Should Justice Sotomayor Take One For The Team?

“Don’t RBG us, Sonia,” has become a rallying cry for those who fear that Justice Sonia Sotomayor might give Trump yet another seat on the Supreme Court. Some pundits have been quite open about it, citing her diabetes to offset that fact that Justice Sotomayor is a mere babe at 69 years, compared at least to the presidential candidate at 81.

Others, like 78-year-old Senator Richard Blumenthal, are trying to soft-pedal their push.

“I’m very respectful of Justice Sotomayor. I have great admiration for her. But I think she really has 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 here about what the lesson should be. The old saying — graveyards are full of indispensable people, ourselves in this body included.”

Blumenthal emphasized that Sotomayor is “a highly accomplished and, obviously, fully functioning justice right now.” He added that “justices have to make their personal decisions about their health, and their level of energy, but also to keep in mind the larger national and public interest in making sure that the court looks and thinks like America.”

By “competing factors,” Blumenthal means that if Trump gets elected and Sotomayor either dies or is constrained to retire during Trump’s tenure, the Democrats will lose a seat on the Supreme Court to Trump, who will appoint someone like Jeanine Pirro to take her place, moving the Court from a 6-3 conservative block into a 7-2 twilight zone.

[David Lat] understands why the left remains traumatized by how Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. That “switch in time” paved the way for overruling Roe v. Wade in Dobbs, plus a whole host of other right-wing rulings—comprehensively chronicled by my former colleague Elie Mystal in his latest column for The Nation, “No, Stephen Breyer, the Supreme Court Is Not Our Friend.”

Elie takes the opposing view from the conservatives (obviously), that the Supreme Court shouldn’t be an impartial beast that rules without fear or favor, but a partisan animal producing the outcomes demanded by their tribe. By that I mean that the current Court isn’t “our friend” because the other tribe controls it, whereas Elie wants his tribe to control it. Neither is of the view that no tribe should control it. Most are of the view that it’s invariably under the control of one tribe or another, and a relatively neutral court is a fantasy that neither has nor will be achieved.

But Sonia Sotomayor, for better or worse, was appointed for life, and diabetes or not, she’s still living.

But I [Lat] agree with Dean Erwin Chemerinsky, a prominent proponent in 2014 of RBG retiring and therefore a credible voice on the topic: calls for Justice Sotomayor to step down now are unwarranted. As Chemerinsky told Sahil Kapur and Lawrence Hurley of NBC News, there’s “a significant difference” between the two cases. Most notably, Justice Ginsburg was 81 when Chemerinsky wrote his widely discussed Politico piece recommending her retirement, while Justice Sotomayor is only 69. Furthermore, as noted by Matt Ford in the New Republic, Justice Ginsburg struggled for years with various forms of cancer, her ultimate cause of death. In contrast, Justice Sotomayor’s type 1 diabetes is eminently treatable and apparently well-managed.

It’s telling that RBG’s legacy won’t be her opinions as a Supreme Court justice, but her failure to put party first and retire so Trump wouldn’t get a third seat. Do political parties own seats? Are justices supposed to be good party soldiers, prepared to walk away when the party decides they’re too old to be trusted to live until the next time the party is in control?

The flip side of this issue is the trend to find lawyers with ten minutes experience who are young enough to “guarantee” the party hegemony for the next 25 years or so, or until they fear losing the seat at with time 69-year-old justices will be deemed too old for comfort.

There’s always going to be someone younger and healthier out there, so I’m not sure what the limiting principle is here. Should we ask Justice Ketanji Brown Jackson, who turns 54 later this year, to step aside in favor of, say, Judge Brad Garcia (D.C. Cir.), who’s 15 years her junior? While I agree that Democrats should focus more on youth in their judicial nominees—which the Biden Administration, to its credit, has done—there’s a point at which it starts to seem a bit silly. So I share Matt Ford’s view that “[t]he best way to ensure that Sotomayor retires under a Democratic president and a Democratic Senate majority is to elect them.”

To be frank, I’ve never been a big fan of Justice Sotomayor. I wasn’t a fan when she was on the Second Circuit, where she never met a conviction she would reverse, to her empathetic Latina gig on SCOTUS where her opinions are generally overly emotional and poorly reasoned. To be fair, I’m not a big fan of any of the justices, even if they have their occasional moments.

But I [Lat] am a fan of justices with substantial breadth experience, both in the law and life. Putting Little Timmy on the Court because he’s a sure-bet for or against your pet peeve is not going to turn out well for a nation, just as calling for a justice to resign at age 69, which may be old but hardly too old in the scheme of Supreme Court justices, for the sake of partisan politics defeats the point of isolating the Court from political influence. Sure, it’s never completely free from influence, but the solution is to do better, not give up.

And it’s important for the Supreme Court to hear differing voices that challenge the majority, that temper the impulse to take things too far. While the liberal wing of the Court hasn’t done a particularly notable job of it lately, a new baby justice isn’t going to help. And more to the point, Justice Sonia Sotomayor has plenty of life left in her and a lifetime appointment. The Dems don’t own her and she’s not their obedient servant. At least she shouldn’t be, just as the conservative wing shouldn’t be Trump’s or anyone else’s.

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