an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I note that 86-year-old Sen. Frank Lautenberg has just been diagnosed with stomach cancer. I wish him a rapid recovery, not least, I confess, because the Governor of New Jersey is now a Republican who would, I assume, not hesitate a second before appointing a Republican to fill his seat should the worst happen. (He ran for re-election in 2008 and received 56 of the vote from New Jerseyites grateful for his long and honorable service.) There is also a report that the geniuses in the White House, led, no doubt, by Rahm Emanuel, offered Rep. Joe Sestak a job to induce him to drop his challenge in Pennsylvania to now- Democrat Arlen Specter, who turned 80 on February 12 and who has had a variety of serious diseases in his 70s. And, of course, there is also Sen. Robert Byrd of West Virginia, who is 92 and frail. He was re-elected with almost 2/3 of the vote in 2006. Senator Byrd is the President pro Tem of the Senate, which means, under our lunatic Succession in Office Act, that he is third in line to succeed to the Presidency behind Vice President Biden and Speaker of the House Nancy Pelosi. No serious country would take such a risk, but, then, it's been long established that we're simply not a serious country when it comes to some very basic issues of governmental design.
But enough of attacking the Constitution and statutes like the Succession in Office Act. I want to attack narcissitic senators (assuming that's not simply a redundant phrase) who are unable to hang it up. Whether or not the Constitution should establish age limits on holding public office--we could also discuss Justice John Paul Stevens, obviously--is something reasonable people can certainly disagree about. But, equally obviously, we do depend on what Madison and his 18th century friends called "virtue," i.e., an internal compass and sense of self-restraint to know when the public good requires stepping down and letting other (and younger) citizens take over. Must we really pretend that age is irrelevant and that 80 is the new 50? No doubt there are inspiring exceptions, such as the late Sam Beer, who at 90 had a mind I would trade for straight up. But, of course, he really was exceptional, and that is the point.
I know very little about New Jersey politics, though I lived in Princeton for four years, but I find it hard to believe that the Garden State lacked any attractive Democrat who might have proved a capable successor to the then 84-year-old Sen. Lautenberg in 2008. With regard to Specter, I think it is over-determined that it's time for him to go. Why the White House is so determined to pander to this backboneless narcissist (who voted for the MCA while stating that it was unconstitutional because the then-Republican Sen. Specter wanted to keep his Committee Chairmanship) is beyond me. Sestak strikes me as an able public servant who would bring some new perspectives to the Senate--he is, among other things, a former admiral, I believe, and, with Sen. Webb, could take on the hysterical and fear-mongering. (If this post were only on the White House enablement of narcissistic senators, without attention to age, one might ask why President Obama is so insistent that Sen. Kirsten Gillibrand have no opposition in the Democratic primary in New York.)
Perhaps in another post I'll confront the issue of university professors, the only other people in our society, save for self-employed persons and owners of family businesses, who have "full-life" tenure. But, surely, no law professor, however narcissistic, is capable of doing anywhere near the harm to the Republic as narcissistic senators.
Sen. Frank Lautenberg came in late in the game when the original candidate dropped out. As I recall, he said he would just be there one term, and this was said to be one reason he was outspoken. But, such are the ways of egotism.
If it came to it, Byrd would decline, given he obviously is unfit for the job, and it would shift to Pelosi. Maybe wrong, but seems he has that much "virtue" left.
But, though it is a factor, age is not the only thing at stake here. Douglas lingered on in his 70s and people have strokes and such in their 60s or before. And, other ailments.
Seems for some in this discussion the better question is term limits. Or, a sort of 25A for justices, like lower judges can be found unfit by the judicial commission in charge of that.
[Though it would never do it, the Senate has the power to expel physically unfit members, of course. Some sort of rule of minimum activity would be a good idea.]
Lack of virtue will taint anything, though the Constitution was written in a way to try to deal with some human failings. So, it's not just politics. Some of both.
Long, perhaps, but as the author of the "Lautenburg amendment", an ex post facto enactment which stripped a large part of the population of a basic civil liberty on the basis of long ago misdemeanor guilty pleas, not particularly honorable. Particularly given the way it was snuck into one of those massive omnibus bills, and voted on while the leadership were lying about it's existence.
As a cancer patient, though, I do have some sympathy for him. The poor chap should retire, and devote himself to getting well, or at least spending precious time with his family. I certainly would, if I had anything remotely resembling his retirement benefits.
Clearly the suggestion is that it's narcissistic to hang on to the job even as your health declines and you age into senility; It suggests that you think you're somehow essential, that nobody else could do the job.
It seems clear that since Sandy's references to "narcissistic senators" is to current senators, mls' assumption seems correct.
I assume that mls was attempting to be snarky, perhaps suggesting that Sandy might be a "narcissistic law professor," apparently unwilling to await a possible future post by Sandy on university professors.
But perhaps mls is indirectly challenging Sandy's closing sentence:
"But, surely, no law professor, however narcissistic, is capable of doing anywhere near the harm to the Republic as narcissistic senators."
If this post was just about narcissistic senators, I don't think talking about Sen. Gillibrand specifically would be too useful except as an indirect mention of Sen. Schumer, perhaps, who is in effect her sponsor.
I don't see Gillibrand as a great example of narcissism. I also don't think she has the clout to ask for any special treatment. Furthermore, she is showing signs of going out and appealing to the public, even having an openness policy to promote this.
Likewise, her efforts on policy, including DADT and the public option, show someone who is actively trying to go some good, even if you don't accept her policies.
I'm sure if the President is going to pressure people not to run against her, perhaps out of fear of messy political infighting, as a politician she -- like most -- won't say "no no!" Still, though I realize you don't like her past legal work (though others on that thread disputed some of your conclusions), she's not a great target in my eyes.
With regard to Specter, I think it is over-determined that it's time for him to go. Why the White House is so determined to pander to this backboneless narcissist (who voted for the MCA while stating that it was unconstitutional because the then-Republican Sen. Specter wanted to keep his Committee Chairmanship) is beyond me.
Specter jumped to the Dems because his constituents were about ready to run him out in the GOP primary. Any chance of encouraging future center left GOP defections will not be helped if the Dems immediately run him out in their own primary for being insufficiently left. They hope two women in Maine are watching.
It's possible that older senators are making informed decisions that balance the negatives of their declining capacities against the positives of their experience, their staffs, their clout, and their electability.
Other party leaders weigh those pros and cons as well, which is why older folks are often taken aside before the primaries and eased into retirement. But Robert Byrd is a better occupant of that senate seat than his Republican equivalent (and actually, for all his semi-senility he's remained a powerful, useful bridge between progressives and moderates in a way that Jay Rockefeller couldn't touch).