(Woodrow) Wilson Thesis

Mark Graber MGRABER at gvpt.umd.edu
Fri Jan 20 07:35:10 PST 2006

May I suggest that the Democratic strategy does not matter.  What
matters is that there be an organized, coherent strategy.  Witness the
Bush campaign of 2004, when it was an issue of the week/month and that
is what everyone focused on.  So if not having a filibuster, but raising
certain issues in the public mind is a strategy that 95% of all
Democrats can stick with, it is probably likely to be a whole lot better
than a strategy engaged in by 40% with a 30% minority sniping at it from
the rear.  The Republican advantage I suspect may not be that their
message is more cohernet, but that their message is more organized.

Please note that I have changed the header to reflect the origin of the
thesis, though I think Van Buren's thesis may be more accurate.

Question for Sandy and others more familiar with the contemporary
Levinson thesis.  What are the advances being made over Wilson,
Congressional Government.

Mark a Graber

>>> Sanford Levinson <SLevinson at law.utexas.edu> 1/20/2006 10:05:56 AM
This is a response both to Gordon and to Bobby's question:
1.  I agree with Gordon that the public might respond negatively to a
filibuster IF the Democrats who are doing the filibustering do not make
a really serious attempt at public education.  This involves not only
uncharacteristically well-organized and eloquent speeches, but also
borrowing a leaf from those who did in Clinton's health initiative: 
I.e., Harry and Louise should return to the breakfast table and talk
about a world that would allow unfettered presidential power.  Louise
might say, "I'm not sure I'd be so candid about your political beliefs
the next time you talk to my father, since you never know who else might
be listening in" (quite literally "never know" since it's all done in
secret).  And so on.  Perhaps little Henrietta could come to the table
and say, "We're learning about the American Revolution in school.  Tell
me, exactly what was so bad about King George.  The colonies were
prospering, weren't they, so why did people revolt against him?"  You
get the idea....   Either this is a truly serious political moment,
demanding serious political leadership, or it isn't.  (I'm sure there
are people on this list who believe that the latter is the case, or that
the "serious political moment" cuts the other way, necessitating the
strong presidentialism in order to stave off terrorism.  That's the
debate we should be having, not what is thought to be most conducive to
conducting the 2006 political campaign.  The last time such short run
considerations, Tom Daschle voted to give George W. Bush a blank check
in Iraq so that the Democrats could focus on domestic issues in the 2002
election.  We know how brilliant that strategy turned out to be.)
2.  The virtue of the nuclear option, as I've written before, is that
it removes from the Republicans the ability, should they lose the Senate
in 2008 and face a Democratic President besides, to block his/her
appointees.  This is why I believe that the winner, in the "nuclear
showdown" will have a huge case of buyer's remorse the next day.  If the
Democrats win, then they will have to realize that no Alito equivalent
from the left will ever be appointed; if the Republicans win, they can
look forward to a Stephen Reinhardt equivalent being nominated and
confirmed in 2009.   
3.  I'm no fan of the filibuster per se.  The only thing that makes it
tolerable, in addition to allowing an unusually intense minority to
prevail against an only slightly intense majority, is that there is no
relationship at all between the number of votes one can get in the
Senate and the number of people one actually represents.  There is no
reason in the world, for example, to believe that the four senators from
Vermont and Wyoming (who, as a matter of empirical fact, would rarely
vote together, I recognize, given current political party
identification) should be able to prevail against the two senators from
California or Texas.  More people have voted Democratic for the Senate
since 2000 than Republican.  The 55 Republicans do not represent
anything close to 55% of the population.  


From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
Sent: Fri 1/20/2006 8:47 AM
To: Sanford Levinson
Cc: CONLAWPROF at lists.ucla.edu; LawCourts-L at usc.edu 
Subject: Re: (Darryl) Levinson thesis

        What would be the benefit for the Democrats to push the nuclear
option? It is a matter of principle irrespective of the consequences?
        As someone who grew up in an era when Southern democrats used
the filibuster in disgraceful ways, I have a deeply entrenched, visceral
reaction against it? Okay, such reactions should not be dispositive if
there are advantages to filibustering.  But how would this play out with
the public. Preventing an "up or down" vote triggers--justifiably or
not--a reaction of unfairness. Changing the rules of the Senate--if
that's what the nuclear reaction is--will not or at least it's a much
harder sell to convince the public that it isn't warranted in light of
the Democrat's preventing the vote.
        So what benefits accrue for the Democrats and/or for the nation
by using the filibuster?

Robert Justin Lipkin
Professor of Law
Widener University School of Law

More information about the Conlawprof mailing list