Even some Democratic senators are trying to unsubtly nudge Sotomayor to the exit.
“I’m very respectful of Justice Sotomayor. I have great admiration for her. But I think she really has to weigh the competing factors,” Sen. Richard Blumenthal (D-Conn) recently said. “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.”
Keep in mind, Blumenthal turned 78 in February. Sotomayor is 69 years old, so Sotomayor would be more than justified in telling him, or 81-year-old President Biden, “Oh, you think I’m too old to stay in my important government job? You first, geezers.”
The lesson Blumenthal is referring to is the Democrats’ collective trauma regarding their once-beloved Ruth Bader Ginsburg. In 2013, President Barack Obama tried to gently nudge RBG to contemplate retirement; she was then 80 years old. Obama mentioned the looming 2014 midterm elections and how Democrats might lose control of the Senate, hinting that after 2014, he wouldn’t guarantee that he would be able to appoint a like-minded replacement. Obviously, Ginsburg was unpersuaded. And she lived another seven years; surely in her mind, she had seven more years of good jurisprudence left in her. Unfortunately for Democrats, her seven years ran out while Donald Trump was in office, just a few months before Biden was sworn in, along with a Democrat-run Senate.
When it comes to modern Supreme Court justices, 69 is actually just middle-aged. The average retirement age from the Supreme Court from 1971 to 2006, was 78.7 years old. Justice John Paul Stevens retired in 2010 when he was 90. And while Sotomayor has diabetes and travels with a medic, her mother lived to be 94. The justice has access to world-class health care. There is an excellent chance she will still be serving on the Supreme Court when a non-Biden or Trump president takes the oath of office on Jan. 20, 2029.
Yes, it’s conceivable that Sotomayor becomes too ill to continue to serve on the court, or passes away, sometime in the next five years. But then again, any justice could get hit by a bus tomorrow, or diagnosed with cancer, or have a stroke.
Why are Democrats nervous about Sotomayor? It’s less about her health and more about their own fears that Biden might not be a safe bet for reelection, and they don’t know if Democrats will control the Senate starting in January.
Shoving out Sotomayor now would amount to seriously shortchanging the self-described “wise Latina.” She will reach her 15th anniversary on the court in August; by the standards of modern history, a retirement in 2024 would be remarkably early. Through overall U.S. history, the average number of years that justices have served is about 15. But in recent decades, tenures have grown much longer; since 1970, the average tenure of a justice has been close to 28 years.
The effort to push Sotomayor out now represents a dramatic changing of the terms for a person nominated and confirmed to the Supreme Court. An appointment to the Supreme Court is, under the law, a lifetime appointment, with retirement left up to the justice. Unsurprisingly, just about everyone who ends up on the Supreme Court likes being one of the nine most important people in the country, deciding which laws are consistent with the Constitution and which ones aren’t.
Now, some Democrats are basically proposing that the arrangement be altered: You get a lifetime appointment, as long as the party of the president who nominated you has good odds of keeping the presidency and a Senate majority. If a Democratic president becomes much less popular over the course of their term, or a Democratic Senate majority gets shaky, a justice is now apparently obligated to take early retirement.
Sotomayor spent her whole life working to get to the highest court in the land. She’s got every reason to tell Blumenthal and other nervous Democrats to go pound sand.
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