OPINION: This article may contain commentary which reflects the author's opinion.
Liberals have begun to quietly prod U.S. Supreme Court Justice Sonia Sotomayor to retire before the end of President Joe Biden’s term so that he can appoint a younger far-left justice to replace her, according to a new report.
Several liberal columnists have recently argued that allowing President Joe Biden to appoint a younger liberal justice now would help prevent the potential of a 7-2 conservative majority if former President Donald Trump were to return to the White House in 2024.
The sentiment mirrors similar calls from early last year, as reported by Politico, where some Democrats close to the Biden administration shared this view but were hesitant to publicly suggest that the “first Latina justice” should step down to secure her seat for the party.
“You’re worried about putting control of the court completely out of reach for more than a generation, but you can’t criticize an official who’s putting your entire policy project at risk because she is Hispanic?” Republican-turned-Democrat writer Josh Borro wrote Monday. “If this is how the Democratic Party operates, it deserves to lose.”
The Daily Caller added:
Weeks before the 2020 election, when the late Justice Ruth Bader Ginsburg’s death left a vacancy on the court, the Senate was able to confirm Trump’s nominee, Justice Amy Coney Barrett, along party lines. Ginsburg had declined to retire during Obama’s presidency — and many Democrats are afraid of a repeat.
In 2021, Democrats urged former Justice Stephen Breyer to retire so Biden could “appoint the first-ever Black woman” to the Supreme Court. Breyer retired in June 2022 at 83 years old, allowing Biden to appoint Justice Ketanji Brown Jackson.
Brian Fallon, former Executive Director of Demand Justice, the organization that spearheaded the campaign against Breyer with a petition and billboard truck, told Politico last year that his organization does not have similar plans in mind for Sotomayor, 69.
“No judge is above reproach, but as crisis-level situations go, this does not seem as acute as Breyer was, or even as urgent a problem as, say, the Democrats’ ongoing refusal to get rid of blue slips,” Fallon told the outlet while adding that “it is fair to ask the question” about her retirement.
Subsequently, concerns regarding Sotomayor’s health have garnered attention. Reports indicate that Sotomayor made two trips in 2018 accompanied by a medic and had four trips in 2021 that mentioned the use of “medical” gear or supplies, as detailed in U.S. Marshals Service records reported in February by the left-leaning court watch group Fix the Court.
“Fifteen years was the average tenure for … [U.S.] justices for the first 150 years of our republic,” Fix the Court executive director Gabe Roth said in an interview with the Huffington Post in February. “In the last 55 years, that number has now doubled. But the idea that Justice Sotomayor might be considering staying on the court until, I don’t know, Naomi Biden [the president’s granddaughter] is president, is probably not something a lot of folks would want to see.”
Over the past two terms, conservatives have achieved significant victories through decisions that have rejected affirmative action in higher education, upheld religious liberty, and notably, overturned Roe v. Wade. In the current term, the court is poised to tackle contentious issues surrounding abortion pills, censorship, the Second Amendment, and matters involving former President Donald Trump, who put three justices on the high court.
“I live in frustration,” Sotomayor has said. “Every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting.”
As Borro argued, Democrats may not have the opportunity to appoint a new justice until beyond a single election cycle—it could take multiple cycles. That implies that they are essentially banking on the assumption that she will remain capable of serving until she is 82 or 84.
“If Democrats lose the bet, the court’s 6-3 conservative majority will turn into a 7-2 majority at some point within the next decade,” he wrote. “If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade.”
