Saturday, February 20, 2010

Ted Kennedy's (and William Rehnquist's) disservice

Sandy Levinson

Given my comments in my last posting on the narcissism of elderly and ill senators who will simply not retire gracefully, I must regretfully add to the list the late Sen. Edward Kennedy, who I believe to be the greatest single senator of the past century (at least). In many ways, he provided all of us with a model of how to face death with true grace, as did, arguably, Chief Justice William H. Rehnquist, but in both cases, alas, one must also recognize that they should have resigned once it became clear that their illnesses were indeed terminal and that they would be subject to treatment regimens that could not fail to affect their abilities to do the jobs to which they had been elected or appointed.

We actually have a constitutional amendment, the 25th, to take account of presidential disability. But the problem is that it seems to believe, implicitly, that there are no problems posed by similar disabilities on the part of other public officials (including, for that matter, the vice president). This is obviously questionable, even if one can easily agree that presidential disability, especially in a system that includes elements of constitutional dictatorship, poses special problems. As it happens, Paul Carrington and Roger Cramton have taken the lead in drafting a proposal that I was glad to sign that addresses the problems of potential disabilities of members of the Supreme Court.

This is obviously a difficult subject to address. Most of us, happily, do not yet know what it means to face the reality of one's imminent death, and the imagine of "dying with one's boots on" is, I suspect, attractive for most of us. The proposal suggests a legal response to this human, all-too-human situation, but, ultimately, what is required is a sense of personal responsibility (and, perhaps, a family that is willing, at some point, to cease enabling the desire to hang on to the bitter end).

There is, incidentally, one vital difference between the situation facing Sen. Kennedy and the one possibly facing Sen. Lautenberg. Sen. Kennedy would not have worried that a resignation would have inevitably handed his seat to the Republican Party, whereas Sen. Lautenberg is correct to be concerned that this would not be the case in New Jersey. This is a good reason to modify the 17th Amendment to require governors to appoint successors from the political party of the former senator, as is indeed required in several states, including Wyoming. (Obviously, there would be problems in Connecticut and Vermont, where the senators are formally "independent.") As I have argued previously, it is a terrible idea to strip governors of their power to make such appointments at all, given the high desirabililty of replacing senators as soon as possible in case of an attack that would kill or disable a significant number of senators.

Perhaps the contemporary revolt against incumbents will sweep away so many of the "old timers" that the problem will basically vanish (save in the Supreme Court), but, if not, we can look forward to ever more examples of senators whose health necessarily will be of concern to all of us.


I think Kennedy quite arguably provided a measure of inspiration and a rallying point for his party on his signature issue right up to the very end that fairly made up for the deficiencies in service we saw at the very end. I wouldn't have traded him out at any time for the kind of bland, uninspired person that is the only type of person that accedes to political office of that stature in any case, especially given that with the political conditions in the MA Dem party what they were, in any case that person would have been Martha Coakley. Ted Kennedy wasn't the reason HCR derailed. He was its flagbearer to the end. No regrets.

While the problem was identified as applying to both Senators and Supreme Court Justices, the solution proposed addresses only senators. But while we are off, amending the Constitution, why not solve both in one fell sweep? We should require the president to appoint successors to retiring Supreme Court justices from the same party as the president who appointed the retiring justice.

Surely, there has not been a heart untouched by Justice Stevens's desparate struggle, far past his years and abilities, to hang on just so that his successor could be appointed, as he was, by a Republican?

I'm really unsure how much Rehnquist's illness harmed the Court. Various justices are given as examples of the problem, but I'm unsure if, e.g., Rehnquist (or Douglas, for what amounted to 1/2 year after it was clear he would not recover) lingering on what seemed to be less than a year too long is something I really need to be overly concerned about yet.

It makes no sense to adopt the appointment rule suggested by Mr. Edman, unless, of course, we start all over, as another one of the Carrington-Cramton proposals that I signed suggests, by getting rid of life-tenure and limiting Supreme Court terms to 18 years. This would give each President two appointments/term, and I would have no serious objection to adopting Mr. Edman's suggestion as a corollary to the overall change in the appointment/term-length process of the Supreme Court.

Joe may be right. I'm really not sure. But the point is that even if Rehnquist did not demonstrably harm the Court, there is no plausible argument that his remaining on the scene when he was almost certainly impaired--I know of no one who is unaffected, at least in the short term, by chemotherapy, which I believe he was getting--was a help. If he had been a significantly younger person, then I'm certainly inclined to say that he should have been entitled to take a leave from the Court until he recovered (and, under the Carrington-Cramton proposal, he could have been replaced for the limited time by a justice who, having served the full 18 years, was, in effect, placed on the bench, to be sent back into the game precisely in such situations as Rehnquist's.

As for Michael's point, would Teddy have provided any less inspiration--say, for those of us who teared up when he appeared in Denver--as a retired senator who had, in his last days, affirmatively passed on the torch to someone committed to carry on his legacy? (Maybe that would have been Martha Coakley, but, obviously, we'll never know.)

I think the critical problem at the Supreme court, the federal judiciary in general, is not so much life tenure, as the lack of state level input into the composition of a judiciary which is deciding the balance of power between state and federal levels of government. It's been said that no man should be the judge in his own case; Is it so much better that he nominate or confirm the judge in his own case?

I'd propose that Supreme court justices be selected by lot from among state supreme court justices. That should provide a candidate pool sufficiently qualified, and not so relentlessly dedicated to the expansion of federal power at the expense of the states.

Not the sort of reform that's likely to emerge from Congress, but that's the point of the constitutional convention option, isn't it? To allow the states to bypass Congress if an amendment is needed Congress would never be willing to originate?

"I know of no one who is unaffected, at least in the short term, by chemotherapy,"

I'll certainly confirm that; It leaves me useless for several days, and low on energy for a couple weeks, and I think it's starting to rob me of my edge. And just when I'm starting to feel normal, they poison me again. Thank goodness I can schedule some routine paperwork for right after I get it, and leave the more challenging work for the latter part of my cycle.

I am sorry to read of Brett's brush with cancer. I hope that you get well soon.

My oncologist described this large B cell lymphoma as "wimpy", with a 95-99% cure rate through chemo alone. You don't want to get cancer, but if you do get it, this is one of the ones to get.

I'm already getting better. One more cycle, and it's back to the PET scanner, to see if I'm good to go.

Best wishes with your health, Brett.

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