Balkinization  

Thursday, May 19, 2011

Goodwin Liu and Supreme Court Vacancies

Jason Mazzone

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.

Home