Vice-presidential nominations

Tue Sep 9 08:35:41 PDT 2008

May I point out that there is no convention that nominees to the Supreme Court be "intellectual or scholarly."  She was at least as engaged with legal ideas as, say, Lewis Powell, Earl Warren, or Clarence Thomas at the time of their appointments.  (If one believes that Thomas wasn't perjuring himself, he never had a serious discussion about Roe v. Wade in the 18  years between the decision and his appointment).  And it is inconceivable that the decidedly unintellectual and unscholarly George W. Bush would have taken such criticisms seriously.  

Also, relative to an earlier posting aboug Bayesian thought, if some Republican down the line decides that it is really, rally important to elect John McCain and that the best way to do that would be to manipulate the voting machines, what is wrong with doing that?  It is, to be sure, illegal, as the choice of Sarah Palin most certainly was not.  But is there any other difference.  Are Republicans authorized, indeed obligated, to do whatever is not out-and-out illegal in order to forego the perceived costs of an Obama election.  Ditto, of course, for Democrats.  But if we're Holmesians, why should breaking the law matter, so long as the benefits are high enough.

sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 9/8/2008 9:37 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Vice-presidential nominations

        I don't grasp the analogy.  Miers was blocked for a combination
of reasons -- some conservatives opposed her because they saw her as
unintellectual and unscholarly, in the sense of not showing any real
engagement with legal ideas, and others because they suspected her
jurisprudential views weren't what they wanted.  (I should add that I
saw no-one doubt Miers' intelligence; she is surely a very smart woman
and likely a very fine lawyer -- intellectualism is of course a
different matter from intelligence.)  Many were troubled by this because
they had misgivings about the insistence on suitable ideology in a
Justice (though I think that's inevitable given the ideological nature
and importance of the discretionary decisions Justices make).  Few were
troubled by the requirement of intellectualism and scholarliness.

        Vice-Presidents, on the other hand, aren't generally rated based
on intellectualism and scholarliness, and neither are Presidents.  On
the other hand, of course ideology is important in a Vice President.  So
surely it makes sense that people would like Palin for her ideology, see
evidence of practical and political intelligence in her quite successful
political career, and don't care at all about her intellectualism and
scholarliness.

        Eugene

Sandy Levinson writes:

> I think the reference to Harriet Meirs is extremely
> interesting (and to the point).  She was, of course,
> crucified by conservatives (and not by Democrats, who would
> have almost certainly voted for her) because of doubts about
> her ideological soundness and for no other reason.  Palin,
> similarly, is gaining support only because of confidence that
> she is ideologically sound.  Were she a "moderate," then I
> would expect conservatives to be shouting to the high heavens
> (and, who knows, perhaps liberals would find merit in her experience).
>
> sandy
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of David
> Bernstein
> Sent: Sunday, September 07, 2008 4:39 PM
> To: 'Paul Finkelman'; hamilton02 at aol.com;
> VOLOKH at law.ucla.edu; CONLAWPROF at lists.ucla.edu;
> conlawprof-bounces at lists.ucla.edu
> Subject: RE: Vice-presidential nominations
>
> Actually, it's precisely not a Federalist Society sort of
> comment, because the Federalist Society, as one would expect
> from an elite, academically oriented legal organization, is
> extremely elitist.  I was rather appalled at how many leading
> conservative lawyer types attacked Harriett Miers because she
> "only" went to SMU, 30+ years earlier (there were other good
> reasons to oppose her, but not that one).
>
> Going to Harvard Law gives you a leg up on making judicial
> appointments--though Yale's Bill Clinton, as I recall, wanted
> to appoint Mario Cuomo to the Supreme Court.
>
> Beyond that, I don't see why going to Harvard Law adds to
> one's qualifications to be president.  To be an associate at
> Cravath, yes, but president? 
>
> I went to Yale Law the same years Obama was at Harvard.  I
> couldn't help but notice that despite their "book learning,"
> few of my classmates had any direct experience with running a
> small business, either personally or through their parents,
> and I couldn't help but think that this helped lead to the
> widely-held mentality that every social problem deserves a
> regulatory solution, a mentality that wasn't exactly
> discouraged by most of the faculty.  So yes, all things being
> equal, I'd prefer that Obama had spent three years running
> "Obama Enterprises" than at Harvard Law School.
>
> David
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, September 07, 2008 2:52 PM
> To: DavidEBernstein at aol.com; hamilton02 at aol.com;
> VOLOKH at law.ucla.edu; CONLAWPROF at lists.ucla.edu;
> conlawprof-bounces at lists.ucla.edu
> Subject: RE: Vice-presidential nominations
>
> David:
>
> I am trying to figure out if any successful small business
> owners became president (I don't know about VP -- they are
> too obscure).  The only one I can come up with is the
> successful tailor, Andrew Johnson, who was arguably the worst
> president in history (I think 2nd worse after Buchanan, but
> smart people can disagree about this).  I cannot imagine
> David, that you are serious about this.  It is just sort of
> an off-the-cuff federalist society sort of comment, but if
> you are serious, tell us why you want the person who owns the
> local hardware store or shoe store to be president. 
>
> Now maybe you mean a small business in sense of under $100
> million a year in revenue?
>
> 
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>      and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
>
> 518-445-3386
> pfink at albanylaw.edu
> >>> "David Bernstein" <DavidEBernstein at aol.com> 09/07/08 2:14 PM >>>
>
> To respond to Marcy's question about education, I think that
> going to Harvard Law School and doing well there shows that a
> candidate has native intelligence, and is likely a
> hard-worker; beyond that, I don't see why it has anything to
> do with being a good president. All things being equal, I'd
> much rather have a president who successfully ran a small business.
>
> I think Obama's educational experience was a great boon to
> his political career, but has been a handicap to him as a
> presidential candidate.  If he had gone to University of
> Idaho for college and law school, instead of Columbia and
> Harvard, he would have been much more likely to understand
> well in advance that his ties to the likes of Jeremiah Wright
> and Bill Ayers, as respectable as such individuals are in
> Hyde Park, would play extremely poorly in middle America (and
> rightly so, IMHO).
>
> Consider that conservative lawyer and Obama Harvard Law
> classmate Brad Berenson praised Obama as president of the
> Harvard Law Review because "Whatever his politics, we felt he
> would give us a fair shake".  Are there many places in
> America where mainstream conservatives like Berenson have to
> worry about being treated fairly because of their politics,
> and where a "boss" will get praise simply for not treating
> them like pariahs?
>
> Then consider Obama's answer when asked at a debate about Ayers:
> "George, but this is an example of what I'm talking about.
> This is a guy who lives in my neighborhood, who's a professor
> of English in Chicago who I know and who I have not received
> some official endorsement from. He's not somebody who I
> exchange ideas from on a regular basis.
>
> And the notion that somehow as a consequence of me knowing
> somebody who engaged in detestable acts 40 years ago, when I
> was 8 years old, somehow reflects on me and my values doesn't
> make much sense, George.
>
> The fact is that I'm also friendly with Tom Coburn, one of
> the most conservative Republicans in the United States
> Senate, who, during his campaign, once said that it might be
> appropriate to apply the death penalty to those who carried
> out abortions."
>
> So in Obama's mind, he's a centrist because he's as willing
> to be friends with a law-abiding conservative Republican
> senator as with an unrepentant leftist former domestic
> terrorist--just as he was a centrist at Harvard for being
> fair to Berenson.  It is this attitude, a reflection of the
> political culture of elite liberal east coast schools, and
> also reflected in Obama's infamous "clinging to guns and
> religion" remark, that will be to blame if he loses.
>
> Is there a constitutional law point in here? Perhaps that the
> electoral college puts candidates like Obama who have thrived
> in an ideological bubble at a disadvantage, because to win
> you have to seem "mainstream" across a very broad swath of
> the country.  There's a reason that every Democratic ticket
> since 1948, until this year, has had at least one candidate
> from the South.
>
> David
>
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> hamilton02 at aol.com
> Sent: Sunday, September 07, 2008 1:35 PM
> To: Volokh, Eugene; conlawprof-bounces at lists.ucla.edu;
> CONLAWPROF at lists.ucla.edu
> Subject: Re: Vice-presidential nominations
>
> Eugene's response seems incomplete at least in the context of
> an academic listserv. Surely the differences in their
> educational experiences count for something -- both in terms
> of educational institutions and degrees?
>
> Marci
>
> Marci A. Hamilton
> Paul R Verkuil Chair in Public Law
> Benjamin N Cardozo School of Law
> Yeshiva University
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>
> Date: Sun, 7 Sep 2008 09:50:37
> To: <CONLAWPROF at lists.ucla.edu>
> Subject: Re: Vice-presidential nominations
>
>
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