The fights high court nominees would be much less hostile if we know that they wouldn’t be on the bench for decades and sometimes throughout the end of their lives.
It really is incredible how much of our core political trajectory balances on this knife edge of which septuagenarian kicks the bucket in which order. Quite bad enough at the presidential level, but at least in that case, you know the politics of the replacement are going to be roughly unchanged.
It's so stupid that I think I would have trouble explaining it to a foreigner.
To be fair to Scalia and Ginsburg, the process on the ground changed dramatically between 2006 and 2016. Roberts was confirmed 78-22, Breyer was 87-9, Ginsburg was 96-3. At that point, there had only been the failed attempt to muster support for a filibuster of Alito, and saber rattling about the nuclear option before the gang of 14 compromise. Republicans weren't in position to filibuster Sotomayor. Republicans with the election of Scott Brown could have tried to filibuster Kagan but did not do so. Things changed dramatically when the nuclear option was undertaken in 2013 for lower court judges and circuit court judges. You could certainly look at what was occurring and predict what eventually happened, but it wouldn't have been obvious to Scalia or Ginsburg how fast things would degrade at the optimal retirement point (2006 for Scalia and 2010 for Ginsburg). Sotomayor has a lot better information than they did.
I do take issue with your complaint about not putting on a public pressure campaign though. A public pressure campaign should only happen if that is what is most effective at getting Sotomayor to retire. Old people don't like to be told what to do, whether that is telling them they need to stop driving or that the need to be told to retire from SCOTUS. A public pressure campaign might make her more stubborn. It might not. I would leave that consideration to people who know Sotomayor better than I do to make that strategy call.
It's just so obvious from writings like this that something is seriously wrong with the Supreme Court. The nomination process has been a joke for some time, as candidates are forced to lie again and again on hot button issues. Of course this doesn't matter since senators almost always vote by party line anyway despite the fiction that the Court is above politics. And then we have all this gaming as outlined here, why we should get a justice as young as possible, and keep them on life support for as long as needed to get the court stacked our way. And then of course the justice will have to tick all the right woke boxes in terms of race, gender, etc etc.
After all this game playing, you're just going to get decisions based on who dies when by judges who reflect the political situation years or decades ago. Just shoot the thing and put it out of its misery. Let the Senate take on what the court does now. It will give the senators something to do besides making speeches to put on videos for their future presidential campaign.
Sotomayor retires. Biden nominates Harris. TWO problems solved. There's gonna be an epic 2028 Dem primary no matter what, so Biden can put a caretaker in the No 2 slot. VP Laura Kelly?
One other note is that I don’t think it’s huge secret but Sotomayor also has some existing health issues. I’m guessing Scalia, who also had some in the final year of his life likely would have stepped down with Trump winning in 2016. While she is comparable in age to some other justices, her health issues are not. For her to do so at the end of the term this summer would be smart.
I don't see quite the same cult of personality around Sotomayor that I remember there being around Ginsburg. Nonetheless, she probably should step down this year to ensure the seat is filled by someone with her judicial philosophy. But even if she doesn't, would it matter either way to the composition of the court being that progressives are already so badly outnumbered? Not really, but maybe it'd give a shot in the arm to Biden's floundering re-election bid.
Thanks for taking this stand, Josh! You may even be understating the possibility of her being replaced by a conservative. The Senate has roughly a five point bias against Democrats. Democrats are pretty likely to lose control of the chamber this year. It looks like the GOP will avoid nominating toxic candidates, like they did in 2022. My guess is that this new class of GOP senators will probably have a mild incumbency advantage and many of them could hold onto their seats for decades. We may not get a Democratic president and Senate for 20+ years. I don't like Sotomayor's odds of making it to 90.
If we get a 7-2 Court, the consequences could be quite bad. There appear to be four votes for gutting Section 2 of the Voting Rights Act, allowing ghost guns and giving the Court the power to nullify a huge swath of regulations they don't like. With one more vote, conservatives could win those cases and many more.
A 7-2 majority would make it pretty likely that, barring court-packing, Republicans would control the Court that for another century. Even if Democrats win 2/3 of presidential elections over the next hundred years, most conservative justices could time their retirements when Republicans are in power. It's hard to imagine three Federalist Society justices dying when Dems have unified control over the next hundred years and no liberal justices befalling the same fate in that span. It's possible that Democrats actually court-pack at some point (though that's a big can of worms). There's also a chance that our politics and legal landscape are less polarized around the most important issues of the 2100's. But if she chooses to hold onto her seat through 2024, Sotomayor is creating a lot more worlds where progressives lose big over the next hundred years.
I, mostly agree with this. If the concern is losing a Hispanic member of the Supreme Court this can be solved with...nominating a Hispanic judge to the Court. I'm going to go out on a limb and suggest there are plenty of qualified left of center Hispanic judges out there who would make solid supreme court judges.
But the reason I said "mostly" agree because I actually suspect this isn't the real reason there hasn't been more public pressure to ask Sotamayor to retire. You compare this situation to Breyer, but a couple things to consider. For one, Breyer was 83 years old and Sotamayer is 70. That's a pretty big difference as far as whether someone is too old to be on the court. I know Sotamayer has medical issues to deal with but she's an upper middle class woman with access to the very best health care. But furthermore there is this quote from Breyer ""I'm only going to say that I'm not going to go beyond what I previously said on the subject, and that is that I do not believe I should stay on the Supreme Court, or want to stay on the Supreme Court, until I die,". Breyer obviously resisted retiring but it's very clear from this quote that he had been thinking of it or at least seriously considered retiring prior to the pressure campaign building. Do we have any indication from Sotameyer that she has thought about retiring? We obviously don't know anything that has been spoken about in private absent leaks, but the above Politico quote screams Democratic party insiders strategically leaking this info rather than it be a serious worry (again, I go back to the fact there are plenty of left of center Hispanic judges you could nominate to replace).
It's the new Democratic way. Just pass away in place, LOL. I absolutely think the court should be right of center for a while, though. A liberal court led to a progressive court led to an illiberal court. What is a woman? LOL.
2 posts in less than a week is great work. Keep it up!
Agree with the piece. It further reinforces one of my pet political desires in wanting term limits for all judicial appointments including for the Supreme Court. The fights high court nominees would be much less hostile if we know that they wouldn’t be on the bench for decades and sometimes throughout the end of their lives.
It really is incredible how much of our core political trajectory balances on this knife edge of which septuagenarian kicks the bucket in which order. Quite bad enough at the presidential level, but at least in that case, you know the politics of the replacement are going to be roughly unchanged.
It's so stupid that I think I would have trouble explaining it to a foreigner.
To be fair to Scalia and Ginsburg, the process on the ground changed dramatically between 2006 and 2016. Roberts was confirmed 78-22, Breyer was 87-9, Ginsburg was 96-3. At that point, there had only been the failed attempt to muster support for a filibuster of Alito, and saber rattling about the nuclear option before the gang of 14 compromise. Republicans weren't in position to filibuster Sotomayor. Republicans with the election of Scott Brown could have tried to filibuster Kagan but did not do so. Things changed dramatically when the nuclear option was undertaken in 2013 for lower court judges and circuit court judges. You could certainly look at what was occurring and predict what eventually happened, but it wouldn't have been obvious to Scalia or Ginsburg how fast things would degrade at the optimal retirement point (2006 for Scalia and 2010 for Ginsburg). Sotomayor has a lot better information than they did.
I do take issue with your complaint about not putting on a public pressure campaign though. A public pressure campaign should only happen if that is what is most effective at getting Sotomayor to retire. Old people don't like to be told what to do, whether that is telling them they need to stop driving or that the need to be told to retire from SCOTUS. A public pressure campaign might make her more stubborn. It might not. I would leave that consideration to people who know Sotomayor better than I do to make that strategy call.
It's just so obvious from writings like this that something is seriously wrong with the Supreme Court. The nomination process has been a joke for some time, as candidates are forced to lie again and again on hot button issues. Of course this doesn't matter since senators almost always vote by party line anyway despite the fiction that the Court is above politics. And then we have all this gaming as outlined here, why we should get a justice as young as possible, and keep them on life support for as long as needed to get the court stacked our way. And then of course the justice will have to tick all the right woke boxes in terms of race, gender, etc etc.
After all this game playing, you're just going to get decisions based on who dies when by judges who reflect the political situation years or decades ago. Just shoot the thing and put it out of its misery. Let the Senate take on what the court does now. It will give the senators something to do besides making speeches to put on videos for their future presidential campaign.
Sotomayor retires. Biden nominates Harris. TWO problems solved. There's gonna be an epic 2028 Dem primary no matter what, so Biden can put a caretaker in the No 2 slot. VP Laura Kelly?
This post will generate a lot of criticism, but it is 100% correct.
One other note is that I don’t think it’s huge secret but Sotomayor also has some existing health issues. I’m guessing Scalia, who also had some in the final year of his life likely would have stepped down with Trump winning in 2016. While she is comparable in age to some other justices, her health issues are not. For her to do so at the end of the term this summer would be smart.
I don't see quite the same cult of personality around Sotomayor that I remember there being around Ginsburg. Nonetheless, she probably should step down this year to ensure the seat is filled by someone with her judicial philosophy. But even if she doesn't, would it matter either way to the composition of the court being that progressives are already so badly outnumbered? Not really, but maybe it'd give a shot in the arm to Biden's floundering re-election bid.
Thanks for taking this stand, Josh! You may even be understating the possibility of her being replaced by a conservative. The Senate has roughly a five point bias against Democrats. Democrats are pretty likely to lose control of the chamber this year. It looks like the GOP will avoid nominating toxic candidates, like they did in 2022. My guess is that this new class of GOP senators will probably have a mild incumbency advantage and many of them could hold onto their seats for decades. We may not get a Democratic president and Senate for 20+ years. I don't like Sotomayor's odds of making it to 90.
If we get a 7-2 Court, the consequences could be quite bad. There appear to be four votes for gutting Section 2 of the Voting Rights Act, allowing ghost guns and giving the Court the power to nullify a huge swath of regulations they don't like. With one more vote, conservatives could win those cases and many more.
A 7-2 majority would make it pretty likely that, barring court-packing, Republicans would control the Court that for another century. Even if Democrats win 2/3 of presidential elections over the next hundred years, most conservative justices could time their retirements when Republicans are in power. It's hard to imagine three Federalist Society justices dying when Dems have unified control over the next hundred years and no liberal justices befalling the same fate in that span. It's possible that Democrats actually court-pack at some point (though that's a big can of worms). There's also a chance that our politics and legal landscape are less polarized around the most important issues of the 2100's. But if she chooses to hold onto her seat through 2024, Sotomayor is creating a lot more worlds where progressives lose big over the next hundred years.
Marshall retiring in ‘80, a liberal justice on the court for Bush v Gore is a helluva timeline shift
Re: footnote 2: or Al Gore would have picked the replacement in 2001
Spot on! If only the D party would listen and act.
I, mostly agree with this. If the concern is losing a Hispanic member of the Supreme Court this can be solved with...nominating a Hispanic judge to the Court. I'm going to go out on a limb and suggest there are plenty of qualified left of center Hispanic judges out there who would make solid supreme court judges.
But the reason I said "mostly" agree because I actually suspect this isn't the real reason there hasn't been more public pressure to ask Sotamayor to retire. You compare this situation to Breyer, but a couple things to consider. For one, Breyer was 83 years old and Sotamayer is 70. That's a pretty big difference as far as whether someone is too old to be on the court. I know Sotamayer has medical issues to deal with but she's an upper middle class woman with access to the very best health care. But furthermore there is this quote from Breyer ""I'm only going to say that I'm not going to go beyond what I previously said on the subject, and that is that I do not believe I should stay on the Supreme Court, or want to stay on the Supreme Court, until I die,". Breyer obviously resisted retiring but it's very clear from this quote that he had been thinking of it or at least seriously considered retiring prior to the pressure campaign building. Do we have any indication from Sotameyer that she has thought about retiring? We obviously don't know anything that has been spoken about in private absent leaks, but the above Politico quote screams Democratic party insiders strategically leaking this info rather than it be a serious worry (again, I go back to the fact there are plenty of left of center Hispanic judges you could nominate to replace).
It's the new Democratic way. Just pass away in place, LOL. I absolutely think the court should be right of center for a while, though. A liberal court led to a progressive court led to an illiberal court. What is a woman? LOL.
Listen to her in oral arguments. Then go listen to her even ten years ago.