the ever more mysterious Democratic Party

Tue Jan 24 15:42:05 PST 2006

It nows seems a bit late to do anything, the Democrats having failed to use
the hearings in any remotely coherent way to cross examine Alito
successfully.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax

             "Sanford                                                      
             Levinson"                                                     
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                                                                   Subject 
             01/24/06 05:30 PM         RE: the ever more mysterious        
                                       Democratic Party                    

Bobby writes:

Under the theory that whatever one might do has no chance of succeeding."
Aside from my own personal antipathy toward the filibuster, I don't think
it would work to stop Judge Alito's confirmation.

Great leaders create new possibilities.  Whatever one thinks of Bush, he
is, in this respect, a far greater (no normative evaluation intended)
leader than Clinton, who fairly consistently caved in when opposition
mobilized itself.  (This is especially true of judicial nominations.  It
was pointed out in today's hearings that Clinton had in fact cleared the
Breyer and Ginsburg nominations with Orrin Hatch.  He notoriously didn't
nominate Peter Edelman to the DC Circuit because Hatch threatned a fight.)
How do we know what will succeed unless a serious effort is made to
convince the country--and, who knows, maybe even one's colleagues, as
impossible as that is to imagine in today's Weimar-like Congress--that what
Leahy said isn't mere hyperbole?  And if such an effort isn't made, then
how can we take Leahy seriously as a "leader"?  The Republican Party is
full of leaders who believe they can truly shape the future.  The
Democratic Party lacks such leaders, save for maybe Barack Obama, whose
time for national leadership has not yet come.  But I see no such people
among the present "senior members" of the Democratic Party, whose
"opposition" to Samuel Alito is almost literally pathetic.  This may help
to explain why the Democrats are in such desperate straits.  Recall yet
once more:  The 45 Democrats (including Jeffords) actually represent more
people (and, over the past three election cycles, received more votes) than
did the 55 Republicans.  So why is Bobby so fatalistic?

(I could also understand an argument, though I disagree with it, that
filibustering is simply unconstitutional, and that Democratic senators
should no more feel authorized to violate their oaths of office than, say,
George W. Bush. whatever the provocation.  But that doesn't seem to be
Bobby's argument.)

sandy
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of rjlipkin at aol.com
Sent: Tuesday, January 24, 2006 5:15 PM
To: Sanford Levinson; lawcourts-l at usc.edu; Conlawprof at lists.ucla.edu
Subject: Re: the ever more mysterious Democratic Party

   Sandy writes:

       "Under what theory does someone say that a nominee "threatenis the
fundamental rights and liberties of all Americans now and for generations
to come" and then not do whatever one might to block this from happening?"

        I think this drama is playing out in a predictable fashion. Rather
than inveigh against the present system why not take this opportunity to
raise the issue of altering the Court's power by embracing novel mechanisms
that will make it impossible or highly improbable for any Court to threaten
fundamental rights and liberties for generations.  Calling for a filibuster
seems in this situation seems to overlook the more fundamental, systemic
problem of a Court that wields such power.

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

-----Original Message-----
From: Sanford Levinson <SLevinson at law.utexas.edu>
To: lawcourts-l at usc.edu; Conlawprof at lists.ucla.edu
Sent: Tue, 24 Jan 2006 16:59:52 -0600
Subject: RE: the ever more mysterious Democratic Party

 Patrick Leahy delivered the following statement explaining his vote
against Samuel Alito in the Senate Judiciary Committee:

 This is a nomination that I fear threatens the fundamental rights and
liberties of all Americans now and for generations to come. This President
is in the midst of a radical realignment of the powers of the government
and its intrusiveness into the private lives of Americans. This nomination
is part of that plan. I am concerned that if confirmed this nominee will
further erode the checks and balances that have protected our
constitutional rights for more than 200 years. This is a critical
nomination, one that can tip the balance on the Supreme Court radically
away from constitutional checks and balances and the protection of
Americans' fundamental rights.

Assuming that Senator Leahy, whom I believe to be an honorable person,
believes what he says, how can he justify not engaging in a personal
filibuster and invite other senators to join him?  Under what theory does
someone say that a nominee "threatenis the fundamental rights and liberties
of all Americans now and for generations to come" and then not do whatever
one might to block this from happening?  Can one imagine, say, George W.
Bush--and I don't mean this at all as a cheap shot--saying that America is
under dire threat, but that he will adopt an unusually constrained view of
his power as President even though that will increase the likelihood of the
! threat being realized?  I am obviously no fan of the President, but I can
understand why friends I respect found him more resolute than Kerry.  Bush
takes his own rhetoric seriously (perhaps because he believes it).  Will
one be able to say the same of Leahy and other such Democratic opponents?
I can, of course, understand a Democrat's not filibustering if he/she
believes that Leahy is overstating the possible threat, but that obviously
changes the entire decision-making calculus.

sandy.
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