August 2011

by Jeremy Leaming

Following President Obama’s selection of Sen. Mike Lee’s (R-Utah) general counsel, David Barlow, to be the next U.S. Attorney for Utah, The Huffington Posts’s Dan Froomkin provides a closer look at how the president wound up making the nomination, which did not go over very well with many in the progressive community.

The response from progressives was, as Froomkin points out, utter dismay, for Lee is not only a Tea Party favorite, but also harbors some radical beliefs on the parameters of the Constitution. Shortly after winning his Senate seat last year, Lee (pictured) said the Constitution allows for the shuttering of the Departments of Education and Housing and Urban Development, and during his campaign claimed the Constitution does not give the government much power to “redistribute our wealth,” apparently overlooking Congress's power to tax and spend. He also, as noted here by Jeffrey Rosen, called for the repeal of the 16th Amendment, which authorizes a progressive income tax, and the 17th Amendment, which allows senators to be elected by popular vote rather than anointed by state legislatures.  (Froomkin notes that is not clear whether Barlow shares all of Lee's "legal theories.")

But Froomkin says one possible reason for Barlow’s selection “is that Obama’s leeway when it comes to successfully nominating U.S. attorneys and federal judges is severely limited by intransigent Republicans – and by Senate Judiciary Committee Chairman Pat Leahy (D-Vt.). The Vermont senator has insisted that either senator from a nominee’s home state can block the nomination simply by refusing to signal support.”

“The end result,” Froomkin continues, “is that Obama, in many cases, is working off a list of candidates drawn up and considered acceptable by Republicans, rather than the other way around.” 

ACS Executive Director Caroline Fredrickson told Froomkin, “It’s impossible for President Obama to nominate somebody who doesn’t have the support of the home-state senators because they won’ have the ability to move through the process,” noting that some Senate delegations “are extremely ideological and don’t consent to the idea that elections matter and that the president should have a prerogative in filling these positions.”

Froomkin points out that this process likely could have been avoided had “Leahy followed the lead of his Republican predecessor – none other than Hatch – and treated home-state senators’ objections as merely advisory.”

A Leahy spokeswoman defended the senator’s method saying he believed it “encourages consultation between the [White House] and home-state senators.” 

By Steve Sanders, visiting assistant professor, University of Michigan Law School

The political media are about to begin obsessing over the Iowa Republican straw poll, scheduled for Saturday, August 13.  Recent commentary has focused on how religious conservatives have gained a chokehold on Iowa GOP politics.  Evangelical Christian activists remain outraged at the 2009 decision of the Iowa Supreme Court to legalize same-sex marriage.  Last fall, they mounted a well-funded campaign to oust three of the justices who signed that ruling.  Their TV ads  – juxtaposing footage of villainish-looking "liberal, out of control judges" against images of hunters in camouflage and a chubby kid saluting the flag – accused the justices of "ignoring our traditional values" and "imposing their own values."

Now, activist Bob Vander Plaats, who led the anti-court jihad, is pressuring presidential candidates to sign something called "The Marriage Vow," which includes a pledge of "[v]igorous opposition to any redefinition of the Institution of Marriage – faithful monogamy between one man and one woman – through statutory-, bureaucratic-, or court-imposed recognition of intimate unions which are bigamous, polygamous, polyandrous, same-sex, etc."  Religious-right darlings Michele Bachmann and Rick Santorum were the first candidates to enthusiastically sign up.

The picture of Iowa we get from the mainstream media through next year's caucuses is likely to be of a state in the grip of militant Tea Partiers and theocrats.  That would be a shame, because the agenda of these particular activists – with their narrow view of social equality and hostility toward an independent judiciary – is unfaithful to the state's social and legal heritage.