I subscribe to Josh Barro's "Very Serious" substack, and his latest talks about whether or not Justice Sonia Sotomayor should retire, since both the Senate and Presidency are currently controlled by the (D)'s.
He uses Scalia as his first argument, saying he should have stepped down in 2006 when he was 70 and Republicans held the White House and the Senate. Obviously he didn't and we all know how that worked out, but Barro points out....
But imagine for a moment that Anthony Weiner had actually stopped sexting teenagers after his first sexting-related scandal in 2011. In this alternate universe, there would have been no Weiner’s Laptop story in the final days of the 2016 presidential campaign (and thus no announcement from James Comey that he was reopening the email investigation 11 days before the election) and Hillary Clinton probably would have won. By running a couple of points stronger, she might have taken Democratic candidates across the finish line in close races in Pennsylvania and Missouri, gaining Democratic control of the US Senate. In that scenario, Clinton would have named a liberal successor to Scalia — more liberal than Garland — and conservatives would have lost control of the court, all because of Scalia’s failure to retire at the opportune moment.
Perhaps a little wishful thinking, but you can see where he's coming from.
He goes on to say if Sotomayor retires, Biden can nominate a "young and reliably liberal judge to replace her," while Republicans can do nothing because they can't postpone a vote. Otherwise....
But if Sotomayor does not retire this year, we don’t know when she will next be able to retire with a likely liberal replacement. It’s possible that Democrats will retain the presidency and the Senate at this year's elections, in which case the insurance created by a Sotomayor retirement won’t have been necessary. But if Democrats lose the presidency or the Senate this fall (or both) she’ll need to stay on the court until the party once again controls both. That could be just a few years, or it could be a while — for example, Democrats have previously had to wait 14 years from 1995 to 2009, and 12 years from 1981 to 1993.² In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve through age 82 or 84 — and she’ll be taking the whole Democratic Party coalition along with her in making that high-stakes bet.
If Democrats lose the bet, the court’s 6-3 conservative majority will turn into a 7-2 majority at some point within the next decade. If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade.
Breyer got "retired" in 2021, so there's some precedent here.
So what say the cognoscienti here?