Reflections on Defeat of the Bailout Amendment

Here is what I just posted in response to an election law listserv post by David Becker, noting with amusement the fact that Rep. Westmoreland repeatedly referred to me, a “liberal law professor,” during the debate over bailout:
I of course was not amused, though I can’t say it was unexpected that Westmoreland would rely upon me and others who have voiced concern. (My only consolation is that he butchered the pronunciation of Sam Issacharoff’s name even worse than he did mine.) As a matter of politics, I have virtually nothing in common with Rep. Westmoreland, and to me it is a shame that it took someone like him—and likely for the wrong reasons—to sponsor an amendment that I think would have strengthened the Act and that I think would have been supported by more proponents of the Act if doing so would not have unraveled “the deal.”
The debate, as expected, was also not serious, with Chairman Sensenbrenner stating that the provision would violate the “separation of powers.” (Of course it would not have, even if DOJ was given final authority for determining bailout; but a three-judge court, and not DOJ, would have made the ultimate determination of bail out eligibility under the amendment).
I will now just worry that Justice Kennedy, the likely swing voter when VRA reauthorization ends up back before the Supreme Court, will look at the defeat of the bailout amendment as evidence that Congress has not taken seriously its admonition in the new federalism cases and his voicing of concern over the use of raced based remedies in a series of cases culminating with LULAC.
I very much hope to be proven wrong about the Supreme Court.

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