Monday, April 15, 2013
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.
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.
And I thought Supreme Court justices were supposed to be impartial interpreters of the law, not political hacks who know when to resign for the good of the party.
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.
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. android phone
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?
Mark Tushnet's "Reflections" (I) and (II) on the Federalist Society and diversity might help to explain Mark Graber's "Yo-Yo" concerns.
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.Post a Comment
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