Donald Trump gets to make Supreme Court appointments for the next four years. That has some Democrats asking — quietly — if Justice Sonia Sotomayor should step down while President Joe Biden can still name a replacement.
The conversation is “blowing up largely outside of public view,” said Politico. But Sotomayor, a liberal justice, is 70 years old and has diabetes. Democrats still rue Justice Ruth Bader Ginsburg’s refusal to give up her seat during Barack Obama’s presidency — which allowed Trump to appoint Amy Coney Barrett as Ginsburg’s replacement after she died. Progressives don’t want to see history repeat itself. Democrats “need to act when they have power,” said Molly Coleman, executive director of the People’s Parity Project.
Other progressive voices have joined the call, said Newsweek. “This would probably be a good day for Sotomayor to retire,” David Dayen, editor of The American Prospect, posted on social media the day after the election. But others have pushed back, said The Guardian. “I don’t think it’s sensible,” Sen. Bernie Sanders (I-Vt.) said of the retirement talk.
‘No appetite for change’
The talk of a Sotomayor retirement is “way, way too late,” Jay Willis said at Balls and Strikes. Supreme Court nominations usually take two months to complete — not counting on the time it takes for the White House to decide on the replacement for a retired justice. True, Republicans managed to confirm Barrett in just 30 days in 2020. Theoretically, “Senate Democrats could follow the same playbook” before Democrats leave power in the White House and Senate. In reality, that’s unlikely to happen. “For this ambitious bit of political hardball to work,” Willis said, “everything would have to go right.”
Democrats have already “missed the window,” Lisa Needham said at Public Notice. Party officials “are right to be concerned,” and successfully pressured Justice Stephen Breyer to step down in 2022 to make way for a new liberal justice. But there’s “no appetite for sudden change” among the Senate Democrats who would need to do the work to make the confirmation of a replacement happen. Besides, Needham said, there’s something unseemly about trying to shut aside Sotomayor, “arguably both the most passionate and most progressive member of the bench.”
‘No time to lose her voice’
Sotomayor is expected to stick in her seat, said The Wall Street Journal. “This is no time to lose her important voice on the court,” said an anonymous source described as “close to the justice.” She does have supporters for that decision. Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, was one of the first commenters to ask Ginsburg to step down. He’s not doing so this time. Ginsburg was 81 at the time he urged her to retire, Chemerinsky said. “And Sotomayor is 70.”
That’s not so convincing to others who want Sotomayor to step down, said The Washington Post. “This could be Democrats’ last chance to fill her seat for some time,” said Josh Barro, who writes the Very Serious newsletter. Democrats could go more than a decade before winning back control of the White House and Senate. “She could be well into her 80s,” Barro said, “by the next time she has a good opportunity to retire.”