Balkinization  

Thursday, May 19, 2011

Jason Mazzone is wrong

Sandy Levinson

My colleague in blogging doesn't take comments, so I must register my opposition to his new post this way. Begin with his last comment. There is no plausible argument that getting 52 votes in favor of cloture counts as a negative vote on the merits. The Senate Republicans are committed to the proposition that they will do "whatever it takes" to deny President Obama any victories whatsoever. (They are seriously willing to contemplate a default of American financial commitments should Obama not raise the white flag of surrender with regard to the maintenance of the American welfare state.) Only Lisa Murkowski, who had been thrown overborad by Mitch McConnell and his merry band during last year's election in Alaska, had the integrity to stick with what used to be the Republican position--i.e., that a president's nominee deserved an up-or-down vote. It is dismaying in the extreme to see Prof. Mazzone buying into a truly pernicious Republican argument that Goodwin Liu is unqualified to be a federal judge.

Moreover, he is totally incorrect that there is anything "crass" in pointing to the fact that both Justices Ginsburg and Breyer have had long and distinguished careers on the federal bench, but that all careers should come to an end. Were they members of a state court other than the Rhode Island Supreme Court, they would find themselves forced out because of age limits (as would Antonin Scalia and Anthony Kennedy, by the way). What's wrong with that? Both Steve Calabresi and I (and many others) support 18-year-term limits for Supreme Court justices. Justice Ginsburg is serving her 18th year; Justice Breyer will reach that next year. What, exactly, is the benefit to the United States of America of having "true life" tenure?

But, of course, the call for their stepping down has nothing to do with the wisdom or unwisdom of life tenure per se. There is also the reality, which Prof. Mazzone seems to want to ignore, that appointments to the feeral judiciary are saturated in politics. Presumably, both Justices Ginsburg and Breyer care deeply about the mistaken path the majority of their colleagues are systematically embarked on. Why shouldn't we ask them to leave the Court when somebody who presumably shares their own constitutional vision would be naming their replacements? That Justices Ginsburg and Breyer may be "productive" is truly beside the point. Each can "produce," as former Justice O'Connor is currently doing, by serving as a visiting judge on various circuit courts, as well as by engaging in a variety of civic activities. Why should their own desire to remain on the Court impose on the entire country the risk of getting a Republican appointee---something to which Prof. Mazzone seems splendidly indifferent--as against someone that President Obama might nominate? Perhaps the Republicans would block any Obama nominee. But that might even be worth going to the country on.

Enough of "tyranny of the egregious Senate minority," which is what the Liu vote illustrates and which Prof. Mazzone, alas, defends.

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