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.

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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.

http://beldar.blogs.com/beldarblog/2007/07/dont-fret-so-sa.html

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,

Sandy

----- 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,

Sandy