Some commentators and political figures want Judge Sonia Sotomayor to retire before the election so that President Biden can nominate her replacement before the election with a slim Democratic majority in the Senate. As I have noted here, commentators make such calls openly, while political figures are more reserved about their concerns.
This week, NBC News reported comments from several Democratic senators, including Senator Richard Blumenthal (D-CT), who suggested that Judge Sotomayor should “weigh” the potential risks of remaining on the Court after the election. From the report:
“I’m very respectful of Justice Sotomayor. I have great admiration for her. But I think she really needs to weigh the competing factors,” said Sen. Richard Blumenthal, D-Conn. “We should learn a lesson. And it’s not like there’s any mystery about what the lesson should be. The old saying: The cemeteries are full of indispensable people, including ourselves in this body.”
Blumenthal stressed that Sotomayor is “a highly qualified and, obviously, fully functioning justice at this time.” She added that “judges must make their own personal decisions about their health and energy levels, but also keep in mind the broader national and public interest in making sure the court looks and thinks like America.”
Likewise, Sen. Sheldon Whitehouse (D-RI) declined to say Judge Sotomayor should resign, underscoring the potential implications of replacing her with a Republican president.
“Get it to 7-2 and you go from a caught pitch to a full MAGA pitch,” Whitehouse said in an interview. “I certainly think that if Justice Ginsburg had to do it all over again, he might have reconsidered his confidence in his health.”
While some academics and political commentators have been more vocal in calling for Justice Sotomayor to retire this year, lest a President Trump nominate her replacement as happened with Justice Ruth Bader Ginsburg, others who have called for Justice Sotomayor’s retirement Justice Ginsburg are refusing to make such requests now. . From a HuffPost report:
“I don’t think Judge Sotomayor should retire now,” said Erwin Chemerinsky, dean of the University of California at Berkeley School of Law.
In 2014, Chemerinsky tried to shock Democrats into complacency with headlines like “I Love Ya Ruth, But It’s Time to Go.”
“One crucial difference is that Justice Sotomayor is only 69 years old,” he said. “I think it’s very different from when I urged Justice Ginsburg and Justice Breyer to retire. They were both in their 80s.”
What worries Chemerinsky is not how old Sotomayor will be when the stars align for the Democrats, but how willing they are today, in an election year, to replace her with someone equally progressive.
“With the slim Democratic majority, there is no guarantee that a replacement will be confirmed,” he said.
Potentially troubling for Chemerinsky is that at least one Senate Democrat, Joe Manchin (D-WV), has said he will not vote to confirm judicial nominees who do not have some Republican support.