Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Friday, November 10, 2006

Undoing the Damage

Now that the Democrats have taken back both houses of Congress, everyone has an opinion about what they should do (and how soon). Most discussion has involved whether the Democrats should be "confrontational"--impeach Bush for any of his obvious crimes, or at least investigate malfeasance in his administration--or look for issues on which some bipartisan consensus can be reached. Even if the Democrats wanted to be aggressive about undoing the damage of the last twelve years, though, what would that include? It is easy to forget just how many bad laws have been passed and how many bad decisions have been made in that time.

Some of the worst actions of the last twelve years happened under Clinton. AEDPA (which severely damaged the rights of prisoners) and IIRIRA (a gratuitous bit of immigrant bashing) sailed through as Clinton tried to guarantee his re-election in 1996. The welfare reform bill, though puzzlingly thought of even by some liberals as a success, was another triangulation special. During Bush's time in office, almost every change to the tax laws was a mistake, while the Patriot Act and its reauthorization should both be repealed. More recently, the MCA (Military Commissions Act) was a low point in American history that managed to go unnoticed while we made tasteless jokes about Mark Foley's text messages.

Some Republican-inspired mistakes, of course, are literally irreversible but at least partially reparable, such as invading Iraq and neglecting New Orleans. Others cannot be undone without creating horrible precedents going forward, such as getting rid of the judges that Bush put on the federal bench. Besides Alito and Roberts, remember the "compromise" that put several of Bush's most extreme nominees on the appellate bench (Janice Rogers Brown, William Pryor, Thomas Griffith, etc.)? We should hope for progress and insist on an end to the damage, but there's no getting around just how much harm has been done.

4 Comments:

  • At 7:52 PM, Blogger David C. said…

    This post has been removed by a blog administrator.

     
  • At 7:53 PM, Blogger David C. said…

    This post---undoubtedly capturing the mood of many of us---raises some interesting questions. First, do the Democrats have any kind of mandate? Now that they've surprised everyone with success at both the federal levels and the state levels, can they be ambitious and go beyond simply "undoing the damage," and make some real progress of their own?

    Second, who are the new Democrats? If you take away Iraq, around what do they all unite? With an anti-abortion Majority Leader, http://www.nytimes.com/2006/11/10/us/politics/10reid.html?pagewanted=print, and a pivotal 51st Senator from Va. that thinks affirmative action is "state-sponsored racism," http://www.newyorker.com/fact/content/articles/061030fa_fact, one wonders on what issues all 51 Senators can align.

    Finally, should the Democrats even be bold? What they do with their majority in the next two years may decide whether the next President is a Dem or a Republican. Announcing ambitious plans, confronting Republicans on controversial issues, or tackling long-term goals with no short-term benefits may be too politically risky.

    In other words, I wouldn't be surprised if the Democrats failed to undo most, if not all, of the damage. I hope they prove me wrong.

     
  • At 5:51 AM, Blogger Causal said…

    Bush is no lame duck. Bush will veto/use signing statements on any Democratic bill passed. Bush could still appoint more Supreme Court Judges and will certainly oversee the deaths of many more U.S. soldiers. Also, The Union of Concerned Scientists has estimated that the death toll from a "tactical" nuclear weapon of the kind Bush is contemplating using in Iran would be at minimum 3 million men, women, and children. The path of death would stretch across country boundaries into India.
    Impeach Bush Yourself...

     
  • At 11:15 AM, Blogger Kenji said…

    I realize that you have a three-paragraph limit on what you can write about, but could you write a more meaningful post in the future that has, at least, some analysis, as opposed to a string of conclusive statements that lack any reasoned justification?

     

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