Should Sonia Sotomayor Seek Senior Status

This idea has been floated by several people, including blogger Paul Campos. The reasoning hinges on a few factors.
  1. Democrats control the current Senate (the body that approves judicial appointments). They are unlikely to do so after the 2024 elections, and the 2026 elections don't look much better.
  2. Donald Trump has a non-trivial chance of being elected president later this year.
  3. Sotomayor is currently 69 and has a few health issues (diabetes and a history of heavy smoking).

At this point Sotomayor has had nearly fifteen years on the court and has been one of the most consequential jurists in its history. Retiring now would not be a career cut tragically short. On the other hand not retiring now means she would most likely have to wait until she was at least 75 years old before she had the opportunity to be replaced with an ideologically palatable (to her) justice.

It should also be remembered that the reason Sotomayor is on the Supreme Court (aside from her brilliance and dedication) is that her immediate predecessor strategically timed his retirement to coincide with an ideologically compatible president entering office. To me this seems like something Sotomayor should "pay forward".

Put more bluntly, the reason the U.S. Supreme Court will have a conservative majority for the foreseeable future is that Anthony Kennedy decided to retire strategically and Ruth Bader Ginsberg did not. This seems like an obvious mistake to avoid going forward.

Thoughts?


For those unfamiliar with the term, "senior status" is the term for when a Supreme Court Justice retires from the en banc court but maintains offices and clerks in the Supreme Court building and still has the ability to hear cases at the appellate court level. Retiring now wouldn't mean Sotomayor would have to give up being a judge entirely.

Comments

  • I wouldn't disagree with this argument; until there's a rethink of how the political system and checks and balances work, there's a premium for appointing young judges to the SC and being strategic about when a judge retires.
  • HarryCHHarryCH Shipmate
    I definitely do not want to have even more conservative justices on the Supreme Court.
  • TurquoiseTasticTurquoiseTastic Kerygmania Host
    But wait! Didn't this happen before, when Obama was going to appoint Meyrick Garland in 2015 but the Republicans kicked up a fuss because he was close to the end of his presidential term (not that it should have made a blind bit of difference)? Isn't it a bit risky (from a Democrat perspective) for Sotomayor to step down now (rather than a year ago, say) in case something happens to delay the new appointment?
  • Nick TamenNick Tamen Shipmate
    edited April 2024
    But wait! Didn't this happen before, when Obama was going to appoint Meyrick Garland in 2015 but the Republicans kicked up a fuss because he was close to the end of his presidential term (not that it should have made a blind bit of difference)? Isn't it a bit risky (from a Democrat perspective) for Sotomayor to step down now (rather than a year ago, say) in case something happens to delay the new appointment?
    The delay that time was Mitch McConnell, who was majority leader and controlled such things coming before the Senate. He, and the other Republicans who had the majority in the Senate, wouldn’t allow the Senate to take the appointment up; he and they are in the minority and don’t have the ability to do that now.

  • ArethosemyfeetArethosemyfeet Shipmate, Heaven Host
    Nick Tamen wrote: »
    But wait! Didn't this happen before, when Obama was going to appoint Meyrick Garland in 2015 but the Republicans kicked up a fuss because he was close to the end of his presidential term (not that it should have made a blind bit of difference)? Isn't it a bit risky (from a Democrat perspective) for Sotomayor to step down now (rather than a year ago, say) in case something happens to delay the new appointment?
    The delay that time was Mitch McConnell, who was majority leader and controlled such things coming before the Senate. He, and the other Republicans who had the majority in the Senate, wouldn’t allow the Senate to take the appointment up; he and they are in the minority and don’t have the ability to do that now.

    I forget, did the ability to filibuster judicial, or at least SCOTUS, appointments get removed?
  • Nick Tamen wrote: »
    But wait! Didn't this happen before, when Obama was going to appoint Meyrick Garland in 2015 but the Republicans kicked up a fuss because he was close to the end of his presidential term (not that it should have made a blind bit of difference)? Isn't it a bit risky (from a Democrat perspective) for Sotomayor to step down now (rather than a year ago, say) in case something happens to delay the new appointment?
    The delay that time was Mitch McConnell, who was majority leader and controlled such things coming before the Senate. He, and the other Republicans who had the majority in the Senate, wouldn’t allow the Senate to take the appointment up; he and they are in the minority and don’t have the ability to do that now.

    I forget, did the ability to filibuster judicial, or at least SCOTUS, appointments get removed?
    Yes, and it was McConnell and a Republican Senate majority who removed it for SCOTUS nominees, so they could get the nomination of Neil Gorsuch through. (Democrats had removed for it many other presidential nominees, including lower court judges, some years earlier. McConnell described that as “a power grab.”)


  • ArethosemyfeetArethosemyfeet Shipmate, Heaven Host
    Nick Tamen wrote: »
    Nick Tamen wrote: »
    But wait! Didn't this happen before, when Obama was going to appoint Meyrick Garland in 2015 but the Republicans kicked up a fuss because he was close to the end of his presidential term (not that it should have made a blind bit of difference)? Isn't it a bit risky (from a Democrat perspective) for Sotomayor to step down now (rather than a year ago, say) in case something happens to delay the new appointment?
    The delay that time was Mitch McConnell, who was majority leader and controlled such things coming before the Senate. He, and the other Republicans who had the majority in the Senate, wouldn’t allow the Senate to take the appointment up; he and they are in the minority and don’t have the ability to do that now.

    I forget, did the ability to filibuster judicial, or at least SCOTUS, appointments get removed?
    Yes, and it was McConnell and a Republican Senate majority who removed it for SCOTUS nominees, so they could get the nomination of Neil Gorsuch through. (Democrats had removed for it many other presidential nominees, including lower court judges, some years earlier. McConnell described that as “a power grab.”)


    Of course he did. Nothing like opportunism, hypocrisy and moral vacuity to prove your Republican bona fides.
  • I've seen some court watchers suggest that Sotomayor could resign conditionally, depending on her replacement being nominated and confirmed before she leaves. Apparently Justice Breyer resigned conditionally in this way when he retired in 2022?

    Honestly I didn't realize that was even legal, but if there's going to be a Republican majority in the Senate again, any retiring justice should probably do the same.
  • Gramps49Gramps49 Shipmate
    I have said it so many times I sound like a broken record. Trump will not be elected this November. He was dealt a serious blow today when the Arizona Supreme Court said the state should enforce a 164 year old abortion law. There will be a state constitutional amendment up for a vote that will enshrine the right of abortion in the state constitution. This will mean most of the voters this November will favor Biden. Arizona is a swing state.

    Florida may also be in play because there will be a similar proposed state consitutional amendment.

    Trump is bragging he alone overturned Roe v Wade. The Dems are already using that against him.

    Besides, in the American judicial system, there is no mandatory retirement age. It is an appointment for life. Sotomayor as no intention of retiring, especially at 69/
  • Gramps49 wrote: »
    I have said it so many times I sound like a broken record. Trump will not be elected this November.
    The problem is that too many people were playing that same broken record in 2016.

  • CrœsosCrœsos Shipmate
    edited April 2024
    Gramps49 wrote: »
    I have said it so many times I sound like a broken record. Trump will not be elected this November.

    Even if we take this as given, Democrats retaining control of the Senate next year is a long shot. All of the seats considered most likely to flip are currently held by Democratic incumbents. I'm fairly confident that Senate Majority Leader Ted Cruz (or whoever) would be perfectly happy to let a Supreme Court seat sit vacant until the next Republican entered the White House.
    Gramps49 wrote: »
    Besides, in the American judicial system, there is no mandatory retirement age. It is an appointment for life. Sotomayor as no intention of retiring, especially at 69/

    For life? I guess Sotomayor should clear out then because David Souter is still alive. (For the record, Souter's age when Sotomayor replaced him is pretty much exactly Sotomayor's present age.)

    Seriously though, given the unfavorable (for the Democrats) Senate maps in 2024 and 2026, if we assume an obstructive Republican Senate (and everything we've seen so far indicates we should make that assumption) Sotomayor will next be able to retire with an ideologically palatable (to her) replacement sometime in the summer of 2029 at the earliest, right around her 75th birthday. And that's making the assumption that a Republican isn't elected president in 2028. So while I will agree that the demographic/epidemiological argument for Sotomayor's retirement is less compelling than the argument was for Ruth Bader-Ginsburg doing so in 2014, the political case for Sotomayor taking senior status is much more compelling.
  • CrœsosCrœsos Shipmate
    To illustrate my point about the difficulty of the U.S. Senate map for Democrats in 2024, there are 34 seats up for re-election. 23 of them are held by Democrats or independents who caucus with the Democrats. Below is a list of seats currently held by a Democratic Senator (or Democratic-caucusing independent Senator) in a state with a Republican leaning Cooks partisan voting index (PVI):
    • Arizona (R+2)
    • Michigan (R+1)
    • Montana (R+11)
    • Nevada (R+1)
    • Ohio (R+6)
    • Pennsylvania (R+2)
    • West Virginia (R+22)
    • Wisconsin (R+2)

    The states listed in bold are ones where the incumbent is retiring from the seat. The benefits of incumbency can overcome a few points of PVI, so it's likely most of these seats will remain under Democratic Senators. In the case of Arizona the retirement from politics of incumbent Kyrstin Sinema is probably a help for the Democrats keeping that seat in their caucus. Still, if the Democrats lose more than one seat they'll lose control of the Senate. With the retirement of Joe Manchin West Virginia is almost certainly a lost cause, which means control of the U.S. Senate hinges on Jon Tester (MT) and Sherrod Brown (OH) both winning their re-election bids and no other, more surprising, losses.

    On the other hand, there are 11 Senate seats currently held by Republican incumbents up for election this year. Here's a list of states with a Democratic-leaning PVI with a Republican-held seat up for election this year.

    Impressive, right?

    I'm not saying Democrats retaining control of the U.S. Senate is a complete impossibility this year, but it's a longshot equivalent to successfully drawing to an inside straight in my estimation. It's certainly not odds I'd like to bet a Supreme Court seat on, given the relatively easy solution available now.
  • Gramps49Gramps49 Shipmate
    I think the three states to watch are Montana, Ohio, and Arizona. 270towin lists them as tossups. In all three states, there will be an abortion issue on the ballot. No abortion initiative has been voted down. Since the last election, I cannot think of a single Republican winning a midterm special election. I think the stars are aligned right which will put these states in the Democratic camp. Florida may also go blue.
  • CrœsosCrœsos Shipmate
    Gramps49 wrote: »
    Since the last election, I cannot think of a single Republican winning a midterm special election.

    Republican Celeste Maloy won a special election in Utah's 2nd Congressional District to fill the vacancy created by the resignation of Chris Stewart. You can argue that a Congressional election in Utah was always going to go to the Republican candidate, but it illustrates that despite some new opportunities the underlying electoral dynamics are still in place.
  • Gramps49Gramps49 Shipmate
    I knew there would be an exception to my statement. I just could not think of who, where, or when.
  • TurquoiseTasticTurquoiseTastic Kerygmania Host
    It's a bit depressing though that these considerations are necessary. I mean, when Garland was obstructed in 2015 it was a bit of a surprise (IIRC) since a Presidential nomination to the Supreme Court was expected to be nodded through no matter the make-up of the Senate. Indeed McCarthy felt the need to introduce a spurious "justification" that Obama was nearing the end of his term and so it somehow wasn't fair for him to make a pick.

    Are we really saying that the Senate will never again allow a justice politically unpalatable to the majority to go through?
  • Are we really saying that the Senate will never again allow a justice politically unpalatable to the majority to go through?

    No, but until the badly needed reforms to the system are enacted it pays to play Prisoners Dilemma.
  • CrœsosCrœsos Shipmate
    It's a bit depressing though that these considerations are necessary. I mean, when Garland was obstructed in 2015 it was a bit of a surprise (IIRC) since a Presidential nomination to the Supreme Court was expected to be nodded through no matter the make-up of the Senate.

    That was 2016. And Supreme Court nominees don't always go through easily. Just ask Harriet Miers, Robert Bork, or Abe Fortas. Fortas was a particularly interesting case since he was already on the Supreme Court but the Senate objected to his elevation to Chief Justice. As a bit of historical trivia, the Supreme Court has not had a majority of Democratic-appointed Justices since Fortas resigned in 1969.
    Indeed McCarthy felt the need to introduce a spurious "justification" that Obama was nearing the end of his term and so it somehow wasn't fair for him to make a pick.

    I think that was Mitch McConnell. Kevin McCarthy was House Majority Leader at the time, but the House has no say over judicial appointments.
    Are we really saying that the Senate will never again allow a justice politically unpalatable to the majority to go through?

    That certainly seems to be the Republican position. The Democrats have not been faced with that situation (a Republican nominated potential Justice being voted on by a Democratic Senate) since the Clarence Thomas appointment in 1991.
    Are we really saying that the Senate will never again allow a justice politically unpalatable to the majority to go through?

    No, but until the badly needed reforms to the system are enacted it pays to play Prisoners Dilemma.

    Indeed. The Republicans will likely keep using that tactic as long as it still works for them. So far they've managed to get five year's worth of Supreme Court appointments out of a four year presidency*. They'll keep doing this as long as there is no downside for them.
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