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When Barack Obama nominated Sonia Sotomayor to the US Supreme Court in 2009, he said that when she “ascends those marble steps to assume her seat . . . America will have taken another important step towards realising the ideal that is etched above [the court’s] entrance: Equal justice under the law”.
Fifteen years later, a debate has arisen over whether 69-year-old Sotomayor — the court’s first Hispanic justice — should retire before the 2024 general election in order to give US President Joe Biden the chance to replace her with a younger liberal.
It began with a piece in The Atlantic last month calling on Sotomayor to “retire now”, and kicked into high gear this week after former MSNBC host Mehdi Hasan argued in a column in the Guardian that Sotomayor should leave while Democrats hold both the White House and the Senate.
Some legal scholars have agreed. Considering the prospect of Democrats losing the presidency and the upper chamber, “you’re talking about a very high potential risk that something that would really be catastrophic from the perspective of the liberal left . . . will happen”, said Paul Campos, a law professor at the University of Colorado at Boulder. By staying on the bench, he argued, Sotomayor would be “taking a huge risk”.
Some senior Democrats have hinted at the possible benefits of Sotomayor retiring, although they have stopped short of calling on her to do so.
Richard Blumenthal, the 78-year-old Democratic senator from Connecticut, told NBC this week that Sotomayor was a “fully functioning justice”. But justices also had to “keep in mind the larger national and public interest in making sure that the court looks and thinks like America”, he said, adding: “graveyards are full of indispensable people, ourselves in this body included”.
The move would not shake up the high court’s ideological 6-3 split between conservative and liberal justices. But replacing the liberal wing’s oldest member would cement its numbers in the face of a conservative supermajority, half of whom are aged 59 or younger.
Democratic Senator Sheldon Whitehouse, 68, told NBC he was “not joining any calls” for Sotomayor to retire. But he warned that if the high court were split 7-2, “you go from a captured court to a full MAGA court”.
Other Democrats have refused to weigh in publicly — including the White House. Karine Jean-Pierre, White House press secretary, this week said that these were “personal decisions” for justices to make.
The death of liberal justice Ruth Bader Ginsburg during the final months of Donald Trump’s presidency, which allowed him to appoint conservative Amy Coney Barrett, remains fresh in Democrats’ minds. Ginsburg for years ignored calls to retire during Obama’s presidency.
“Certainly I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health,” Whitehouse told NBC.
The cases of Ginsburg, who died aged 87 of pancreatic cancer, and Sotomayor, who is not yet 70 and whose main health condition is diabetes, are very different. Some justices have served well into their 80s — Oliver Wendell Holmes and John Paul Stevens were both 90 when they stepped down.
But the aftermath of Ginsburg’s death and the court’s increasingly conservative tilt under the three conservative justices installed during Trump’s presidency — which has led to decisions such as the reversal of Roe vs Wade, the 1973 ruling that had enshrined the constitutional right to an abortion — have heightened Democrats’ concerns around the future of the court.
Biden and his allies often speak of their successful nomination in 2022 of Ketanji Brown Jackson as the first black female justice. It is unclear, however, whether Biden and congressional Democrats would want an election-year push in Congress to confirm an additional justice to replace Sotomayor.
The calls for Sotomayor’s retirement are also symptomatic of the anxiety among Democrats around Biden’s odds in the general election. Trump, the presumptive Republican nominee, is slightly ahead of Biden in the national polling average published by RealClearPolitics.com, and leads in polling averages of most of the key battleground states.
Even if Biden wins re-election, but Democrats lose the Senate — which is charged with confirming Supreme Court nominees — it is not clear he would be able to install a new liberal justice. Depending on the margin of a possible Republican Senate majority, Biden would either be forced to pick a centrist to placate Republicans, or they may refuse to consider his nominee at all.
“It seems even more urgent” for Democrats “who would like to see Biden get one more bite at the apple,” said Barbara Perry, Supreme Court and presidency scholar at the University of Virginia.
The issue also feels “raw”, she added, after Senate Republican leader Mitch McConnell blocked Obama from appointing Merrick Garland to replace arch-conservative Antonin Scalia before the 2016 election, allowing Trump to fill that seat when he took office months later.
Should Trump win the 2024 election, he may have the chance to fortify the conservative wing yet again. Clarence Thomas is 75, Samuel Alito is 74 and Chief Justice John Roberts is 69.
It is not the first time that a Supreme Court justice has faced calls to step down: most recently, progressive groups publicly urged Stephen Breyer to retire so Biden could fill his seat.
But Perry argued that while politically appropriate to weigh justices’ age in the lead-up to presidential polls, she found the pressure on Sotomayor “personally repugnant”. Telling the court’s first Latina justice “here’s your hat, what’s your hurry?” was “very inappropriate”, she added.
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