Glenn Reynolds on “mau-mauing” the judiciary. I believe in full-throated criticism of judges (individually and generally) where warranted, but I have to agree that talk about impeaching Justice Kennedy is over-the-top. For one thing, there are at least three Supreme Court Justices who are considerably less restrained than Kennedy. Not that they should be impeached either, not even Justice Ginsburg who is now on record to the effect that judges should look to foreign law in order to improve U.S. relations with the rest of the world. If her jurisprudence continues down that path one could make a case for impeachment. But wouldn’t the energy and political capital be better spent focusing on the confirmation of qualified conservative nominees, as opposed to engaging in a quixotic battle to remove sitting Justices?
If the Senate Republicans start playing hardball on pending and future nominees, a massive battle for public opinion will follow. The Republicans should have the upper hand because all they will be asking for is an up-or-down vote. This will strike the public as fair-minded, as indeed it is. But Republicans could lose this advantage if they appear to have the ulterior motive alleged by the Democrats — namely a desire to radically remake the judiciary. In that sense, talk of impeaching judges plays into the Democrats’ hands. Reasoned criticism of judicial over-reaching, on the other hands, complements the campaign to confirm judges who will exercise restraint.
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