Liberals face Manchin roadblock to replacing Sotomayor on Supreme Court

Senate Democrats have rebuffed the Left’s attempts to give Justice Sonia Sotomayor the Ruth Bader Ginsburg treatment.

Members of the Judiciary Committee, tasked with approving her eventual replacement, have broadly dismissed a pressure campaign to send her into retirement and appoint a younger justice.

But it is Sen. Joe Manchin (D-WV), progressives’ arch nemesis in the Senate, who is making the calls for her to resign mathematically implausible in a chamber Democrats control by a single vote. He told the Washington Examiner that he would not vote to confirm any Supreme Court justice who cannot attract Republican support.

The pocket veto, which he calls “my own little filibuster,” is not quite new. He imposed it for all judges in March. But it has taken on greater relevance as Sotomayor, who turns 70 in June, faces a wave of calls for her to step down before the end of President Joe Biden’s first term.

Progressives want to replace her with another liberal, fearing the doomsday scenario that befell Democrats when the 87-year-old Ginsburg died in the final months of Donald Trump’s presidency. But the unintended consequence of her retirement, were one other Democrat to join Manchin, could be the court lurching further right with a moderate taking her place.

Ginsburg was the third justice that Trump replaced, but her death cemented what became a 6-3 majority during his four years in office. The Supreme Court went on to gut liberal priorities, including five decades of precedent in Roe v. Wade

Sotomayor, by all accounts, is healthy despite a childhood diabetes diagnosis, and in Supreme Court terms, she is relatively young. Justices frequently decide to retire in their 80s. 

“She’s a pup around here,” the 76-year-old Manchin joked.

But progressives, who have penned a series of prodding op-eds in recent days, point to her lamenting in January that she finds the caseload tiring, plus a 2018 incident in which the paramedics were called to her home due to low blood sugar.

With the distinct possibility that Democrats will lose the White House and Senate in November, they have urged Sotomayor to give Biden time to find her replacement.

Congressional Democrats have lodged a series of objections, among them that progressives were targeting the only Latina justice.

“She brings a tremendously important perspective to the court that was lacking prior to her arrival,” said Sen. Alex Padilla (D-CA), a member of the Congressional Hispanic Caucus.

Sen. Richard Blumenthal (D-CT) nudged Sotomayor to “weigh the competing factors” last week, telling NBC News that “we should learn a lesson” from Ginsburg’s untimely death.

But he later amended that sentiment in a brief hallway interview with the Washington Examiner. “She should decide what is right for her. I’m not saying she should resign,” he said.

The muted reaction, and even exasperation from members of Senate leadership, has put a damper on progressive hopes of replacing Sotomayor, the oldest of the three liberal justices on the high court, before November. The usually mild-mannered Dick Durbin (D-IL), the No. 2 Senate Democrat and chairman of the Judiciary Committee, retorted, “Get another story” on Tuesday after days of questioning from reporters.

But it is not simply her competence, or even age, driving that pushback. It’s also a matter of Senate math.

Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, helped galvanize liberal calls for Ginsburg to step down. He wrote a high-profile article in 2014 warning of the consequences if she stayed on the bench. But he argues the set of facts surrounding Sotomayor’s tenure are completely different.

He cites Manchin’s red line and Sotomayor being “just 69” in arguing against her retirement. Sotomayor is slightly older than Justice Elena Kagan, 63, the same age as Chief Justice John Roberts, 69, and She’s younger than Justices Clarence Thomas, 75, and Samuel Alito, 74.

“Even if Donald Trump is elected, there is no reason to believe Justice Sotomayor would not still be on the bench at the end of his term,” Chemerinsky told the Washington Examiner.

The calls for Sotomayor to step down highlight a common divide within the Democratic Party. Progressives agitate for change, while Washington shows institutional deference. Senate Democrats stayed mum in the face of a similar pressure campaign against Sen. Dianne Feinstein before she died in office at the age of 90.

The latest episode also underscores the pivotal role Manchin continues to play in the Senate, even as he prepares to retire in January.

A centrist in the mold of the blue-dog Democrats, Manchin has effectively blocked the party from eliminating the filibuster and a host of progressive priorities that become possible without it. He allowed Biden to pass a sweeping climate, health, and tax bill in 2022 but not before tanking his more ambitious Build Back Better agenda. 

Sen. Joe Manchin (D-WV) listens during the ‘Politics and Eggs’ event, as part of his national listening tour, Friday, Jan. 12, 2024, in Manchester, New Hampshire. (AP Photo/Charles Krupa)

Manchin is not the only Democratic obstacle. Kyrsten Sinema (I-AZ), a Democrat-turned-independent senator, has stood in the way of Democratic priorities, as have several swing state Democrats running for reelection.

But his near singular ability to reject judges who cannot attract bipartisan support, thanks to Democrats’ 51-49 majority, lays bare a chronic problem for progressives. They cannot get the legislation they want through the Senate, let alone a judge who would surely prove controversial.

Manchin says winning over Republicans is not such a high bar. He noted that centrist Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) often cross party lines.

“If you can’t get those two, then you haven’t done your homework. You didn’t make an effort,” he said.

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But his veto threat came with a broader critique of Washington, blaming both parties for weakening the filibuster with carveouts for judicial appointments. Republican leader Mitch McConnell (R-KY) went “nuclear” to confirm Justice Neil Gorsuch in 2017, following Democratic leader Harry Reid’s lead for lower-court nominees in 2013.

“The filibuster was used to make us work together. And everybody, both sides, are trying to circumnavigate that, and it just makes me sick,” Manchin added. “So, I’m going to do my own thing.”

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