Justice Sotomayor for Ambassador (Respectfully)
Protecting our meager 6-3 Supreme Court minority is wise long-term, but also smart 2024 politics
Folks!
I heard a metaphor a few years ago: political campaigns are like hot air balloons, working to navigate the “weather” of national and world events, the economy and, importantly, how the media (and social media) portrays those things.
The Biden campaign certainly has its work cut out to shape the coming 2024 storm, with early polls showing him down a couple percentage points to Trump.
A Supreme Court confirmation battle a few months ahead of the election would be wise for the long-term, as a potential 7-2 Republican-appointed Court looms. But it could also help shift the 2024 election “weather,” thrusting Roe v. Wade and the historically extreme Supreme Court back into the national spotlight (all while Dems still have enough Senate votes to confirm a nominee).
But if Biden faces an election where a conflict-hungry media is focused on issues where he faces an unsupportive electorate — voters currently rank immigration the number one issue facing America, for example — we are in for a rough few years. The last time Dems faced Trump in an election revolving around immigration, things did not turn out well. As much as possible, Dems should pick the right battles and go on offense.
The Dobbs Election (Hopefully)
Two years ago, the 6-3 Republican-appointed Court overreached morally and politically when they ruled on Dobbs v. Jackson, overturning Roe v. Wade.
This led to a strong shift in public opinion, making reproductive rights one of Dems’ best-polling issues. Even in conservative states like Ohio and Kansas majorities responded by voting to protect their rights. According to Gallup:
A record-high 69% say abortion should generally be legal in the first three months
34% say legal in all cases — surging up from only 25% as recently as 2019 (same as it was it 1980)
52% say abortion is also morally acceptable, now 10% above the historic average since 2001
(If these numbers, while strong, don’t overwhelm you, like me, may live in a bit of a bubble: remember that more than 2 in 3 Americans aged 25+ do not have a college degree, for instance; these folks are generally more culturally conservative, not to mention more concentrated in swing states.)
Biden and Dem Senate candidates should benefit from anything that makes Roe v. Wade more politically salient. Trump would have to discuss the issue late into the election, reminding voters that he “killed Roe,” and the court’s potential nationwide ban on abortion pills would likely reenter the news cycle, as it should.
And setting aside Roe, a confirmation fight would remind voters of the quiet but massive power of the Supreme Court, which is positioned to reshape healthcare for tens of millions, voting rights, the environment, financial regulation and more as soon as this year. The more voters are educated on who actually fills the court — Trump picked mostly former GOP political appointees — the more motivated they will be to support reforms.
This fight is also currently winnable: Dems have a narrow window left with their 51-49 Senate majority, but face long odds for control after this election, as they defend a brutal 23 seats vs. 11 for Republicans.
Bench v. Beach
But the near-term politics here, while important, may be secondary to the long-term need for Dems to protect every Supreme Court seat they hold.
Travel back in time with me fifteen years ago, when a young man wrote a college newspaper column arguing for a saner approach to selecting the Court:
“The health of each justice, and their choice of when to retire, is too arbitrary to shape our Supreme Court.”
As Kamala might say, that little man … was me. But here we are again: it was recently reported that Justice Sonia Sotomayor, who has diabetes and turns 70 this June, sometimes travels with a medic, the only sitting justice to request such care.
If nothing changes, we could soon face another RGB situation, where Justice Sotomayor attempts to work years longer than expected to avoid being replaced by a conservative justice.
As Josh Barro writes, “Democrats have previously had to wait 14 years from 1995 to 2009, and 12 years from 1981 to 1993 [for the ability to replace a justice]. In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve through age 82 or 84 — and she’ll be taking the whole Democratic Party coalition along with her in making that high-stakes bet.”
For all her good work over the past fifteen years, we should encourage Justice Sotomayor to retire this year to fanfare while Dems still control the Presidency and Senate.
President Biden could then nominate a likeminded jurist, and campaign vigorously for said person — again, helping thrust Roe v. Wade and other key 2024 issues into the media spotlight before the election when, even if Biden prevails, Dems may lose the Senate votes needed to replace a justice.
And along the way, and this part is only half tongue in cheek, why not offer Sotomayer a vision of what an intellectually stimulating but less actuarially concerning post-court life could be: say, an ambassadorship to a country of interest?
Sotomayor’s direct predecessor, Justice David Souter, famously called the job an “annual intellectual lobotomy” in the “world’s worst city” ahead of his retirement at age 69. So I wouldn’t be alone in suggesting the alternatives aren’t so bad.
I’m not the first to make this call: a few voices across the left and center-left have raised this point, and last month HuffPost noted “some progressives have called in the past for her to retire while Biden is president.” But despite the high stakes, the issue has not cracked the mainstream discourse.
AI-generated image of the US Supreme Court building chilling on a generic beach with a fancy patriotic drink.
Why now?
The stakes are incredibly high: if Sotomayor is replaced by a conservative justice, the court flips to 7-2. This would all but assure a decades-long right-wing veto over any future legislation spanning healthcare, civil rights, abortion, the environment etc.
Given the abnormally tough 2024 Senate election map, when Dems defend seats in West Virginia, Montana, Ohio, Nevada, Pennsylvania, Wisconsin, Michigan, and Arizona — not the mention the underlying undemocratic nature of the Senate, which strongly favors voters in more rural states — many predict Dems may be locked out from Senate control for a long time.
And even if Dems manage to occupy the Presidency, Mitch McConnell taught us in 2016 that a modern GOP-led Senate is unlikely to allow even a hearing for a Dem-nominated justice, let alone vote for them.
But one seat can have a staggering impact on lives and history, and the makeup of the Court can change fast. While zero justices stepped down from 1995 to 2005 — a period in which the conservative Court selected the President in a 5-4 vote along ideological lines — our last President appointed three in a single term. Three Republican-appointed justices are now Sotomayor’s age or older: Thomas is 75, Alito 73, and Roberts 69. Again, things can change fast, so let's not lose more ground.
Why Sotomayor?
While 70 may sound spritely compared to our current political class, it is well beyond the conventional age of retirement, and far older than the recent appointees in their late 40s and early 50s.
“But Mr. Belt, didn’t you just publish a post saying the 81-year-old white male Biden was our best bet for the 2024 election?”
True. Given the circumstances this late in the election cycle, that seems right to me. But relative to the 2024 presidential race, the clock here is much earlier. Justice Sotomayor could decide in the next few months, setting up a summer or early fall nomination.
Sotomayer could be replaced with any number of qualified candidates, including those from a similar background. Working class voters of all races, including Black and Hispanic, have alarmingly shifted towards Republicans since Trump arrived on the national scene (my take here on Trump). But Dems might benefit in 2024 if Sotomayor opted to retire and the GOP campaigned hard against a Latina or Latino nominee.
To be clear, similar to the RBG retirement situation, the decision ultimately belongs to Sotomayor. So shouldn’t we leave her alone to decide on her own timeline?
Well, a very public campaign by progressives a couple of years ago to nudge Justice Stephen Breyer into retiring succeeded, leading to Justice Kentanji Jackson. While Breyer resisted the opinion pieces and petitions calling for his retirement, his brother, also a judge, acknowledged its influence: “I think what impressed him was not the campaign but the logic of the campaign.” I think the same is possible here.
The Takeaway & Donation
When I was an annoying college columnist in 2009, I wrote for my five or so readers: “Both John Paul Stevens, 89-years-old, and Ruth Bader Ginsberg, 76, are anticipated to retire before Obama’s 2012 reelection.” While I am still writing annoying things, unfortunately that latter prediction did not happen. If it had, US politics would look very different today.
What can you do about this? That’s a tough one, as calling your representatives isn’t likely to have much impact here. Instead I guess I’d recommend: sharing posts about this, whether this one (ha) or others like it.
And if you found this post worthwhile and want to Do Something, I recommend a donation to Ohio Senator Sherrod Brown, who held his seat in 2012 and 2018 against long odds.
(I was also happy to see Krysten Sinema opt not to run for Senate in Arizona, clearing the path for Dem Congressman Ruben Gallego, a cook and janitor before Harvard, the military, and US House — whose rhetoric that has made him an official Russ Belt Favorite — to go up against MAGA celeb Kari Lake. But Sherrod needs your money more for now.)
Until next time!