the ever more mysterious Democratic Party

Lynne Henderson hendersl at ix.netcom.com
Tue Jan 24 17:26:57 PST 2006


There *is* a constitutional point to this, bear with me:
excuse me, but aren't you all overlooking the problem of how to go 
about this that is best for the long haul?  Say Leahy says he will 
filibuster on the grounds of righteousness and invite the "nuclear 
option?"  The Demos cannot stop the end of the filibuster on judicial 
appointments, they don't 'have the votes probably to sustain one.  (You 
can argue about whether Ben Nelson should be excommunicated, but it 
still makes a difference.)  Although I think Sen. Reid's 7=plus hours 
reading of his book about Searchlight, Nev. is about as fine a moment 
in recent history in the Senate as we have in opposing the opposition, 
it was in the context of a less visible dispute over nominees).
       Is it supid or spineless  to announce in advance that one will 
filibuster under the current conditions?  Id Sen. Leahy *were* to 
decide to filibuster, it would be better if he kept it quiet and had 
some allies rahter than announcing it in advance, wouldn't it?
   Is it a "lack of principle" that one doesn't go to the mat over Judge 
  Alito knowing that other big battles--the NSA/FISA debate for one--lie 
ahead?  Strategically, should Sen. Leahy, for whom I admit enormous 
fondness and respect, fall on his sword over Alito? I think yues, but I 
am court-centered because of my profession.
	Are there trade-offs we don't know about that would make this a less 
easy call?  I say this as one who is just finishing Goodwin's *Team of 
Rivals*, an historical account of the Lincoln cabinet and Lincoln's 
decision making.  As impatient as the Radicals were and as I was/am 
from my perspective, Pres. Lincoln had an uncanny knack of assessing 
the constitutional issues and powers that existed (along with political 
ones) as he proceeded to guide the country through the civil war.  (Say 
what you like about Goodwin, this is a very, very informative and 
interesting book).
	
	Thus, although I am with the "radicals" here, I am not so quick to 
throw in the towel based on my outsider judgments.  I'd like the 
Democrats to go to the mat, because I know the political costs to 
opposing a Supreme Court nominee are not that great and Judge Alito is 
too conservative for my tastes, but I would not condemn Sen. Leahy or 
the Democrats for not going to the mat over this one.  *If* they can 
usefully challenge the claims to absolute executive power under the 
Commander and Chief and foreign affairs clauses, then the trade-off may 
be worth it.  If we are down to a one party system, then shame on us, 
not the members of Congress or the Committee on the Judiciary.  (As for 
cross-examination, how many members have been in trials recently?  
Leahy was a trial lawyer, sure, but who else beside Specter?)
         respectfully,
                 Lynne Henderson

On Jan 24, 2006, at 3:42 PM, Michael Zimmer wrote:

> 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"
>              <SLevinson at law.ut                                         
>  To
>              exas.edu>                 <rjlipkin at aol.com>,
>              Sent by:                  <lawcourts-l at usc.edu>,
>              conlawprof-bounce         <Conlawprof at lists.ucla.edu>
>              s at lists.ucla.edu                                          
>  cc
>
>                                                                    
> 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.
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.
> Anyone can subscribe to the list and read messages that are posted; 
> people
> can
> read the Web archives; and list members can (rightly or wrongly) 
> forward
> the
> messages to others.
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can 
> (rightly or
> wrongly) forward the messages to others.
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are 
> posted; people can read the Web archives; and list members can 
> (rightly or wrongly) forward the messages to others.
>



More information about the Conlawprof mailing list