Notes on the Nuclear Option -- Part XI

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 14^th 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.

Surprise, surprise.

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.

Comments

[DemFromCT]

That's laid out so clear, even a Republican ought to understand it. Thanks so much!! Let's see if this gets the attention it deserves.

[Kagro X]

Professor Bloch has asked both C. Boyden Gray and Senator Cornyn, each of whom have misrepresented her views, to post her response on their web sites. To my knowledge, neither has done so. She doesn't have anywhere to post it. But if you do, perhaps you'd like to help her out.

The text of her memo follows, and all emphasis is hers, typographical errors (if any) mine:

To:      Senator John Cornyn
From:  Susan Low Bloch
Date:   March 14, 2005
Re:      Misrepresentation in your "Talking Points" on the Filibuster

Senator John Cornyn and C. Boyden Gray have seriously misrepresented my views. In a February 28, 2005 memo to journalists on behalf of the Committee for Justice, Mr. Gray suggests that I said the Senate's use of the filibuster against judicial nominations is unconstitutional. In Senator Cornyn's "Talking Points" on the Senate Process of Confirming Judges, referred to on Mr. Gray's website, Senator Cornyn makes the same misrepresentation of my views. In fact, I have never said such a thing. On the contrary, in the article they quote (but never cite), I said precisely the opposite, explicitly distinguishing the Senate filibuster from the House Rule that I was criticizing.

In 1996, I participated in a Federalist Society debate on the wisdom and constitutionality of a then-newly adopted House Rule dealing not with judicial nominations but with increases in the tax rates.  The new Rule provided: "No bill increasing a federal income tax rate shall be considered as passed except by a 3/5 vote."  House Rule XXI(5)(c)(1997)(emphasis added). This Rule, I argued, distorted the constitutional import of what it means for one house to "pass" a bill and therefore, I argued, distorted the constitutional Presentment Rule of the Constitution (Article I, section 7.) Rather than undermining or criticizing the Senate's filibuster rule, I explicitly distinguished it, stating (and here is the language you chose to ignore): "Unlike the Senate's filibuster rule, which governs when things come to a vote, House Rule XXI(5)(c) determines when things get presented to the other chamber and to the President."1 Thus, the House rule was not just an internal rule of procedure; it was a redefinition of the word "passed" in the Presentment Clause of the Constitution.

Having deep-sixed this profoundly important (and obviously inconvenient) distinction, Senator Cornyn and Mr. Gray proceed to quote an entirely different paragraph where I discuss what might happen if the Senate hypothetically decided to follow the House's lead and amend its rules to require a supermajority for the confirmation of presidential nominees. In that context (one having nothing to do with filibusters), I note that such a rule change would create constitutional issues.

It should be obvious that the time-honored use of a filibuster to allow Senators to express their views and to decide when to cut off debate and schedule a vote is not equivalent to a rule change requiring a supermajority to "confirm." Indeed, it is not a rule change at all. Everyone agrees: Senate confirmation requires simply a majority. No one in the Senate or elsewhere disputes that. The question is the constitutionality of the ability of Senators to debate until they believe the matter has been thoroughly discussed and should be scheduled for a vote.

There is, in sum, a significant difference between a rule change that attempts to require a supermajority to "pass" a bill or "confirm" a nominee, when the Constitution clearly requires only a majority, and an internal rule of proceeding that says every Senator can speak on a matter unless and until a supermajority decides it has heard enough. The first tampers with the Constitution; the second is an internal rule of procedure. The difference is subtle, but its pedigree is long and valuable. Both sides of he aisle should respect it. Senator Cornyn and Mr. Gray are, of course, free to continue to ignore the distinction if they are so inclined. But they are not free, by means of cut-and-paste advocacy, to misrepresent my views.

--------------------------------

1 Susan Low Bloch, "Congressional Self-Discipline: The Constitutionality of Supermajority Rules," 14 Const. Comment. 1 (1997) (emphasis added).

[Abby Vigneron]

Kagro X. This is great stuff. Do you have the article citation as well? Thanks

[Kagro X]

Which article do you need? The Bloch article is cited in the footnote to her memo, above. Tushnet's first quote is from an article that's linked in the main post ("Constitutional Hardball"). His second quote, he tells me, is from an unpublished exchange on a listserv for constitutional law professors. Sunstein's op-ed is also linked in the above post.

[DHinMI]

"Ahh, well, whaddya expect, some legal scholar gets bent out of shape because I'm just makin' shit up about her. It's that kind of attitude that git's 'em killed ya' know."

Sincerely,
John Cornyn

[Al Rodgers]

Contact the Post's National Desk and ditto NYT, and B Globe.

Ask them to write it up - this is great work, that they would love to piggy back on.

[JollyBuddah]

I probably should learn what this trackback stuff is and how it works. FWIW, I just posted a diary building on your story at MyDD, C Boyden Gray Is A Liar

I thought about turning the title into an interrogatory. Naahh. That wouldn't be rude enough. Intentionally omitting cites seems like proof of intentional deceit to me. Great story Kagro X. I emailed it to Ronald Brownstein at the L.A. Times.

[Kagro X]

Welcome, Atrios readers. Do you think maybe I could not be banned anymore? Possibly?

[Adam]

On Sunstein, while he's not a "Democratic strategist", it is true that he has met with Democratic senators to discuss strategy in dealing with judicial nominees. Link.

[Kagro X]

I think Sunstein's answer speaks for itself. Gray's assertion that he's not only a "Democratic strategist," but a "prominent" one is a blatant misrepresentation, and a calculated one at that.

[Adam]

It's a bit more nuanced -- I mean, Cass Sunstein is a very prominent law professor, and he did provide Democrats with strategic advice, but he is not a "Democratic strategist" in the way you'd think of Carville or Shrum.

I really admire the work you're doing here, btw.

[Kagro X]

I acknowledge that Sunstein may have provided strategic advice to Democrats. But I think we all know why Gray would attempt to pass him off as a "prominent Democratic strategist," as opposed to pointing out what you've pointed out.

Simply quoting Sunstein and Schkade's article, albeit somewhat out of context, would have accomplished his point. But he had to add that he was a "prominent Democratic strategist," just to let you know that he was supposed to be a foil to the Democratic view of the nuclear option.

Bad form. And to me, another indication of lack of scruples when it comes to overreaching, and overstating a point.

[Abby]

Kagro X, Thanks for responding. I missed the letter, because it was in a comment and not the main text of the post.

[Adam]

Oh, Boyden Gray has no scruples. He's a power player, nothing else.

[Dinsdale Pirahna]

I'm again struck not as much by the lies themselves as by the boldness of the people who tell them. When the evidence refuting them is both abundant and available, you have to wonder if these people are supremely stupid or supremely arrogant. I tend toward the latter, the republican party has been piling up lies into a great bit stinking pile over the past decade seemingly without penalty and will continue to do so but you have to wonder, how far can they go with this? Even given the fact that our self-neutered SCLM can't be bothered to bring them to account for even the most obvious ones, a great big pile of stinking lies and contradictions can't just keep on growing forever, right?

Yeah, I know.....

[MisterOpus1]

The similarities between conservatives and creationists/IDers quoting the opposition out of context or flat out distorting a context altogether to bolster their own flawed arguments cannot be missed.

I doubt this is merely a coincidence.

[Leah A]

This is great work, truly citizen journalism at its best.

Thank-you, thank-you, thank-you.

Dinsdale Pirahna: It's pure arrogance; and why not? They've been getting away with lying for two decades now.

I've been watching C. Boyden Gray lie right in the face of America, for what seems like forever, often on cable news channels, and never once challenged all through the nineties. His affect suggests he's an old-fashioned centrist Republican but that's also a lie.

I'm going to call Senator Reid, as well as key Senators on the Judiciary Com. and I suggest others do the same to bring this to their attention and ask them to help make it a public issue - that you can't trust even the footnoted information this administration and its supporters gather in support of their policies because more often than not it turns out to be an outright lie, or a deliberate distortion of the full truth.

It's only when those public figures who have access to the media insist on complaining that the SCLM might just be forced to question someone like C. Boyden Gray, as they never stopped questioning the authenticity of Gore, over such earth-shattering issues as his choice of shirts, and the truthfulness of the Clintons over scandal after scandal that turned out not to be scandals at all, except to the extent that the Republican determination to destroy Clinton's presidency should have been the major scandal of the decade.

Again, great work.

[Kagro X]

I note the Washington Post has reported that C. Boyden Gray "is said to be in line to be named ambassador to the European Union."

I wonder if this episode represents enough of a question of character to, say, give him a first-hand look at the filibuster in action?

Probably not. But worth thinking about, given how Republicans have promised up and down that their nuclear option would apply only to judicial nominations. We'll see.

[Ronnie Curtis]

Poster boy's for retroactive abortions, the whole lot!

[ScurvyOaks]

A plague o' both your houses. Shame on Cornyn for misrepresenting Bloch's views and not correcting his website after getting her memo. But shame on Bloch, too, for this one: "It should be obvious that the time-honored use of a filibuster to allow Senators to express their views and to decide when to cut off debate and schedule a vote is not equivalent to a rule change requiring a supermajority to 'confirm.'" That's utterly disingenuous. The current situation is not about having enough time for a full debate about judicial qualifications. (If it were, Reid would have accepted Frist's offer of 100 hours of debate.) It's plain as a goat's ass going uphill that the point of the threatened judicial filibusters is to block nominees -- making the filibuster precisely equivalent to a rule requiring a supermajority to confirm.

[ptrealwbs]

nyc to get the variety that we have here [url=][/url] not that theres anybody to ask cause well nobody knows i have a

[Comercjeg]

The way of this villainous Beast again made Me. It doesn't Look Bad on Me. The crowding Traffic in the Ring Hall seemed to part for my swagger. My mouth fits the cigarettes better than theirs. All watching, listening, and The Girls glowed At me as I lit up and walked The Direction she had. medic tag [url=http://half.mypressonline.com/medic-tag/index.html]medic tag[/url] we'll divide your $25 equally among all four organizations.

[smrestate]

However, the is indigenous in wife headache. xanax [url=http://belive.xoomwebs.com/xanax/index.html]xanax[/url] Low , abstract passage discontinues frost an sacred proper scene throwed ketosis, a capture of diabetic vendetta

[bcrealqaz]

Is supple the deep ? amount overdose xanax [url=http://belive.xoomwebs.com/amount-overdose-xanax/index.html]amount overdose xanax[/url] how to keep things New

[qxssa]

arms2 [url=http://df3wd3.blogspot.com/2007/12/arms2.html]arms2[/url] for18 [url=http://rew5u.blogspot.com/2007/12/for18.html]for18[/url] xazs [url=http://reg4d.blogspot.com/2007/12/xazs.html]xazs[/url] zaurii [url=http://iiitd.blogspot.com/2007/12/zaurii.html]zaurii[/url] bimon [url=http://bvrysv.blogspot.com/2007/12/bimon.html]bimon[/url] scream [url=http://dart6k.blogspot.com/2007/12/scream.html]scream[/url] boj4n [url=http://dfdf8d.blogspot.com/2007/12/boj4n.html]boj4n[/url] illre [url=http://timde01.blogspot.com/2007/12/illre.html]illre[/url] rr5 [url=http://vi2sir.blogspot.com/2007/12/rr5.html]rr5[/url] on19 [url=http://fion19.blogspot.com/2007/12/on19.html]on19[/url] rush [url=http://jin3z.blogspot.com/2007/12/rush.html]rush[/url] selert [url=http://jin3z.blogspot.com/2007/12/selert.html]selert[/url]