Starting to panic over President Joe Biden’s sinking chances in November, Democrats are starting to lower the lifeboats as the ship lists dangerously to port. One of the first they would like to send off is Supreme Court Justice Sonia Sotomayor.
An increasing number of leftist activists have begun to call publicly for Sotomayor’s retirement, all but admitting that they expect Biden to lose. But Democrats urging Sotomayor’s replacement on the Supreme Court forget: Biden can’t do it. It’s not that he wouldn’t or that he doesn’t want to. It’s that he is trapped between his leftist fealty and political reality. Any nominee the Left will accept, the Senate is unlikely to confirm. And any nominee the Senate could confirm, the Left is unlikely to accept.
A reliable member of the court’s left-leaning minority, Sotomayor was appointed 15 years ago and will turn 70 years old in a few months. Although she is not known to have serious health problems, she has had Type 1 diabetes since childhood, and records appear to show that she travels with a medic. She has also mentioned fatigue and her unexpected workload at recent events.
Considering Sotomayor’s age and health, Biden’s poor poll numbers, and a fast-approaching November election, Democrats are concerned that the late Justice Antonin Scalia’s fate could befall one of their own — that she could leave a court vacancy to be filled by an opposition president — i.e., a reelected Donald Trump. As Josh Barro recently wrote, if Sotomayor retires now, Biden could nominate her replacement, “confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the court.”
The problem with this strategic reasoning is that it is probably already too late. Biden faces two factors, neither of which he can control any longer.
On one side is the demanding Left. At the start of its demands would be conformity to its cult of identity-group politics. Any pick will have to match Sotomayor in being a woman and a minority.
However, the Left, emboldened after more than three years of coddling by Biden, will certainly demand more on a host of litmus test issues: abortion, immigration, guns, and gender politics, to name a few. All told, any nominee conforming to the Left’s long list of criteria will have to be far more left-leaning than Sotomayor was 15 years ago.
On the other side is a demurring Senate. Any Biden nominee that will appease the Left is likely to appall the Senate. Biden’s pick for the 3rd U.S. Circuit Court of Appeals, Adeel Mangi, is a case in point. Republicans argue that Mangi, who would be the first Muslim federal appeals court judge, has past ties to anti-police groups. At least three Democrats agree, and with only a 51-49 Democratic majority, that is more than enough to block this nomination to a far less significant court.
A fight over an open Supreme Court seat would be far harder. First, there’s the timing. There would be less than seven months to vet, nominate, and process a Supreme Court candidate. Second, Republicans will never agree to replacing a Supreme Court justice with an election so close.
Nor, as the Mangi nomination demonstrates, is the problem only with Republicans. Sen. Joe Manchin (D-WV) has already said he will not support any administration nominees that lack bipartisan support. That effectively ties the Senate 50-50 on nominations.
Add to this the growing list of vulnerable Democratic senators for whom a controversial, Left-blessed Supreme Court nominee could tip a close reelection race. That list is hardly short: It includes Sens. Jon Tester (D-MT), Sherrod Brown (D-OH), Bob Casey (D-PA), Jacky Rosen (D-NV), and Tammy Baldwin (D-WI). Nor does this count retiring senators who owe this administration nothing. Sens. Kyrsten Sinema (I-AZ) and Bob Menendez (D-NJ), who hasn’t yet announced a retirement, both come to mind, and the group may be larger still.
Democrats’ view that Sotomayor should step down now is myopic. They are seeing the world their way instead of the way it is.
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Such purblind progressivism is the reason Biden’s presidency is now in such severe jeopardy. Taking another step toward the left will only push Biden deeper into the hole he has dug himself. And of all the vulnerable Democrats who need to avoid positions that alienate America’s mainstream, none needs to do so more than the extremely unpopular incumbent occupying the White House.
Rather than looking for a last-ditch Hail Mary to save as much of their agenda as they can, Democrats should instead look in their mirrors. It is not Sotomayor who needs to be replaced, but their own radicalization.