A further abuse by the "great decider"

Wed Apr 4 19:26:57 PDT 2007

	Surely whatever the scope of Branti, Rutan, and Elrod, it does
not extend to high-level appointees such as Ambassadors.  A President is
entitled to select them in a frankly partisan way, and the Senate is
entitled to block them in the same way.  I take it that the Senate would
generally not seek partisan loyalty to itself, since it would hardly
expect that in the appointments of a President from the opposing party;
but it may surely consider the degree and nature of the nominee's past
political commitments in deciding whether the nominee is too far from
whatever it is the Senate wants.

	This is not to say that the Senate should have blocked Fox, or
shouldn't have blocked Fox -- just that the Constitution (and certainly
the First Amendment) says nothing about the subject, except that the
President gets to nominate, the Senate gets to approve or disapprove,
and the President gets to engage in recess appointments to whatever
extent one interprets the recess appointments clause as authorizing.
Nor does the Constitution demand principle in one's partisanship, though
one can of course condemn this or that activity as unprincipled
partisanship under whatever standards of political morality (as opposed
to constitutional law) one is choosing.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Rosenthal, Lawrence
> Sent: Wednesday, April 04, 2007 6:57 PM
> To: Sanford Levinson; DavidEBernstein at aol.com; laycockd at umich.edu
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: A further abuse by the "great decider"
> 
> Assuming that Mr. Fox did not act with malice in the 
> constitutional sense, his support for the Swift Boat ads was 
> protected by the First Amendment even if the ads contained 
> false representations of fact.  Branti v. Finkl holds that 
> under the First Amendment, a public employee is protected 
> from retaliation for his protected speech and conduct except 
> when partisan political loyalty is an "appropriate" criterion 
> for employment.  Rutan v. Republican Party extends that rule 
> to applicants.  I have no doubt that the position of 
> Ambassador is one for which partisan loyalty to the incumbent 
> administration is an "appropriate" criterion; but is partisan 
> loyalty to the Senate, or Senator Kerry, an "appropriate" 
> criterion as well?  I doubt it.  How can a nominee be loyal 
> to the President and to his partisan opponents?  My point is 
> that current doctrine permits one to argue with a straight 
> face that the Senate has violated Mr. Fox's First Amendment 
> rights.  The more important point is that no one should think 
> that the Senate acted out of principle when it denied Mr. Fox 
> a vote.  Surely no Senator thought that Mr. Fox was not 
> "qualified" to be Ambassador to Belgium, to the extent that 
> this concept has any meaning at all.  The Senate engaged in 
> an act of wholly unprincipled partisanship when it denied Mr. 
> Fox a vote, just as the Republican Senate, on many occasions, 
> engaged in unprincipled partisanship with respect to many of 
> President Clinton's nominees.  The President responded to 
> unprincipled partisanship with some unprincipled partisanship 
> of his own.  That's how politics works.  No one should be 
> shocked, shocked, to find that politics is going on here.
>  
> Larry Rosenthal
> Chapman University School of Law
> 
>  
> ________________________________
> 
> From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
> Sent: Wed 4/4/2007 6:41 PM
> To: Rosenthal, Lawrence; DavidEBernstein at aol.com; laycockd at umich.edu
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: A further abuse by the "great decider"
> 
> 
> He might point that out, but, frankly, it is a frivolous 
> argument.  Collaborating in the presentation of 
> (constitutionally protected) libel against John Kerry tells 
> something quite telling about the character of Mr. Fox, and 
> any member of Congress is perfectly entitled to take such 
> collaboration into account.  Would Professor Rosenthal be 
> equally condemnatory of a conservative Republican who tried 
> to block the confirmation of someone who, say, supported gay 
> and lesbian marriage?  
>  
>  
> sandy
> 
> ________________________________
> 
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Wed 4/4/2007 7:57 PM
> To: DavidEBernstein at aol.com; laycockd at umich.edu; Sanford Levinson
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: A further abuse by the "great decider"
> 
> 
> 
> Were he inclined, President Bush might point out that the 
> Senate's hostility to Mr.Fox based on his financial support 
> for a series of apparently constitutionally protected 
> advertisements could be considered impermissible retaliation 
> against Mr. Fox for his exercise of a right protected by the 
> First Amendment.
> 
> Larry Rosenthal
> Chapman University School of Law
> 
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of 
> DavidEBernstein at aol.com
> Sent: Wed 4/4/2007 5:22 PM
> To: laycockd at umich.edu; SLevinson at law.utexas.edu
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: A further abuse by the "great decider"
> 
> 
> Appointing "fat cats" as ambassadors to friendly, pleasant 
> country is a tradition of longstanding among both parties.  
> Apparently, one non-corrupt reason to do this is that they 
> are willing to spend millions of their own money throwing 
> parties for the locals and other diplomats, something the 
> State Dep't budget doesn't allow for.  Really, 
> Sandy--"tinhorn dictator in a banana republic?"  Does anyone 
> really care who the ambassador to Belgium is (other than, 
> perhaps, the Belgians, who I'm sure are going to be happy to 
> take advantage of Mr. Fox's largesse?)
> 
> In a message dated 4/4/2007 8:18:34 PM Eastern Daylight Time, 
> laycockd at umich.edu writes:
> 
>         Quoting Sanford Levinson <SLevinson at law.utexas.edu>:
>        
>         > NPR reports that George (I'm the decider) W. Bush 
> has made a recess
>         > appointment of Sam Fox, a Republican fat cat who 
> explained his $50,000
>         > to the Swift Boat project by referring to it 
> basically as chump change
>         > that he couldn't have been expected really to have 
> thought about, to be
>         > ambassador to Belgium, in face of almost certain 
> rejection by the Senate
>         > of a man who is wholly without the slightest 
> qualification (other than
>         > being a Republican fat cat) to represent our country abroad.
>         >
>         >
>         >
>         > Yes, the Constitution allows for recess 
> appointments, so Bush's
>         > appointment is not an impeachable offense.  But it 
> is the act of a
>         > tinhorn dictator in a banana republic that 
> disgraces any acceptable
>         > notion of congressional consent.
>         >
>         >
>         >
>         > sandy
>         >
>         >
> 
> 
> 
> 
> 
> ________________________________
> 
> See what's free at AOL.com 
> <http://www.aol.com/?ncid=AOLAOF00020000000503> .
> 
> 
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