Though some have called for her resignation, 70-year-old Supreme Court Justice Sonia Sotomayor is expected to stay put ahead of Donald Trump’s return to the presidency in January 2025.
Sotomayor, the 2009 Obama-era appointee to the court, is the senior member of the liberal wing of the court.
One anonymous person close to Sotomayor told the Wall Street Journal, “This is no time to lose her important voice on the court. She just turned 70 and took better care of herself than anyone I know,” suggesting that progressives should find another way to protect the Constitution.
David Dayen, the editor of the liberal American Prospect
magazine, and former MSNBC host Medhi Hasan are two voices who have called for the popular justice to resign. They argue that her choice to remain on the court could provide an opening for Trump to nominate another conservative justice to the court if she retires while Trump is in office.Those arguments have their roots in Justice Ruth Bader Ginsburg’s death at 87 in September 2020, which allowed Trump to effectively pack the Supreme Court with conservatives, paving the way for rulings favorable to a conservative agenda.
Those concerns also prompted some to call for Stephen Breyer’s resignation in 2021. Breyer eventually retired at 83 in 2022, allowing President Joe Biden to nominate Ketanji Brown Jackson to the Supreme Court.
Erwin Chemerinsky, dean of the University of California at Berkeley’s School of Law, who called for Ginsburg’s retirement during the Obama administration, said that the two women have entirely different political contexts.
“It is far more uncertain that the Democrats could confirm a successor than in summer 2014,” Chemerinsky told the WSJ. “And Sotomayor is 70,” he added.
Another of Sotomayor’s supporters is Sen. Bernie Sanders (I-VT). When asked about this on NBC’s Meet The Press, Sanders indicated that Sotomayor should stay in her position on the court.
According to Salon, another
path that Democrats could take is “court-packing” or confirming as many federal judges as they can while they still have a Senate majority. In a statement, Judiciary Chairman Dick Durbin (D-Ill) said he “aims to confirm every possible nominee before the end of this Congress.”The statement continued, “Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame duck session given that we have a number of nominees on the floor ready for a vote, and others still moving through Committee.”
Wheeler, a senior fellow at the Brookings Institute, told Salon that Democrats must be willing to use the tactics of their political foes if they want to exert any judicial influence.
“Democrats let through 13 Trump nominees after it was clear that he had lost the election,” Wheeler explained. “Fair play means that you should let through at least 13 Biden nominees, but that logic doesn’t work anymore.”
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