Nate Silver: Sotomayor Should Retire Before the Election

Dems may have to win both the Senate and White House to secure the next SCOTUS seat

Justices Sonia Sotomayor and Ruth Bader Ginsburg (Steve Petteway)

“In general, pride is at the bottom of all great mistakes.”
—William Ruskin

”Pride went before, ambition follows him.”
—William Shakespeare

It doesn’t get simpler than this. From Nate Silver at his Substack site:

Sonia Sotomayor's retirement is a political IQ test

Sonia Sotomayor, one of the three remaining liberal Supreme Court justices, will turn 70 years old in June, is diabetic and had one parent who died at a young age. There are some offsetting factors at work — women live longer than men, and Sotomayor undoubtedly has access to world-class health care. So I’m not going to pull out an actuarial table or pretend to precisely estimate her lifespan. However, there is clearly a chance that Sotomayor will die or become unable to carry out her duties before Democrats again control both the presidency and the Senate.

I am not the only person to bring up this touchy subject. Josh Barro has been advocating for Sotomayor to retire. And the issue has reached the mainstream: Democratic Senators Richard Blumenthal and Sheldon Whitehouse have also not-so-subtly encouraged her to find the exit door.

However, I’m going to be more blunt than any of them. If you’re someone who even vaguely cares about progressive political outcomes — someone who would rather not see a 7-2 conservative majority on the Supreme Court even if you don’t agree with liberals on every issue— you should want Sotomayor to retire and be replaced by a younger liberal justice. And — here’s the mean part — if you don’t want that, you deserve what you get.

“Here’s the mean part — if you don't want that, you deserve what you get.” No kidding.

‘An extraordinarily self-centered thing to do’

Our Supreme Court’s center-left justices are rightly praised for many of their rulings (and not so praised for others).

But the legacy of Ruth Bader Ginsberg is perhaps the most mixed. For example (emphasis mine):

That the canonization of Ginsburg comes during a time of antiracist uprising is especially troubling, given her dismissive stance towards Black revolutionary politics. When asked for comment on former San Francisco 49ers quarterback Colin Kaepernick’s refusal to stand during the national anthem, Ginsburg said she thought his silent protest against racism and police brutality was “really dumb,” adding “if they want to be stupid, there’s no law that should be preventive. If they want to be arrogant, there’s no law that prevents them from that. What I would do is strongly take issue with the point of view that they are expressing when they do that.” Ginsburg clearly viewed herself as generous and tolerant for stating that she “wouldn’t lock a person up for doing it.” “It,” of course, is the exercise of their first amendment rights and the defense of the cause of oppressed people. 

Her dismissive, callous attitude towards someone asking the state not to murder Black people mirrors the attitude of conservative Justice Atonin Scalia, whose friendship with Ginsburg centrists often tout as an example of how everyone should get along.

See also this.

Now consider this piece from Politico, published after Ginsberg’s death but before the reversal of Roe v Wade. It touches directly on the fact of her non-retirement (emphasis mine).

“It’s certainly hard for me, now, to think of her work and of her — and not to, these days, work up a degree of regret and anger,” says Dorothy Samuels, who authored The New York Times’ legal editorials during her 30 years on the paper’s editorial board. “This is so multilayered because she cared so passionately about advancing equality for everybody. ... And yet, what she has helped to give us is a court that for a long, long time is going to be undoing the equality rulings that she was part of.”

Samuels heard the same thing from former clerks and other inner-circle members while researching a book in the years before Ginsburg’s death. “It was an extraordinarily self-centered thing to do.”

“She gambled,” says Michele Dauber, the outspoken Stanford law professor, speaking of Ginsburg’s apparent calculation that Hillary Clinton would be in the White House to appoint her successor. “But she didn’t just gamble with herself. She gambled with the rights of my daughter and my granddaughter. And unfortunately, that’s her legacy.”

I'm not ready to say that Sotomayor will do what Ginsberg did. In fact, I think she will do what Ginsberg should have done. Pride goeth before a fall, and to her credit, I'm not sure how prideful Sonia Sotomayor is.

But Silver is correct. This is a test of everyone's politics.

Not Just the White House, But the Senate Too

After all, the Democratic Party has to not only win the White House to secure the next post-election justice pick, they have to win the Senate too. And that's by no means certain. Silver again: “Overall, prediction markets give Democrats only a 25 percent chance of keeping control of the Senate.”

Will they take that chance? Will Party leaders call for her to step down if Sotomayor shows reluctance? After all, she’s not yet ill and may well choose to stay on.

How confident are Party leaders in the next election? We may soon find out. After all, pride goeth, etc. Stay tuned.