My LA Times Debate with Erwin Chemerinsky, Part 3:

The third and final part of my Los Angeles Times debate with UC Irvine Law School Dean Erwin Chemerinsky is now available here.

In this installment, we considered the question of whether "Obama's runaway victory last November give him a strong mandate to structure the Supreme Court as he likes." Since we actually don't disagree that much over the "mandate" issue, I used part of my allotted space to try to sum up the key points of dispute from our earlier exchanges over Sotomayor and judicial empathy.

I am grateful to the Times for organizing this discussion and to Dean Chemerinsky for his insightful contributions to it.

The entire series of posts is available here.

I'd say the Constitution pretty much gives him that mandate, and his majority in the Senate cements it.
5.29.2009 4:17pm
tarpon (mail):
52% isn't a mandate. Reagan won 49 states and no one thought he had a mandate for anything. Bush had near the same majority and no one thought that his big majorities in Congress meant anything, now did they?

The Constitution if it stands for anything, it stands for the minority rights. And 48% is a pretty big minority. And yes, even the winner of an election is bound by the Constitution.

So NO he does not get a free pass at anything. Especially turning America into a two bit tin horn dictatorship, which seems to be his goal.
5.29.2009 4:28pm
Manny Date (mail) (www):
Given that "mandate" has no concrete definition, you could argue on a number of levels about this: (1) what's a mandate anyway?; (2) who decides what a mandate is?; (3) given the various definitions of mandate, does Barack have one?; and (4) given the various definitions of mandate, does Barack have a mandate to restructure the SCOTUS the way he wants?

Decent topics for a debate, as you could argue them endlessly.

As a parting note: When a politician wins an office, shouldn't they do what they want to do (within the legally proscribed bounds of the office's responsibilities)? Should a politician really do their job differently if they get elected 75%-25% v. 60%-40% v. 51%-49%? Seems kinda silly. They won. They should do their job.
5.29.2009 4:33pm
Perseus (mail):
The idea of a presidential mandate originated with Professor (and later President) Woodrow Wilson, who argued that the president should derive his authority not so much from the Constitution as from public opinion directly. That way the president could overcome the "very distressing paralysis" or gridlock caused by the checks and balances of the Constitution:

If there be one principle clearer than another, it is this: that in any business, whether of government or of mere merchandising, somebody must be trusted, in order that when things go wrong it may be quite plain who should be punished. In order to drive trade at the speed and with the success you desire, you must confide without suspicion in your chief clerk, giving him the power to ruin you, because you thereby furnish him with a motive for serving you. (Wilson, Congressional Government)

And now that another Progressive is in the White House, we don't need to be so suspicious about the Decider-in-Chief.
5.29.2009 6:20pm
Crunchy Frog:
Individual senators and congresscritters have their own mandates as well, which may or may not square with the current occupant of the White House. They are under no obligation to roll over and play lap dogs to any president.

Deference be damned.
5.29.2009 8:09pm
Merlin's Beard:
The Constitution says nothing about "deference." Rather, it says that he gets to nominate, and to appoint with the "Advice and Consent" of the Senate. Deference may have arisen out of tradition and respect for the office, but it's not constitutionally mandated.

Crunchy Frog has it right. Congress, and in particular the Republicans of Congress, owe the President no deference whatsoever on this nomination.
5.29.2009 9:09pm
ll (mail):

Obama's runaway victory last November

What? Like Reagan in 84, Nixon in 72, Johnson in 64?

When did that happen?
5.30.2009 2:44am
ll (mail):
Ilya Somin

With respect to your now closed

# Sotomayor May be Wrong About Race, but She is No Racist:...

If one goes directly to the Taylor piece you link to, all he does in that one is castigate various persons for calling Sotomayer a racist.

If one clicks through several of Taylor's own links, you get to his column in which he says any white judge who said a corresponding thing would be properly banned from polite society as a racist:

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Taylor then spends the rest of the column trying to explain why the Latina is not racist as compared to the white guy who is.

You say:

I believe her position is wrong. But it isn't racist.

Taylor does think so-it is racist, except, I guess, in her case because Latinas can't be racist since they aren't white, or because they don't appear in polite society.

Taylor normally does a good job, but not this time. He is internally inconsistent.

Not that it matters, is your position actually that her position is wrong but isn't racist, or, is your position Taylor's, that it would be racist for a white male but isn't for a Latina?
5.30.2009 3:16am
Joseph Slater (mail):
Of course there is no definition of "mandate," and we can play around with the Presidential numbers (using popular vote figures almost always makes it look closer than Electoral College numbers, e.g.)

Moreover, though, calling this a 52-48 election (or 53-47) ignores the very important Democratic victories/majorities in Congress. In the context of approval of Court nominees, obviously, the significant fact is that the Senate is now 60-40, OK, Franken needs to be seated and Spector is a Dem. through switching, but still, the Dems dominated the Congressional elections. The Dems can legitimately argue a mandate from that as well.
5.30.2009 8:42am
Joseph Slater (mail):
I see Constantin made a similar point about the Senate in the first post, and since my guess is that point doesn't make him happy, I will tip my hat to him for acknowledging it.
5.30.2009 8:44am

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