In Politics, Nastiness Doesn't Take a Holiday


Driving home recently, I heard a story about Sen. Dianne Feinstein’s decision to support an administration proposal to provide absolute immunity from civil suit to telecommunications companies that cooperated with warrantless and illegal eavesdropping of their subscribers’ conversations.

As a member of he Judiciary Committee, Feinstein’s support was obviously important, and I found myself shaking my head as I drove.

Why grant immunity, I thought to myself, and why absolute immunity, without any regard to whether they knew or should have known that the requests being made of them were illegal? What kind of message would this send for the future about the responsibility of these companies to protect the privacy they promised to their subscribers, or about nobody being above the law-- not to mention the decades-long struggle of civil rights and civil liberties lawyers to limit the occasions where absolute immunity, which is to say, "above the law" status, is granted to either public or private defendants?

I’ve written, taught, and litigated in these areas for more than 20 years, and the column was writing itself in my head, complete with snide references to the fact that Feinstein has no legal training, which almost everyone else who has anything to do with the Judiciary Committee does, and how sometimes that shows, when I stopped myself.

Why attack the motives and qualifications of a senator I like and respect and consistently vote for just because she disagrees with me? If I wanted to do a column on telcom immunity, fine, but why make it a personal, not to mention a nasty, attack on a hardworking and honorable woman who happens to disagree with me, as she sometimes does.

I’m not as liberal as I used to be, at least according to my readers, but I’m still more liberal than Dianne ever was.

So it was with some surprise, but also some uncomfortable pangs of recognition, that I opened a recent email headlined "34,466 strong for censuring Feinstein."

Could it be? Was there another Feinstein? Not in politics.

Organizations of progressive Democrats in California were circulating a petition in advance of State Democratic Party meetings to censure a woman who has long been the most popular Democrat in the state. What had she done wrong? Were they, like me, long-time students of the qualified immunity debates? That was one of the items on the list. Even more prominent were her votes to confirm Judges Michael Mukasey and Leslie Southwick, the former as Attorney General, the latter to the United States Court of Appeals for the Fifth Circuit.

I have problems with both those votes. The fact that Judge Mukasey couldn’t come down against simulated drownings (waterboarding) as an interrogation technique is, to me, troubling, to say the least. Coerced confessions are unacceptable not only because the tactics that produce them offend our standards of morality, but because, as experience has repeatedly shown, people will say anything you want them to, whether truthful or not, if the pressure to do so is intense enough.

And I certainly find it disturbing that Judge Southwick, as a state judge in Mississippi, joined an opinion which held that a woman’s choice to engage in lesbian relationships could be held against her in a custody case. If I were a senator, I would have voted against both, as did many Democrats I respect. But by no means all. Chuck Schumer, a very smart lawyer, supported Mukasey, and I know of no effort by Democrats in his state to censure him. Southwick was confirmed on a 59-38 vote by the Senate as a whole, thanks to the support of a number of Democrats in addition to Feinstein.

Feinstein’s critics say they want to have a "conversation" about what it means to be a Democrat. I’m all for such a conversation. But why should it come at the expense of embarrassing and belittling Dianne Feinstein? It is a reflection, sadly, of the meanness of politics that liberals would spend so much energy attacking a moderate member of their own party, rather than focusing on those with whom they, and I, have so much more serious disagreements. The job of a senator is to exercise independent judgment, which doesn’t necessarily mean that you agree with their every vote. And since when does disagreement on the merits justify a censure?

It wasn’t so long ago that censure was considered an appropriate remedy for serious misconduct, not differences of opinion. It wasn’t so long ago that senior senators were viewed with respect inside their own parties, even when, and sometimes especially when, their own compass pointed them in a different direction than that of the party base.

What has happened to us when 34,000 Democrats are willing to censure Dianne Feinstein for the "crime" of supporting nominees we don’t, or approving of a grant of immunity we don’t think is justified. I’m troubled by the Senator’s votes, but what troubles me even more is the disproportionate response to them, which reflects, sadly, on the state of our current politics.

It’s not just an issue with liberals, not even close. Nothing liberals could do to Feinstein could begin to compete with the viciousness of some of the assaults by conservatives on Republicans who happened to agree with their president and not them on the issue of immigration, to name one very recent example. But what’s good for the goose is not necessarily good for the gander. Or for the goose, for that matter.

Christmas spirit? Not in politics this season.

Click here to link to Susan's new book, "Soulless. "

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for

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