WASHINGTON – Democratic senators are not joining the calls on the left for liberal justice Sonia Sotomayor retirement. But for the first time, they are openly expressing concern that history could be repeating itself after Justice Ruth Bader Ginsburg’s 2014 refusal to resign turned the Supreme Court sharply to the right.
Ginsburg, then 81 and a cancer survivor, could retire and be a Democratic appointee when President Barack Obama is in office and his party controls 55 seats in the Senate. He rejected the calls and died in September 2020, allowing then-President Donald Trump to succeed him.
It was a history-making moment: Ginsburg’s successor, Justice Amy Coney Barrett, 6-3 resulted in a conservative majority. Barrett ruled less than two years later in Roe v. Wade went on to cast the deciding vote to repeal abortion rights.
Given that modest history, some liberal commentators say Sotomayor, 69, a lifelong diabetic and the oldest member of the court’s liberal wing, should retire while Joe Biden is president and Democrats control the Senate. ten years ago it was ignored.
Democratic senators serving on the Judiciary Committee are troubled by the Ginsburg precedent. No one is publicly calling for Sotomayor to resign, but they say they hope it doesn’t happen again and have built a 7-2 conservative majority.
“I have a lot of respect for Justice Sotomayor. I have great admiration for him. But I think he really needs to consider competing factors,” said Sen. Richard Blumenthal, D-Conn. “We have to learn a lesson. And it’s not like there’s any mystery about what the lesson is here. As the old saying goes, cemeteries are full of indispensable people, including ourselves.”
Blumenthal emphasized that Sotomayor is “a highly skilled and clearly fully functioning justice right now.” He added that “judges must make personal decisions about their own health and energy levels, while also considering the larger national and public interest in making sure the judiciary looks and thinks American.”
Senator: Ginsburg ‘could rethink’ it
Sen. Sheldon Whitehouse of Rhode Island, the No. 2 Democrat on the committee, said he did not give much thought to Sotomayor’s future and was “not joining any calls” for her to leave the court.
But he warned that if the six-member Republican majority were to increase, it would further strengthen the “extremist wing” of the court. At times, he said, several conservative justices have “pulled back” and included the scope of the court’s rulings.
“Run to 7-2 and go from a captured court to a full MAGA court,” Whitehouse said in an interview. “Certainly, I think that if Justice Ginsburg had it to do over again, she would reconsider her faith in her own health.”
But Sen. Mazie Hirono, D-Hawaii, who also sits on the Judiciary Committee, said when asked about Sotomayor that “no one is going to talk about her choosing to retire.”
Others are less shy about calling on Sotomayor to vacate her seat. was rush of op-eds about the issue and some law professors and legal advocacy groups have similarly struggled.
“It’s not personal. It’s not about one individual justice,” said Molly Coleman, executive director of the progressive People’s Parity Project. “It has nothing to do with how incredibly talented Justice Sotomayor is. It’s about things that are in the best interests of the country’s progress.”
White House spokesman Andrew Bates responded to a question about liberals calling for Sotomayor’s retirement: “President Biden believes that decisions to resign from the Supreme Court should be made by the judges themselves, not by anyone else.”
Some liberals say the reluctance of elected officials to call on Sotomayor to step aside is puzzling.
“Everybody in the liberal legal community would rather hurt Sonya’s feelings than the prospect of a 7-2 court. Crazy,” said one Democrat who works on judicial nominees and is banned from speaking publicly about the justices. “So they’re not saying anything about him retiring when everyone else is thinking about it.”
Sotomayor gave no plans to leave
As polls show, the calls involving Sotomayor come at a dangerous time for Democrats Biden is far from convinced defeated Trump in the rematch. The party currently controls 51 seats in the Senate, but faces an uphill battle to hold onto its majority in the November elections, defending three seats in the red states of West Virginia, Montana and Ohio, and five more in purple states. Even if Biden wins re-election, losing the Senate would give Republicans an effective veto over liberal candidates.
There are obvious differences between the Ginsburg and Sotomayor cases. In 2014, Ginsburg was 12 years older than Sotomayor. Ginsburg, as of 2014, had served 21 years on the court. Sotomayor will turn 15 in August.
There is no indication that Sotomayor has any plans to resign. He remains an active interrogator during Supreme Court controversies. However, some commentators have seized on recent remarks made during this period A view in Californiawhen he said he was “tired” and working harder than usual.
“And being almost 70 years old, it wasn’t what I expected,” he said, according to Bloomberg Law.
His health was also checked mainly due to diabetes.
Sotomayor did not respond to a request for comment through a court spokeswoman.
Even some of those who called for Ginsburg’s resignation a decade ago, including influential liberal law professor Erwin Chemerinsky, now dean of the University of California, Berkeley Law School, are taking shots at Sotomayor.
In 2014, Chemerinsky wrote a much-discussed work article He said Ginsburg’s refusal to resign could “harm her legal legacy on the court.”
Now, citing Sotomayor’s age, Chemerinsky sees no such relevance.
“I think that’s a significant difference, and I see no reason for Justice Sotomayor to retire at this time,” he said.
While the long-term impact could be huge, Sotomayor’s selection is not immediately key. Even if he were to leave this year and be replaced by a Democratic nominee, it would simply prop up a liberal minority that lacks the votes to move the court left without the approval of at least two conservative colleagues.
“Life is pretty good for a retired justice”
Melissa Murray, a professor at New York University School of Law and former Sotomayor’s legal secretary, said the justice remains “very solid” and has given no sign of retirement.
“He never said anything to me. He never said anything publicly,” he added.
That’s a stark contrast to Ginsburg, who defiantly responded to calls for her resignation in 2014.
“Tell me, who could the president nominate this spring that you would rather see on the court than me?” he said Reuters.
Justices should not be afraid of retirement, Blumenthal said.
“Life is pretty good for a retired justice,” he said. “They continue to sit in jobs, getting paid the same as they were getting before. He is a highly respected intellect and a personality of great achievement. So he would have many opportunities for continued public service.”
Across the aisle, former Judiciary Committee chairman Sen. Chuck Grassley, 90, R-Iowa, said he would not call for the justice to retire. He will be 95 when his current term in the Senate ends.
“Everybody has to make that personal decision,” Grassley said. “And I wouldn’t interpret it for anyone else because it’s their decision. As it is my decision to be re-elected.”