Who is Elizabeth Littlefield?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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18 Responses

  1. anon says:

    Well, you didn’t tell us why you think she was so highly qualified, and you did not tell us why she is being opposed, so why are you asking rhetorical questions re whether it’s good that her candidacy is stymied. Maybe yes, maybe no — we don’t know! You didn’t tell us anything useful to form an opinion.

  2. Gerard Magliocca says:

    She was approved unanimously in committee. The burden of proof is not on me.

  3. anon says:

    Are you saying that a person unanimously approved in committee should never be stymied by the Senate? Then, why bother with full-Senate consideration at all? Or is this an argument about this particular candidate, not in general? If so, you should tell us why this particular candidate deserves special treatment.

  4. Willton says:

    Anon, put the straw down. Stop presuming what Gerard is saying at look at what he actually wrote. Gerard is exhibiting his disgust for the secret “hold” practice in the Senate.

    If a Senator feels that Ms. Littlefield is a poor choice for the position for which she was nominated, then said Senator should voice the concern publicly and allow for discussion. The Senator should not be able hold up the process for ransom by using the “hold” practice.

  5. ParatrooperJJ says:

    Actually I believe that someone can only be appointed to a position by a recess appointment once. If they don’t get confirmed by the end of their appointment, they have to leave.

  6. Frank Pasquale says:

    I can see why “anon” wants to stay anon–(s)he is defending an indefensible status quo. And what makes me think this anon defender of senate liberty will totally flip and take on Gerard’s position once, say, a President Palin comes to office? Here’s some recommended reading for anon:

    http://www.salon.com/news/opinion/glenn_greenwald/2010/06/11/cowardice/index.html

  7. Ken Rhodes says:

    I would be more charitable to anon, pending any real personal knowledge. I think anon has misunderstood the word “stymied.”

    Anon wrote “Are you saying that a person unanimously approved in committee should never be stymied by the Senate? Then, why bother with full-Senate consideration at all?” But this, in fact, was Gerard’s original point–that the “hold” was preventing full-Senate consideration. “Stymie” does not mean the same thing as “reject,” and it’s the power of one anonymous individual to “stymie” the other 99 that is so obnoxious.

  8. Other questions might be why the Majority Leader (a) doesn’t just make the anonymous Senator go public with his (or her) objection to the request for unanimous consent and/or (b) work around the “time-consuming process” by cutting short their Memorial Day recess, their 4th of July recess, their August recess, their (fill-in-the-blank)recess…

    …and are you sure it’s a GOPer holding her up? Could it possibly be a Dem protesting her extensive prior time with JP Morgan?

  9. Gerard Magliocca says:

    Good point. The Democrats claim that they are not putting holds on anyone. But then again, how can we know?

  10. anon says:

    I do not have a strong view re whether it’s a good idea to allow one person to stop a nomination. In certain cases, we give minorities (even tiny ones) veto power, and there are good reasons for that. Sometimes we even allow those minorities to keep anonymous, and there are good reasons for that also. Maybe it’s bad that anonymous minority has a veto power here, maybe it’s good — if Gerard wants to argue it’s bad here but not so bad elsewhere, he should tell us why.

    Finally, Frank: you should keep your fortune-telling talents to yourself. If you can’s see bigger issues in a discussion of institutional rules, you should at least avoid accusing other people of supporting Palin or some such.

  11. Frank Pasquale says:

    Anon, please give a situation where one in one hundred in an institution is given a veto power, other than the Polish Sejm. It didn’t work then, and it doesn’t work here. I’d also love to see some citation to any political science or institutional literature supporting your position. Carping like yours, unbacked by any empirical research or larger theoretical justification, adds very little to the dialogue on this blog. It’s not me who fails to see the “bigger institutional issues;” it’s you who fails to connect an idiosyncratic and unjustified position to any relevant literature on democracy or politics.

  12. Frank Pasquale says:

    And Maryland Conservatarian, I agree that it may well be a Dem–as this article shows, there are some deep continuities between Obama and Bush:

    http://www.rollingstone.com/politics/news/17390/111965

  13. anon says:

    Frank: if your knowledge of institutions that give minorities veto power is limited to legislatures that use unanimous floor voting rules, then, you really have a lot to learn about positive political theory. Institutions are a diverse crop, and their decision-making rules are more diverse still. Oh, and quit demanding that readers fill their comments with citations to academic literature — that isn’t what blog comments are about. Especially given that you haven’t provided any such citations yourself.

  14. Frank Pasquale says:

    Anon, this is about giving one anonymous person veto power–not a known person, like the Sejm, or minorities in general. You have a lot to learn about not making category mistakes.

  15. Frank Pasquale says:

    But I do wish to thank you, anon, for helping make this thread an extraordinary example of how a dialogue can be deflected into useless back-and-forth by one, anonymous individual.

  16. Ken Rhodes says:

    anon wrote “Are you saying that a person unanimously approved in committee should never be stymied by the Senate? Then, why bother with full-Senate consideration at all?”

    I am waiting to see how the “stymie” by an anonymous hold conforms to the stated principle of “full-Senate consideration.” It seems to me that debating and voting constitute “full-Senate consideration,” and that the anonymous hold prevents “full-Senate consideration.”

  17. anon says:

    Frank: you seem to be deeply confused in your categories. I take it, you agree that giving very small minorities veto power is a common setup in institutional design. You now seem to claim that it’s the anonymity makes this case unusual. This is incorrect — in many institutions, decision-making process goes through anonymous approvals and anonymous voting. You also seem to claim that it’s the unanimity that makes this case unusual. This is also not true: in many institutions, decision-making is done by unanimous agreement, at least informally, and cases lacking unanimous support never get to a vote, even if a formal voting rule is not unanimity. So, none of this is terribly unusual. Furthermore, we don’t know if in this case, the objector is a single individual, much less that this individual is a Republican. Since it only takes one person to stop the process, this stop could have easily been supported by a coalition of 15 people, including Democrats who don’t want to be on a record objecting the President’s candidate. So, when you decide to explain to us why your categories actually support your point, check back.

    P.S. My questions were intended to generate a lively discussion of informal rules governing minority voting power — which I believe is a good use of this blog’s space and a plausible extension of this post’s idea. Apparently, Frank thinks that the sole point of this post is to fume about Republicans, and any deviation from this line constitutes support for Palin. Some intellectual heavy-weightism indeed.

  18. Joseph Beale says:

    This is just one more example of broken government. A coward is holding up this nomination. A coward, a person unwilling to identify him or herself and state his or her reasons. Without such being put forward, we can only assume this is one more case of broken government. One more case where those we all sent to Washington to get something done do nothing except fight with each other. We need to find a way to get ourselves working together towards common goals, rather than spend our time on acts of cowardice.