What to do about Sotomayor

From: POLITICO West Wing Playbook - Wednesday Jan 11,2023 11:09 pm

Jan 11, 2023

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Back in 2013, then President BARACK OBAMA quietly met with Supreme Court Justice RUTH BADER GINSBURG to subtly encourage her to retire before Republicans flipped the Senate. She didn’t, and the GOP went on to control the chamber for the following six years.

Back in 2021, liberal activists openly campaigned for Justice STEPHEN BREYER to retire, fearful Democrats would similarly lose control of the Senate in the midterm cycle. He did but the party didn’t.

Now in 2023, the conversation is starting all over again with 68-year-old Justice SONIA SOTOMAYOR, with a few think pieces and podcast episodes urging her (and sometimes fellow Justice ELENA KAGAN) to step down, and for the White House to nudge them in that direction.

But, so far, the main party organs and progressive think tanks aren’t biting.

“I certainly understand the argument and think it is fair to ask the question, but we do not plan to mount any campaign on this like we did last year for Breyer,” said BRIAN FALLON , the head of Demand Justice, which hired a billboard truck to drive around the Supreme Court in 2021 urging Breyer to retire. “No judge is above reproach, but as crisis-level situations go, this does not seem as acute as Breyer was, or even as urgent a problem as, say, the Democrats’ ongoing refusal to get rid of blue slips.”

Fallon’s position isn’t echoed by everyone. Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor’s retirement. But none would go on the record about it.

They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election. There is a firm belief that a Senate controlled by Republicans will simply not confirm a Biden-picked Court nominee should he run and win reelection. Should a vacancy occur under a Republican run Senate with a Republican in the White House, it could expand the current 6-3 conservative majority into an even more powerful 7-2 split.

But getting party leaders to speak more openly about those realities has been difficult.

“It's absolutely a conversation that's being had,” said Molly Coleman, the executive director of People’s Parity Project, a progressive activist group aimed at reforming the legal system. “But the public conversations are very different from the behind the scenes conversations.”

There’s a long history of both Republican and Democrats pressuring justices, some more subtly than others, to retire. Obama invited Ginsburg to a White House lunch in his unsuccessful attempt. President LYNDON B. JOHNSON persuaded Justice ARTHUR GOLDBERG to step down by offering him the role of ambassador to the United Nations. And President DONALD TRUMP and his staff strategically flattered and coaxed Justice ANTHONY KENNEDY into retirement.

Biden took a more hands-off approach to Breyer, instructing his staff not to put any pressure on the justice and allow him to come to a decision on his own.

To the frustration of some progressives who say this feels a lot like 2014 only with even more at stake, that appears to be the same strategy Biden is taking this time around, too.

MESSAGE US —Are you SHARON YANG, deputy communications adviser for the White House counsel’s office? We want to hear from you. And we’ll keep you anonymous! Email us at westwingtips@politico.com.

POTUS PUZZLER

This one is from Allie. Before becoming president, this man served as the governor of New Jersey. Who was it?

(Answer at the bottom.)

The Oval

WHAT DAY IS IT? White House press secretary KARINE JEAN-PIERRE, just back from Biden’s three-day trip to Mexico, walked into the briefing room Wednesday afternoon and greeted reporters with: “Happy Monday!”

We feel ya.

ANOTHER DRIP: Biden aides “have discovered at least one additional batch of classified documents in a location separate from the Washington office he used after leaving the Obama administration,” NBC News’ CAROL E. LEE and KEN DILANIAN report. The piece notes that more may be discovered: “Biden aides have been sifting through documents stored at locations beyond his former Washington office to determine if there are any other classified documents that need to be turned over to the National Archives and reviewed by the Justice Department, the person familiar with the matter said.”

IN IT TOGETHER: The president accompanied first lady JILL BIDEN to Walter Reed National Medical Center, where she underwent a procedure Wednesday to remove two small lesions by her eye. A lesion on her chest also was removed, the White House said. After the surgery, Dr. KEVIN O’CONNOR , the president’s physician, confirmed that all the lesions appeared to be basal cell carcinoma, the most common form of skin cancer and that all cancerous tissue was successfully removed.

WHAT THE WHITE HOUSE WANTS YOU TO READ: This piece by NYT’s IVAN PENN about the Biden administration’s latest win in its push for green energy and electric cars: “A Korean solar company, Hanwha Qcells, announced on Wednesday that it would spend $2.5 billion to build a large manufacturing complex in Georgia. The plant will produce critical components for solar panels and build complete panels. If realized, the company’s plans could bring some of the supply chain for solar energy, which is largely based in China, to the U.S.” White House assistant press secretary ABDULLAH HASAN tweeted out the piece Wednesday.

WHAT THE WHITE HOUSE DOESN’T WANT YOU TO READ: Anything about the Federal Aviation Administration’s computer system failure Wednesday, which delayed more than 4,000 flights. The failure of the system, used to inform pilots of temporarily closed runways and airspace and other safety information, comes days after Southwest Airlines struggled with its own system failures.

The FAA hasn’t pinpointed the cause of Wednesday’s meltdown, but the episode has made Transportation Secretary PETE BUTTIGIEG a prime target for Republicans’ upcoming oversight onslaught. Our TANYA SNYDER has more.

COMPARISON IS THE THIEF OF JOY: Republicans are seizing on the fact that classified documents were found at an old office of Biden’s and using it to attack the White House, comparing it to Trump’s Mar-A-Lago document scandal,NBC News’ ALEX SEITZ-WALD reports. “If I were them [Republicans], I would be doing exactly what they’re doing, which is to muddy the waters,” said DAVID BROCK, a Democratic political consultant.

EYES ON HUNTER: Republican lawmakers are moving ahead with their investigation into matters related to the president’s son, HUNTER BIDEN, asking the Treasury Department on Wednesday for documents linked to his foreign banking and business transactions, Bloomberg’s BILLY HOUSE and JOHN HARNEY report.

And the New York Times’s ADAM ENTOUS, MICHAEL S. SCHMIDT and KATIE BENNER are out with a deep dive on Hunter, showing how the complicated reality is “different from the narrative promoted by Republicans — but troubling in its own way.” DAVID C. WEISS, the U.S. Attorney for Delaware, they write, is close to a decision on whether to charge the president’s son not from transgressions in his overseas business affairs but over tax evasion and failing to disclose his past drug use when purchasing a handgun.

Agenda Setting

LET THE MEDICARE PRICE NEGOTIATIONS BEGIN: The Biden administration on Wednesday detailed its timeline for initial Medicare drug price negotiations. That’s a result of the Inflation Reduction Act, which permitted the federal government to negotiate prices for a subset of high-cost, name-brand drugs covered by Medicare, our DAVID LIM reports for Pro s. The move is a part of the administration’s larger effort to lower health care costs.

MORE SANCTIONS!: U.S. officials and allies are working on another round of sanctions targeting Russian oil, as the invasion of Ukraine drags on, WSJ’s ANDREW DUEHREN reports. Treasury officials are set to discuss the details in Europe this week but they’re expected to go into effect Feb. 5.

What We're Reading

Migration Gets Short Shrift at Biden-AMLO Summit After Border Visit (Bloomberg’s Josh Wingrove)

US to max out on debt soon, setting up political fight (AP’s Fatima Hussein and Josh Boak)

Jill Biden is having Mohs surgery for a skin lesion. What is the procedure like? (NPR’s Ayana Archie)

The Oppo Book

When SUSAN RICE was 4-years-old, she almost shattered her chances of getting into a school in Washington, D.C. by refusing to participate in an interview with its principal.

That day, she recalled on “The Late Show with STEPHEN COLBERT,” she was already “refusing to answer questions, ignoring everybody.”

When it came time for the principal to interview Rice, she wouldn’t talk.

“My mother is mortified, she thinks that I’m deliberately trying to embarrass her — which probably I was,” she said. “As we’re walking out of the office, I noticed over my shoulder, this fish tank which belonged to the principal. I turn around and I say, ‘Hey lady your fish is dead.’”

That line did the trick.

“That’s all I said, but it was enough to get me into the school,” she added.

POTUS PUZZLER ANSWER

WOODROW WILSON served as New Jersey governor from 1911 to 1913, and successfully ran for president in 1912.

A CALL OUT — Do you think you have a harder trivia question? Send us your best one about the presidents with a citation and we may feature it.

Edited by Eun Kyung Kim and Sam Stein.

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