A further abuse by the "great decider"
Sanford Levinson
SLevinson at law.utexas.edu
Thu Apr 5 08:02:25 PDT 2007
Professor Rosenthal's conclusions suggests that we are drifting ever faster toward a Hobbesian political world inasmuch as no one is willing to credit the "good faith" of "the other side" and everyone increasingly feels entitled to take advantaage of any "legal argument" that can be offered by partisans as to what is non-criminal. No society can long endure under such a political psychology. (To be sure, I have no trust whatsoever in the Bush Administration and its minions, and I want my team to take advantage of whatever seems legally possible, but that may be only further evidence of the symptom that I am describing, since I have to assume that Prof. Rosenthal does indeed believe, on the basis of no reported evidence, that Mr. Fox's nomination was made on the basis of anything other than the crassest payoff to a fat cat contributor. And, for the record, Eugene is surely correct that the attempt to apply a First Amendment analysis to the nomination fails in every way. Contrary to the thrust of Prof. Rosenthal's argument, the President is not a king and ambassadors are not personal emissaries from the court. They are represenatives of the United States of America, and the Senate has a duty to make sure that "we the people" (to coin a phrase) are well represented by our ambassadors, and it is completely legitimate to take into account what they have said in the past, though it is protected by the First Amendment against prosecution.)
sandy
A thought experiment: I presume that many of us write tenure letters, and I assume that on occasion we even confess that we are less than bowled over by an article that we have read and might even suggest, therefore, that a grant of tenure might be unwise. Does that violate the "First Amendment rights" of the person whose work is criticized? Obviously, it would be wrong to address in a tenure letter non-academic comments, because they are irrelevant. But I'm not sure what the boundaries of relevance are with regard to ambassadorial-level appointments, since one presumes that all ambassadors are supposed to reflect well on the US. One might well believe that someone who is recklessly indifferent to whether his money is used for purposes of character assassination and libel does not convey the kind of message we want to send about what kind of people we are.
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Rosenthal, Lawrence
Sent: Thu 4/5/2007 9:43 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: A further abuse by the "great decider"
Well, not quite. It is clear that the President is entitled to nominate only his political allies for positions such as this one. It is less clear that the Senate entitled to retaliate against nominees for their activities that are protected by the First Amendment but that do not bear on their qualifications for the position in question. I quite agree that a court would not offer Mr. Fox a remedy, in part because questions relating to the "advice and consent" function may be nonjusticiable, and in part as a consequence of the judicial inability to distinguish between legitimate political considerations and illegitimate retaliation. And maybe, as well, Branti's rule that employers may consider partisan political loyalty when that criterion is appropriate to the position at issue would be expanded to permit the Senate to demand some sort of partisan political loyalty to its own members or their political allies, although there are some analytical difficulties in that endeavor. But if the President is of the view that each branch is competent to engage in its own interpretation of the Constitution, at least in the absence of an authoritative judicial decision on point, and especially when institutional limitations may lead the judiciary to underenforce constitutional norms (a position that seems quite popular in the academy when it offers no defense for the Bush administration), then the President might well conclude that what happened to Mr. Fox is pure political retalatiation of a type offensive to the First Amendment rather than a good faith effort to gauge his competence as an ambassador, and he might conclude that even if no judicial remedy is forthcoming, a political remedy should be offered. Indeed, I suspect that the President acted as aggressively as he did precisely because he perceived a lack of good faith in the opposition to Mr. Fox. In politics, good faith is to be met with good faith, and bad faith requires effective countermeasures.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 4/5/2007 7:08 AM
To: conlawprof at lists.ucla.edu
Subject: RE: A further abuse by the "great decider"
Everything John Kerry did is protected by the First Amendment,
too, but that doesn't mean President Bush is required to nominate him as
an ambassador to France (even if for some reason he thought Kerry would
be effective in that role). The shoe fits just fine on the other foot.
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 8:24 PM
> To: froomkin at law.tm
> Cc: Sanford Levinson; conlawprof at lists.ucla.edu;
> DavidEBernstein at aol.com
> Subject: RE: A further abuse by the "great decider"
>
> Professor Froomkin has sniffed me out; my doctrinal discourse
> was tongue in cheek. But it illustrates the political logic
> here. Mr. Fox had no hope of confirmation only because of
> the manner in which he supported the President's reelection
> -- although everything he did in that cause was protected by
> the First Amendment. No court would give Mr. Fox a remedy
> for any number of reasons, but as a political matter, is the
> President supposed to wink at this kind of retaliation
> against one of his own supporters? Surely the President need
> not take seriously the idea that because of his support for
> the Swift Boat ads, the Senate had reason to conclude that
> Mr. Fox could not be an "effective" ambassador to Belgium.
> Anyone who believes that . . . .
>
> The President accurately perceived that partisan political
> retaliation, not "merit," was at work in the Senate. And
> there is political logic for the President to respond with
> his own act of political retaliation.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: Michael Froomkin - U.Miami School of Law
> [mailto:froomkin at law.miami.edu]
> Sent: Wed 4/4/2007 8:09 PM
> To: Rosenthal, Lawrence
> Cc: Sanford Levinson; DavidEBernstein at aol.com;
> laycockd at umich.edu; conlawprof at lists.ucla.edu
> Subject: RE: A further abuse by the "great decider"
>
>
>
> 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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