FIRST ONE @ ONE FIRST

Legislative Tangent Day

Posted in F1@1F Friends, Law School by Mike Sacks on March 24, 2011

Please pardon my turning my attention towards Congress this afternoon, but I must plug two items lest that evil cloud consume the Capitol:

  • The Atlantic’s politics page today published the piece, “How the Filibuster Wrecked the Roman Senate—and Could Wreck Ours,” written by Rob Goodman and Jimmy Soni.  I cut my blogging teeth alongside Rob and Jimmy back in 2006 at the now-defunct “18-24 Bracket” website, where they first introduced their brilliant policy minds to the Internet.  The two of them are now at work on a book about Cato the Younger, the indefatigable and incorruptible Stoic of the Roman Senate.  Here’s a teaser of their today’s column:

Whatever one thinks of the outcomes, removing decisions…from the legislature threatens accountability in general, and threatens the institution of the Senate in particular. In fact, the struggles of our Senate are an example of a broader rule: legislatures that make obstruction a way of life tend to get bypassed.

Some of the best evidence for this comes not from the recent past but from ancient history — history that was familiar to our classically-educated Founders. The Senate of the ancient Roman Republic was the first legislature to use the filibuster, the first to abuse it, and the first to suffer the consequences.

One Roman senator, in particular, had a special fondness for the host of obstructionist tools scattered across Rome’s constitution: Cato the Younger, Rome’s fiercest traditionalist and the leading voice of the optimates, the Republic’s conservative elite.

Article I of the U.S. Constitution establishes Congress as the federal government’s “first branch” and the primary author of federal law. Congress is, appropriately, also the branch most accountable to the people. Of the three branches, however, Congress is by far the least influential on the legal community’s constitutional perspective.

One major reason is that Congress is the least accessible to new lawyers in their formative first years: Congress lacks a program similar to the judiciary’s clerkship program, or the Honors programs at executive branch agencies.

The legal community is also missing out on the opportunity to have its rising stars learn about legislation–the bread and butter of federal legal practice–from the inside. In contrast, the consistent flow of lawyers through apprenticeship programs in the courts and executive branch agencies has given the legal community a deep and constantly renewed grounding in judicial and administrative lawmaking.

Congress is missing out, too. Basic legal legislative work–statutory research, drafting, and analysis–often gets short shrift in busy Capitol Hill offices, reflected in shortcomings in Congress’s legal product. Congress would benefit from the fresh perspective, energy, and legal training of these temporary hires in their first years after law school, focused on the legislative branch’s legal work.

Legislation has been moving in Congress in recent years to establish a legislative law clerk program. This website provides a focal point for these efforts, and explains how you can help make this program a reality.

Conservative Convergence = Liberal Freak-Out?

Posted in Anticipation, Clairvoyance by Mike Sacks on January 19, 2010

Tom Goldstein at SCOTUSBlog predicts that Citizens United will come down either tomorrow or Monday morning:

As we have previously noted, the Court will issue opinions tomorrow.  The next opinion day is Monday, January 25.  After that, the Court is not scheduled to issue opinions until Tuesday, February 23.  The month-long gap results from the break between the Court’s January and February sittings.

The Court could add an additional opinion date.  That would have been extremely unlikely under Chief Justice Rehnquist.  But in a variety of small ways, the Roberts Court has taken a more pragmatic approach that deviates from certain traditions.

Nonetheless, the Court is an institution that does rest on tradition, and it will have a strong institutional preference for sticking to its usual calendar.  The Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar.

If Goldstein is right, and if the Court holds to its expected 5-4 conservative victory despite doubts created by the decision’s delay, expect a left-wing freak-out.

First, a Republican takes Ted Kennedy’s Senate seat tonight, destroying the Democrats’ filibuster-proof majority and perhaps with it Kennedy’s dream of health care reform.

Next, should the Court strike down McCain-Feingold‘s restrictions on corporate campaign expenditures, expect liberal commentators to reveal doomsday visions of insurance companies emptying their coffers in the 2010 campaign on a multimedia effort to smear all incumbents supportive of health care reform as fascists, socialists, and communists.

That’s a vicious one-two punch from our Legislative and Judicial branches.  But should that combination come to pass, expect the Executive Branch to stay cool, adjust to the circumstances, and move ahead.   There will be neither war nor implosion.

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