U.S. Supreme Court

Should Justice Sotomayor retire? Chemerinsky, White House haven't joined calls for her to step down

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AP Justice Sonia Sotomayor October 2022

U.S. Supreme Court Justice Sonia Sotomayor in October 2022. (Photo by J. Scott Applewhite/The Associated Press)

Paul Campos, a professor at the University of Colorado Law School, is among the commentators who are calling for 69-year-old Justice Sonia Sotomayor to retire from the U.S. Supreme Court.

Sotomayor, the oldest Democratic appointee on the high court, has Type 1 diabetes. Campos would like to give President Joe Biden a chance to name her replacement while Democrats control the U.S. Senate.

“You have the votes right now, and you’re not going to have the votes a year from now,” Campos told HuffPost. “It’s really that simple.”

The fear is that history could repeat itself. Then-Justice Ruth Bader Ginsburg resisted calls to step down, and she died at age 87 while then-President Donald Trump was in the White House. She was replaced by now-Justice Amy Coney Barrett, giving the Supreme Court a 6-3 conservative majority.

If a Sotomayor replacement gives conservatives a 7-2 Supreme Court majority, “you go from a captured court to a full MAGA court,” Democratic Sen. Sheldon Whitehouse of Rhode Island told NBC News.

“Certainly, I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health,” said Whitehouse, who nonetheless is not joining calls for Sotomayor to step down.

Another legal academic, Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law and an ABA Journal contributor, had called on Ginsburg to retire. But he does not think that Sotomayor has to do so, according to HuffPost and NBC News. He noted that Sotomayor is only 69, while Ginsburg was in her 80s.

He is also concerned that a progressive nominee to replace Sotomayor might not get confirmed because of the “slim Democratic majority” in the Senate.

The White House is also taking a hands-off approach, Law360 reports.

White House press secretary Karine Jean-Pierre said at a press conference Wednesday a decision on retirement is “a personal decision,” and justices should be given the “space and freedom” to decide.

Campos said some Democrats wonder why it’s necessary to replace Sotomayor with a liberal nominee when conservatives have a six-person majority on the court.

“That’s like asking, ‘What does it matter to give up another touchdown in the second quarter when we’re already down 14 points?’” Campos said. “At some point, you have to make your comeback.”

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