E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Last month, liberal commentators proposed that Justice Ginsburg and Justice Breyer retire now so that President Obama can put a Ginsburg-clone and a Breyer-clone on the Supreme Court in advance of the 2012 elections. That proposal struck me as unseemly, crass even. Both Ginsburg and Breyer are active, engaged members of the Court and there is no indication that they are slowing down or under-producing. Today's failed cloture vote on Goodwin Liu's nomination to the Ninth Circuit makes the early retirement proposal also unwise.
Republican senators today showed that they have the organizational skills and the stomach to out-maneuver Democrats and keep judicial nominees from advancing to a final vote. Make no mistake: this was a warm-up for the next Supreme Court nomination. In particular, were Ginsburg, the Court's most liberal justice, to retire at the end of the Court's current term, there is little chance that a nominee with similar leanings would make it through a filibuster. For some, any Obama nominee would be preferable to, say, a Romney nominee. But the uncertainties of 2012 combined with today's show of force by Republicans make predictions about who will end up as the next justices quite uncertain. Those who want a Ginsburg and a Breyer on the Court should after today want Ginsburg and Breyer to stay put.
As for today's vote, the biggest surprise was that there were only 52 votes to overcome the filibuster. Last night, both sides expressed optimism they would prevail but also uncertainty about the numbers. 52 is not 59. In my book, when a nominee can muster only 52 votes to end debate, that is close enough to a defeat on the merits -- and so it's hard for anyone to complain about today's outcome.