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
Abbe Gluck abbe.gluck 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 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My distinguished colleague-in-blogging, Sandy Levinson, says about my earlier post on the Goodwin Liu vote today that I'm wrong.
I'm not ready to agree with that.
Professor Levinson says 52 votes on cloture don't approach a negative vote on the merits and he complains of the "tyranny of the egregious Senate minority" that killed the Liu nomination. While Jack might be right in his assessments of the dynamics of strategic voting, we just don't know in the current climate how many votes Liu would have received on the merits had things gotten to that stage. And while 52 votes on cloture is a majority, to be sure, it is barely so. It's certainly small enough that it should give even supporters of Liu considerable pause.
There are plenty of lawyers qualified to serve as federal judges. (And from my perspective Goodwin Liu is easily among them.) But as between a lawyer who can garner only 52 votes to overcome a rare filibuster and a lawyer who is able to attract wider support--even as few as 60 votes!--I see no reason for preferring the former. Presidential elections do indeed have consequences. But with a closely divided electorate and a closely divided Senate, we should expect more than a vote or two to determine who gets a lifetime appointment as a federal judge. The courts are too important to leave their composition to the outcome of a few Senate races.
And lifetime appointment is the system we have. It is therefore a bit too cute to suggest, as Professor Levinson does, that Ginsburg and Breyer should retire now because they've reached year eighteen--the magic term period Professor Levinson favors. (Why shouldn't they have retired after fifteen years instead?) Like Professor Levinson, I favor term limits for Supreme Court justices. But the main reason I favor term limits is precisely because they greatly limit the ability of justices to strategically time their retirements in order to control who replaces them. I don't think it's proper for a justice to aim for a successor who shares his or her "constitutional vision," as Professor Levinson puts it.
I'm not even sure I want justices to have a "constitutional vision." The role of a justice is to decide each case to the best of his or her ability. And that, as far as I can tell, is what the justices mostly do. Academic commentators have visions and politicians have visions too. But I don't think that one can explain much about how the Supreme Court (or any other court) operates by seeking to understand decisions in terms of the visions the justices hold. Even if a justice has a vision, it's far from clear to me how it translates into deciding any particular case.
Professor Levinson sees judicial confirmations as just another opportunity in our system of government to put in place or shore up one vision of the good life. I don't. Courts are not comprised of political parties. The justices are not on one team or the other. And confirmation outcomes need not track perfectly the election returns.
Rather than push a nominee whose fate will depend upon a few votes here and there, the President should look more broadly. And Ginsburg and Breyer, vision or not, should ignore the calls to step down and continue to do what they were appointed to do.