There really isn’t an argument against Sotomayor and Kagan retiring this summer
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Ian Millhiser makes the case that it’s imperative for Sotomayor and Kagan to retire from the SCOTUS this summer because:
(1) The Senate map looks bad for Democrats not only this year, but in 2026 and 2028. The Senate is a massive anti-democratic and anti-Democratic problem that isn’t going away, and has to be dealt with realistically.
(2) The odds of Biden winning really don’t look great right now. I mean even if you figure Biden is a 2 to 1 favorite (that’s my optimistic take, which considerably more optimistic than current polling justifies for what that’s worth), a 30% chance of Trump controlling both the presidency and the Senate would be a complete disaster, as Thomas and Alito would probably retire before 2029.
(3) People who don’t understand that 7-2 or 8-1 is a whole lot worse than 6-3 don’t understand either law, politics, or basic math.
The only superficially cogent objection I’ve heard to any of this is that there’s no guarantee that Biden can get nominees through the Senate this summer and fall, given Manchin’s bipartisan fetish, and the impishly unpredictable Krysten Sinema. That’s true, but that objection can be parried decisively by the fact that SCOTUS resignations can and have been made contingent on the appointment of a successor to the retiring justice (Breyer retired explicitly on that basis).
Sotomayor has been a great justice, Kagan has been fine, and neither of them is particularly old by our increasingly extreme standards in re such things (70 and 64 respectively). But six years is a long long time, the stakes couldn’t be higher, and there’s really no good reason that individual justices should serve for more than 15 years anyway.
This is the easiest of decisions from a public-regarding point of view, which unfortunately is not the point of view from which such decisions seem to be made, especially if you’re a liberal SCOTUS justice.
But maybe crying will help us, and praying will do us some good, before the levee breaks.