Thanks, but please retire

The two major party candidates for president are 77 years old (Donald Trump) and 81 years old (Joe Biden). The Democrats have the burden of showing that at 81, Biden is not too old to hold the presidency for another four years, even amid all the questions that swirl as to his mental acuity and physical capacity for the world’s most demanding job. And yet, some Democrats have chosen to take on the project of pressuring Supreme Court Justice Sonia Sotomayor—a comparative spring chicken at age 69—to retire this year. 

These Democratic strategists recognize that the political landscape likely won’t look this good for them for a while. Democrats currently hold a razor-thin 51-49 majority in the Senate. Moderate Democrat Joe Manchin’s retirement in West Virginia is a likely GOP pickup, and the four toss-up seats (Arizona, Montana, Nevada, and Ohio) are all currently held by Democrats. In other words, the Democrats are at real risk of losing the Senate majority, even if President Biden retains the White House. 

Obviously if President Trump wins, then Sotomayor almost assuredly will not retire voluntarily in the next four years. But even if President Biden wins, a Republican U.S. Senate majority will be in a much better position to drive a hard bargain on any Supreme Court replacement. A GOP majority may confirm a nominee, but will insist on someone who is older and more moderate than the liberal dream they could get today. 

As a result, the campaign is underway to force Sotomayor to announce her retirement. Democratic U.S. Sen. Richard Blumenthal, himself age 78, said last week: “I’m very respectful of Justice Sotomayor. I have great admiration for her. But I think she really has to weigh the competing factors. 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.” Similarly, Democrat U.S. Sen. Sheldon Whitehouse, a spry 68, said recently, “Certainly I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health.”

The lesson the senators reference is one readers of WORLD know well. Though God has counted the hairs on our head, He has not revealed to each of us the exact timing of our departure from this earth. Republicans nearly learned that lesson the hard way when Antonin Scalia died in the final months of Barack Obama’s second term. Only Donald Trump’s unexpected victory in November of 2016 and Mitch McConnell’s iron-willed determination in the interim kept the seat from going to Merrick Garland.

Democrats did learn that lesson the hard way when Ruth Bader Ginsburg, in every other way the heroine of the legal left, nevertheless was replaced by Amy Coney Barrett when she passed away during the final year of Trump’s first term. One could also point to Thurgood Marshall’s retirement under health pressures during the presidency of George H.W. Bush, to be replaced by conservative visionary Clarence Thomas. So Blumenthal is basically begging Sotomayor: Don’t risk that you might not make it the next five or more years.

The flip side of the pundit putsch against Sotomayor is that it politicizes whatever retirement decision she does make. As Noah Feldman of Harvard Law School pointed out when liberals pushed Stephen Breyer to retire, “Every column or television comment—the more prominent, the worse—traps Breyer into having to stay out so as not to appear to be acting as a partisan.” Just so for Sotomayor: The more pressure she comes under, the more she may push back in the name of judicial independence.

The entire sad affair shows that raw power politics once again surpasses any attempt at a principled politics. Biden is 81? He’s in great health, let’s give him four more years with his finger on the nuclear button. Sotomayor is 69? In the view of the progressive left, she’s had a good run, and now it’s time to head out to pasture and make way for the next generation. Never expect a politician to let consistency get in the way of the right talking point on any individual issue.