Age doesn’t matter for a sitting president, but it sure concerns Democrats looking to control the Supreme Court. Democratic legal scholars are pushing for 69-year-old Justice Sonia Sotomayor to step down so she doesn’t die and leave a vacancy to be filled by Trump if he wins in 2024.
SOTUS Justice Ruth Bader Ginsburg, anticipating that she would outlast a Senate controlled by Republicans and the Trump presidency, passed away from pancreatic cancer at the age of 87. Her passing occurred mere weeks before Joe Biden secured victory in the 2020 election. Subsequently, when Trump nominated Amy Coney Barrett as her replacement, the 6-3 conservative majority on the Supreme Court was solidified.
Paul Campos, a law professor at the University of Colorado Boulder, explains, “The cost of her [Sotomayor] failing to be replaced by a Democratic president with a Democratic Senate would be catastrophic.”
It’s another way Democrats are preparing for Trump’s potential return to the White House and the possibility that they will also lose control of the Senate.
A Supreme Court Justice is a position for life, and the judges leave only when they retire or die. At 69, Sotomayor is young enough to “survive,” but with Type 1 diabetes plaguing her, an early death is a possibility. Since death can’t be planned for, retirement is the only strategy left for Democrats.
In the past, Democrat legal scholars had called for Ginsberg and Justice Stephen Breyer to step down. While Democrats got Breyer to retire and be replaced by Ketanji Brown Jackson, Ginsberg hedged her bets and lost.
Paul Campos, a law professor at the University of Colorado Boulder, brutally said he wanted to see Sotomayor “replaced by a fifty-year-old justice.” He cautions that waiting until nature takes its course is not a good strategy. “You have the votes right now, and you’re not going to have the votes a year from now. It’s really that simple.”
Democrats have long accused Republicans of “stacking the court” in their favor, although the vacancies they reference were in response to justices’ deaths or retirements. Regardless of their opinion, the sitting president is constitutionally responsible for filling them. According to Article II, Section 2, Clause 2 of the U.S. Constitution, the President has the duty to nominate judges to the Supreme Court with the advice and consent of the Senate.
Who is sitting in the White House during the vacancy is a matter of chance.
Not everyone is on board with pushing Sotomayor to retirement. She is a beloved and respected voice for liberals against a conservative SCOTUS majority, renowned for her bold dissents and outspoken critique of the conservative majority. As the sole Latina justice on the court, she also holds a historical position that Democrats are cautious not to tarnish by urging her retirement.
Sotomayor and fellow Justice Elena Kagan have been on a publicity tour to “promote the concept of civility.” Ironically, the 63-year-old Kagan faces a quiet call for her own retirement. Paul Campos, a law professor at the University of Colorado Boulder, said, “We’re supposed to keep this demure silence about whether Sotomayor should step down. It wouldn’t kill us if Kagan would, too.”
That’s probably news to Kagan, who has served for over a decade.
Historically, the average age for Supreme Court appointments is in their early to mid-50s. As life expectancy has risen, so too have the tenures of Supreme Court justices. A study conducted in 2006 by Steven Calabresi and James Lindgren revealed that between 1971 and 2006, the average retirement age for SCOTUS justices was 78.7 years old. However, owing to longer life expectancies, shifts in job demands, and heightened political dynamics within the court, the typical retirement age for justices has gradually increased into their 80s.
The White House refuses to get involved in calling for Sotomayor’s retirement, calling it a personal decision. White House press secretary Karine Jean-Pierre cautioned that while it’s not for the Biden administration to decide, it’s “a consideration for anyone on the bench.”
But that doesn’t mean that some Democratic lawmakers aren’t asking her to consider it. Senator Richard Blumenthal (D-CT) said that while he was “very respectful” of Sotomayor, he thinks she needs to” weigh the competing factors.” He notes, “We should learn a lesson. And it’s not like there’s any mystery here about what the lesson should be. It’s the old saying, ‘graveyards are full of indispensable people,’ ourselves in this body included.”
And the lesson is that in the Democratic landscape, everyone is disposable.
