Balkinization  

Friday, November 07, 2008

Lederman for OLC

Brian Tamanaha

When liberals and conservatives agree on something, it deserves serious consideration: Marty Lederman to head the Justice Department's Office of Legal Counsel. Regular readers of Balkinization know that Marty is a brilliant lawyer who will help restore the integrity and reputation of the Office.


Comments:

I have e-mailed the Obama web-site making prcisely this recommendation. Marty Lederman is the best person to get us out of this constittuional crisis we are in over at OLC.
 

One of the more interesting questions is whether Obama will be willing to follow the post Vietnam Carter precedent and voluntarily cede a portion of his Article II CiC and executive powers to Congress as has been repeatedly advocated here.

Appointing Marty as OLC would suggest that the answer to that question would be yes.

On the other hand, it would be exceedingly interesting if Marty were appointed OLC based upon his obvious talent rather than his views on executive power, Marty offered draft memorandum advancing his views of truncated executive power and then say Rahm Emanuel instructed him to revise his memorandum to reaffirm and maintain Obama's executive and CiC powers.

Would Marty agree or follow the Goldsmith lead of resigning and writing a book?
 

It's a great idea. I wholeheartedly concur (And why not Prof. Balkin or Levinson for AG? I'd take them over Sunstein any day).

But the vetting might involve Googling the comments section, so we might think about deleting some of our less polite comments (towards the LSR contingent) from Lederman's threads.....

Cheers,
 

Didn't need to read below the headline. What a great idea. How do we organize to help?
 

Bart, Professor Lederman is not, as far as I can tell, an advocate of a weak executive. He participated in writing some key OLC memos in the Clinton Administration that took very aggressive-- and legally questionable-- positions on executive power. The fact that the Bush Administration dialed it up to 11 shouldn't obscure the fact that Professor Lederman thinks it should be at 8 or 9.

Indeed, what I would like to see is someone at OLC who would be your-- and Obama's-- worst nightmare, i.e., someone who never, under any circumstances, takes a legal position that the President may act contrary to a statute or make war absent congressional authorization. Because that happens to be what the Constitution actually says. But, unfortunately, no President would ever hire such a person. They all want the power, and there are plenty of people in the legal community who are quite willing to confer it upon them.
 

I have e-mailed the Obama web-site making prcisely this recommendation. Marty Lederman is the best person to get us out of this constittuional crisis we are in over at OLC.

I did this as well.
 

On the other hand, it would be exceedingly interesting if Marty were appointed OLC based upon his obvious talent rather than his views on executive power, Marty offered draft memorandum advancing his views of truncated executive power and then say Rahm Emanuel instructed him to revise his memorandum to reaffirm and maintain Obama's executive and CiC powers.

Would Marty agree or follow the Goldsmith lead of resigning and writing a book?


Also, I would like to know what happens when an unstoppable force meets an immovable object.
 

As always, Bart nails it! Logically, if someone doesn't support President Bush's interpretation of Article II, then that person must reject the very notion of a President having meaningful Commander-in-Chief and executive powers. You crazy liberals are obviously so blinded by the text of the Constitution as to be unable to recognize this universal truth.
 

Bart writes:
follow the post Vietnam Carter precedent and voluntarily cede a portion of his Article II CiC and executive powers


That's the kind of passive-aggressive spin ([screem] oh nos - he's, he's, unconstitutional [/screem]) I'd expect from a preteen.
 

bitswapper:

That's the kind of passive-aggressive spin ([screem] oh nos - he's, he's, unconstitutional [/screem]) I'd expect from a preteen.

And this surprises you?

Cheers,
 

I agree with Dilan.
 

@Mark Field,

Er, which part?

I agree it seems unlikely that any sitting president would appoint a chief of OLC bent on limiting the executive power. But then it seems unlikely that any sitting president would be an international interracial intellectual, so who can say? I'm willing to stipulate the possible (if less plausible and even less probable) existence of an elected president more committed to restoring the checks and balances of the overall system than to the wielding of power arrogated to the office by his less systemically oriented predecessors. In fact, I admit to harboring hope we will see small but possibly significant moves in exactly this direction.

Been a while since I allowed myself the luxury of even modest amounts of such hope. Feels nice.
 

Sorry, this part: "someone who never, under any circumstances, takes a legal position that the President may act contrary to a statute or make war absent congressional authorization."
 

@Mark Field,

Ah. I'm with you there. One thing that always seemed odd about the Bush policy was that on the one hand the administration knew it couldn't declare war on Afghanistan or Iraq without clear violation of international law, but somehow thought the twin AUMFs would skirt that issue by never quite using the word "war". Meanwhile, that same administration claimed for itself pretty much all the powers traditionally associated with war time and a few new ones to boot (e.g., enacting a tool of ultimate political oppression in the guise of the Military Commissions Act with no recourse for those wronged even in good faith).

I agree, it would be nice if neither an executive order nor a weasel-worded "authorization" were allowed by either the legislature nor the courts nor sought by the executive.

I somehow doubt Obama will be the man to undo that particular set of problems. He's pretty clearly an interventionist, what with teammates like Biden and Brzezinsky. But "bad" is still better than "worse" and we have seen at least some small repudiation of the rapacious will to power of the outbound PNAC thugs. I'll start with what I can get.
 

dilan said...

Bart, Professor Lederman is not, as far as I can tell, an advocate of a weak executive. He participated in writing some key OLC memos in the Clinton Administration that took very aggressive-- and legally questionable-- positions on executive power.

Which positions might those be?

Outside of perhaps the veto, I am unaware of any Article II power that Marty believes cannot be limited and/or assumed by the Congress and the Courts.
 

The suggestion might help us obtain draft legislation in a timely way, instead of guessing what efforts like DTA, MCA, PAA were shaping up to be, behind closed doors. What I think needs to occur early in the vetting process, however, is input from numerous people who know the taxonomy of DoJ historically, and capable of seeing where the chinks fell out leaving gaping holes in former continuities. I continue to wonder what the president elect can do to reinvigorate the legislative branch, as well. The signing statement issue is a disproportionately overgrown element in the legacy from the departing administration. OLC might be a good idea for the named candidate, but perhaps his contributions could be at a different, higher post. I have worried, as well, about the difficulties experienced by the national archivist following these past eight years. Then there is the penumbra effect, whereby the most efficient exit strategies of a given 4-year administration is to implement gambits which take approximately 5 years to undo, placing extra burden on the successor administration in 2012 to carry forward the initiatives begun in 2009.
 

I am unaware of any Article II power that Marty believes cannot be limited and/or assumed by the Congress and the Courts.

Everybody be quiet, I think Bart is on the verge of an understanding.
 

Let me second Dilan as well, all of it. I said this somewhere else and I'll say it again: ML is a good choice, and he fought the good fight on various things (cheers!), but on some things he was too moderate.

Glenn Greenwald is supportive, but compare his stance on Orin Kerr (earlier this week) and the (imho overly)friendly stance of him around here.

Likewise, ML joined the brigade that ignored the reasonableness of (seriously) investigating stripping Yoo of his tenure. And, he was a bit too in love with OLC opinions (Dilan, as I recall, called him on this).

But, then again, Obama is more moderate than I am on various things, so if anything, the above adds ammo to the campaign.
 

dilan: "Indeed, what I would like to see is someone at OLC who would be your-- and Obama's-- worst nightmare, i.e., someone who never, under any circumstances, takes a legal position that the President may act contrary to a statute or make war absent congressional authorization. Because that happens to be what the Constitution actually says."

Dilan, I have to strongly disagree with you there. To take the most obvious example, were Congress to pass obviously unconstitutional legislation by a veto-proof majority, the President's duty to "take Care that the Laws"--including the Constitution--"be faithfully excecuted" would obligate him to disregard the legislation.
 

Dilan, I have to strongly disagree with you there. To take the most obvious example, were Congress to pass obviously unconstitutional legislation by a veto-proof majority, the President's duty to "take Care that the Laws"--including the Constitution--"be faithfully excecuted" would obligate him to disregard the legislation.

Dilan will, of course, speak for himself, but in my view the obligation of the president in such a case is to seek a judicial determination immediately.
 

@Matthew,

Might there be a better word than "disregard"? I ask sincerely. Imagine a case where Congress has passed a law, say, stripping women of the vote. The president vetoes it. Said Congress overrides the veto. What is the president to do?

Now, in this hypo the override instantly creates standing for a giant class and it seems likely SCOTUS would be ready, willing, and able (well, maybe not the current SCOTUS, but an ideal one, or even a reasonably responsible one) to get its hands on the case sooner rather than later.

I haven't yet been able to think of an example where this sort of instant-standing wouldn't come in to play. Can you? If not, then I certainly don't think "disregard" would be the word for properly greasing the tracks to get such a law in front of the courts (although I find I'm hazy about what limits a president might face with respect to "greasing the tracks").
 

@Mark Field,

Your comment came in ahead of mine. Can you help clarify what a president's powers to "seek judicial determination" are? All the regular rules of standing and ripeness and even redressibility would apply, right? Would the president be barred from taking active part in the case?
 

As to Matthew's reply, I'm unclear if "strongly disagree" applies when you point to what seems a relatively narrow matter.

How many statutes with veto proof majorities that he vetoed (or would veto if it did anything) to no effect will really occur? How many "obviously" are unconstitutional?

I also think that understanding of the Take Care Clause can eat the rule. In effect, s/he becomes a one person Supreme Court. [The general rule is a legislative enactment is presumptively constitutional.] In a republic, it is unclear if so much power in one person is warranted.

The judicial review option is sound. Other pragmatic moves can be imagined. Use of absolute language might be a bit off, but "strongly disagree" suggests exceptions that need more clarification than offered.
 

mark field said...

Dilan, I have to strongly disagree with you there. To take the most obvious example, were Congress to pass obviously unconstitutional legislation by a veto-proof majority, the President's duty to "take Care that the Laws"--including the Constitution--"be faithfully excecuted" would obligate him to disregard the legislation.

Dilan will, of course, speak for himself, but in my view the obligation of the president in such a case is to seek a judicial determination immediately.


The President will probably only have standing if the statute in question seeks to infringe his powers. In such case, especially if the statute concerns foreign policy, the courts will most likely punt on the ground that the issue is a non-justiciable political matter.
 

I also agree with Joe's post.

Your comment came in ahead of mine. Can you help clarify what a president's powers to "seek judicial determination" are? All the regular rules of standing and ripeness and even redressibility would apply, right? Would the president be barred from taking active part in the case?

The executive has a great deal of opportunity to pose a case under most circumstances. Any statute with a criminal penalty, for example, allows the executive to bring charges and ask that the court find the statute unconstitutional. Any statute which conflicts with another, or with the Constitution, allows the executive to seek judicial guidance regarding its duty. Even fairly strict rules of standing would not be likely to preclude a challenge.

The president need not personally take part in the case, though s/he could in the proper case (Clinton v. Jones). Ordinarily, the executive would simply act as the "people of the US".

And, of course, if the statute barred individuals from exercising a right, they could then sue.
 

@Mark Field,

I don't follow your example about a law with criminal charges. If you have time, I'd be grateful for something a little more concrete.

As for seeking judicial guidance w/r/t a seeming conflict, I would think that is ruled out by the ban on advisory opinions from the bench. Isn't that what the OLC is for? When the POTUS sees a conflict she runs it by OLC, acts accordingly, and waits for the other shoe to drop. This is what I think was meant originally by "disregard". And I think that's a legitimate complaint. The fact that the exiting administration grossly abused this system is irrelevant, it's the system we have. If the POTUS doesn't (or can't) veto a law, then it's law until repealed or struck down.

That said, the route the POTUS could take after being overridden in Congress is to refuse to enforce said law, weather the attendant impeachment proceedings and let herself be sued by a citizen seeking enforcement of the law, assuming the suit could be framed such that the court was forced to reach the constitutional merits of the law in question (rather than simply the legality of the POTUS's refusal to execute same).

Getting pretty speculative here. I don't imagine the conversation is of much practical relevance.
 

The problem is that this discussion is very hypothetical, so it's hard to specify how the executive might act.

Suppose, though, there's a statute with criminal penalties. All the executive need do is indict someone, wait for the motion to dismiss, and join it.

The conflicting duties case is harder to analyze because the possiblities are so diverse. What might have to happen is that the president would publicly violate the new statute and invite a court challenge (or impeachment). That's what Andrew Johnson did with the Tenure of Office Act.
 

Interesting thread.

For those who wish to see Professor Lederman considered for the Office of Legal Counsel (and, of course, he's been there and done that) the Brookings Institution has a useful publication A Survivor's Guide for Presidential Nominees (warning 180 pages) which sets out the appointment process and what you will be inflicting on Professor Lederman - but also gives some useful tips on the people who ought to be lobbied.

I would add this: it is not just at the OLC that the Administration needs lawyers - good ones - in all kinds of specialisations and at all levels - and if good lawyers are not forthcoming, then the Administration may be forced to make do with poor ones.

Why else do you think that one of the key institutions in the Neoconservative drive to shift the USA sharply to the right has been the Federalist Society which identifies the right wing nut cases at college, arranges for their indoctrination, makes sure they clerk for Neocon Judges, finds Administration posts for them and smooths their path to Senate confirmation?

So there is a strong case for those of you who teach or practice law to take a little time to identify bright young persons who might do well to put some government service under their belts and organise to put their names forward and lobby for them.

Since the limits of presidential power are open to interpretation, it is pointless to debate them in the abstract. What the OLC and other parts of the Administration's legal services need are sound lawyers who will advise on the law as it is, not on the law as they would wish it to be, suggest possible remedies and alternatives and then leave it up to the executive to decide the proper course to be followed.

I do not think it is reasonable to expect any lawyer to be right 100% of the time and situations will arise for which there is no precedent.

Given the legal qualifications of this President-elect, I do not imagine that he will be looking for "yes-men", nor that he will be tolerant of sloppy work product. He will be looking for the best advice available.

That will be a change from times recently past. Thanks be to the Almighty.
 

Here's what I told Anonymous Liberal when he nominated Marty:

Having learned from Marty Lederman how much unaccountable power is seated at OLC; knowing firsthand the difference between a legal opinion and a legal brief, a judicial opinion and a partisan screed; knowing how a grasp of that difference – it's just one difference – turns on having an intellectual conscience, a fair-minded logic that looks at rank contentions and screams, "The words don't get you there!"; knowing that, even where such a conscience exists, it is invariably the first casualty of power politics -- knowing all of this and what Marty Lederman has said and done during the dark times we're trying to come out of with all our might, I cast my vote with A.L.'s.

One thing more: If we're going to sing Marty's praises, we might at least honor a perennial wish of his and ignore the contentions of Bart the Plumber.

Usually I don't mind Bart. In fact we've gotten along fine. But here he reminds me of everything I've been hearing from the right since Obama won.

It goes like this: there was no mandate, or there was a mandate but it's for Reaganism, or we are a center-right nation, or the electorate has said we need a Project for the Brand New American Century, or we should all be bipartisans in the spirit of George W. Bush, or now is the time to end deficit spending, or Rahm Emanuel is a leftist, or ....

This mandate-blindness is so profoundly antidemocratic that there are no words for it -- unless you turn it into a joke. So here goes:

Q: What do you do if you hold an election and everyone shows up? A: Ignore it.
 

Occasional Observer: "...ignore the contentions of Bart the Plumber. "

Agreed, and let me point back to this recent comment pleading for same. It's not just a point of ignoring local trolls (whomever they be) but also of actively engaging the voices you want to hear more of. Mark Field suggested a splendid tactic for commenting on troll posts without directly replying to the troll. I imagine a quick visit to World News Daily, Limbaugh, or the ACLJ on line will suffice most times for needed background.
 

Robert (and Mark).

Agreed. I like to think that if, like Obama, I'd been running a law review with Federalist Society types, I'd have listened to what they had to say. In my day it was the opposite problem, endless submissions from CLS types that had to be cleaned up just to make sense. It made no difference what side they took; what mattered was for them to assume a real burden of persuasion.

We should be glad to deal with anyone who's constructive, but elections have consequences. So now there's room for Bart the Defeated. Is there such a Bart? Who knows, but I'm for Mills's view (also Rawls's) that you don't understand your view until you know how it looks from the other side. The catch is that the other side has to say how it really looks after acknowledging its legitimacy.

I can't say enough about Marty's credentials. But I'd say the same about Sheila Bair for Treasury without even knowing her political party, only what she's done to save deposits and do mortgage workouts on a massive scale. I've sent Obama's transition team a note on the two of them, but party has nothing to do with either.

How bad is the static? So bad that a sister of mine wrote me to say that whites also deserve credit for voting in Obama, as though that were news. Here's most of what I wrote her back:

I don't know what you're hearing, but there's an unrelenting message going out that "they" took over the country for some undefined "they." It's not just race, it's liberal elites, the "liberal media," stupid weaklings. All the things that fascists used to talk about. The message never stops. It's a sign of panic. Of course "they" is us.

I've listened to the lizard brains and lizard herders on talk radio for a minute or two a few times, just to see what they're up to. At first I can't believe my ears, but then I do because that's all they've ever done. And this is going on at every turn. Neocons say it's time for a Project for a Brand New American Century. Obama has to bomb everyone, find a new war to start. The Wall Street Journal toads are asking the Dems to be as bipartisan as Bush was (!). All of a sudden, deficit spending is evil -- now that dollars would be spent for ordinary people for a change instead of for bankers. Steve Forbes spoke on Bloomberg radio about how we have to go to a flat tax. Hello? Toads like "liberal media guy" Tom Brokaw says the US is a center-right nation. Well, it is if you count Brokaw's boss and stop counting after that.

It's like nothing happened. But in truth it's just vicious propaganda. Vicious and in some way criminal. Get that into your head and keep it there, then listen to the BS. In time you'll see what I'm talking about.

Media Matters just released a detailed poll of US voters' positions on things like active government, progressive taxation, government healthcare, the environment, and so on down the list. The results show across the board that this is a progressive nation. I've always said so, and it's been said for a long time. Noam Chomsky is forever citing surveys to the same effect. Glenn Greenwald practically daily prints some Beltway idiocy that ignores the past and the present, either lies or is clueless, and probably both. It's as if the real world didn't exist for them.

The election clinched it. But you'll have a hard time hearing that the reason Obama won is that most people agree with him and rejected all the filth that was thrown up around him -- which he was wise to ignore because it helped establish his mandate. (If he put a hammer and sickle on the US flag it would be within his mandate.) It's really that simple. And all the endless denials show is that this nation is run by folks and institutions who are afraid to let the people have their say and so lie through their teeth about what's on the popular mind.

It's now turning into a general movement to delegitimize Obama just as they did to Clinton. They keep asking for Republicans in the cabinet, as if no Democrats can hold really, really important posts like Defense or State -- all of a sudden the big thing is to be bipartisan, to share the power. Someone in Congress -- maybe even a Democrat -- said it would be bad if Kerry joined the cabinet because then Russ Feingold would take over Senate Foreign Relations and he's no good for that post because he opposed the war in Iraq. Yes, being opposed to the war in Iraq remains a disqualification! And google "Stockholm syndrome" and you'll see why a Democrat could have said this. They are still acting like Republicans lite.

Yet as Bobby Kennedy also just said, the best thing Obama can do is deny any access to Fox News. Just shut them down. Period. Goodbye. If they want talking heads, assemble a group of iguanas and use CGI. They'll elevate the discussion.


They won't change until they get it into their thick heads that they've lost, and badly. The ball's in their court. That's where to keep it.
 

occasional observer said...

Usually I don't mind Bart. In fact we've gotten along fine. But here he reminds me of everything I've been hearing from the right since Obama won.

It goes like this: there was no mandate, or there was a mandate but it's for Reaganism, or we are a center-right nation, or the electorate has said we need a Project for the Brand New American Century, or we should all be bipartisans in the spirit of George W. Bush, or now is the time to end deficit spending, or Rahm Emanuel is a leftist, or ...


OO, we will continue to get along fine as lang as you do not attribute arguments to me that are not mine.

1) Every elected President has a mandate to govern as he or she sees fit. There is no supermajority requirement to do so. Indeed, a plurality of the popular vote is generally enough.

2) Bipartisanism is not required unless the majority party has insufficient votes to enact its legislation. Indeed, I would recommend that the GOP allow the Dems to set the agenda. It is long past time the Dems get full credit for their positions now that they are unable to hide behind Mr. Bush.

3) Rahm Emanuel is a moderate who will hopefully put the brakes on Mr. Obama's more socialist instincts. I am hoping for more such appointments starting with Larry Summers for Treasury.
 

Bart,

I apologize for likening you to Joe the Plumber. And without even knowing if you have a radio voice, I'm sure I'd rather listen to you than to, say, Mark Levin (even if he had one).

That said, my remarks about the Republicans' attempt to maintain control of the agenda through name-calling (including the name of the other party), double standards, hypocrisy, and lies do bear on the issue of how much attention you should get here going forward. I'd say you've already gotten too much for your own good, but then you'd accuse me of paternalism, which I guess is just another word for socialism.

Don't you ever wonder why discussion threads harp on whatever you type? If there's a Twin Bart at a Twin Balkinization, someone who speaks from the left at the right and gets anything like the response you get here, let me know, but I doubt there is such a figure.

I think part of the reason is that you've represented the faction that's been in charge for the last eight years. It's natural for others to want to hone their ideas on points made by a spokesman for the establishment.

For that reason -- and because I think (without slighting you) that you represent a legal viewpoint that's more political than a reflection of the natural order -- I agree with Mark and Robert that it's time for people to begin doing something different. I don't mean this personally or censoriously. There are ways for you to weigh in constructively and I hope you'll come up with a few. It's just time for more of us to stop thinking that a rejected faction still sets the agenda we have to respond to.

It's easy to miss the transition. It's not like walking into a movie theater under a new marquee, one that reads "Return of the Jedi" instead of "The Empire Strikes Back" (though I'd say it feels that way). You have to ask where you are. And we're now trying to shape an agenda without worrying how it strikes David Addington.

As for your points, please take them to a right-leaning site. They could stand to read them.
 

OO, I just want to affirm your frustration with the propaganda of the media elite. "America is a conservative nation." Well, it depends who you ask. One thing we know, the people who own the news outlets are more interested in defending their privileged position than in informing the common folk.

It's nauseating, but that's the way it is. All we can do is keep pounding them, respectfully & disrespectfully, in every venue we can find.
 

Those interested in the issue Robert Link raised might want to read this also.
 

Those interested in the issue Robert Link raised...

Hilzoy makes a good point, Mark. The landscape has changed. Now that there is more "room to move" maybe we're naturally less defensive and therefore less reactive. Let's hope so.

(I do confess to a personal character weakness: people like Bart get under my skin and I find it very difficult to resist responding.)
 

The President will probably only have standing if the statute in question seeks to infringe his powers. In such case, especially if the statute concerns foreign policy, the courts will most likely punt on the ground that the issue is a non-justiciable political matter.

Not under the political question doctrine as currently interpreted (just because something touches on foreign affairs doesn't make it a political question, unless the resolution of the issue is textually committed to another branch of governemnt). And nor should it be.
 

@mattski,

It isn't a character flaw on your part, it's a character flaw on the part of the troll which allows a troll to take pleasure and pride in upsetting you, in getting your goat, in rattling your cage. As I wrote on the "Obama and the Image of America" thread: "...trolls and politi-tainment celebrities are not engaged in good-faith dialectic; they are engaged in acquisition of power, for which it often suffices to throw one's opponents into confusion (or, more often, apoplexy)." It takes a certain kind of pathological personality to do that kind of work. Again and again I point to the difference between the liberal's naive assumption that the game is dialectic, in search of truth, when really the game is controversy (or Eristical Dialectic, if you prefer) in the name of persuasion (most often of members of the audience rather than one's interlocutor).

It's natural to scratch an itch. And sometimes you have to override it to keep from spreading the pox. ;)
 

Don't you ever wonder why discussion threads harp on whatever you type? If there's a Twin Bart at a Twin Balkinization, someone who speaks from the left at the right and gets anything like the response you get here, let me know, but I doubt there is such a figure.

I think it is because so many of the posters here come from the same left-leaning legal academic perspective. It probably gets boring just preaching to the choir. What is the point of a discussion when everyone agrees from the beginning? It's not that much fun when there is no one to persuade.

I do find it interesting the tendency of legal and political blogs to label as trolls anyone who does not toe the party line. And then to ignore them. Eventually, you get polarized sites, where conservatives only talk to conservatives and liberals only talk to liberals and anyone who is out of the mainstream is a troll.

Isn't democracy supposed to be about persuasion?
 

Media Matters just released a detailed poll of US voters' positions on things like active government, progressive taxation, government healthcare, the environment, and so on down the list. The results show across the board that this is a progressive nation. I've always said so, and it's been said for a long time. Noam Chomsky is forever citing surveys to the same effect.

You need to get out of your bubble. Obama won with a solid majority of 6-7%, but with a VP who is certainly not from the left. The House is now more Democratic, but with a large contingent of "blue dog" democrats. The Senate is now more Democratic, but getting there involved electing folks like Mark Warner, Kay Hagen, Tim Johnson, and possibly Jim Martin. All of those guys are right of center; in fact, Warner and Martin are probably to the right of Susan Collins.

Kudos to the Dems for finally realizing how to build a majority even as the GOP was discovering how to destroy one, but to claim that it is a progressive majority either blinks reality or significantly redefines the word "progressive."

Consider, here in California, one of the bluest of blue states, the most popular politicians are Arnold and DiFi. Which description fits them better, right of center or progressive? A majority of voters here just eliminated same sex marriage in the same election in which they voted in Obama by a 60-40 margin. Is that a progressive position? Channeling Biden, let me repeat - this is a very blue state.

I wonder if Dems will try to overreach as much as the GOP did in Bush's first term? It is certainly going to be interesting . . .
 

Zachary: "I do find it interesting the tendency of legal and political blogs to label as trolls anyone who does not toe the party line....Isn't democracy supposed to be about persuasion?"

In reverse order, no, democracy is not supposed to be about persuasion. Despotism is actually much more persuasive, as there's nothing like the threat of having your kids raped and parents tortured to persuade you to toe the line. No, democracy is most certainly not about persuasion. It is about fairness and justice, stemming from the common sense observation that when there is actual informed consensus as to the justness of an act there is likely to be less injustice in general, then reasoning that the next best thing to consensus is a majority. But democracy is never about persuasion per se, and where persuasion is used to make the worse case the better democracy fails. The very real fear of such failure is why our nation was devised to be a Republic with a host of intended checks-and-balances rather than a democracy.

I know you know that. But it bears repeating. Especially as part of your role in the current social milieu I've dubbed the Balkinization Comments Community seems to be "engagement assurance", which itself is a necessary element of ToAC 28: Persuade the Audience, Not The Opponent. In order to persuade the audience one must keep one's quarry engaged. When one's quarry declines to play, the troll loses its audience. That's why one of the sine qua nons of trolling is the fine art of passive aggression and provocation. If the troll can't evoke, can't rattle the cage or get under the skin, then there is no show for her (presumed or hoped for) audience.

Now, it sometimes happens that folks get inured to the petty barbs of a given troll, at least for a while. At this point inevitably some confederate, some brethren says, "Can't you even have a civil conversation with [the troll]?" in such a manner as to connote the entirely false-to-fact presupposition that civil conversation is possible with [the troll] and that the failure to attain such looked for civil conversation rests with anyone other than [the troll]. The only reason I'm spending any time flogging this particular deceased equine, then, is to point out that, intentionally or not, you are acting the part of the confederate. I point it out only as a matter of interest for folks who track such meta-issues as the social psychology of communities such as ours.
 

to claim that it is a progressive majority either blinks reality or significantly redefines the word "progressive."

And here I thought Obama was running as a socialist. As I now understand it, though, while he ran as a socialist, he was elected as a moderate/conservative.
 

Zachary:

Consider, here in California, one of the bluest of blue states, the most popular politicians are Arnold and DiFi. Which description fits them better, right of center or progressive? A majority of voters here just eliminated same sex marriage in the same election in which they voted in Obama by a 60-40 margin.

The Gropinator has lost a little of his bloom lately.

And FWIW, Ahnohd was against Prop. 8.

And I doubt may people would term DiFi "right of centre" (even if she is to the right of me).

Not to mention, while (under a vicious and dishonest ad attack) California narrowly banned same-sex marriage, it was close, closer than last time, and no other state has approved SSM (and also, Field polls at one point showed the state opposed to the SSM ban in Prop. 8).

Cheers,
 

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