by Kagro X
As though it weren’t enough that Nuclear Republicans are ignoring what makes the “constitutional option” constitutional, and then throwing out the rulebook to make it work, they’re also selling the theory to the public by claiming that even “liberal” law professors support it.
In a memo dated February 28th and widely circulated to members of the press, C. Boyden Gray, formerly White House counsel to the first President Bush, attempted to bolster his own questionable constitutional interpretation of the nuclear option with quotes taken from three well-known legal scholars: Susan Low Bloch and Mark Tushnet of Georgetown University, and Cass Sunstein of the University of Chicago. In each instance, Gray made certain to set up the quotes by establishing that they came from “liberals” or a “prominent Democratic strategist.” In two of the three cases, Gray fails to cite to any actual source for the remarks he attributes to these professors, and in all three he leaves out context critical to understanding their comments, in at least one case, completely reversing the writer’s intent.
Gray begins with “liberal Georgetown Law Professor Susan Low Bloch,” whom he claimed had argued that supermajority requirements for nominations:
“upset the carefully crafted rules concerning appointment of both executive officials and judges and … unilaterally limit the power the Constitution gives to the President in the appointments process. This, I believe, would allow the Senate to aggrandize its own role and would unconstitutionally distort the balance of powers established by the Constitution.”
Noting that the quote had no citation, I searched the Internet for it, hoping to find the larger context in which Professor Bloch had allegedly written it. Finding none, and instead finding only numerous circular citations to conservative commentaries, each attributing exactly the same quote to “liberal Georgetown Law Professor Susan Low Bloch,” it became clear that something was amiss. I contacted Professor Bloch and asked her about the situation. Her reply was startling:
This is a carefully structured misrepresentation which does seem to get repeated. Attached is a memo I have written to Boyden Gray and Senator Cornyn, the two that I know have been misrepresenting my views.
Bloch’s March 14th reply memo to Gray states the following:
You have seriously misrepresented my views. In a February 28, 2005 memo to journalists on behalf of the Committee for Justice, you argue that the Senate’s use of the filibuster against judicial nominations is unconstitutional. In so doing, you suggest I said such use in unconstitutional. In fact, I have never said such a thing. On the contrary, in the article you quote (but never cite), I said precisely the opposite, explicitly distinguishing the Senate filibuster from the House Rule that I was criticizing.
Gray also quotes, “liberal constitutional scholar Mark Tushnet,” as saying, “[t]he Democrats’ filibuster is … a repudiation of a settled pre-constitutional understanding.” And later, to defend against the accusation that Republican obstruction of Clinton nominees was equivalent to the filibuster, as writing:
There’s a difference between the use of the filibuster to derail a nomination and the use of other Senate rules—on scheduling, on not having a floor vote without prior committee action, etc.—to do so. All those other rules … can be overridden by a majority vote of the Senate … whereas the filibuster can’t be overridden in that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can’t do so with respect to a filibuster.
Once again, Gray had set the professor up as a liberal foil to anti-nuclear option arguments, and once again had failed to give adequate context or citations. Accordingly, I contacted Professor Tushnet. Sure enough, he told me:
If you've read my "Constitutional Hardball" article, you'll have seen that the [shorter] quotation from that article is taken out of context. The other quotation comes from an exchange on a listserv for constitutional law professors. I was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and I was pointing out that there was indeed a difference. My statement was not intended to say that the difference was constitutionally significant, but was rather an effort to get the structure of the constitutional arguments clear. So, in conclusion, I do believe that, by quoting the statement without providing its context, those who are currently using it are misrepresenting what I said.
Not content with these misrepresentations, Gray moves on to counter the argument that “Democrats have no choice but to resort to extraordinary measures because President Bush’s nominees are exceptionally conservative and ideological.” He does so by quoting Professor Cass Sunstein and co-author David Schkade of UC San Diego, from their Washington Post op-ed, “A Bench Tilting Right.” Although Gray this time provided a citation, he once again sets the quote up by calling Sunstein a “prominent Democratic strategist,” who after conducting a study of judicial appointments by Presidents since John F. Kennedy, wrote:
Remarkably, there are no significant differences among the voting records of Reagan, Bush I and Bush II appointees. The three most recent Republican presidents have shown extraordinary consistency in their choices.
Leaving aside for the moment the fact that a Democrat would instantly recognize that consistency of choice between these three is a less-than-helpful statement about the quality of their selections, I contacted Professor Sunstein to ask him whether, in light of what had happened to Professors Bloch and Tushnet, he had anything to add to the debate. His response:
Gray is drawing on an op-ed we did in the Washington Post, which shows growing conservatism on the federal courts; it's true that we find no significant differences among the appointees of the last three Republican presidents. What's oddest is that he calls me a Democratic strategist. I'm not a Democrat, let alone a Democratic strategist! (I'm an independent).
Gray’s quotation also ignores the fact that Sunstein and Schkade begin their article by noting that:
Appellate judges appointed by Presidents Ronald Reagan, George H.W. Bush and George W. Bush show more conservative voting patterns than do judges appointed by any president in the past 80 years. As a result, the average vote of a federal judge has been growing much more conservative.
I suppose I could be forgiven for not taking the prior failure of Democrats to catch on to the fact that trend has a cumulative effect as a strong argument for continued acquiescence, but Gray’s quotation would never let me get to that point.
Given all that’s happened over the past few weeks – Tom DeLay’s House power play with regard to the crisis in the Ethics Committee, his tag-team effort with Frist in the Terri Schiavo circus, the extraordinary extent to which Republicans have gone to choke off debate in the House, and now the threat of the same in the Senate thanks to a nuclear option without any solid basis in constitutional theory – the overreaching of the Republican Congress is nearing critical mass. Now, to top it all off, not only are they throwing out the rules and abandoning the constitutional underpinnings of their arguments, but they're using once-respected names in the political and legal community to mislead the press and the public into believing that even "liberal" law professors agree with them.
Toss into the mix the growing chorus of voices speaking out against the USA PATRIOT Act, the treatment of so-called “enemy combatants” at Guantánamo, and the use of torture and “extraordinary rendition” apparently endorsed by the current Attorney General and the Department of Justice, and ordinary, non-wonk Americans might rightly begin to wonder how long they’re willing to stand for this outrageous cover for the assault on our Constitution.