The Volokh Conspiracy
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Senator Blumenthal Suggests Justice Sotomayor Should Think About Retiring (Without Calling Upon Her to Do So)
Public calls continue for Justice Sotomayor to step down so that President Biden can name her replacement before the election.
Some commentators and political figures want Justice Sonia Sotomayor to retire before the election so that President Biden can name her replacement before the election with a slim Democratic majority in the Senate. As I noted here, commentators are making such calls openly, while political figures have been more private about their concerns.
This week, NBC News reported on comments by several Democratic Senators, including Senator Richard Blumenthal (D-CT), who suggested Justice Sotomayor should "weigh" the potential risks of remaining on the Court past an election. From the report:
"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 Sheldon Whitehouse (D-RI) likewise refused to say Justice Sotomayor should step down while emphasizing the potential implications of her being replaced by a Republican President.
"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."
While some academics and political commentators have been more explicit in calling for Justice Sotomayor to retire this year, lest a President Trump name her replacement as occurred with Justice Ruth Bader Ginsburg, others who called for Justice Ginsburg to retire are refusing to make such calls now. From a HuffPost report:
"I do not think Justice Sotomayor should retire now," said Erwin Chemerinsky, dean of the University of California at Berkeley School of Law.
In 2014, Chemerinsky tried to shock Democrats out of complacency with headlines like "Love Ya Ruth, But It's Time to Go."
"A crucial difference is that Justice Sotomayor is just 69 years old," he said. "I think that is quite different from when I urged Justice Ginsburg and Justice Breyer to retire. Both were in their 80s."
What worries Chemerinsky is not how old Sotomayor will be when the stars next align for the Democrats but how willing they are today, in an election year, to replace her with someone equally progressive.
"With the slim Democratic majority, there is no assurance that a replacement would get confirmed," he said.
Potentially concerning to Chemerinsky is that at least one Senate Democrat, Joe Manchin (D-WV), has said he will not vote to confirm judicial nominees that lack some Republican support.
