Patterico's Pontifications


Erwin Chemerinsky: Hypocritical Partisan Hack

Filed under: Judiciary,Law,Scum — Patterico @ 6:47 am

Erwin Chemerinsky had an online chat on the Washington Post website yesterday. Most everybody sucked up to him, and he proved himself once again to be a hypocritical partisan hack who will say anything to advance his political agenda. Here are the highlights:

Fairfax, Va.: I have always thought that the Gang of 14 “Compromise” was really a total cave-in by the Democrats wherein they agreed to eviscerate the filibuster rather than fight for it. What is your opinion about that agreement?

Erwin Chemerinsky: The filibuster has existed throughout American history. The effort by Republican Senators to eliminate it was power politics pure and simple. I am not sure why Democrats went along with the compromise unless they felt that they did not have the votes to keep the filibuster and it was the best they could do.

(All emphasis in this post is mine.)

Hey Erwin! That’s not what you said in 1997! As I have previously told you, Chemerinsky has co-authored a law review article that argued exactly the opposite:

The modern filibuster . . . has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it. (p. 184)

. . . .

[E]ntrenchment of the filibuster violates a fundamental constitutional principle: One legislature cannot bind subsequent legislatures. (p. 247.)

. . . .

Therefore, Senate Rule XXII is unconstitutional in requiring a two-thirds vote in order to change the Senate’s rules. Declaring this rule unconstitutional would mean that a majority of the Senate could abolish or reform the filibuster. Ideally, the Senate would recognize this violation and revise its own rules to eliminate the requirement for a supermajority. (p. 253.)

Of course, this article was written back in 1997, when a Democrat was president.

I know it’s not news that Chemerinsky is a hypocrite, but sometimes you have to report these things even if they’re not news.

Philadelphia, Pa.: Judge Alito upheld our state’s abortion restrictions, including requiring that a woman notify the father that she plans to get an abortion. No exceptions are made, even in cases of abused women living in shelters. Shouldn’t this reasoning except to raise significant questions on Judge Alito’s decisions and might it lead to significant pro-choice opposition to this confirmation?

Erwin Chemerinsky: I think pro-choice groups will be unanimous in opposing Alito. The key question will be whether they and others can persuade moderate Republican and Democratic Senators to oppose Alito. The moderates will be decisive here.

A fair commenter would have corrected the questioner, who inaccurately stated that there were no exceptions to the spousal notification provision in the Pennsylvania statute reviewed in Casey. As I have already noted, there were four:

(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

If you are an abused woman in a shelter, you obviously have reason to believe that “notification is likely to result in the infliction of bodily injury.” The questioner is simply wrong. But our friend Erwin, leftist hack as he is, was perfectly content to leave the questioner’s false statement just hanging out there . . . because it serves his agenda.

P.S. As I read his answers to the questions, I can still hear that whiny voice of his, even though I’m not actually listening to him.

P.P.S. More on the chat in the post above this one, here.

14 Responses to “Erwin Chemerinsky: Hypocritical Partisan Hack”

  1. Yeh, Ol’ Bugeyes is a real beaut, ain’t he? I’ve never understood how someone like him was able to become the “go to” guy for all things legal. How do you promote yourself into this spokesperson position. It’s not as if he’s any kind of Johnny Come Lately either. He’s been around forever. You should look into this line of work, Mr. P. It probably pays better than the crazy blog money also.

    Mikey (d870f2)

  2. Chereminsky said, “The filibuster has existed throughout American history. The effort by Republican Senators to eliminate it was power politics pure and simple.”

    I think the critical point here is that GOP Senators did NOT try to eliminate the filibuster. They tried to limit it to legislative matters. Big difference.

    Andrew (e5a487)

  3. Then there is Rick Hasen, whose views on gerrymanders seem to vary by party. Texas bad, California good, etc.

    Kevin Murphy (6a7945)

  4. Just think of the problems that could have been avoided had the Enforcement Clause of the 14th Amendment contained a provision for limiting Senate debate and permitting a simple majority to bring actions pursuant to the Enforcement Clause to the floor for a vote. One of these, but by no means the worst, was the boost given to extraconstitutional judicial lawmaking powers. The combination of black veterans returning from WWII and the omnipresent Dixiecrat filibuster producted a moral call that the Court answered in what Michael McConnell has called an act of judicial statesmanship. Losing the filibuster for judicial nominations wouldn’t be a bad thing at all, much less the tragedy that the Dems are portraying.

    TNugent (6128b4)

  5. The funny thing is, I was just about to pop Chemerinsky’s Professional Responsibility CD’s into the player to study for the MPRE tomorrow, but now, I’m afraid my face will melt if I have to listen to his voice.

    jinnmabe (0af329)

  6. Son of a bitch, that’s one of the best gotcha’s I’ve ever seen pulled off. God, what I wouldn’t give to see someone confront Chemerinsky with what you found here.

    Nice work.

    Tom Dunson (68d828)

  7. Patterico:

    Hoo-hah, you missed another error in that second questioner’s question:

    Judge Alito upheld our state’s abortion restrictions, including requiring that a woman notify the father that she plans to get an abortion.

    No, Ace; only if the father also happens to be her husband. If they’re not married, the law requires nothing.

    Am I wrong?


    Dafydd (f8a7be)

  8. You are right. It’s not as offensive as her other error, but it is an error.

    Patterico (4e4b70)

  9. Patterico:

    It may not be as offensive — I couldn’t say — but I think it’s more fundamental an error. The purpose of the law was to protect the rights of husbands within marriage and to encourage wives to discuss possible abortions with their husbands… but this questioner turned it around to make it appear as though any woman who got knocked up (even without having consented to the sex) was obliged to seek out the cad of a boyfriend (or worse) and tell him that she was pregnant and getting an abortion.

    In other words, “Philadelphia” took a law that was not misogynistic and tendentiously made it appear as if that were the intended purpose — rather than strengthening marriage.


    Dafydd (f8a7be)

  10. Yeah, the fillibuster has a long history, but mostly it’s been used by scoundrels. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation, until cloture was invoked after a fifty-seven day filibuster against the Civil Right Act of 1964. Good ol’ Strom Thurmond holds the record for length which was more than 24 hours against the Civil Rights Act of 1957.

    It should be junked, it’s a device to stop legislation. Period.

    Howard Veit (baba22)

  11. “It should be junked, it’s a device to stop legislation. Period.”

    The filibuster is an abuse of the Senate rule which was intended to ensure an individual Senator could complete his remarks without being prematurely silenced.

    It is an example of a good idea corrupted and misused for illegitimate purposes. Further, misapplied to the Senate’s Advice and Consent role, in order to obstruct a President’s need to fill important offices, it is especially repugnant to the foundations of representative government and majority rule.

    While as intended and as originally employed by individual Senators, in legislative debates, it can have useful applications, it is nevertheless now been corrupted to the extent it must be either strictly limited to individuals only in the context of legislative deliberations, or abandoned forever. Period.

    Black Jack (ee9fe2)

  12. Thank you, thank you, thank you, for such a clear cut rebuke to Professor Erwin Chemerinsky. I marvel when I hear him on Hugh Hewitt, wondering if he really believes much of what he says. He sounds so presumptuous and dismissive of views different from his own pronouncements. I hope some bright Duke students or alumni can put this in the public eye a bit.

    MD in Philly (798da1)

  13. […] Why does Chemerinsky — who has never let notions of consistency bother him before — denounce the secrecy of the Board of Rights while praising the carefulness of the Police Commission? The cynic would say it’s because he likes the findings of the Police Commission, and doesn’t like those of the Board of Rights. […]

    Patterico’s Pontifications » In Devin Brown Ruling, L.A. Times Pretends to Be Concerned with Secrecy, But Is Truly Concerned Only with Results (421107)

  14. […] This is not a meaningful distinction, as the public has learned the results and reasoning in both cases. But the process — the proceedings, taking of evidence, and deliberations — was secret in both cases.) And when the paper initially reported the Police Commission’s findings, the secrecy of the Commission’s proceedings was barely mentioned, and was given no prominence whatsoever… Patterico (well worth the read) singles out the Police Commission and political gossip columnist Erwin Chemerinsky (who has never let notions of consistency bother him before), but doesn’t mention the secret decisions that are routinely made by the Los Angeles City Council, the County Board of Supervisors, the City Attorney – offices that have, since the 1970s, helped squander hundreds of millions of tax dollars in liability settlements and confidentiality agreements. This is why the contrived tantrums by LA’s Times and conjoined politicians mean nothing. […]

    California Conservative » LA’s Dirty Little Secret of LA’s Dirty Little Secrets (4e96b8)

Powered by WordPress.

Page loaded in: 0.0808 secs.