Top Democrats won't join calls for Justice Sotomayor to retire, despite fearing an RBG repeat

WASHINGTON — Democratic senators are not joining calls on the left for liberal Justice Sonia Sotomayor to retire. But for the first time, they’re publicly expressing an unease that history could repeat itself after Justice Ruth Bader Ginsburg’s refusal to step down in 2014 ended in the Supreme Court lurching sharply to the right.

Ginsburg, then 81 and a cancer survivor, could have retired and been replaced by a Democratic appointee when President Barack Obama was in office and his party controlled 55 Senate seats. She rejected the calls — and died in September 2020, allowing then-President Donald Trump to replace her.

It was a history-making moment: Ginsburg’s successor, Justice Amy Coney Barrett, gave rise to a 6-3 conservative majority. Barrett went on to cast a deciding vote to overturn the landmark Roe v. Wade abortion rights ruling less than two years later.

With that humbling history in mind, some liberal commentators say Sotomayor — who is 69, a lifelong diabetic and the oldest member of the court’s liberal wing — should retire while Joe Biden is president and Democrats control the Senate, echoing similar calls directed at Ginsburg a decade ago that went unheeded.

Democratic senators who serve on the Judiciary Committee remain haunted by the Ginsburg precedent. None are publicly calling on Sotomayor to step down, but they say they hope it doesn’t happen again and create a 7-2 conservative majority.

“I’m very respectful of Justice Sotomayor. I have great admiration for her. But I think she really has to weigh the competing factors,” said Sen. Richard Blumenthal, D-Conn. “We should learn a lesson. And it’s not like there’s any mystery here about what the lesson should be. The old saying — graveyards are full of indispensable people, ourselves in this body included.”

Blumenthal emphasized that Sotomayor is “a highly accomplished and, obviously, fully functioning justice right now.” He added that “justices have to make their personal decisions about their health, and their level of energy, but also to keep in mind the larger national and public interest in making sure that the court looks and thinks like America.”

Senator: Ginsburg 'might have rethought' it

Sen. Sheldon Whitehouse, of Rhode Island, the No. 2 Democrat on the committee, said he hasn’t given much thought to Sotomayor’s future and is “not joining any calls” for her to leave the court.

But he warned that if the six-member Republican majority were to grow, it would further empower the court's “extremist wing.” Occasionally, he said, a couple of conservative justices “hold themselves back” and contain the scope of the court’s rulings.

“Run it to 7-2 and you go from a captured court to a full MAGA court,” Whitehouse said in an interview. “Certainly I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health.”

But Sen. Mazie Hirono, D-Hawaii, who also sits on the Judiciary Committee, said she’s “not going to be talking about anybody choosing to retire” when asked about Sotomayor.

Others are less shy about pointedly calling on Sotomayor to vacate her seat. There has been a flurry of op-eds on the issue and some law professors and legal advocacy groups have similarly weighed in.

“This isn’t personal. This isn’t about one individual justice," said Molly Coleman, executive director of the progressive People’s Parity Project. "It’s nothing to do with what an incredible legal talent Justice Sotomayor is. It’s about what’s in the best interests of the country moving forward.”

Asked about the liberals calling on Sotomayor to retire, White House spokesman Andrew Bates said: “President Biden believes that decisions to retire from the Supreme Court should be made by the justices themselves and no one else.”

To some liberals, the reluctance of elected officials to call on Sotomayor to step aside is confounding.

“All the people in the liberal legal community are putting hurting Sonia’s feelings ahead of the prospect of a 7-2 court. Insane,” said one Democrat who has worked on judicial nominations and is prohibited from speaking publicly about the justices. “So they don’t say anything about her retiring when they all think she should.”

Sotomayor hasn't signaled any plans to go

The calls involving Sotomayor come at a perilous moment for Democrats, as polls show Biden is far from certain to beat Trump in their rematch. The party currently controls 51 Senate seats, but faces a daunting challenge to keep the majority, defending three seats in the red states of West Virginia, Montana and Ohio and five more in purple states in November's elections. Even if Biden wins re-election, losing the Senate would give Republicans an effective veto over liberal nominees.

There are obvious differences between the Ginsburg and Sotomayor situations. In 2014, Ginsburg was 12 years older than Sotomayor is now. Ginsburg, in 2014, had served on the court for 21 years. Sotomayor will reach her 15-year milestone in August.

There are no signs that Sotomayor has any plans to step down. She remains an active questioner during Supreme Court arguments. Some commentators, however, seized on recent remarks made during an appearance in California, when she said she was “tired” and working harder than ever.

“And to be almost 70 years old, this wasn’t what I expected,” she said, according to Bloomberg Law.

Her health has also been subject to scrutiny, mostly because of her diabetes.

Sotomayor, via a court spokeswoman, did not respond to a request for comment.

Even some of those who urged Ginsburg to step down a decade ago are holding fire on Sotomayor, including Erwin Chemerinsky, an influential liberal law professor who is the dean of the University of California Berkeley School of Law.

In 2014, Chemerinsky wrote a much-discussed article saying that Ginsburg’s refusal to step down “could end up hurting her legal legacy on the court.”

Now, citing Sotomayor’s age, Chemerinsky sees no such urgency.

“I think that is a significant difference and do not see a basis for calling for Justice Sotomayor to retire at this time,” he said in an email.

While the long-term impact could be huge, Sotomayor's choice is not as immediately pivotal. Even if she leaves this year and is replaced by a Democratic nominee, it would merely shore up a liberal minority that lacks the votes to move the court to the left without the buy-in of at least two conservative colleagues.

'Life is pretty good for a retired justice'

Melissa Murray, a professor at New York University School of Law and a former Sotomayor law clerk, said the justice remains “very robust” and has given no indications of retiring.

“She’s never said anything to me. She’s never said anything publicly,” she added.

That is in stark contrast to Ginsburg, who in 2014 responded to the resignation calls with defiance.

“So tell me who the president could have nominated this spring that you would rather see on the court than me?” she told Reuters.

Blumenthal said that justices shouldn’t fear retirement.

“Life is pretty good for a retired justice,” he said. “They continue to sit on cases, they get paid on par with what they’ve received before. She’s a highly respected intellect and figure with a great record of accomplishments. So she would have a lot of opportunities for continued public service.”

On the other side of the aisle, 90-year-old Sen. Chuck Grassley, R-Iowa, a former chairman of the Judiciary Committee, said he wouldn’t call on a justice to retire. He will be 95 when his current Senate term ends.

“Everybody’s got to make that personal decision,” Grassley said. “And I wouldn’t comment on it for somebody else, because that’s their decision. Just like it’s my decision to run for re-election.”