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Contra Nate Silver on Political IQ Tests OR On the Limits of Moneyball Philosophy
Nate Silver, on his new Substack argues that Sonia Sotomayor should retire, and that if you don't want her to retire you're a moron. Some pull quotes:
...
Silver's core argument is that Sotomayor, at 70, is old; and according to models the Democrats are unlikely to control both of the Senate and Presidency in the near future, and that therefore Sotomayor should step down now when it might be possible for Biden, Schumer and co to replace her with another Democratic justice.
I find this take to be indicative of the flaws in Nate's own mindset, the Moneyball/Analytics/Sabermetrics venue that Nate comes from applied to politics, and to a certain extent to Rationalism more broadly, so I'd like to dig into why this is so wrong point by point. For the purposes of this argument, I am viewing this from the position of, as Silver defines it, a progressive or a "person interested in progressive outcomes" who would prefer liberal outcomes to SCOTUS cases. We will also assume that Sotomayor is a decent judge. It's not a particularly interesting argument if we argue that Sotomayor sucks, and anyway there's a point about that further down. I've loved Nate since his PECOTA days, I'm not reflexively anti-analytics, but it has to be balanced with humanity.
Much like the Moneyball Oakland As famously put together talented regular season teams that failed in the playoffs, Silver's approach to politics is about grabbing tactical victories, but will never deliver a championship. Sabermetrics types have long derided concepts like veteran leadership, man-management, The Will to Win, clutch play; we can't measure them on the numbers then they don't exist. Yet while analytics have value, so does traditional strategy, team variance isn't entirely random. Let's examine how some of this applies to politics here:
Flaw 1) What Gets Measured Gets Managed Silver builds a toy model, demonstrates that within his toy model SCOTUS seats are really valuable, then assesses possession of SCOTUS seats based on raw-count of votes by partisan appointment. This is an extremely limited view of what impact SCOTUS justices can have. Sotomayor is 70 years old. Going by most projections, she has about 16 years to go. There's some indications of poor health outcomes, balanced by the fact that she'll get top-tier medical care. For reference, Scalia would have been 70 in 2006. Scalia was very important between 2006 and his death. His impact in general has been almost immeasurably huge on American jurisprudence, even the court's liberals owe a lot to Scalia in their opinions. He achieved this mostly by sheer force of will and intellect, and a long stint on the court. Clarence Thomas is another example of a justice who slowly came into his own, and in the last ten years (his age 65-75 seasons) has gone from punchline to influential intellectual force. SCOTUS justices take time to develop, both in terms of their intellectual impact and in terms of their relationships on the court. Replacing Sotomayor early may buy you a few extra years of a nominal democrat on the court, but it may cost you a more influential judge in the meantime. Silver, because his toy model can't account for jurisprudential influence, ignores all this. It's impossible to model, so it is ignored, or worse derided as fake and gay.
Flaw 2) Defeatism Silver derides politicians as irrational, for foolishly believing "their party is on the Right Side of History and has the morally correct answers on the major questions of the day." This is accurate, but also ignores the point: if you don't think your party is on the Right Side of History and has the morally correct answers, then you shouldn't be doing this. The only reason to get into politics is because you think you can win. If you can only lose, you need to change strategies. Silver's models predict that Democrats won't control the Senate for some time; that is within the power of the Democrats to change! Replacing Sotomayor because you likely won't control the Senate for another 16(!) years is like signing a high-priced closer to get a .500 baseball team an extra win, you still aren't making the playoffs. It also ignores history: the Senate has changed hands repeatedly, 8 times since 1980, or roughly once ever six years. If you start from the assumption that the Democratic message is basically unpopular in much of the country, such that they will never hold a Senate majority, then the Democratic party needs to rebuild from the ground up. Don't waste energy lobbying for Sotomayor to retire, lobby for Ds to pull their heads out of their asses in the heartland. If Democrats don't think they can win majorities, they shouldn't be Democrats, and shouldn't care about the SCOTUS majority. If you don't see a path to victory for your project, you need a new project. There's even a sort of "tanking" argument to be made that strategically, 6-3 and 7-2 aren't that different, so it doesn't matter if Sotomayor is replaced by an originalist, and it's politically better for Ds to face a brutally conservative SCOTUS, which might allow them to pass laws to bypass SCOTUS altogether, rather than a mildly less conservative SCOTUS. The only path to a liberal Majority on the SCOTUS is for Ds to win the Senate and the Presidency, repeatedly, they need to be working towards that goal, not maintaining their minority.
Flaw 3) Eliminating the Individual Silver assumes that any D is as good as any other D. That any D Senate is as good as any other D Senate, and any D justice is as good as any other D justice. This is misguided. The D justice that would get past this D Senate is probably going to be a milquetoast, below average, moderate. Sinema and Manchin wouldn't have it any other way, and no Rs have the guts to cross the aisle. If Sotomayor had the opportunity to retire with a 55 or 60 vote D majority, she could be assured of being replaced by a successor with a brilliant career ahead of him. If Sotomayor retires now, she's quite likely to be replaced by a third-rate non-entity. This is the Trump problem that made the original FiveThirtyEight blog unreadable since 2016: Trump didn't just accept the numbers, he changed them. That's what political leaders do: they don't accept facts on the ground, they alter them. Sabermetrics treats the ballplayers like numbers, probabilities of outcomes at the plate, but in order for every MLB player to get to the bigs, to become those numbers, that player had to believe in himself. He had to work hard, thinking he could get better, thinking he could win, even if statistically he wasn't likely to. Nobody ever made it to The Show surrendering to the numbers.
This kind of short-sighted, analytical approach to politics, slicing and dicing demographics to achieve tactical victories, is the noise before defeat. We saw the flaws in this strategy in the Clinton campaign, and to a large extent in the Biden '20 campaign where Trump vastly over-performed his underlying numbers. We're watching Biden '24 sleepwalk towards a possible November defeat, relying on demographic numbers that seem increasingly out of date. And while it's not all Nate Silver's fault, this kind of sneering bullshit is what drives people away from politics. It drives away exactly the people you need: people who irrationally believe in your political project, and will sacrifice for its success. It points away from leadership and towards management. It undermines coalitions by making it obvious they are only ever conveniences. It is bad politics.
TLDR: Nate Silver thinks 70 is a good retirement age for Sotomayor because we might not see a Democratic Senate Majority again for a while, but if we can't get a D Senate for 16 more years, what's the point anyway?
What do you mean by this? I thought Trump just executed the Sailor strategy and appealed to the neglected Republican base. He might not have thought about it mathematically, he's a great politician by instinct rather than calculation... but in principle a calculator could've done that and concluded that was the way to go. Are you saying a calculating politician couldn't have appealed the way Trump did, he needed to be a true believer? I don't think Trump believes in anything apart from Trump, he has sincere aesthetic beliefs and style yet will do whatever seems easiest decision-to-decision. Consider all the swamp creatures he appointed.
I don't think he even did that (at least not in the general - I think the case that he successfully executed a Sailer-like strategy in the primary is quite strong, but Steve Sailer presented the strategy as a way for Republicans to beat Democrats, not each other). Trump was the second least popular major-party Presidential candidate in my lifetime, and Hilary was the least popular. Even so, Trump only won because Hilary's e-mails turned up on her secretary's kiddie-fiddling husband's laptop shortly before polling day. It is reasonably clear from the opinion polling that either candidate could have walked the 2016 election by putting up an empty suit.
No. If the Republicans ran an empty suit, the white working class remains Democratic, the rest of Trump's base largely stays home, the "blue wall" is not broken and Hillary wins in a walkover. If the Democrats ran an empty suit, possibly opposition to Trump would put them over the top, but the Republicans didn't have that option.
Older whites with below-average education are now the core right-wing constituency in every historically-white democracy, and hatred for people like Hilary Clinton is a large part of the reason they got that way. In the US, non-College whites started swinging to Republicans as soon as Obama was elected. Taking advantage of a pre-existing trend is exactly the sort of thing empty suits are good at.
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Trump had the courage to engage and lead on the issues. Discourse on free trade agreements has changed completely from 2015 to today. Discourse on Russia and the support for Forever Wars has all but flipped partisan valence. Polling of the public, and the positions publicly espoused by Republican political candidates, have changed as a result of Trump's leadership on the issues.
I think it is incumbent to pretend to be a true believer in public. Trump's supporters believe that he is a believer, that is enough. If a leader is perceived as cynical, think Mitch McConnell, it is difficult to push public opinion.
We can debate what kind of costly signals are sufficient to reach a point where True Believer vs Extra Savvy Counterfeit become indistinguishable. When the young aristocracy physically fight and die in Flanders, it sort of doesn't matter if they're doing it "cynically" for credibility or honestly for patriotism. There's a broad perception among Trump's supporters that he has suffered for his beliefs, that he could have had an easier time of it personally if he had changed his view, and I do think that is important in terms of his ability to move public opinion.
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This line highlights the specific reason Trump was able to demolish the Republican establishment in a way no others have succeeded in: Trump does not actually wish to live life as a politician. The glad handing, the genuflecting, the influence peddling... all of that escapes Trumps attention, largely because he's too stupid to realize thats what being a politician is about. The calculating politicians do not want to really do work, they want the recognition and the lifestyle accorded to a politician. Trump has partially upended the dynamic since the swamp toadies make the pilgrimage to Mar-A-Lago, but none of these mutants (including Trump) are invited to the junkets and receptions that characterize the real social calendar that a politician cares about.
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The elephant in the room is the late Ruth Bader Ginsburg. I think everyone pretty much agrees that she hung on way too long, and her replacement ended up being Amy Coney Barrett, recipient of some of the nastiest attempts at mud-flinging since Brett Kavanaugh.
Sotormayor is 70 which in itself is not that old, but she is also a diabetic with allegedly poor health. The problem foreseen here is that she either dies or has to retire due to that poor health, which means - who gets to pick her successor?
The new presidential election is going to be held in June. If Biden wins re-election, great, she can drop off the perch the day after he's sworn in and they'll appoint a replacement like they did with Ketanji Brown Jackson (any opinions on how she's doing, as an aside? I was hearing prognostications of 'she'll be terrible/she'll be wonderful' but what's the view now?).
But if Trump wins, which is a possibility, then he's going to appoint another Catholic Theocrat Cultist (ahem) to tighten the grip on the Court of the Conservative Papist Menace.
So that's why the calls for her to not emulate Ruth and for the love of DEI, jump before she's pushed so Biden can get the reliable liberal justice the nation needs.
Pardon me while I smile. No, pardon me while I smirk like the Cheshire Cat. The amount of oleaginous gloating I saw on Tumblr when Sinema was elected and sworn in (by Pence) - she's bi! she's a Dem! she's liberal! Old Torture The Gays must hate her, look at his face in this photo!
And now the see-saw has gone to the other extreme, and she's a demon, a traitor who should be kicked out, all because she hasn't been the 200% rainbow flag waving on every cause that the children were hoping to get 😁
I understand why Manchin does what he does, and he's a canny politician. That Sinema is now Cruella deVille, seemingly, in the eyes of those who were all "yaas Mommy!" on her election just makes me laugh even harder.
Whenever the Motte discusses a court case, a few people always make sure to drop a note about how she's not very impressive and/or a partisan hack. So I assume she's doing more or less the same thing as every other justice.
For what it's worth, I felt the same way about Barrett, mostly on the weirdness of her concurrence in the Colorado judgment. Looking back on other opinions, though, she seems perfectly fine. Kavanaugh's been a pleasant surprise too. Turns out even getting consideration for the top job in the profession is a pretty good filter.
I was wondering, because of all the controversy around "She's only an AA pick", how she would turn out in the job when she got the chance to do it. So neither terribly bad nor terribly good? That's good enough!
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November 5th, actually. The last of the presidential primaries are in June.
Thanks, I did think November at first but wasn't sure. Should have gone with it! But even if there isn't a likelihood of Sotomayor having to retire due to ill-health in the next eight+ months, and even if Biden wins a second term, I think there is enough reason to be concerned that if her health is bad, she may have to retire soon anyway even into a second term, and planning for that is not a bad idea.
Mostly I think it's coming from people pissed-off about Kavanaugh, Bader Ginsburg, Barrett and the astounding decision on abortion, and they're over-compensating for "what if the evil wicked fascists win by a fluke this time again?"
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I think that Nate Silver’s approach is correct, though like you, I don’t think his math is right. Probability modeling is just simply more accurate than gut feelings. Or as Ben Shapiro likes to say “facts don’t care about your feelings.” And this is something the left especially has missed quite often. In fact they missed out on putting a liberal on the bench because RBG didn’t retire with a Dem majority.
And if the polling data is showing that Biden loses in 2024, you’re talking about minimum 2029 before we could replace a justice with a liberal judge. If Trum does really good, he might win in 2028 thus making the next replacement window at 2033. That puts her at near 80.
Trump can't win in 2028, he can only serve two terms. I also have doubts he could successfully appoint a successor, his political success is too married to him personally.
My understanding is that he can’t serve more than two consecutive terms. Since Theresa gap, he gets two more.
No, there is a hard limit of 10 years, which is two and a half terms. If you as Vice President got the promotion in the first half of your predecessor's term, you are only eligible for one more full term. If you got the promotion in the second half, you're eligible for two more. Lapses do not reset the clock.
This is the rule for the President specifically--the governorships of various states have a variety of different rules, some of which do include a limit on consecutive terms, where a lapse can reset the clock.
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I bet he runs in 2028. Perhaps it’s officially Donny Jr. But the old man is the one giving the stump speeches.
He'll be 82. There's a very good chance he'll be dead or otherwise incapable. Look at how fast Biden seems to have gone downhill - he seemed completely fine when he was VP during Obama's presidency. It can go quickly at this age.
With the right cybernetic chair and daily sacrifices he'll be fine.
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I find Nate's arguments pretty compelling here, assuming you actually want woke democrats on the Supreme Court, which I don't. But setting aside my personal feelings on the matter, he's basically correct.
Your arguments can basically be boiled down to the following:
The first argument is the strongest, but it only has a marginal impact. The respect of judicial rigor that comes tenure is non-negligible. Further, other people in the thread added to the point that more senior justices get selected first to write opinions. But neither of these are that important. Even if they nominate Dumbo McGee, they're still locking down a lifetime appointment in one of the most consequential positions in America and the world. As a counterexample, Anthony Kennedy had pretty terrible reasoning in many of his opinions, but he was ultra-powerful by virtue of being a swing justice. So while you're making a good point, it'd be a lot stronger if you had some evidence of how much it actually matters in practice.
The second argument is just goofy. The senate has a heavy bias towards rural states, and it's been a minor miracle that Dems have remained competitive thus far, but as blue senators in red states retire or are defeated the bias will become undeniable. Nate has argued many times that Dems should stop pandering to the woke crazies, but he doesn't control the entire Democratic party. Abandoning positions will always come with a ton of pushback and there's no guarantee others will be on board, and the Dems would need to cut extremely deep to appeal to rural conservatives. The "tanking" argument doesn't hold a lot of water since there's a big difference between a 9-0 conservative majority vs a 5-4 conservative majority, just like how there'd be a huge difference between a 51-49 senate split vs a 100-0 split. Doing an end-run around the SCOTUS would be far, far harder than just fighting tactically for a justice now. Dems might end up uncompetitive in the senate in the long run, but they can still delay that for a bit.
The third argument is disproven by Ketanji Brown Jackson, who was recently confirmed in the same environment that a replacement for Sotomayor would face. Jackson is a female equivalent of Ibram Kendi, so no, I don't think the Dem pick would be guaranteed to be some moderate.
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I’m going to push back- everything predictable tells us that the optimal game theoretic move for dem policy priorities would be for sotomayor to resign right now. The DNC is weak in the senate and probably performing at or slightly above their ceiling right now, but manchin and tester and brown all vote for dem judicial nominees in a way their replacements, almost certainly republicans, most assuredly will not. And sixteen years is an average, not a hard rule- there’s a good chance of living less than that. Democrats shouldn’t count on being able to fix their heartland problem and our next president will probably be trump.
I also think dem justices are basically interchangeable- the current fashion is low talent partisan hacks like KJB.
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I don't know enough about the American legal system, until it's my headache, but how much does seniority matter in the SC?
Are the new "young" judges put on the back bench (metaphorically)? My understanding is that they're all nominally equal, so what does it take for one to establish themselves like Thomas did and get taken seriously. How much does their opinion matter, and how is that sausage made?
The other responses you've got are mostly correct, but I'll elaborate on a few points. I've written a bit about the process before here.
@VoxelVexillologist is correct to point out Roberts' automatic seniority as Chief and its consequences, but the case is complicated by the fact that the right-ish portion of the Court has six Justices, not five. Roberts is certainly inclined to write more moderately than Alito, but if he writes too moderately, Thomas/Alito/Gorsuch/Kavanaugh/Barrett can form a majority without him. Dobbs is an exceptionally high-profile example of exactly that.
Recusal is more of an issue for a new Justice, but still pretty rare unless the new Justice was a very recent Solicitor General (or other high-ranking member of the Justice Department, including the AG). The Solicitor General is the number two guy at Justice and has the special responsibility of representing the US in court--he usually does so personally before the Supreme Court, and delegates to staff in lesser cases--so he'll often be involved in litigation strategy of multiple cases that later appear before the Supreme Court.
Each Justice has exactly one vote. The way any given Justice may punch above or below his weight is based entirely on his personal relationships with the other Justices (this is much more likely to be a negative factor; you don't get to the Supreme Court with a weak ego) and the persuasiveness of his arguments, most often in writing. My personal guess is that Thomas, Kavanaugh, and Barrett are very slightly more advantageously placed than average, and Roberts and Jackson are slightly less than average.
@pigeonburger is right about how the majority opinion of the Court is initially assigned, but not the dissents. All dissents and concurrences are not assigned; they are written by any Justice who chooses to do extra writing. There was a recent case where Kagan registered her dissenting vote on the outcome, but neither wrote a dissent herself nor joined another opinion, so her exact reasoning is unknown. This is perfectly valid; it's just much more common that Justices are inclined to explain themselves, both to their colleagues and to posterity.
One point often missed is that in a given Term--and indeed, in each month--every Justice writes as close as possible to exactly the same number of majority opinions. This may seem unintuitive, but remember that the most common voting outcome in any given case has always been 9-0, and still is. Naturally, the more conservative Justices will be more likely to write for the majority in controversial decisions today, but that just means that Kagan, Sotomayor, and Jackson are more likely to be assigned the 8-1 or 9-0 cases. This practise is intended to make sure that each chambers is carrying its weight in terms of the essential work of the Court. As I said above, though, dissents and concurrences do not factor into load-balancing--those opinions are entirely discretionary on a Justice-by-Justice basis, and are purely extra work.
I appreciate the exhaustive overview!
Do dissents carry any weight as legal precedent, or the rare instances where a new Supreme Court overturns the established precedent intentionally?
Both dissents and (except in unusual cases[1]) concurrences have zero legal weight as precedent, though this needs a little further unpacking.
Formally, the Opinion of the Court is binding on lower courts, and is precedent to be followed or rejected by future Supreme Courts. The wiggle room is that a lower court may argue that an existing Supreme Court decision is distinguishable from the current case because of [reasons]; that explanation may vary wildly in ingenuousness. The Supreme Court has a fancy legal doctrine called stare decisis, which means that it's more important to be consistent than correct, though some Justices (Roberts) are bigger fans of the doctrine than others (Thomas).
Every opinion of any type can affect future legal development to the extent that the arguments therein are persuasive to future Courts. If a Court decides that a prior decision was in error, it may overturn the precedent by a simple majority, just like every other decision. Often, the dissents in the original case may provide the rationale for a later reversal, though the Court tends to change its institutional mind by individual retirement and replacement, rather than a particular Justice reversing his earlier opinion (though that too has happened).
Also, there is no formal difference between a 9-0 decision and a 5-4 decision. Both carry the full authority of the Court, so a 5-4 decision may overturn a 9-0, hypothetically. Informally, though, every judge can do the most basic of math and realize that a 9-0 decision is less likely to be overturned in a future case than a 5-4.
[1] You can have a situation where the Court splits 4-2-3 or the like on a given case, where the 4 and the 2 may agree on the outcome of a case (and the 3 disagrees), but they do not agree on a reasoning. The case would be resolved as a 6-3 decision as to the outcome, but with no reasoning, as no opinion carried a majority. That said, the lower courts would treat the 4 opinion as a strong hint, since it's the closest to a majority, even though the logic is not formally binding. The Justices try to avoid this outcome, if possible.
Marks v. United States:
That generally would be the two-justice opinion.
It might be, but not necessarily. In my example, it's impossible to tell, because I didn't assign rationales to any of the positions, so the two-Justice opinion might be broader or narrower than the four-Justice opinion. "Narrowest grounds" means in context 'the opinion that would control in the fewest potential future cases.' Via your link, Memoires, the earlier case referenced in Marks, was an example of a two-Justice expansive opinion added to a three-Justice narrower opinion to form a five-Justice majority (plus Stewart writing for himself to make six), and Marks indicates through your quoted language that the narrower three-Justice opinion is controlling.
You're correct that my "but with no reasoning" was in error, though, and thanks for the correction.
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Formally, I believe the task of writing the decisions is given out by the chief justice (if in the majority) or the most senior justice. I've seen some suggest that Roberts keeps some of the potentially-spicier cases for himself and writes more moderately than, say, Alito would. There are also fairly often cases where a new justice has to recuse themselves because they either previously judged the case on a lower court, or sometimes argued for one side. Neither of those is a particularly large concern, I would think. Their opinions are, to my knowledge, formally given equal weight otherwise.
I don't know about informally, where I suspect it matters for at least some time for a new justice.
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Americans can correct me if I'm wrong but from what I hear, their votes are worth the same. Seniority matters as to who decides who gets to write opinions. The most senior member of the majority (which is automatically the chief justice if he is in the majority) assigns redaction of the opinion to one of the members of the majority. Same happens for the dissenting opinion (most senior judge in the dissent, automatically the chief justice if he is dissenting with the majority, choses who writes the opinion).
So seniority is important, but not THAT important. What does matter though is that their opinion is taken into serious consideration by other judges. Ideally, a judge to the Supreme Court should never be a blindly partisan hack, but in practice it can (very charitably) said that they are at least preselected for an extreme adherence to one school of thought with regard to how flexible the Constitution should be. But a particularly eloquent opinion might be able to sway swing votes or even peel off a justice or two from the other bloc, so experience and quality as a justice matters.
The reasoning in opinions also impact law students. Scalia’s textualism became much more pronounced when lawyers who read his opinions in law school came to dominate the practice.
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This post generally makes sense, but I think you're overestimating Sotomayor's health. She's had paramedics called for diabetic episodes before, and from the claims of some of her former clerks she doesn't do the best job of controlling her blood sugar levels. We can't know anything for sure about this, of course, and apparently she travels with a medic, but "top-tier medical care" only works if you comply with it properly...
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If Sotomayor is as strong a justice as Scalia, then yes, your argument holds and Democrats should keep her on the court. Scalia had a high VORP.
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Ok I’m going to stop reading right here.
We’re not talking a “few years.” We’re talking potential decades if the replacement is 40-50 years old.
Sotomayor, or basically anyone, does not have value above replacement relative to that risk, when losing a seat means a consistent structural imbalance against your side.
You’re the one being short-sighted here with a fairly wrong take on the “great justice theory of legal history.”
I only skimmed the rest.
Did you not mention RBG even once?
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They can just wait until after the election and usher in a replacement in lame-duck session if it turns out badly for the Democrats.
The counter argument is that jamming up Senate proceedings is Mitch McConnell's defining political skill.
The Republicans are in the minority.
Manchin has said that he won't vote to confirm anyone that doesn't get at least one Republican.
Faced with the choice of getting another Trump appointee, he'd cave. Besides, the Democrats have a 51-49 advantage plus the VP; they can lose one vote.
(Yeah, three "independents", all of whom caucus with the Democrats)
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The big flaw imo with "right side of history" thinking is not that parties don't generally think they're right, it's with the assumption that things will work out eventually (somehow). It's not defeatism or a rejection of your belief in your answers to be pragmatic or to hedge your bets.
Yes, this is the sort of advice I'd expect the GOP to give Democrats.
This was also "Notorious RBG's" argument - she may have even been right. But, at this point, even the most fervent pussyhat-wearers have begrudgingly admitted that she erred. In isolation this argument works I guess but not if the comparison is with a potential Republican pick. Certainly not for Nate Silver's audience.
After all the nasty partisan fighting over Kavanaugh and Barrett, wouldn't a milquetoast moderate not offensive to either side be a nice change?
Kavanaugh was and is a milquetoast moderate. The Democrats just didn't want someone leaning right. That's why his hearings were about boofing and wild claims about decades-ago sexual misconduct rather than how he'd be as a justice.
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In her case I think the truth is she expected Hilary to win and wanted the first woman President to appoint her replacement. It'd have made for a better story.
I would also add that Scalia and RGB actually did seem like high Value Over Replacement Justices, much more influential than the other justices of their team on the court, whereas Sotomayor does not seem to be. So I'd say that I think RGB might have even been correct to hold on because of her intrinsic value, but Sotomayor would be more valuable to her team by gaming the retirement to ensure her seat is a permeant Dem possession no matter how elections go.
I'd also say THAT is probably the main argument against overly strategic retirements. If that Chesterton's Fence gets knocked down then the composition of the court gets locked in to whatever it is now unless one party can get a seriously long string of victories to wait the justices out or the justices suffer untimely sudden deaths (RGB was a cancer survivor and might have seen it coming and planned ahead, Scalia's death seemed out of left field). And if the only way the composition changes is untimely justice death that sets up a mighty strong incentive for assassinations.
He was a 79-year-old portly guy - actuarial tables are what they are and you're basically rolling a d20 to save against death every year at that point, even if there's nothing in particular wrong with you.
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I've seen that said but I can't actually find her stating it in response to Obama's light pressure.
She was asked to resign before the 2014 midterms , I doubt she was defending not doing so by saying she'd wait for the allegedly inevitable next Democratic president. I think the above take might have been cope after they lost the Senate and it was clear the GOP wouldn't confirm anyone.
I think people like her honestly just don't want to retire and the rest is just posthoc rationalization. Look at people like Feinstein.
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I agree with so much of this, but want to offer one piece of gentle pushback - there's an old sports axiom that you shouldn't do the thing that your opponents want you to do. Don't punt on 4th and 1, don't pitch to Barry Bonds, don't take a race out slow against Mo Farah, don't swang and bang with Derrick Lewis. I'm someone that absolutely despises Sotomayor and the view that the Constitution should be highly malleable to current-year preferences, and what I want is absolutely for her to keep her seat for the moment. This is my preference for purely strategic reasons - if she stays, she may well die and be replaced by someone that views the law much more like I do. If she retires now, it'll be an incredibly stupid spectacle with people insisting that we need another Wise Latinatm and it'll probably be some crank for the Ninth Circuit or something. Regardless of whether you take a Moneyball approach or a trad gut-feel approach, you should generally not give your opponents what they want.
For me, the best argument for her not retiring cynically would be that the goal should not be to game the institutions and that you should stand on the business of insisting that this type of institutionalism should be taken seriously. The problem there is that the left already views the right as having defected from that equilibrium by refusing to confirm Garland and then replacing Ginsberg almost immediately on death.
Your argument for the growth and influence of justices over time makes sense, but the problem really does come down to the object-level justice in question - it doesn't seem like anyone, left or right, sincerely believes that Sotomayor is an intellectual giant that's going to change hearts and minds. I'm sure there's a spin on this from her fans, that it's just that her detractors are a bunch of stupid racists, but it doesn't seem like there's any real disagreement that she's never going to be treated like an important intellectual figure in shaping future courts. This argument would work much better for Kagan, who generally is treated as a serious and influential colleague with incisive perspective by both friends and foes.
I found the perfect metaphor for this scenario after yesterday: the Falcons drafting Michael Penix Jr. 8th overall, after signing Kirk Cousins for huge money in the offseason. All the possible outcomes are bad scenarios for the Falcons. If Cousins is good, Penix never plays, and they wasted the 8th pick, with which there is no question they could have drafted someone at 8 who could help Cousins win. If Cousins isn't good, and Penix actually plays, then they've wasted $45mm/yr for the years they should be benefitting from the cheap Rookie QB contract, undermining the team they could build around Penix if he's good enough to get picked 8 overall.
It's possible that this all plays out fine, and the Falcons are good despite it. Like the Niners and Trey Lance. But they're betting against themselves somewhere. They're either spending $45mm/yr because they're worried they might whiff on the 8th overall pick. Or they spent the 8th overall pick because they were worried they have whiffed on the massive free agent QB contract. The scenarios where things actually work are worse than they would be otherwise.
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Funnily enough, inasmuch as my preference is originalism, I'd expect the Dems to fumble this one and end up with a mediocre judge on the court at best. But looking at that pseudo-majority they're running out there, if I were a Dem I'd be certain that we'd end up handing Trump another pick.
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I think this analysis has a fatal flaw in it. Sotomayor is an affirmative action appointment and hence her ability is no greater than a generic democrat. If Sotomayor was essentially Michael Jordan than all the arguments for keeping her on the bench would be in play. But she’s basically Javale McGee and a replacement level justice.
It’s definitely an interesting thought experience that it can be beneficial to keep a justice on the court but I can’t agree with the actionable part of it and basically view Sotomayor as low IQ (relatively) without the talent to be great.
@ThenElection
This is why I brought up the example of Clarence Thomas, the single most obvious Affirmative Action appointment in the history of the Court, who has developed significantly over the course of his career. Conservatives are much more likely to cite Thomas' concurrences today than they were in 2002, when even Originalists joked that he was Scalia's sidekick.
I spent most of law school hearing obnoxious liberals (mostly white) talking about how dumb Thomas was; the fact is that he is probably smarter than most. Even the AA SCOTUS appointments are really smart people! ((One of the things that's so offensive about open AA is that it undermines the credentials of what are, factually, very accomplished people)) Maybe they're top 1% lawyers rather than top 50 lawyers, but they're smarter than the vast majority of the people criticizing them for being dumb. She might not be putting out top tier stuff at any given time, but she could grow into the role, like Thomas did.
I'm reminded of the Twitter discourse after the Oakland v Kentucky game this March, when a million people made jokes about Jack Gohlke being white and a future car salesman. And it just struck me as so distasteful for black twitter users who are probably fat and out of shape to mock a guy for being merely a top 3000 basketball player in the world instead of a top 200 player who belongs in the NBA.
I happen to like Sotomayor on a personal basis, in that I think it's hilarious that she'll go to Yankees games and sit in the Judge's Chambers. She's far from my least favorite justice, coming in above Kavanaugh, KBJ, and I still hate Kennedy enough to make up for the fact that he isn't actually on the court anymore.
Thomas is great.
Why do you prefer Sotomayor to those judges? She's the one who's most obviously motivated by politics, usually, I think.
Kavanaugh: I hate that he has literally never had a job. In his bio he has no job he's ever had that wasn't either judicial or political. He's never argued a case in court or had a client. Judicial jobs, even as clerks, are rarefied air: everyone treats you with deference. He worked briefly in an "of counsel" position at a law firm, and it's not clear he ever did anything there, literally he couldn't give a good answer when asked. I also find him to be a bit of a government stooge, in regret over his role with Starr he finds the President to be immune from just about everything.
KBJ: I don't like how she was nominated, and haven't seen anything to change my mind as of yet.
Kennedy: Absolute nightmare of a Justice. Obergefell will go down with Dred Scott on the list of universally reviled precedents, if the current structure of the Court even survives the results of Obergefell. The number of ways the fake-test he created in Obergefell can and will be twisted by future Justices has the potential to undermine the constitution completely. The only positive way I can skew his opinion is that he wanted so badly to protect Gay Rights that he ensconced them into a framework that will allow a conservative court to protect other rights that they care about more than they care about gay marriage.
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This is one of those things that actually playing any sport at all really shifts your perspective on. Guys that are D1 scrubs are still really, really good at their sport. Guys that are capable of having one shining moment on the biggest stage of their sport in college are a whole other level.
As it fits with the Supreme Court, I've had this argument with a few conservative friends that think KBJ is "stupid" because she's an affirmative action appointment and couldn't answer the "what is a woman?" question cogently. They're wrong, just plain wrong. I could give a lengthy rant on how much I dislike her, how utterly dishonest I think her jurisprudence is, and what a mistake I think it is to explicitly promise a SCOTUS seat to a demographic group, but it remains true that if you listen to an oral argument that she's participating in, she's obviously a smart person. Listening to the recent Missouri v Murthy case made me genuinely angry, but it wasn't like Jackson was struggling to keep up with the conversation or doesn't understand the relevant law - she's just wrong. As off-brand as it is for me, I am inclined to think that insistence that she's actually stupid has quite a bit of racism built into.
KBJ is still "young", a prospect of sorts. One of those, "She needs some refinement to bring her play up to the level of wily, consistent veterans, but she shows flashes of potential greatness," situations.
Whereas with Sotomayor, I think we pretty much know what she is. I would submit that the Thomas Revolution was less about Thomas changing/growing and more just about how people viewed his work. Lots of folks were so focused on Scalia during his life and just thought Thomas could never live up. It wasn't until Scalia passed that they re-evaluated. I don't think Sotomayor is suffering from that. Perhaps a bit of a Kagan effect, but I would find it quite difficult to imagine someone sitting down now, putting their hypothetical brain to work, removing Kagan from the picture, thinking hard about what Sotomayor's core contribution is, and coming up with a great argument that it is something that can be rallied around to really deliver. KBJ totally could.
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Didn't she confuse de facto and de jure?
https://twitter.com/RogerSeverino_/status/1587611399668342790
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I will give you Thomas. Though part of Thomas is he’s great at pissing off the left and it’s not only thru legal reasoning but being a player in the federalist society and his wife being intimately involved in 1/6.
More likely than not at this point though Sotomayor is who she is. I think the left could make a strong case for replacing her on her merits alone and not her age. If you have 3 SC justices I don’t think you can claim she is one of your top 3 liberal legal minds. If you are going to lose a lot of cases it still makes sense to have your best writing you le disagreements.
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Side note but I loved Shaqing a fool love affair with Javaleeeeee McGeeeee
I spent a few minutes trying to come up with a replacement level athlete with name notoriety. Got excited when he hit me.
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Considering some of his recent statements, maybe Nate believes that the Democrats have got off the deep end, and are dragging the country in the same direction. From that perspective, a republican supreme court can help avoid some of that, or at least won't contribute to it, while Democrat supreme court would end the first amendment for example, and implement a woke partisan agenda.
So you’re saying Silver, who thinks the MAGA GOP is even more insane, is purposely giving bad advice so that Dems in fact lose even more seats on the court?
The Republican judges have much more leash compared to the dem judges.
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