Monthly Archives: January 2006

New Listserv Dedicated to the Field of “Legislation”

Following the success of the Election Law listserv (which I co-manage with Dan Lowenstein and which has over 600 members, including legal academics, political scientists, government officials, election attorneys and administrators, journalists and others), I am beginning a listserv on the topic of Legislation. To sign up, point your web browsers here and choose the option for subscribing. The same page has instructions for unsubscribing.
Here is a brief description:

    The LEGISLATION list is an Internet Listserv residing at Loyola Law School, Los Angeles. This list is for general discussion of substantive and pedagogical issues related to legislation, including statutory interpretation, lobbying, political bribery, and issues of representative structures. The group is a private one, which consists primarily of academics who teach courses or write about questions related to these subjects. Legal and political practitioners also may join, subject to the approval of the list manager.
    In addition to general issue relating to the subject matter, the list is intended to serve as a place where subscribers can discuss ideas they have for scholarship, works in progress, and problems they are encountering in teaching and conducting research. Members also are encouraged to share information about new books or articles and new judicial, legislative and administrative developments related to the topic of legislation

Postings to the list are not private, and archives are accessible to journalists and others. However, the list requires that journalists ask the permission of a post’s author before quoting directly from that post.
As of now, this list is not the official list of the AALS Section on Legislation. Some of the features of the Legislation listserv (e.g., public archives and allowing non-law teachers to participate) are not consistent with current AALS policy, though AALS is taking up the question whether or not to allow the list to serve as the official list of the section.
Please direct any questions to me at And please feel free to forward to interested people.

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The Failed Alito Filibuster

I sometimes make predictions on this blog about future events, such as how the Supreme Court is likely to decide an election law issue. Sometimes these predictions are right and sometimes they are not. I have also been making predictions about the Supreme Court judicial nominations process since Justice O’Connor announced her intention to retire at the end of last term. For example, I correctly predicted the evening of Chief Justice Rehnquist’s death that the President would renominate John Roberts for Rehnquist’s seat and that the President would choose a candidate to the right of Harriet Miers after she withdrew her nomination.
But I also predicted that Justice Alito likely would not be confirmed, and of course this prediction has turned out to be incorrect. I wanted to think about why this prediction proved incorrect. Here is the core of my earlier argument:

    Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won’t vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high.

It was relatively easy for Democrats to paint Justice Alito as opposed to abortion rights, especially after his 1985 job application came to light. Yet this issue did not have the salience I expected. In part, I suspect that there is just too much lag time between the appointment of a Supreme Court Justice and decisions on hot button issues like Roe. By the time the Court actually decides a case squarely presenting the question whether Roe should be overruled, President Bush may have finished his second term, and it is not clear that voters would then blame Senators for such a vote. Indeed, if Chief Justice Roberts moves incrementally in overturning cases like Roe (such as by watering down the “undue burden” test), the movement may seem imperceptible to the public.
The other key aspect of the failure of my prediction is the inability of Democrats to hold together and to be willing to use their political capital towards what many activists in the party saw as a core issue. Democrats could not afford to have many defectors if they were going to have 41 votes for a filibuster. There are still some relatively conservative Democratic Senators (or at least Senators from relatively conservative states who want to be reelected). In the end, Democratic leaders in the Senate apparently made the calculation that a filibuster was doomed to fail and decided not to pursue it.
What is hardest to explain (except as a publicity stunt) is the late effort at a filibuster from Sen. Kerry, literally “phoned in” from a ski resort in Switzerland. As Wonkette observed, “It reflects the same shrewd political judgment and unerring strategic insight that Senator Kerry displayed in running his 2004 presidential campaign.”
Where does this leave Democrats? Thought the “Gang of 14” agreement has saved the Senate from the nuclear option, it has seriously weakened the Democrats, who apparently won’t be able to block any competent Bush nominee to the Supreme Court (should another nomination open up). It may still be possible to block lower stakes judicial nominees, as is apparently happening with DC Circuit nominee Brett Kavanaugh.
In the end, I think my prediction failed because I overestimated the salience of the abortion issue and the strength and savvy of the Democratic party. Thanks to Sen. Kerry, Democrats have two losses rather than one in a 24-hour period.

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“Census Bureau, Activists Debate How and Where to Count Inmates”

The Washington Post offers this report, which begins: “Since the first U.S. census in 1790, there has been a rule for keeping track of the convicts sitting in prisons: They are counted in the state and region where they are serving their time, not necessarily the place they did their crime or will call home once they are out of the joint. How to count inmates historically has not been a big issue. But the fast-expanding prison population — now about 1.5 million — is prompting a debate because government spending and electoral district boundaries are in part decided by population. Opponents say the practice unfairly rewards rural, often sparsely populated regions where many prisons are built, at the expense of the cities where many prisoners had resided.” Thanks to Jeff Wice for the pointer.

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