an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I happen to be reading a wonderful manuscript (alas, confidential) on the degree to which the New Deal was fatally tainted by the felt (and, as a political matter, accurate) need to work with viciously racist, but "liberal" so far as poor whites were concerned, people like Mississippi senator Theodore Bilbo. This is not, of course, a brand new insight. There is an extensive literature on the pacts with the devil made by FDR (including, ultimately, the equaly necessary pact with Stalin to overcome the greater evil of Hitler). FDR, of course, tried to do what he could by "purging" the Democratic Party of some of these mossbacks in 1938, when he suffered a stunning political defeat that effectively brought the New Deal to an end.
So what does this have to do with Richard Murdock and other denizens of the Mad-dog Right? Mitt Romney, of course, has endorsed Murdock, whose theory of theodicy apparently includes the beneficence of rape-induced pregnancies. (I suspect that Paul Ryan has much the same view, but he is much too smart to articulate it and, in any event, has sold out his Catholic convictions for the opportunity to pant after Mitt and hope to use him as springboard to the Oval Office.) Surprise, surprise. It's Romney's job to try to generate a Congress that would actually be amenable to his programs in a way that Democrats (one hopes) will not. So it's somewhat beside the point to criticize Romney for standing with the mad-dogs. Rather, it is up to Democrats to point out, far more insistently than Obama has in fact done) that a President Romney is almost certainly to be in thrall to a host of mad-dogs, beginning with his curiously vanishing VP, Paul Ryan, who belies every one of the faux-moderate Etch-a-sketching done by the Marvelously Malleable Mitt. And why, oh why, was there literally not a single word during any of the "debates" about appointments to the federal judiciary. It is true that Obama seems to have only a limited interest in the judiciary, but I strongly suspect that Romney (and, more to the point, the mad-dogs who will control the Republican Party) do not share that sense of lassitude or desire for a Sunsteinian "minimalist" Supreme Court.
The worst judicial appointments in my life time within the "inferior" federal judiciary were by John F. Kennedy, in the 5th Circuit, where, among other things, he appointed the law partner of the viciously racist successor to Bilbo, James Eastland, Harold Cox. Was JFK a racist? No. He simply didn't care all that much (as I suspect is the case with Etch-a-sketch Mitt on abortion) and bent to the political realities of the then-Democratic Party, which Lyndon B. Johnson, to his eternal credit, destroyed by fighting for, and then signing, the Voting Rights Act of 1965.
We have this idiotic way of talking about Presidents as if they are truly independent of the poltiical party they lead and whose congressional members they must rely on for support. It is as if Madison prevailed with an idealized 'separation of powers" system. But as Rick Pildes and Daryl (no relation) Levinson accurate have pointed out, it's "separation of parties," not of powers, that define our system in most important respects. That is why Romney has no choice but to offer enthusiastic support for cretins like Murdock and Akin (or, for that matter, why the liberal saint Adlai Stevenson thought it politic to pick Alabama Senator John Sparkman, a "moderate segregationist," as his running mate in 1960--and we can be sure that JFK did not realize who exactly he was getting, re race, with Lyndon Johnson, whose record in the Senate was thoroughly mixed, as Robert Caro points out.
It all comes down to the Constitution (at least in some important respects) and the utter failure of any candidates, debate moderators, or pundits to have anything useful to say it. Better to treat the presidency as a one-man show for which the debates are an audition. That may be true with regard to drone attacks, which now seem to be firmly established as a new prerogative of the President, regardless of such old-fashioned notions as "due process of law." But, for better or worse, we haven't moved toward complete "constitutional dictatorship" yet, and Congress still has some prerogatives of its own, such as having to decide on tax policy. Posted
by Sandy Levinson [link]
As my eyesight is improving, am I reading Sandy correctly?
" ...denizens of the Mad-dog right ... "
"Marvelously Malleable Mitt"
Or has Sandy been paying attention to me when I refer to:
TOMBSTONE (here, and here, and here, lies ..."
in describing The Mittster? We here in MA, going back to The Mittster's run for the Senate, know well he will do and say what is necessary to get what he wants.
"the law partner of the viciously racist successor to Bilbo, James Eastland, Harold Cox"
Harold Cox stories still percolate amongst members of the Mississippi bar. The guy was an unbelievable piece of work.
Best one is his holding the courthouse's building superintendent in contempt for setting the thermostat to 78 per the Carter-era dictum: the poor man was locked up in a holding cell in the courthouse until he agreed to turn the temp down.
I suggest that you do or take whatever helps you to relax on election day. Sudden massive stress from seeing election maps of the United States painted red is not healthy for gentlemen of your years. Heck, shag seems to be actively courting a stroke since the first debate.
You seem to be taking the usual playbook from the GOP in major elections: "hey pro-lifers, we are for you; hey, pro-choicers, [wink] we can't do anything about abortion, it's the courts baby."
In this election that is especially craven, most court watchers realize Roe v. Wade hangs by a slim thread and Romney's intentions regarding nominations in this area is clear. Why not own up to your party's clear stance?
"We have a bare chance of reversing Roe if Romney replaces Ginsberg with a firm anti-Roe vote and the conservatives have only one defection."
Let me get this straight, you think that if Ginsberg is out with a pro-life replacment, that somehow Roberts, whose joined the conservatives before to restrict Roe and was clearly vetted with that in mind, joins Kagan, Breyer, Kennedy and Sotomayor to uphold Roe? And that's a 'bare chance?'
The Indiana Senate candidate's name is spelled "Mourdock." John Sparkman was the Democratic Vice-Presidential nominee in 1952, not in 1960. Adlai Stevenson was the Democratic presidential nominee in 1952 and 1956, but John F. Kennedy was the nominee in 1960. In 1952, Stevenson was rather passive about the VP choice (as he was about many other things), and the decision to put Sparkman on the ticket was mainly made by Democratic Party elders, including President Truman.