The Case Against Sonia Sotomayor Is Sexist, Racist, Ableist, Ageist and Wrong

Sonia Sotomayer
Sonia Sotomayer. (Photo: Wikimedia Commons)

When then-president Barack Obama nominated Sonia Sotomayor to the U.S. Supreme Court on May 26, 2009, it was an historic moment. Raised in The Bronx by Puerto Rican parents, Sotomayor became the third woman, first woman of color, first Hispanic and first Latina to serve on the high court. 

For the past 15 years of her tenure as an associate justice, Sotomayor has  been a reliable and even at times solo liberal dissenting voice. Since the passing of Ruth Bader Ginsburg in 2020, Sotomayor has become the court’s most liberal justice. 

Sotomayor’s long judicial pedigree is one that surprisingly began with a Republican — President George H. W. Bush nominated her to the U.S. District Court for the Southern District of New York in 1991. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals for the Second Circuit. While on the Second Circuit, Sotomayor heard appeals in more than 3,000 cases and wrote about 380 opinions. Sotomayor has also taught law at the New York University School of Law and Columbia Law School.

Sotomayor is a long-time champion of vulnerable groups and historically marginalized communities, known for her focus on the rights of criminal defendants and criminal justice reform, and for her strong opinions and dissents on issues of race, ethnic identity, gender and LGBTQ+ rights

In an interview with the New York Daily News in 1998, she said of her trajectory in the law that it was a life-long vision: “I was going to college and I was going to become an attorney, and I knew that when I was 10,” she says. “Ten. That’s no jest.”

Sotomayor’s path to that end was not smooth. She was mostly Spanish-speaking until her father’s death at 42 when she was only 9. Two years earlier, she had been diagnosed with Type 1 diabetes. Her own experience of disability since the age of 7 has made her acutely aware of the issues facing disabled Americans in the judicial system.

But it is that life-long journey with diabetes, which has taken center stage in an increasingly loud debate over whether the 69-year-old should retire. Sotomayor has not suggested she wants to retire, but predominantly white male pundits are telling her it’s time, citing the untimely death of Ruth Bader Ginsburg during the Trump administration, which allowed Donald Trump to nominate Amy Coney Barrett and stack the court with a third conservative justice, shifting the balance of the court from 5-4 to an insurmountable 6-3 conservative majority for ostensibly the next quarter century. 

The argument is that if RBG had only retired during Obama’s administration, he would have been able to choose her replacement and forestall the current disastrous makeup of the SCOTUS. That argument ignores the import of RBG’s role on the court, that she did not want to retire and also that having already nominated two women to the court — Sotomayor and his own former White House counsel Elana Kagan — Obama would have gotten pushback from both Republicans and Democrats over nominating another woman. 

What’s more, as we witnessed in 2016 when Justice Antonin Scalia died suddenly on February 13, 2016, there was no appetite from the Republican Senate for a third Obama Supreme Court appointment — not even one as centrist and non-controversial as Merrick Garland, then Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, who Obama nominated to fill Scalia’s seat. 

Then Senate Majority Leader Mitch McConnell refused to even give Garland a hearing or bring the nomination to the floor, to Obama’s intense frustration and that of Democrats. As I have written repeatedly since 2021, President Biden’s decision to appoint Garland as Attorney General, a position for which he has appeared woefully ill-prepared and utterly out of his depth, was a consolation prize for not getting the Supreme Court sinecure.

It is with these reality check facts that the calls for Sotomayor to retire must be met. In a scathing piece for The Atlantic, columnist and podcaster Josh Barro — who is openly gay and a former Republican who left the GOP after the 2016 nomination of Trump — virtually demanded that Sotomayor step down. Barro laid out the possible scenarios from Biden getting a “slam dunk” confirmation of a “younger, liberal justice” if Sotomayor retires now, to what happens if he is not re-elected. 

Barro writes, “If Sotomayor does not retire this year, we don’t know when she will next be able to retire with a likely liberal replacement….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.”

This argument is not without its detractors. Sen. Elizabeth Warren (D-MA) said, “I think Justice Sotomayor is doing a terrific job, and I think she’ll be doing a terrific job for years to come.” 

“I don’t think there’s anything I know about her medical condition that would disqualify her from continuing. I don’t see any reason why she wouldn’t” keep serving, said Senate Majority Whip Dick Durbin (D-IL), who chairs the Senate Judiciary Committee. 

But Senators Richard Blumenthal (D-CT) and Sheldon Whitehouse (D-RI), both on the Judiciary Committee have encouraged her to step down.

Yet on Monday, a different gay male pundit — Nate Silver — wrote an even more damning piece with the headline: “Sonia Sotomayor’s retirement is a political IQ test: Are you into politics to win — or to feel good about yourself?” Silver writes: “If you’re someone who even vaguely cares about progressive political outcomes — someone who would rather not see a 7-2 conservative majority on the Supreme Court even if you don’t agree with liberals on every issue — you should want Sotomayor to retire and be replaced by a younger liberal justice. And — here’s the mean part — if you don’t want that, you deserve what you get.”

A former actuarial pollster who also writes about baseball, Silver pivots to order of magnitude importance of Supreme Court justices versus other officials, including presidents. Silver also lays out the other pressing elements to a Sotomayor replacement: the likelihood Democrats will lose the Senate and what he cites as a 50/50 chance of losing the presidency.

Those last points are inarguable, but does that mean Sotomayor, at 69, should step down? No. And the suggestion that she is somehow comparable to an 83-year-old RBG who was in exceedingly poor health during the final term of Obama, is both ableist and ageist. The push for Stephen Breyer to retire was soto voce for years while that for Sotomayor is being trumpeted. Yet Breyer was the court’s oldest justice in 2022 when he retired at 83 — and 14 years older than Sotomayor.

The case for Sotomayor retiring is not without merit, but given the exposure of corruption that have been leveled at Clarence Thomas and Samuel Alito — who are both older than Sotomayor — it begs the question of why there isn’t a groundswell of demand for both to retire or resign.

Barro writes that cults of personality are the problem and suggests that a replacement for Sotomayor is easily found and could be exciting. He writes that, “Democrats should be saying in public that she should step down. In order to do that, they’ll have to get over their fear of being called racist or sexist or ageist.”

Or not. It’s not a given that Biden, who made a strong choice in Ketanji Brown Jackson — who was on Obama’s shortlist when he nominated Garland–would make an equally strong choice to replace Sotomayor. What if he took that centrist “no one could possibly argue against his choice” pick that Obama made with Garland? 

The variables are there as Silver’s actuarials detail. But the ultimate decision rests with Sotomayor herself and there are as many questions to be raised should she choose to retire as there are alleged answers.

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