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There has been talk about whether Supreme Court Justice Sonia Sotomayor should step down while Democrats control the White House and narrowly control the Senate. Democrats are still remembering Ruth Bader Ginsburg who did not make it past a Trump presidency and, in 2020, was replaced by her ideological opposite weeks after her passing.
While only a few have openly called for Sotomayor’s retirement, including law professor Paul Campos, Sen. Richard Blumenthal has hinted about considering retirement. People seem to be hesitant to make a public statement about retirement as it would appear to be gauche and insensitive. But they privately think retirement is a good idea, considering the possibility of a 7-2 conservative court.
Sotomayor will be 70 this June and the oldest member of the court’s liberal wing. Most justices can serve well into their 70s and even their 80s. But some have pointed to Sotomayor’s personal health circumstances. First, she has Type 1 diabetes. Because of this, she was reported to have “medics” occasionally accompany her although it is not clear whether it was medical professionals or simply medical equipment. At one point, paramedics were called to her home to treat low blood sugar. Also, although her mother lived to be 94, her father died in his mid-40s due to heart problems.
Sotomayor will have to make a difficult but impactful decision. Should she retire after 15 years of service and pursue other interests? Or should she stay and if things turn dire (like they did for her late former colleague), she will be beatified and lionized by half the population, a movie might be made about her, and she may even get a clever nickname. Some of her superfans will probably conduct voodoo and pagan rituals on a regular basis hoping that the spirits will supernaturally prolong her life.
But let’s suppose that Sotomayor stays in office but Donald Trump is reelected and that the Republicans narrowly control the Senate in 2025. And unfortunately, Sotomayor is forced to step down during the Trump presidency for personal reasons. While it is possible that a young conservative judge could replace Sotomayor, Trump 47 may find the process more difficult this time around and may have to be more open minded.
Trump will have to be very careful with his selection. Democrats will likely give his nominee the Brett Kavanaugh treatment. Minor transgressions will be overblown and context will be selectively ignored. And skeletons will be exposed. Some candidates may not want to go through this.
But Trump may also find resistance from his own party as some Republican senators may have reservations about adding one more staunchly conservative justice when they have a comfortable and reliable 6-3 majority. On politically divisive issues, a 7-2 decision is not likely to be given more deference than a 5-4 decision.
Maybe they represent a battleground state or have constituents who are mostly pro-choice, and a 7-2 majority could negatively affect their reelection prospects.
Or they may be concerned about the court’s legitimacy and stability. A 7-2 majority that routinely strikes down liberal laws could eventually result in Democrats packing the court once they are in power. These people might prefer a more moderate candidate such as a conservative who is pro-choice or a liberal who believes in trickle-down economics.
Or some senators will confirm the president’s next pick only if funding for various projects in their home states are approved. They may also be amenable to a liberal nominee if their Democratic colleagues are willing to scratch their backs as well.
Sotomayor should not worry about the calls for her to retire even though they mean well. She is relatively young, and her diabetes is under control, so it is safe to assume that she can perform her duties for at least the next decade. Even if she is forced to step down under a president who does not see eye to eye with her, there may be enough Republicans who are comfortable with a 6-3 conservative majority and will want to see a more centrist replacement.
I can imagine there being a lot of back-room private deals being made before a nominee is confirmed.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.
