Daniel Suhr: A politicized retirement

MARY REICHARD, HOST: Today is Tuesday, May 28th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Up next: WORLD Opinions commentator Daniel Suhr on recent calls for a liberal Supreme Court justice to resign.

DANIEL SUHR: President Joe Biden is 81 years old. Democrats have the burden of showing that despite swirling questions about his mental and physical capacity, Biden should hold the presidency for another four years. And yet, some Democrats are pressuring Supreme Court Justice Sonia Sotomayor to retire this year at the younger age of 69.

These Democratic strategists recognize that the political landscape likely won’t improve for them anytime soon. Democrats currently hold a razor-thin 51-49 majority in the Senate, and it’s possible they may lose that majority this November. Moderate Democrat Joe Manchin’s retirement in West Virginia is a likely GOP pickup, and the four toss-up seats are all currently held by Democrats. Even if President Biden wins, a Republican Senate majority will insist on someone older and more moderate than the liberal dream Democrats could get today.

As a result, the campaign is underway to force Sotomayor to announce her retirement. Democratic Senator Richard Blumenthal, himself 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, Democratic Senator Sheldon Whitehouse said recently, “Certainly I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health.”

Republicans nearly learned that lesson the hard way when Antonin Scalia died in the final months of Barack Obama’s second term. His seat would have gone to Merrick Garland apart from two things: Donald Trump won an unexpected victory in 2016, and then-Senate Majority Leader Mitch McConnell held the seat for Trump to fill.

Democrats did learn that lesson the hard way when Ruth Bader Ginsburg, heroine of the legal left, passed away during the final year of Trump’s presidency. Trump replaced her with conservative Judge Amy Coney Barrett. One could also point to Thurgood Marshall’s retirement due to his health during the presidency of George H.W. Bush. He was replaced by conservative visionary Clarence Thomas.

The flip side of today’s putsch against Sotomayor is that it politicizes whatever retirement decision she does make. Before Stephen Breyer’s retirement, Noah Feldman of Harvard Law School pointed out, “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 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? She’s had a good run, but it’s time to make way for the next generation. The real lesson: never expect a politician to let consistency get in the way of the right talking point.

I’m Daniel Suhr.

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