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
Sen. Lautenberg, Justice Ginsburg, and tenure in office
Today's Times has a story about the consequences of Sen. Frank Lautenberg's prolonged absence from the Senate because of the treatment he is receiving for stomach cancer. He is 89, and one might suggest, with all due respect to the Senator, that he should simply resign. As it happens, I was teaching the Garrett case this morning, a case I loathe, that turns on Chief Justice Rehnquist's bland declaration that it is, of course, "rational" to discriminate against the disabled and, therefore, that Congress was without power under Section 5 of the Fourteenth Amendment to protect the disabled against disrimination by the state. (They could do so under the Commerce Clause, but that wouldn't allow coerced waiver of the vaunted sovereign immunity that allows states to be scofflaws.) As it happens, I agree with Rehnquist that such discrimination is often "rational." Indeed, I was highly critical of his narcissism in remaining on the Court during his last year, when he was receiving treatment for the thyroid cancer that killed him. If one supports the ADA, as I do, it is because "rationality" isn't the end-all-and-be-all and that dignity interests support protection of the disabled against discriminatory treatmentt, including that visited by states in the absence of very good reasons to do so. With regard to both Lautenberg and Rehnquist, incidentally, age most certainly counts. One should be far more accommodating to senators and justices who get ill in their '60s than in their late 70s or 80s. If that violates the federal age discrimination laws, so bit it, because it is really stupid to pretend that age shouldn't count at all in such decisions.
But the desire to protect the disabled (and older people) against routine and often unjustified discrimination doesn't add up to the proposition that we shouldn't expect elderly people with debilitating diseases to know when it is time to retire. Even if one is against compulsory retirement, one can still criticize people for not knowing when the time has come. (Protected discretion to remain on a job or in office does not equal support for every decision to do so, any more than support of the First Amendment requires that one actively support a decision by the Ku Klux Klan to hold a rally, however legally protected it might be.) Lautenberg in fact recognized this by his declaration that he would not run for re-election in 2014, which is surely the wise and correct thing to do. (Perhaps Ruth Ginsburg, who a month ago celebrated her 80th birthday, might consider whether she will end up discrediting her considerable legacy by staying on into the 2014 mid-term elections and the possibility that the Republicans iwll recapture the Senate and, therefore, the power to block, even without filibusters, Obama's judicial nominations, including to the Supreme Court.)
The Times story suggests, no doubt accurately, that one of the factors working against Lautenberg's resignation is the fact that New Jersey Governor Chris Christie would no doubt exercise his right, supported by the original Constitution and the 17th Amendment, to name a Republican as successor. Ironically, the reason so many of us are eager for Ginsburg to say her goodbyes to the Court is a fear that Obama will not get to name her successor. It seems unlikely that Ginsburg is so apolitical as to be indifferent to her successor. Perhaps she's simply overconfident that Hillary Clinton will win in 2016 and thus assure that her seat won't go to someone with radically different views on women's rights. In any event, what ties both together is what might be termed the "politics of succession," as structured by the Constitution.
As a matter of fact, several states (Wyoming, for example) require their governor to appoint a successor from the former senator's own party. Although Vik Amar has argued this limitation is unconstitutional, I disagree (we had a debate about this several years ago in the Hastings Constitutional Law Journal). It seems to me a very sensible accommodation to the reality of the party system. If New Jersey had such a sensible law, then Lautenberg could best serve his country by resigning, whereas in its absence I find myself wishing not only for his good health, but also that he remain in office until, I hope, Corey Booker can succeed him on Jan. 4 (or so), 2015. With regard to Supreme Court appointments, as I have argued before, we'd be better off with fixed single 18-year-terms, which would both temper the narcissism and remove the incentive for judges to hang on until a president from their own party is elected. Posted
by Sandy Levinson [link]
I agree with SL that it is acceptable under the 17A for the legislature, if it allows the executive make an appointment, to require the person appointed is the same party. Did not find Prof. Amar's argument convincing. The 17A might support his conclusion, but doesn't compel it.
Justice Ginsburg very well might time her retirement partially for political reasons, but she could have retired already if that was her only concern. She likes her job and can do it well.
Timing the retirement in '15 also would be convienet for smooth transitions.
It's a dumb point regarding Supreme Court justices. There is nothing inconsistent about being an impartial interpreter of the law (to the extent any judge can be) and resigning for the good of the party.
Mark A. Graber's "The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and the Direction of Judicial Decision Making" is available at:
It's long (57 pages), dense but well written, providing a look at the past of the Supreme Court and where the Court is today. It's sobering. While the paper briefly references originalism and living originalism, that is not its focus. Nor does the paper touch on the changing demographics and how such change may impact on what Graber refers to as the "Yo-Yo."
Perhaps Sandy is aware of this paper. Graber doesn't suggest or even reference the need for a constitutional convention as he lays out his concerns with the current state of the Court and how elections may provide the string for the "Yo-Yo-Mar-ring" of the Constitution. Any thoughts on Graber's paper, Sandy?