There have been hints going back more than a year that some on the left are thinking now would be a good time for Justice Sonia Sotomayor to retire. Karen wrote about it back in February. I wrote about in early March when Josh Barro pointed out that this year may be her best chance to avoid being stuck on the court for another 4 years or longer. Monday of this week, former MSNBC host Mehdi Hasan added his voice to the growing chorus:
…she has been called the “conscience of the supreme court” (the Nation), “the truth teller of the supreme court” (New York Times) and “the real liberal queen of the court” (Above the Law).
I happen to agree 100% with all of those descriptions. But – and it pains me to write these words – I also believe it is time for Sotomayor to retire…
With Joe Biden trailing Trump in several swing states and Democrats also in danger of losing their razor-thin majority in the Senate, are we really prepared for history to repeat itself? Sotomayor will turn 70 in June. Of course, only Sotomayor knows the full status of her health, still it is public knowledge that she has had type 1 diabetes since she was seven; had paramedics called to her home; and is the only sitting justice to have, reportedly, traveled with a medic. To be clear: she could easily – and God willing – survive a potential Trump second term and still be dishing out dissents from the bench come 2029.
But why take that risk? Why not retire now?
As Hasan sees it, there is no real downside to Sotomayor retiring now when Biden can name her replacement, but there is a risk that by waiting she could be forced to retire while Republicans hold the White House and the Senate.
The prospect of a 7-2 conservative supreme court, with a far-right Federalist Society apparatchik having taken “liberal queen” Sotomayor’s seat on the bench, should fill us all with dread.
And therefore, Hasan says every Democrat from Biden on down the line should be encouraging Sotomayor to retire now.
But there’s always a danger of being too aggressive in campaigns like this. Demand Justice turned off a lot of people with their billboard truck demanding Justice Breyer retire. And it seems that Mehdi Hasan has irritated the progressive ladies of the View.
Whoopi introduced a clip of Hasan on CNN in which he said, “Republicans are very good at stacking courts and getting their people on courts and thinking strategically about filling courts. Democrats aren’t very good at seeing the power of the Supreme Court.”
Asked why she seemed so annoyed, Whoopi replied, “I’m annoyed that he’s not saying ‘Hey, why do we still have Clarence Thomas on the court whose wife was implicit [?] in trying to turn over the election.'”
Whoopi added, “This guy, to go for Justice Sotomayor, who we know her thoughts, we don’t always agree them, but we know her thoughts and she’s a thoughtful person. We don’t know some of these other folks, and getting her off doesn’t mean somebody else is going to get on and be better. So what is his point?”
I’m not sure Whoopi gets the point Hasan is making at all. His point is not that a replacement would be a better Justice than Sotomayor, only that he or she would be younger. Having the ability to keep that seat on the left’s side of the aisle for another 20 years would be valuable. By not stepping down now, Sotomayor is taking a risk that she’ll be able to hold out potentially for 4 or more years. And if the worst happens and she can’t continue, this could become a 7-2 conservative court.
Co-host Alyssa Farah Griffin tried to explain the risk Hasan was pointing to (that Trump could win) but Whoopi just kept ranting about it being a slap in the face to Sotomayor. “For me this was a slap, a) to a 69-year-old woman because you’re acting like she…she’s got an issue. You got an issue with her, so she should go. I say get rid of the people who aren’t doing their job.”
Sunny Hostin is a grating progressive to be sure, but she usually seems to understand the points being made. In this case, she sounds just as lost as Whoopi. “This take I will say to my friend, I thought was the wrong take. Especially because, as you pointed out, Clarence Thomas is 75. Samuel Alito, who wrote the Dobbs decision is 74. John Roberts, the Chief Justice, is the same age as Justice Sotomayor. He’s 69. Kagan is 63. When your pointing all those things out how can you say this woman who by the way, Justice Sotomayor is managing diabetes like millions of people in the world…the bottom line is she is such a stalwart on this court, we need her voice.”
Again, the ages of the conservatives on the court just don’t matter at this moment. None of them are going to retired while Biden is in office if they can avoid it. Some of them may decide to retire if Trump is elected and the GOP takes the Senate. But by that point it will be too late for Sotomayor.
I don’t know why they don’t seem to get the argument being made here but I do think their reaction is probably representative of how a lot of people on the left will take this. If you’re not fully informed, this sounds like an unfair attack on Sotomayor. It makes me think the push to get her to retire is not going to go viral unless someone can explain the risk to, for example, the audience of the View. Here’s the full clip.