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Memo to Political Commentators for the Next Four Years:
With a switch from Republican to Democratic control of the White House a few weeks away, I thought I would remind political commentators of the new ground rules.

1) Republicans Must Now Oppose Executive Power; Democrats Must Be In Favor Of It. In the last few years, Republicans have been the defenders of executive power: A muscular executive has been needed to fight the war on terror. On the other hand, Democrats have opposed a strong executive on the ground that it threatens the rule of law. Please note that these arguments must now switch. Republicans must now talk of the dangers of executive power; Democrats must now speak of how a strong and agile executive branch is necessary to a modern democracy.

2) Republicans Must Now Oppose Judicial Confirmations; Democrats Must Be In Favor. In the last few years, Republicans wanted an up-or-down vote on judicial nominees; one of their leading blogs on the judicial confirmations was ConfirmThem.com. On the other hand, Democrats focused on the importance of carefully evaluating judicial candidates. Please note that these arguments must now switch, too. Republicans should now visit RejectThem.com (still an available domain name, btw -- won't be for long!), and Democrats should emphasize the need for a quick up or down vote.

3) Republicans Must Now Favor Legislative Oversight; Democrats Must Now Oppose It. You get the point by now. Yup, everyone has to switch sides on this one, too. If we all stick to the script, in 6 months the old arguments of the Bush era will be long forgotten. (Oh, and extra credit to those who charge the other side with hypocrisy for changing sides without noting that they have changed sides, too.)
DangerMouse:
Don't forget the biggest lefty meme: Dissent is patriotic! All of us must dissent from Obama in order to be patriotic. Woo hoo!
11.4.2008 11:13pm
loki13 (mail):
Previously, I was against hypocrisy.

Now, I am for it.
11.4.2008 11:13pm
loki13 (mail):
Previously, Dangermouse was against infanticide.

Now, Dangermouse is for babyslaughter.

Mmmmmm..... toddlerburgers.... soooooo tasty.
11.4.2008 11:15pm
RPT (mail):
A strong honest executive who does not believe himself infallible and above the law, and who sticks with the four corners of the Constitution would be a nice change. Dissent away, Mouse, you have nothing to fear.
11.4.2008 11:15pm
Mike& (mail):
What's great about the Internet is that there is now a record of what people have said.

What's terrible about this country is that people don't care about intellectual integrity.
11.4.2008 11:17pm
Oren:

Previously, Dangermouse was against infanticide.


You'd think he'd be happy that we didn't elect the candidate know to have personally dropped explosives on Vietnamese, probably including a few children or pregnant ladies.

You just can't please some people!
11.4.2008 11:18pm
DangerMouse:
RPT,

Nothing to fear, except that if I make a commercial against Obama, he'll now use the Justice Department to throw me in jail. But my commercial probably couldn't be run on a radio station, because Senator Schumer's going to push the fairness doctrine through. And if you oppose Obama, his minions in the MSM will call you a RAAAAAAAAAAAAAAAACIST.

I think all mothers of Downs Syndrome babies have a LOT to fear. If Obama nationalizes health care, there's no telling how the Infanticide President will treat their babies. Maybe those kids will be denied medical care because they're deemed unworthy of life?
11.4.2008 11:18pm
therut (mail):
You are so right. I can not wait to see it be so. Coarse for those of us over 30 we have seen this song and dance before. It will be funny in a way. I can not wait the dissent. We need Conservatives marching on Washington and stopping on flags -----Oh wait I got carried away. LOL..... Maybe I will just CCW and grin.
11.4.2008 11:21pm
Cornellian (mail):
I look forward to Senate Republicans saying that the filibuster is a valuable tool for preventing extremist judicial nominations, while Senate Democrats complain that it's unconstitutional. Heck, they can just save time and paper by handing over each party's talking points to the other.
11.4.2008 11:21pm
Oren:
DangerMouse, I eagerly await your report around ~March '09 about all the people jailed for political ads. Really. It will be fascinating!
11.4.2008 11:21pm
Oren:

I look forward to Senate Republicans saying that the filibuster is a valuable tool for preventing extremist judicial nominations, while Senate Democrats complain that it's unconstitutional. Heck, they can just save time and paper by handing over each party's talking points to the other.

Can the GOP really hold themselves together that well? That will be an impressive feat of party discipline.

As it looks now, the Dems will only need 3 GOP defectors to get cloture.
11.4.2008 11:23pm
DangerMouse:
Oren,

We'll see. Frankly, I'm more worried that the Infanticide President will nationalize health care and mothers of Downs Syndrome Babies will be forced into abortions, possibly against their will. The guy is just sick when it comes to his abortion radicalism.
11.4.2008 11:25pm
Ari (mail) (www):
Very nice, Professor Kerr!

I'm more comfortable with this new set of talking points anyway. Did you hear about these "voting irregularities"? More like "voter fraud" if you ask me. The Democrats have stolen the election once again! Obama's tearing up the Constitution!
11.4.2008 11:30pm
DangerMouse:
The Democrats have stolen the election once again! Obama's tearing up the Constitution!

Perhaps we can take a clue from the way Democrats have acted over the past 8 years: Obama should be impeached.
11.4.2008 11:31pm
Oren:
DangerMouse, I also eagerly await your report about the first time a licensed doctor performs a single abortion without the explicit consent of the woman. By your estimation, will we see that start to happen by early 2009?

As it happens, most of the pro-choice people that I know have much more profound respect for the concept of consent than anything you've ever demonstrated.
11.4.2008 11:36pm
LM (mail):
DangerMouse:

Perhaps we can take a clue from the way Democrats have acted over the past 8 years: Obama should be impeached.

Yeah, those Democrats sure have been the party of gratuitous impeachment.

Sheesh....
11.4.2008 11:39pm
Reg (mail):
Sorry, still think Unitary Executive is constitutionally required and that its ridiculous that commander in chief has to have soldiers collecting evidence to justify detention of foreign enemy combatants captured on foreign soil to article III courts.

The check on the president's core powers is the people electing, not the courts.
11.4.2008 11:40pm
OrinKerr:
Everyone:

If you would like to comment here, keep it civil. If you cannot be civil, I will ban you from commenting.
11.4.2008 11:40pm
DangerMouse:
DangerMouse, I also eagerly await your report about the first time a licensed doctor performs a single abortion without the explicit consent of the woman. By your estimation, will we see that start to happen by early 2009?

People said stuff like this back when Kevorkian was doing his "death with dignity" stuff. And then they murdered Terry Schiavo. So yeah, I think that it's a possibility that forced abortions could happen in America under the Infanticide President. I'd be glad to be proven wrong.

As it happens, most of the pro-choice people that I know have much more profound respect for the concept of consent than anything you've ever demonstrated.

That's funny. Most abortion advocates I know seem fine with China's one-child policy.
11.4.2008 11:42pm
glangston (mail):
The media will be boring for the next four years.
11.4.2008 11:42pm
MQuinn:
OrinKerr said:

Everyone:

If you would like to comment here, keep it civil. If you cannot be civil, I will ban you from commenting.

Best post of the day, no doubt.
11.4.2008 11:50pm
Reg (mail):
I do look forward to protesting Obama's Civilian National Security Force. F*&k the draft!

I also look forward to all the work that his massive regulation of the economy will provide to lawyers.

I also look forward to demagoging him for the economic malaise that his economic policies will cause.

I don't look forward to losing the Supreme Court for another generation, or the continued inability for states and communities to ban the barbaric practice of abortion.
11.4.2008 11:55pm
Snaphappy:
The filibuster will not be a problem because now the Senate will go out of session and recess appointments will be available. Unless there's a fillibuster of adjournment which seems highly unlikely.
11.4.2008 11:58pm
Oren:
Snaphappy, recess appointments expire if the Senate does not approve. The last thing the Dems want now is to put up judges with anything other than life tenure!
11.5.2008 12:06am
Bama 1L:
Well done, Professor Kerr.
11.5.2008 12:10am
Kazinski:
I've already gone on record opposing filibusters on judicial nominations, and even bottling up nominations in committee, short of a nomination of William Ayers for Secretary of Education.

We should for the most part allow Obama to govern without obstructionism, otherwise it will take longer for conservatives to regain power.
11.5.2008 12:11am
Guest12345:
Can somebody call up David Paterson and let him know that Obama isn't descended from slaves? He was on TV saying what a great moment it is that we're electing a man descended from slaves and slave owners.
11.5.2008 12:17am
AlanDownunder (mail):
Neat, but will founder on the rock of false equivalence.

Wake me up when Biden claims to be part of the executive when resisting congressional sanction while at the same time claiming to be part of the legislature when called upon to observe laws that bind the executive.

I'm amused by musings on Fox tonight that maybe the US is a centre-left, not centre-right, nation like they'd thunk. Of course it's a centre-right nation. That's why it elected Obama. It's no longer radical right, at least for now.
11.5.2008 12:23am
astrangerwithcandy (mail):

Neat, but will founder on the rock of false equivalence.

Wake me up when Biden claims to be part of the executive when resisting congressional sanction while at the same time claiming to be part of the legislature when called upon to observe laws that bind the executive.



going with the tribal identification to your grave, huh? good for you. i am sure you won't be tempted by any of the points listed by prof. kerr.
11.5.2008 12:30am
Ventrue Capital (mail) (www):
For seven years I've tried to warn my conservative friends about the dangers of the so-called "Patriot" Act, and the other, even more blatant usurpations by Junior Bush, such as warrantless wiretaps, by asking them if they would feel safe with the same actions being done by, say, President Hillary Clinton and Attorney-General Janet Reno.

Maybe now my arguments will start go gain some traction with them.

Maybe now we can go back to having at least one of the major parties being *against* expanding government powers over our economic and personal lives.

That would be a nice change.
11.5.2008 12:33am
Reg (mail):

We should for the most part allow Obama to govern without obstructionism, otherwise it will take longer for conservatives to regain power.


Right on. Don't filibuster anything. Let them go all out: fairness doctrine, mandatory service in the Civilian Defense force; universal health care; repeal taft-hartley, repeal Nafta and embrace protectionism, tax payer fund abortions; 70% marginal tax rates; draconian enviro regs. Gosh it'll be like 1979 all over again.

We just need to find our Reagan for 2012. Jindal?
11.5.2008 12:35am
krs:
Thanks for the reminder, Prof. Kerr.

I can't find the draft op-ed you wrote a few years back when the Roberts and Alito nominations were being debated, but I'm reminded of it: "The [Democrats/Republicans] in the Senate should be [commended/ashamed] for [preserving the vital institution of/stooping so low as to use] the filibuster, a last [ditch loser's veto/resort check against tyranny]..." or something like that.
11.5.2008 12:50am
krs:

I've already gone on record

Pseudonymous blog commenters shouldn't say things like this.
11.5.2008 12:54am
tvk:
1. Well, since the Democrats have a pretty solid majority in Congress, they might not mind so much the balance of executive versus legislative power. But I would not be so surprised if Democrats suddenly became big fans of judicial jurisdiction stripping statutes.

2. Again, because Democrats control the senate, shouldn't conservatives start setting up shop at filibusterthem.com instead?

3. Not only must Republicans favor legislative oversight, they must favor minority Senate oversight. Since the minority in the House has virtually no other task than to complain about they minority status . . . .
11.5.2008 1:09am
OrinKerr:
krs,

That one was turned into an LAT op-ed.
11.5.2008 1:11am
krs:
Ah. Thanks. Good to have the talking points ready to go for tomorrow's water cooler discussions.
11.5.2008 1:12am
Brian K (mail):
1) Republicans Must Now Oppose Executive Power; Democrats Must Be In Favor Of It. In the last few years, Republicans have been the defenders of executive power: A muscular executive has been needed to fight the war on terror. On the other hand, Democrats have opposed a strong executive on the ground that it threatens the rule of law.

this one is not quite true. much of the opposition to a strong executive under bush wasn't the strong executive per se but the fact that bush was using his power to break the law and lie to the american people. supporting a strong executive under obama would not be an example of cognitive dissonance as long as he doesn't use his power to blatently violate the law.

(i'll not for the inevitable reply comment that even if obama does break the law, it would still be hypocritical of most republicans to complain because they clearly had no problem with bush breaking the law.)
11.5.2008 1:43am
AlanDownunder (mail):
DangerMouse:

Perhaps we can take a clue from the way Democrats have acted over the past 8 years: Obama should be impeached.

Taking a clue from the Dems would be a retrograde step. For pussies like them, it's 'should be'. For action heroes like the GOP it's 'will be'. (cf Clinton)
11.5.2008 1:56am
JB:
I will take this moment to apologize to all VC posters and commenters should Jeremiah Wright or William Ayers be named to Cabinet positions.

If that occurs, I was wrong and will volunteer for the Republicans in the nearest swing district to where I live.
11.5.2008 2:21am
smitty1e:
Are three levels of government ever going to be vogue again, or is this just the United State of America?
11.5.2008 3:33am
EIDE_Interface (mail):
I can see that the Volokh bloggers have decided to throw their conservatives readers overboard and bend over and "assume the position" for our rabid lefties. Good going there.
11.5.2008 4:29am
Splunge:
Fortunately, intellectuals need not abandon the aristocratic cynicism and genteel contempt with which they smile down at us little people, with our pathetic illusions that some of those "talking points" represent deep moral convictions, or the possibility of painful personal reversals of fortune.
11.5.2008 5:16am
devin chalmers (mail):
Orin, you're my favorite.

VC commentators, you are terrifying.
11.5.2008 6:44am
A.C.:
Procedural checks are always there in case your worst enemy gets elected. You agree to be bound by the rules in order to bind him as well. (Or her, eventually, but not this year.) Content doesn't matter.

Some of us swing voter/split ticket people actually think this stuff is more important than who wins any given election. And we keep score for a long time.
11.5.2008 8:21am
Paul Horwitz (mail):
What Devin said.
11.5.2008 9:23am
FantasiaWHT:
I'm so excited - I've been young enough to be into politics for a while, but not old enough to be on the losing side (at least nationally) at all.

Whee!!!
11.5.2008 9:46am
Michael Drake (mail) (www):
11/4 changed everything.
11.5.2008 10:01am
byomtov (mail):
Good list, Orin, but you forgot to mention that Republicans must now consider political ideology a perfectly good reason for opposing judicial nominees, while we Democrats will insist that "advise and consent" just means making sure the nominee can spell "law."
11.5.2008 11:07am
pdxbob:
We should for the most part allow Obama to govern without obstructionism, otherwise it will take longer for conservatives to regain power.

I agree, except:

1. Obviously they need to attempt to obstruct policies which limit the ability of conservatives to ever regain power (fairness doctrine as an example).

2. Conservatives may need a long time to rediscover and rally around core principles of limited government and individual responsibility (perhaps now is the time for conservative Libertarians to stop toying around with a third party that never scrapes together more than a few votes, and redirect the Republican party?)
11.5.2008 11:40am
josh:
I think the point of this is that, seemingly mostly of late, people have been expressing opinions with no sense of the way in which that opinion was going to come back and bite them.

It's not always an issue of moral equivalencies to realize that if you complaint about your opponent's associations, your associations are going to come into question; if you take drastic measures to prevent your opponent's judicial nominees from confirmation, your nominees might face a hard road. As for my liberal brethren, I often wince when they complain about things such as Republican's stabbed-in-the-back meme (Iraq War wasn't wrong. It was just executed wrongly), when that same logic has been applied by liberals to a whole host of their chosen policy positions.

The point is, hopefully, people can maintain some level of intellectual honesty. For Republicans, that means not falling into Obama Derangement Syndrome once he takes office, since it was clearly a problem for some re:Bush. For Dems, that means, for example, not taking office thinking the election gave Obama an overwhelming amount of policitcal capital which he now needs to spend. [I think Obama's speech last night, at least on its face, showed a level of humility we liberals complained about with post-election Bush speeches, but time will tell]
11.5.2008 11:54am
josh:
Although I can't help but note the irony in the blogosphere with people like Glen Reynolds, who tried to argue that Bush had a "mandate" after the 2004 election (http://www.pajamasmedia.com /instapundit/archives/016325.php), and, of course, is now saying that Obama, who garnered more votes than any US presidential candidate in history, does not (http://www.pajamasmedia.com /instapundit/archives2/026774.php).

Ahhh. Intellectual honesty.
11.5.2008 12:11pm
MikeS (mail):
As far as presidential appointments go, Republicans simply need to party like it's 1999.
11.5.2008 1:38pm
Richard Aubrey (mail):
I see the NYT has, after three or four years when they could have done it, told us that the Gitmo Goons really are dangerous, that there is voluminous intel to that point and we need to be really, really careful about folding the place up.
So Gitmo's okay now.
I expect extraordinary rendition and vigorous interrogation to be legitimated within the month.
11.5.2008 1:53pm
nil (mail):
If you think the left is suddenly going to be so scared of terrorists that they're willing to trample on the Constitution to oppose them just because we managed to get Barrack Obama in the history books you're gonna be surpriced. That sort of craven cowardice is reserved for the right wing.
11.5.2008 3:50pm
Justin (mail):
Indeed, from Confirmthem.com:

"And with that, I'll take leave of blogging at this site for the foreseeable future. I hope to return when a president nominates judges who have a solid record of supporting the rule of law instead of the rule of men, and who understand the grave damage done when judges exercise power without authority."

Right on cue.
11.5.2008 4:26pm
Oren:
Sometimes life imitates satire.
11.5.2008 8:25pm
TokyoTom (mail):
Orin, I was telling RedStaters the same thing two years ago, when it was clear that they weren't being true to principle while setting things up nicely for the next Democratic president.

They banned me.

The trigger can now be listed as ground rule four:

Republicans must now favor government transparency (and leaks to the press), while Democrats must now seek to lock down government information, in order to protect national security and to maximize the ability of the administration to manipulate the press.
11.6.2008 10:52pm
einhverfr (mail) (www):
Actually this post explains exactly why:

1) Government is out of control, regardless of who is in office

2) The executive branch is becoming so bloated as to be an existential threat to republican liberty.

Hence why we are headed towards tyrrany. Maybe we have a few decades, maybe a few centuries, but that is the direction both parties are taking us.
11.7.2008 1:55pm