In the aftermath of Donald Trump’s election win on Tuesday, unnamed Senate Democrats are now in the midst of “active” and “urgent” conversations, per Politico, about whether to nudge 70-year-old Justice Sonia Sotomoyor to step down during the lame-duck session. Her retirement, the thinking goes, would allow President Joe Biden and the outgoing Democratic Senate majority to confirm her replacement, and avoid a grim scenario in which Sotomayor’s unexpected departure—whether from the Court or this mortal coil—allows Trump and his incoming Republican Senate majority to replace her with a Yale Law 2L Groyper To Be Named Later.
As ever, you can count on Democratic politicians to ponder the merits of doing something important only after the option is (almost certainly) no longer available to them. Supreme Court confirmations typically take at least two months, which does not include the time for the White House to decide on a replacement. Sotomayor, for example, was confirmed in 72 days, but an additional 26 days elapsed between Justice David Souter’s retirement announcement and President Barack Obama’s decision to nominate Sotomayor, which kicked off the advice-and-consent process in earnest. Justice Neil Gorsuch was confirmed in 66 days in 2017, but of course, thanks to Senator Mitch McConnell’s decision to hold the late Justice Antonin Scalia’s seat open for the preceding year, that “vetting process” consisted mostly of Trump plucking Gorsuch’s name from a menu that Leonard Leo had already put together for him.
The relevant exception to the two-month timeline is the confirmation of Justice Amy Coney Barrett, which Trump and McConnell pulled off in 30 days in 2020 after Justice Ruth Bader Ginsburg’s untimely death. In theory, if Sotomayor decided to quit right now, Senate Democrats could follow the same playbook and fill the vacancy before the buzzer sounds, thus preventing a six-justice conservative supermajority that could last another generation from becoming a seven-justice conservative supermajority that lasts for two.
There are two problems with this plan. First, there is the small matter of the fact that no such vacancy exists. Sotomayor could have retired at any point over the last four years, well in advance of a toss-up presidential election with a Senate map that everyone knew would be very challenging for Democratic incumbents. Given that Sotomayor has elected to remain on the job this long, I am skeptical that she’d have a sudden change of heart, and even more skeptical of, say, Chuck Schumer’s ability to persuade her over coffee this weekend.
Second, the calendar: The Senate is out of session right now, and will not reconvene until Tuesday. They’ll recess for the week of Thanksgiving, return to Washington to speed-run the confirmations of Biden’s lower court nominees, and then adjourn for good on December 20. When the new Congress begins on January 3, Democrats will be out of power, and one of several Republican senators named John will hold the Senate gavel instead. So, if you are doing the math at home, even if Sotomayor were to retire today, and even if the White House had a nominee ready to announce tonight, that leaves Democrats five weeks—41 days total, and 24 days excluding holidays, recesses, and weekends—to get it done.
Possible? Sure. I would love it, actually! But for this ambitious bit of political hardball to work, everything would have to go right, which, when Senate Democrats are in charge of things, is generally not a good bet. A well-timed bit of Republican obstruction, or the inevitable Durbinesque preoccupation with eroding norms of across-the-aisle collegiality, or one last desperate bid for attention from Joe Manchin before he embarks on his lucrative career as a coal lobbyist—any one of these very plausible events could force Sotomayor to try and rescind her announcement (the best-case scenario), or cause Democrats to miss the deadline, allowing Trump to fill her seat with Aileen Cannon by Valentine’s Day (the scenario that prompts me to close my laptop and walk into the ocean).
I have no interest in relitigating the question of whether Sotomayor should have retired already, or dunking on those who argued that she should not. This is in part because I am very tired, and in part because the panic that Democratic lawmakers now feel supplies a regrettably definitive answer. But it is too late for them—for anyone—to engage in a serious “Should we nudge Sonia Sotomayor to retire?” discourse; it has been too late for several months now, if not years. The lesson of their tardiness is that you cannot choose the elections you will win. You can only choose whether to plan for the possibility that you will lose the ones that matter most.
As the clock on the 118th Congress approaches zeroes, the best thing liberals can do is remember this experience next time they weigh the responsibility to protect power on the Court against the understandable reluctance to show a liberal icon the door, as People’s Parity Project executive director and Balls & Strikes contributor Molly Coleman told Politico this week. “Democrats need to do a better job of holding on to the fear that they now feel the next time they are in a position of power,” she said. “We can’t shut down those conversations.”
Sotomayor has spent most of her tenure on the Court as its best justice by a wide margin. But the case for her retirement was never about her. It was about the urgent need for Democrats to reimagine what it means to serve responsibly on the Supreme Court, where a few bad breaks can consign you to writing mournful dissents for the indeterminate future. Liberals already know how painful the consequences of getting this calculation wrong can be. For the next four years, all they can do is hope they won’t have to experience that again.
