Opinion: The problem with calling on Justice Sonia Sotomayor to resign

Editor’s Note: Raul A. Reyes is an attorney and a member of the USA Today board of contributors. The opinions expressed in this commentary are his own. View more opinion on CNN.

As Justice Sonia Sotomayor approaches the 15th anniversary of her historic appointment to the Supreme Court, some liberal pundits and lawmakers want her to consider stepping down. They think that Sotomayor’s health, and the possibility that Democrats might lose the presidency and the Senate in November, put the future of the court’s liberal wing at risk.

Raul A. Reyes - CNN
Raul A. Reyes - CNN

The worry is that the high court’s 6-3 conservative majority could potentially become an emboldened 7-2 majority if former President Donald Trump were elected and filled a vacancy. These critics fear the scenario that played out with Justice Ruth Bader Ginsburg. After resisting calls to retire, Ginsburg died in 2020, which allowed then-President Trump to appoint Justice Amy Coney Barrett.

The push for Sotomayor to retire is misguided and deeply flawed. It ignores political reality and reflects ignorance of the lives of people with disabilities. The arrogance of those who want the country’s first Latina justice to abdicate her position is exceeded only by their wishful thinking that she will listen to them.

While praising Sotomayor as “the greatest liberal to sit on the Supreme Court in my adult lifetime,” The Guardian’s Mehdi Hasan wonders, “Why not retire now?” The answer is because the Constitution, which Sotomayor took an oath to uphold, says that justices “shall hold their offices during good behavior.” Sotomayor’s position is a lifetime appointment, not one to be cut short due to political vagaries.

Columnist Josh Barro writes that Sotomayor’s “age problem can be dealt with very simply by her retiring.” But by modern Supreme Court standards, Sotomayor is relatively young. Consider that Ginsburg served on the court for 27 years and was a four-time cancer survivor before she passed away at 87. Justice John Paul Stevens was 90 when he retired in 2010. Justice Stephen Breyer stepped down in 2022, paving the way for the appointment of Ketanji Brown Jackson, but he was 83 when he did so.

In contrast, Sotomayor is only 69. She has yet to reach the average life expectancy for an American (76), for an American woman (79), or for a Hispanic woman (81). Sotomayor’s mother lived to be 94.

Even if Sotomayor stepped down tomorrow, there is no guarantee that President Joe Biden could successfully name her replacement. With Joe Manchin (D-W.Va.) and Kyrsten Sinema (I-Ariz.) in the Senate, it’s an open question as to whether Democrats have the votes to confirm a new justice, given that both are centrists with a history of bedeviling establishment leaders with their own agendas. Plus, it’s doubtful that Biden would name a successor to Sotomayor who would be as strong a champion of marginalized people.

Besides, people with type 1 diabetes can live long and healthy lives, so long as they have reliable access to health care and medication. Sotomayor’s condition, shared by singer Nick JonasOlympians and NFL players, is no reason for her to give up one of the influential posts in the nation.

The fact that a few liberal pundits are so comfortable speculating about Sotomayor’s medical issues is an insult to the 42 million Americans living with disabilities. Her health is her own business. And aren’t progressives usually the ones criticizing conservatives for making decisions about women’s bodies?

Urging Sotomayor’s retirement, Hasan and Barro mention her type 1 diabetes, pointing to a report that she travels with a medic. Yet it has not been established that Sotomayor travels with a medic. The HuffPost article cited as a source for this claim states that the Marshals Service incurred costs for traveling with “baggage (medic),” while noting that this “could refer to medical personnel or be a more benign reference to medical equipment in the justice’s luggage.”

Some of these same liberal writers declare that it will be better for “ordinary Latina women” if Sotomayor retires, and that “Latinas especially, will suffer most” with a more conservative court. No evidence is offered for these sweeping statements. In fact, the Latino community is home to both conservatives and liberals, and Latinas can make up their own minds about what is good for them.

True, in 2018 paramedics were called to Sotomayor’s home when she had a low blood sugar episode. She was treated and then returned to work. But Chief Justice John Roberts was hospitalized in 2020 for a fall and suffered seizures in 1993 and 2007. Justice Clarence Thomas spent a week in the hospital in 2022 for flu-like symptoms. They’re still doing their jobs, and so can Sotomayor. In a January public appearance, she described how the impact of the court keeps her going. “I live in frustration. Every loss truly traumatizes me in my stomach and in my heart,” she said. “But I have to get up the next morning and keep on fighting.”

Justice Sotomayor does not serve in fealty to the interests of the Democratic Party. Her responsibility is to the law — and calls for her retirement are disrespectful and unwarranted.

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