A further abuse by the "great decider"
Michael Froomkin - U.Miami School of Law
froomkin at law.miami.edu
Wed Apr 4 20:09:27 PDT 2007
The claim that "The Senate engaged in an act of wholly unprincipled
partisanship when it denied Mr. Fox a vote" is entirely fictious.
The only person who denied Mr. Fox a vote is the person who decided to
withdraw the appointment. As the Washington Post put it: "The committee
was about to vote on Fox's nomination last week -- and was almost certain
to reject it -- when Bush pulled it back. Since the nomination was not
before the Senate, the White House said Fox, who is a wealthy developer in
St. Louis, will serve without pay in his post, although some Democrats had
suggested that may not be permissible."
On the more important Constitutional issue, I presume the rest of this
item quoted below is tongue in cheek: for if we have come to the point
where the Senate in its exercise of its advise and consent power cannot
consider what nominees say and do, well, we're well beyond NewSpeak and
into a strange world indeed.
I know that an ambassador has been defined as "a man sent abroad to lie
for his country" but surely if funding and supporting transparent libels
isn't grounds for a Senator to decide that a person is unfit for public
office, what -- short of violent crime -- would disqualify one?
There is, I hope, some distance left between "loyalty" and the sort of
"loyal Bushie" that fails to take offense at the suggestion of partisan
prosecutions. I hope, but I rather begin to doubt.
On Wed, 4 Apr 2007, Rosenthal, Lawrence wrote:
> 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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--
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A. Michael Froomkin | Professor of Law | froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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