With polls pointing to Joe Biden heading for defeat in November, Democrats are in a tough spot. Not only are they likely to lose the White House, but the Senate also looks ripe for moving into Republican hands as well. This scenario means that it could be several years before another Democrat becomes president and even longer before the Senate could return to Democrat control.
Multiple Supreme Court vacancies are bound to occur in the next term. Clarence Thomas, Samuel Alito, and Sonia Sotomayor are all in their 70s or will be at the time of the next inauguration. And liberals are hoping they can convince Sotomayor to retire now while Biden is in office and the Senate is in Democratic hands.
Liberal journalist Josh Barro isn't shy about the gravity of the situation either. "If she retires this year, President Joe Biden will nominate a young and reliably liberal judge to replace her," he observes. "Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the Court — playing the kind of defense that is smart and prudent when your only hope of controlling the Court again relies on both the timing of the death or retirement of conservative judges and not losing your grip on the three seats you already hold."
"But if Sotomayor does not retire this year, we don’t know when she will next be able to retire with a likely liberal replacement," Barro continues. He then suggests that it is "possible" that Democrats will win in November, but reading between the lines tells you that he doesn't believe it. He wouldn't have written the article if he did.
He also sees what has been clear for some time: if Republicans win control of the Senate in November, which looks likely, Sotomayor would potentially have to wait a long time before retiring if she hopes to be replaced by a liberal, even with her advanced age and apparent health issues.
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"Democrats have previously had to wait as long as 14 years (1995 to 2009)," Barro points out. "In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve until possibly age 78 or even 82 or 84—and she’ll be forcing the whole Democratic Party to make that high-stakes bet with her." Just like they're betting now with Joe Biden, I might add.
If Trump wins the White House and Republicans win the Senate, Barro predicts that conservatives will likely get a 7-2 majority within the next decade, and while that sounds fantastic to many of us, Barro, a former Republican who fell to the dark side, can't stomach the thought.
Although there was considerable pressure on former Justice Stephen Breyer to retire, a similar push hasn't materialized for Sotomayor. But as I previously reported, this reluctance stems largely from concerns about the optics of pressuring the first Latina justice to step down. This infuriates Barro, who calls the lack of public calls for her retirement "gutless."
"You’re worried about putting control of the Court completely out of reach for more than a generation, but because she is Latina, you can’t hurry along an official who’s putting your entire policy project at risk?" he asks. "If this is how the Democratic Party operates, it deserves to lose."
This is what panic looks like. Barro wants more Democrats to speak up publicly as if that would make a difference. Barack Obama reportedly lobbied Justice Ruth Bader Ginsburg to retire while he was in a position to nominate her replacement, and he didn't sway her. Something tells me that if RBG couldn't be swayed, Sotomayor won't be either. So all these calls do is prove that Democrats don't believe Joe Biden will win in November. They're panicking, and they see the Supreme Court slipping away from them.
