« On Libby's sentence enhancement based on unproved crimes | Main | You know you are suffering from Bush Derangement Syndrome »

Tuesday, July 03, 2007

80,277 reasons why Sandy seriously ought not fret so much about whether the Libby commutation threatens the Republic (or even The New Republic)

I've blogged before about Sanford V. Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at my alma mater, Texas Law School. I had the privilege of editing a book review that he wrote for the Texas Law Review, and he was my legal ethics professor during what was my last year, and his first year, at UT-Law in 1980. He's appeared most notably in the meta-pages of BeldarBlog in October 2005 as a soundly defeated courtroom foe of the supposedly constitutionally inadequate Harriet Miers. He's also a frequent blogger at Balkinization, a very fine and rabidly progressive law profs' blog that I peruse whenever I'm feeling either in need of comparative evidence of my own intellectual adequacy (rare) or sleepless (somewhat more common). I genuinely like and admire Prof. Levinson, who I almost feel like I could call "Sandy" in person and without rebuke.

I wish, therefore, that I could have the chance to buy, and then split with him, a pitcher of Lone Star over at the Posse East this afternoon, so we could talk over his current anxiety.

You see, writing in The New Republic Online (not firewalled, hurrah! h/t Ramesh Ponnuru, who reads TNR so I don't have to), Prof. Levinson found himself so very fretful about the Libby commutation that he couldn't "restrain [him]self" from, well, fretting pretty much all over his op-ed there — but to my astonishment, he doesn't lay all the blame on the obvious whipping boy, i.e., the current occupant of 1600 Pennsylvania. There's another, very surprising villain who's implicated here, says he:

No one should doubt that we are in a constitutional crisis. And part of the crisis can be found within the Constitution itself.

The snarky reply to this is, of course:  America under constitutional siege by its own Constitution — Day 80,277!

Prof. Levinson allows how Pres. Clinton's pardoning of Marc Rich was, "[a]s with so much of the Clinton presidency, ... tawdry but unthreatening to a Republican Form of Government." Well, okay, I'll buy that, as long as we're sticking to things that are provably corrupt. That's a good suggestion; let's not go speculating about presidential motives. But how, then, can he write in the next sentence, of Dubya: "Mr. Bush's commutation, is such a threat, unless, of course, one defines a 'Republican Form of Government' as 'Government by the Republican Party.'" And with what proof, with what evidence for this sweeping condemnation? Well, that would be what they taught me at Texas Law School to call "sweeping, wild-ass speculation":

The best explanation of the pardon is not compassion but, rather, fear that Mr. Libby might be tempted to provide more information about the cabal to turn the presidency (and vice-presidency) into "regal," if not out-and-out dictatorial, authorities totally independent from any scrutiny or accountability.

You see, in America, we don't need M1A2 tanks on the Mall to let us know there's a coup d'etat in progress. We can know it's true simply because we read it in the words of blogging liberal law professors.

Okay, here's the deal: I'll pledge 1000 hours of my time to lead the drive to endow a new super-duper $50M chair at Texas Law School. The sole condition is that the Law School faculty en masse, and the chair's holder in particular, must pre-commit that if the chair's holder ever accuses an American president — any American president — of being an "out-and-out dictatorial [authority] totally indepedent from any scrutiny or accountability,' then he (the professor) must go live and teach for a year in any country whose name ends in the syllable "-stan."

But in fairness, as constitutional crisis-mongers go, Prof. Levinson's reaction is actually comparatively restrained, and maybe he thought better of his excessive fretting after a night's sleep or a morning nap. In comments, he writes:

As crises go, the Libby pardon may not count very high on the Richter Scale, but even minor earthquakes are nonetheless evidence of trauma and, on occasion, signal the likely occurrence of something much more major.

Still: A minor earthquakes? Earthquakes? Is Prof. Levinson's promised next paper with Prof. Balkin going to be called, "Tectonic Faults in the Constitutional Seascape of the Pardons Clause"? Man! I want to get in on the bidding for the movie rights to that one! ("And featuring Academy Award-winner Al Gore in a double-role as 'Gouverneur Morris' and 'Professor Richter'!")

Prof. Levinson, I know, already had his poly-sci PhD and had just finished law school for his JD in 1973-1974, when America actually was on the brink of a constitutional crisis. I was reading the UPI news feed into the microphone as a DJ at radio station KPET-AM in Lamesa on the day Nixon boarded Marine One for the last time in August 1974. And I certainly haven't forgotten that time, nor the Supreme Court decisions and grand jury proceedings and congressional impeachment hearings that all led up to it. And who can forget Florida 2000? Then, too, good arguments could be made that we were on the brink of a constitutional crisis.

Nowadays, I throw the term "crisis" around pretty lightly. I was in the drive-through lane at Whataburger's last night and dropped a dime I needed to be able to provide exact change for my grilled chicken sandwich, and that was a crisis, I thought at that moment. (A "grilled chicken sandwich/exact change crisis," to be precise.)

But ... "constitutional crisis"? Doesn't that call for an incredulously interjected "Seriously?" from each of his students, like the interns do on Gray's Anatomy? Shouldn't a distinguished law professor be a little more discriminating about the use of that term? With all due and genuine respect to Prof. Levinson, I seriously tend to think so.


UPDATE (Wed Jul 4 @ 1:35am): Prof. Levinson reconfirmed my clear recollections of his warmth, humor, and good manners in the following email exchange with me (republished here with his permission):

----- Original Message -----
From: Bill Dyer
To: Sanford Levinson
Sent: Tue Jul 03 16:28:13 2007
Subject: New offer for a UT-Law endowed chair -- seriously!

Prof. Levinson,

I don’t subscribe to TNR so I can’t comment on your op-ed (if that’s what it should be called) there. But here’s a link to my own blog post about whether the Libby commutation is (or isn’t) a constitutional crisis.


Best regards from your former student,

- Bill Dyer a/k/a Beldar

----- Original Message -----
From: Sanford Levinson
Sent: Tuesday, July 03, 2007 5:21 PM
To: Bill Dyer
Subject: Re: New offer for a UT-Law endowed chair -- seriously!

I could take refuge in the fact that the title was given my piece by the New Repoulic, but that would require ignoring the fact that I did indeed use the term.  "Crisis" is probably hyperbolic, but my main point was that this was precisely the kind of (ab)use of the pardon power that George Mason and Luther Martin feared in 1787.  And who knows what further indictments (and pardons) are going to come before 2009?

All the best,


----- Original Message -----
From: Bill Dyer
To: Sanford Levinson
Sent: Tue Jul 03 17:32:13 2007
Subject: RE: New offer for a UT-Law endowed chair -- seriously!

IF you attribute to Dubya the motive you did, THEN it is exactly the sort of abuse.

If you read what he wrote and credit that instead, then it’s the sort of use envisioned by the Founders.

We can surely agree that this is in the eye of the beholder, or at least a highly subjective question of motive about which partisans are unlikely to agree.

But thanks for the prompt reply!  I won’t quote your email without permission, but feel free to post, now or whenever, in my humble blog’s comments. Or if you’d prefer, I’d always be glad to reprint your written reaction from an email in my blog text if (but only if) you gave permission. (I did that recently in a very civil dialog with Marty Lederman on executive privilege … I’m about to re-engage with him, I hope, on the subject of Cheney and the executive order on classified materials, oh joy!)

- Beldar

----- Original Message -----
From: Sanford Levinson
Sent: Tuesday, July 03, 2007 6:46 PM
To: Bill Dyer
Subject: Re: New offer for a UT-Law endowed chair -- seriously!

I agree with you that much depends on how one assesses W's motive (and takes his statement seriously, though even then it's hard to see that any jail time at all is "excessive," especially given the Supreme Court decision a few weeks ago.

Feel free to use my reply however you wish.

All the best,


Posted by Beldar at 03:54 PM in Humor, Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to 80,277 reasons why Sandy seriously ought not fret so much about whether the Libby commutation threatens the Republic (or even The New Republic) and sent a trackback ping are listed here:

» Beldar's Great Idea from L'Ombre de l'Olivier

Tracked on Jul 4, 2007 3:50:58 AM


(1) Paul Zrimsek made the following comment | Jul 3, 2007 7:36:29 PM | Permalink

I'm mildly disappointed that the Bush-Cheney cabal has nothing more spectacular in mind than monarchy or dictatorship. I was expecting something more like an invasion of Nazi hell zombies from inside the hollow Earth.

(2) L.B. Simoni made the following comment | Jul 3, 2007 7:59:15 PM | Permalink

Every liberal I've discussed this issue with has, to slightly varying degrees, put it in this way: "[This is] clearly just one more step on the long road to dictatorship by King George."

I did get a "Did you hear the President is pardoning communists, now?" from a guy this evening, though. Had to do a serious double-take.

People are capable of so much ignorant hysteria, it's surreal.

(3) antimedia made the following comment | Jul 4, 2007 12:26:44 AM | Permalink

Whatever will they do when King George quietly steps down from office in January, 2009, and hands his scepter to his heir-apparent?

(4) L.B. Simoni made the following comment | Jul 4, 2007 6:53:35 AM | Permalink

Without a doubt, the worst of the left will claim victory for having derailed his totalitarian aspirations. Why, if it weren't for those couch potato twenty-somethings in their parents' basements, with their wild conspiracy theories about everything, speaking truth to power, we'd be lost in the reign of King George the Merciless right now.

(5) narciso made the following comment | Jul 4, 2007 7:35:09 PM | Permalink

Rich was an oil trader with enemy powers like Iran, in the 1980s. Not unlike a banker dealing with IG Farben
in the 1940s. Now Rich did retain Libby as a lawyer, and his legal counsel was more valubel than Jack Quinn & other figures retained. This isn't the first time Sanford
has claimed a 'constitutional crisis, he argued this would be the inevitable consequence of Cheney becoming President.

(6) hunter made the following comment | Jul 4, 2007 11:24:53 PM | Permalink

Personal feelings aside, the Prof. is an idiot if he thinks a President excercising his stated powers in the Constitution is creating a Constiutional crisis.
The only crisis at ahnd is extreme lefty anxiety working itself up to rationalize regulating free speech - and inevitably other- Constiutional rights...like Presidential power.
With all due respect, your professor can stuff it.

(7) stan made the following comment | Jul 5, 2007 10:49:07 AM | Permalink

I always thought a Constitutional crisis would involve something like the president paying a group of thugs to physically harass, threaten and intimidate the witnesses in investigations into his criminality. Or strong-arming his political allies into paying huge bribes to buy the silence of other witnesses to his criminality. Or the president using the IRS, the FBI and Justice Dept to harass political opponents. Those would be the kind of abuses of power which the professor must have been thinking about when he used the term "constitutional crisis".

Oh wait! President and Mrs. Clinton's most trusted political advisor has already told us that they did just that. Never mind. Move along. Nothing to see here.

(8) hunter made the following comment | Jul 7, 2007 7:45:31 AM | Permalink

Exactly. Nothing points out how the lefty frenzy is simply the mutterings of sheep than their silence over real intimidation and obstruction when it actually happened.
But these are the same tools who are worked up over the weather, while denying there is even a war on.

(9) Beth made the following comment | Jul 10, 2007 12:45:07 AM | Permalink

You know how "King George" is always criticized for being tone-deaf with his subjects--er, the public? It's no freaking wonder. The Left jumped the shark with their histrionics about "dictatorship" about 15 or 20 memes ago. They just keep on throwing ridiculous crap at Bush, hoping something will stick if they just shriek in unison for long enough. They didn't get Cheney or Rove (what a fantasy for them!) for "outing" the Diva Plame, so if all they get is Libby, they'll MAKE a faux-crisis out of it. And now they have this idiotic outrage! over the Justice Department firings to fall back on, just in case!

Whatever will they do when King George quietly steps down from office in January, 2009, and hands his scepter to his heir-apparent?

Well of course, they will declare the election Officially Stolen™, if a Republican wins. (Please, God?) And then we'll have a new Constitutional Crisis! They win!

The comments to this entry are closed.