April 10, 2024 | Reading Time: 9 minutes

Will Sonia Sotomayor pull a last-minute Anthony Kennedy?

Seems unlikely, writes Stephen Robinson.

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Editor’s note: The following essay first appeared in The Play Typer Guy, Stephen’s newsletter about politics and the arts. –JS

The 2012 presidential election was a far less stressful time. Nate Silver, who people still liked, reassured us that Barack Obama had a 74.6 percent chance of winning reelection. Now, Joe Biden’s chances of remaining in the White House are a toss-up (though that’s what naysayers insisted about Obama up until Election Day).

Democrats were also more upbeat about holding the Senate in 2012 and thanks to Obama’s coattails, they won most of the tossup races and expanded their majority. The odds are not as favorable for Senate Democrats this year.

Obama had also replaced Supreme Court Justices David Souter and John Paul Stevens with Sonia Sotomayor and Elena Kagan, shoring up the liberal wing of the court for another generation. The situation is bleaker now: Mitch McConnell might’ve blocked Obama’s final pick, but Neil Gorsuch was mostly an even trade for the late Antonin Scalia. Swing vote Anthony Kennedy, who reliably supported abortion rights, was replaced by the more rigidly conservative Brett Kavanaugh. It seemed, though, that Chief Justice John Roberts might replace Kennedy as the swing vote on key issues. Then came September 18, 2020.

It’s perhaps my fate that my own position on this issue pleases no one. I don’t think it’s presumptuous or uncouth to suggest that Supreme Court justices retire strategically. I certainly don’t think the calls for Sotomayor to do so are sexist or racist, because I have a short-term memory.

Ruth Bader Ginsburg’s death and Amy Coney Barrett’s rules-violating Senate confirmation cemented a six-to-three conservative supermajority. Empowered by these younger conservative members, Samuel Alito seemingly seized control of the court, and Roe v. Wade fell within less than two years. The radical MAGA court also killed affirmative action and has marriage equality and even birth control in its sights.

This is why many liberals are openly calling for Sotomayor to retire this year. The message is pretty desperate: We’re not entirely confident Biden will win reelection and that Democrats will hold the Senate. Sotomayor is not yet 70 but she has documented health issues. I personally think it’s a damning statement about an unaccountable Supreme Court’s outsized influence that we’ve resorted to a high-stakes game of Spin the Actuary Tables.

How did we get in this mess?
The Supreme Court’s overt politicization and hard-right shift started under Chief Justice William Rehnquist, but it’s accelerated over the past decade. Justices once weren’t as easy to peg ideologically. Richard Nixon put Rehnquist on the court, but he also nominated Harry Blackmun, who’d become one of the court’s more liberal justices. A Democratic president probably couldn’t have done much better than Blackmun. Conservative Lewis F. Powell Jr. was another Nixon nominee, but he nonetheless joined the majority for Roe v. Wade and United States v. Nixon.

Gerald Ford nominated John Paul Stevens, a registered Republican who identified as a conservative for most of his life, but Stevens eventually ended up voting with the court’s liberal wing.

Ronald Reagan nominated Sandra Day O’Connor, Antonin Scalia and — after two other failed nominees — Anthony Kennedy. Scalia was the only reliably conservative justice of the three. O’Connor and Kennedy both defended abortion rights and affirmative action.

George HW Bush subjected us to Clarence Thomas, but he also nominated David Souter, who Republicans had considered a “home run” justice for their agenda, but he instead reliably voted with liberals. “No More Souters” became a rightwing rallying cry, one George W Bush heard loud and clear. Of course, even Roberts, his chief justice pick, has occasionally disappointed conservatives, especially when he saved the Affordable Care Act. Republicans now demand Scalia and (even worse) Thomas clones from the Federalist Society catalog.

It’s fair to say Democratic voters haven’t taken the Supreme Court as seriously as Republicans, but this historical context might explain their complacency. The court seemed stable, perhaps even aligned toward liberalism. The justices were seen as wise academics, many of whom naturally grew more liberal with age. Now, the court is stacked with far-right radicals and the remaining liberals are trapped within an institutionalist’s bubble, unwilling or perhaps fundamentally unable to recognize that the conservative majority is corrupt and thus the entire court poses a threat to the marginalized’s hard-fought rights.

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Should she stay or should she go?
Yes, I know: justices have lifetime appointments, but that’s probably a mistake — one Republicans have manipulated to impose far-right minority rule. The court isn’t just a political body — despite what the conservative and liberal justices insist — but it wields too much power over Americans who have no ability to “vote the bums out.” They’re robed priests who see themselves as above the petty concerns of the common people. They speak of “legal outcomes” instead of the horrific loss of bodily autonomy. It’s like they’re playing war games a million miles away from the front lines.

Those who’ve suggested Sotomayor get out while the getting’s good range from Josh Barro, Brian Beutler, and Noah Berlatsky, who are hardly similar in personal ideology but they are men, so the counternarrative is that some random dudes are attempting to force out the first Latina Supreme Court justice. Democratic Congresswoman Teresa Leger Fernandez wrote, “Justice Sotomayor’s decision to retire will be made as a wise Latina, in conversation with her doctor, her family and her faith, without the interference of politicians who have no idea about her health condition.”

“Women have the right to make decisions about their careers just as they do their reproductive health. For anyone to argue otherwise — sin vergüenza!” she added.

The “Retire Already, Breyer!” movement should indicate that this isn’t about disrespecting Sotomayor, but that’s nonetheless the prevailing belief from the Democratic Women’s Caucus, the Hispanic Caucus and many prominent Hispanic leaders. So it’s not likely to happen.

Sotomayor once said in a 2001 speech at University of California, Berkeley, law school, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” She defended her remarks admirably during her 2009 Senate confirmation hearings.

Of course, the present concern is that Donald Trump could replace this “wise Latina” with Barbara Lagoa, who is Latina but hardly wise. No liberal wants a Sotomayor successor who’s as insulting to her legacy as Thomas and Barrett are to Thurgood Marshall’s and Ruth Bader Ginsburg’s.

Fernandez conflates staying on the Supreme Court with reproductive freedom, but no one’s forcing Sotomayor to leave or stay against her will. It’s still legally her choice, but it’s not a personal one. The court’s decisions impact everyone, even white men (though in a consistently more positive manner).

There was quite the pressure campaign to convince Stephen Breyer to retire, so Biden could replace him with a younger liberal justice, who was also a Black woman, as the president had long promised. Battle Born Collective, Black Lives Matter, Common Defense, Demand Justice, Justice Democrats, People’s Parity Project, Sunrise Movement, Take Back The Court Action Fund, Ultraviolet, We Testify, Women’s March, and Working Families Party all signed a statement in 2021 calling for Breyer to step down.

Biden has nominated more than a few wise Latinas to the federal bench. This isn’t to say that they’re interchangeable, just that this representation won’t end if Sotomayor leaves. The “Retire Already, Breyer!” movement should indicate that this isn’t about disrespecting Sotomayor, but that’s nonetheless the prevailing belief from the Democratic Women’s Caucus, the Hispanic Caucus and many prominent Hispanic leaders. So it’s not likely to happen.

What now?
I’m not one for magical thinking. The New Republic stated last week that instead of calling for Sotomayor’s retirement, “Democrats should focus on winning elections.” Wow! Why didn’t we think of that? Winning every election until the end of time isn’t much of a plan, nor is it much of a democracy. It’s inevitable that Democrats will lose elections. Democrats are rightly pissed about Hillary Clinton’s 2016 loss, considering how Trump’s presidency literally cost almost half a million Americans their lives. However, it’s very hard for a party to win a third term in the White House. Apparently, you have a better chance if your opponent looks ridiculous riding in a tank than if your opponent is a raving psychopath.

Democratic Senator Richard Blumenthal from Connecticut does not share The New Republic’s rosy optimism.

“I’m very respectful of Justice Sotomayor,” he told NBC. “I have great admiration for her. But I think she really has to weigh the competing factors. We should learn a lesson. And it’s not like there’s any mystery here about what the lesson should be. The old saying — graveyards are full of indispensable people, ourselves in this body included.”

Congresswoman Nydia Velazquez’s response was a series of confounding sentences. (The first two sound like the lyrics from a 1980s power ballad.)

We can’t change the past @SenBlumenthal.

What’s done is done.  

Forcing the only Latina on the court to retire isn’t going to get us a liberal majority back.

I believe we can win this November, but based on your comments, Senator, it seems you’ve given up.

No one is forcing Sotomayor off the bench. Blumenthal simply suggested she should “weigh the competing factors.” A public pressure campaign can’t force a justice off the bench. Look at Clarence Thomas (if you must).

Fernandez referred to Sotomayor’s personal health condition, but if Biden doesn’t win a second term, the relevant question isn’t only whether Sotomayor can remain healthy enough to write blistering dissents for another decade or so. It’s also whether that’s how she wants to spend her last years on earth. Breyer and Kennedy are able to enjoy a quiet retirement that involves day drinking and movie matinees. Sandra Day O’Connor lived for another 17 years after leaving the court in 2006. That was definitely a strategic retirement in the interests of her party. She didn’t want a Democratic president choosing her replacement and didn’t want to gamble on the 2008 results. (She probably assumed she couldn’t help Republicans steal elections on a regular basis.)

When Velazquez says she believes Democrats can win in November, it’s unclear if she means both the presidency and the Senate, but it’s sort of a package deal these days. If Republicans control the Senate, they might outright block any Biden Supreme Court nominee. Mitch McConnell infamously refused to hold hearings for Merrick Garland, but his (unfortunately successful) gambit left the court evenly split four to four. That wasn’t sustainable long term. Sotomayor’s absence would take the liberal minority down to just Elena Kagan and Ketanji Brown Jackson. Republicans could live with that for a long time.

Velazquez represents the heavily Democratic Seventh District in New York, but maybe she’s spending her off hours phone banking for Sherrod Brown, Jon Tester and Ruben Gallego. I personally don’t consider preparing for a difficult future “giving up.” It’s why I stop for gas when I’m down to a quarter tank rather than rolling the dice during a long trip.

The Ginsburg ‘lesson’
It’s perhaps my fate that my own position on this issue pleases no one. I don’t think it’s presumptuous or uncouth to suggest that Supreme Court justices retire strategically. I certainly don’t think the calls for Sotomayor to do so are sexist or racist, because I have a short-term memory.

However, I do think too much is made of Ginsburg’s decision to resist retiring in 2013 when Obama first broached the subject. She’s accused of excessive hubris as if justices routinely die in office. The last justice to do so prior to Rehnquist in 2005 was Robert Jackson in 1954. Rehnquist clung to his position despite obviously failing health, including a cancer diagnosis in 2004, and if John Kerry had beaten Bush, we could be talking about the right’s “Rehnquist lesson.”

Ginsburg’s colleague Scalia also died while a president he didn’t like was in office. That only worked out for Republicans because McConnell made the unprecedented move of blocking Obama’s nominee. Otherwise, Obama would’ve replaced Scalia and (shudder) Trump would’ve replaced Ginsburg. The issue isn’t Ginsburg specifically but Republicans in general. They stole a Supreme Court seat from Obama and then bum-rushed Ginsburg’s replacement, openly ignoring their own made-up rule.

Maybe you think Ginsburg should’ve forseen in 2013 how corrupt Republicans had become, and that they’d resolved to confirm nominees who were less “justices” than far-right partisan actors. But the actual tragedy is how close she came to surviving the Trump presidency. If she’d held on just a couple weeks longer, there might not have been enough time for Barrett’s drive-through confirmation with a side of fries. I tend to agree with Quentin Collins that “almost doesn’t count,” but Ginsburg shouldn’t shoulder the blame here. Democrats couldn’t stop Barrett’s confirmation but they didn’t need to grant her the legitimacy of even showing up for the hearings, which were only for show. They could’ve gone harder on Barrett, without fearing white lady tears. But most importantly, it would’ve only taken three Republicans to at least keep their word from just four years earlier.

I can appreciate the belief that nothing is worse than Barrett, but it’s not a given that Obama could’ve replaced Ginsburg with someone just as liberal. Democrats only had 53 votes and the Supreme Court filibuster still existed. Kagan and Sotomayor were confirmed pre-Tea Party. A Republican minority with Ted Cruz and Tom Cotton might’ve demanded a “moderate” — someone like Garland, for instance. Does a moderate Ginsburg replacement vote for marriage equality in 2015? The problem with “what if?” scenarios is that people can imagine that everything would’ve worked out better.

Democrats currently have just 51 votes. Barro claims that replacing Sotomayor would be a “slam dunk,” but he doesn’t acknowledge that Democrats are guaranteed to lose Joe Manchin, who’s said he won’t support any Biden nominee who doesn’t receive Republican votes. It’s reasonable to assume that no Republican will vote to replace Sotomayor. Yes, Collins, Murkowski and Romney supported Jackson but that wasn’t in a presidential year. I know that Kyrsten Sinema has been somewhat reliable on judicial nominees, but I confess that I’m wary of any plan that depends completely on her not delivering a sharp stab in the back.

I agree with Berlatsky that now is probably the best chance to replace Sotomayor, who could make her retirement contingent upon a speedy replacement this year. However, I also concede that it’s her choice, and there’s no evidence that she’s even considering retirement. I’m afraid we’ll just have to spin those actuary tables and hope for the best.

Stephen Robinson is the publisher of The Play Typer Guy, a newsletter and podcast about politics and the arts. Follow him @SER1897.

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