LAW AND POLITICS

Sat Dec 10 11:48:22 PST 2005

I subscribe entirely to Frank's hypothesis.  But, of course, it is
precisely the notion of "colorable legal basis" that is doing the work.
With regard to major issues, are there any positions that are
sufficiently "uncolorable" to meet Rule 11 tests of "frivolousness," or
is it the case that any bright lawyer can in fact make just about any
proposition "colorable" if political exigencies are thereby served?  I
have little (probably no) hesitation in saying yes to this last
question, but it is just this willingness to do so that brands me as a
hard-core realist and fellow-traveller of CLS.  This is also, certainly,
Richard Posner's position, see his current Foreword in the Harvard Law
Review, so it is obvious that there is no political tilt (any longer) to
publicly ascribing to Frank's position.  But, as I wrote earlier, I'd be
a little surprised to learn that Matt agrees with it.  

sandy
________________________________

From: Frank Cross [mailto:crossf at mail.utexas.edu] 
Sent: Saturday, December 10, 2005 2:37 PM
To: Sanford Levinson; mfranck at radford.edu; conlawprof at lists.ucla.edu;
LawCourts-L at usc.edu
Subject: RE: LAW AND POLITICS

Can one be in low dudgeon?

I think the problem is that people run to corner solutions, i.e., it's
all politics, unaffected by law, or vice versa.  My theory is this:
political considerations will override the legal if, and only if, (a)
the issue is of sufficient salience to command the limited time and
resources of the politicos and (b) the politicos can provide a colorable
legal basis for their political position.  But I suspect the latter is
not all that hard, in the majority of circumstances.

At 01:29 PM 12/10/2005, Sanford Levinson wrote:

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	I'm not sure I'm in "high dudgeon."  My question was really
quite serious:  i.e., does anyone any longer believe in a serious
distinction between law and politics?  I think elections are important,
also, and there is much to be said for letting winners do whatever they
want (there's also much to said against it, depending on the meaning of
"whatever").  I also have no doubt that members of the civil service
have their own political agendas.  But I haven't gotten the impression
in the past that Matt is a devotee of critical legal studies or high
post-modernism who reduces all proclamations of "law" or "expertise" to
assertions of political preference.  Have I misread past postings?  

	sandy

________________________________

	From: owner-lawcourts-l at usc.edu
[mailto:owner-lawcourts-l at usc.edu] On Behalf Of Matthew J. Franck
	Sent: Saturday, December 10, 2005 11:17 AM
	To: conlawprof at lists.ucla.edu; LawCourts-L at usc.edu
	Subject: RE: LAW AND POLITICS

	I really do not understand Sandy's high dudgeon.  He writes:

	"So what is our reaction to the Post story, the beginning of
which is found below?  Can there be any doubt that the current
administration has absolute contempt for anyone who does not share their
political agenda?"

	I don't know what "our" reaction is, but mine is that this is a
very good-news story about the importance of elections, and the recovery
of democracy from the clutches of civil-service-protected legal
bureaucrats, who have so succeeded in recent decades that they have
apparently persuaded a man as intelligent as Sandy Levinson that they
haven't any "political agenda" of their own.

	Matt
	***************************
	Matthew J. Franck
	Professor and Chairman
	Department of Political Science
	Radford University
	P.O. Box 6945
	Radford, VA 24142-6945
	phone 540-831-5854
	fax 540-831-6075
	e-mail mfranck at radford.edu
	www.radford.edu/~mfranck
	*************************** 
	At 10:36 AM 12/10/2005, Sanford Levinson wrote:

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		 From today's Washington Post:  full article
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/09/AR200512
0901894.html?referrer=email&referrer=email 

		Surely it is time to divest ourselves of the Holmesian
view that law is only a prediction of what courts will do.  What goes on
in the executive branch (including, e.g., the OLC) is surely as
important as litigation, probably moreso with regard to the actual fate
of people.  So what is our reaction to the Post story, the beginning of
which is found below?  Can there be any doubt that the current
administration has absolute contempt for anyone who does not share their
political agenda?  But what is to be said of this analytically?  Is this
simply the ultimate triumph of legal realism and its denial that there
is any difference at all between law and politics (a position that I
have certainly taken on occasion)?  I presume that the Administration
would simply like to fire everyone in Justice and replace them with
dependable graduates of "safe" law schools recommended by "dependable"
faculty, but, for better or worse, that is illegal, given the Pendleton
Act of 1886.  So the next best thing is to pretend that the civil
service doesn't exist and to express contempt for them at every
opportunity.  See also the freezing out of everyone except the
dependable Jay Bybee, John Yoo, and their immediate associates from the
preparation of the Feb. 1, 2002 memoradnum on torture.

		Again, the meta-question is whether this is just another
"partisan rant" or, rather, a genuine inquiry about what it possibly
means to take law (and ultimately the Constitution) seriously in a
post-realist world?

		sandy

		Staff Opinions Banned In Voting Rights Cases

		Criticism of Justice Dept.'s Rights Division Grows

		By Dan Eggen
		Washington Post Staff Writer
		Saturday, December 10, 2005; Page A03

		The Justice Department has barred staff attorneys from
offering recommendations in major Voting Rights Act cases, marking a
significant change in the procedures meant to insulate such decisions
from politics, congressional aides and current and former employees
familiar with the issue said.

		Disclosure of the change comes amid growing public
criticism of Justice Department decisions to approve
Republican-engineered plans in Texas and Georgia that were found to hurt
minority voters by career staff attorneys who analyzed the plans.
Political appointees overruled staff findings in both cases.
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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178 

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