Elie Mystal: Why Justice Sotomayor 'should certainly retire now'

13 November 2024

Donald Trump's victory has turned Democrats' eyes to the Supreme Court, where President Joe Biden could still wield some power before exiting office in January.

The Nation justice correspondent Elie Mystal, in a column published Wednesday, writes 70-year-old Supreme Court Justice Sonia Sotomayor "should certainly retire now," arguing, "If Democrats ever hope to retake the court through the normal course of appointments and retirements (which isn’t projected to happen until at least 2045, assuming Democrats are still allowed to win elections and appoint justices), then having one less conservative appointment to overcome is valuable."

Mystal submits:

Donald Trump’s election means that liberal justices on the Supreme Court will have to live for another four years, at least. Even if you think that Trump’s successor (if he has a successor) can be beaten in 2028, Daniel Block explains that Republicans are poised to have long-term control of the US Senate. This means that it’s likelier than not that liberal justices will actually need to live for another eight years, or more, before there will be a reasonable chance to replace them with a Democratic appointee.

"It would be wrong to be too harsh on Sotomayor," the legal expert continues, "because she is also very smart and can read the tea leaves as well as anybody. What those leaves suggest is that the craven Democratic Party, as currently constituted, would probably be unable to replace her during the lame-duck session even if she retired."

Mystal also recognizes that Republicans will take control of the Senate next year.

"But the reality is that they lost control long ago," he writes. "Replacing Sotomayor would require the full participation of Senate Democrats, and that’s something this ailing and unserious party cannot accomplish. Soon-to-be ex-Senator Joe Manchin will not vote for a Sotomayor replacement in the lame-duck session, and who knows where soon-to-be ex-Senator Kyrsten Sinema is these days."

The justice correspondent emphasizes despite the fact progressives appear to be ignoring "that conversation" at the moment, "replacing Sotomayor in the lame-duck session would be a small progressive win in the face of overwhelming defeat."

Mystal pointed to Senator Bernie Saners' (I-VT) Meet the Press interview Sunday, in which the Independent senator "said that talk about replacing Sotomayor during the lame-duck session was not 'sensible.'"

Mystal agrees.

"I get it," he writes. "Bernie’s not wrong, at least if I’m interpreting him correctly. It’s not 'sensible' for Sotomayor to step down if Sanders knows, as I know, that there are not the votes in the Senate to replace her."

However, "I can’t help noticing that while progressives, like Sanders, are blasting the Democratic Party for its long-term inability to connect with working-class Americans, they consistently miss that the Supreme Court does not allow progressive policies to happen, even when Democrats try," Mystal adds.

Mystal concludes that no matter what, "Sotomayor will not retire, and Democrats will not push through a replacement," emphasizing, "The reasons for this are simple: Democrats continue to refuse to use their power maximally when it comes to the federal judiciary."

Mystal's full column is available at this link subscription required.

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