Imagine being not yet seventy years old and being told, not exactly politely, that in the interest of liberalism you have to be put out to pasture. When that message went out to Justice Stephen Breyer in 2021, he was at least over eighty when the leftists told him his time was up on the Supreme Court. With Justice Sonia Sotomayor, despite being over ten years younger than Breyer when he retired, Josh Barro writing for The Atlantic announced that it was time for her to withdraw in the interest of liberalism as you can see in "Sonia Sotomayor Should Retire Now."
As you read Barro's plea for Sotomayor to split the Supreme Court scene you can sense his irritation with her for not voluntarily leaving as yet of her own accord as a personal sacrifice for the greater cause of liberalism:
Justice Sonia Sotomayor will turn 70 in June. If she retires this year, President Joe Biden will nominate a young and reliably liberal judge to replace her. Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the Court—playing the kind of defense that is smart and prudent when your only hope of controlling the Court again relies on both the timing of the death or retirement of conservative judges and not losing your grip on the three seats you already hold.
But if Sotomayor does not retire this year, we don’t know when she will next be able to retire with a likely liberal replacement. It’s possible that Democrats will retain the presidency and the Senate in this year’s elections, in which case the insurance created by a Sotomayor retirement won’t have been necessary. But if Democrats lose the presidency or the Senate this fall—or both—she’ll need to stay on the bench until the party once again controls them. That could be just a few years, or it could be longer. Democrats have previously had to wait as long as 14 years (1995 to 2009). In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve until possibly age 78 or even 82 or 84—and she’ll be forcing the whole Democratic Party to make that high-stakes bet with her.
Barro justifies his rather impolite desperation by citing his liberal nightmare of a 7-2 court:
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. 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. Democrats talk a lot about the importance of the Court and the damage that has been done since it has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren’t Democrats demanding Sotomayor’s retirement?
And now Barro basically tells Sotomayor to get the hell off the court.
Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor’s retirement. But none would go on the record about it. They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election.
This is incredibly gutless. You’re worried about putting control of the Court completely out of reach for more than a generation, but because she is Latina, you can’t hurry along an official who’s putting your entire policy project at risk? If this is how the Democratic Party operates, it deserves to lose.
Yeeesh! It appears that Josh Barro has no problem about appearing to be gauche or insensitive by demanding that Sotomayor resign and any pretense in support of their sacred diversity be ditched in the interests of the greater liberal good.
