by publius
As the judicial nomination wars heat up, it’s worth remembering that the nature of the conservative opposition will primarily be a function of intra-GOP politics. In other words, organized conservative criticism isn’t really intended for a national audience – it’s intended primarily for social conservatives within the party. And that’s a good thing for Democrats.
The social conservative wing of the GOP has extremely intense preferences on judges. Some of these critiques stem from legitimate policy differences – others are the product of a generation of paranoia-mongering. Regardless, the social conservative base will accept nothing less than a loud fight on these issues. Republican politicians and activist organizations that rely on social conservatives are going to have to put on a good show. And that's the problem.
Specifically, these intra-party dynamics will force the party to put on its least persuasive and most alienating face to the public during the Court fights. The GOP needs to find a way to persuade people who aren’t already in the choir – particularly young people. But the message isn’t going to be very compelling.
Instead, the opposition seems like it will have a distinctly 2004 tone – lots of gay marriage and uber-nationalism (e.g., “anti-military” claims). In fact, it will be more intense than 2004 in that abortion will be loudly emphasized.
And even assuming views have shifted slightly on abortion (which I don’t believe), ending Roe outright isn’t a winning political campaign. And it will certainly reinforce the GOP’s current image problems as a regional, slightly creepy fundamentalist party.
Democrats have a tendency to be scared of their shadow in these fights. They shouldn’t. They have an increasingly winning hand* on these issues – and they should play it strongly.
*(I’m not saying that Democrats should come out for interpreting the federal constitution to require gay marriage at this point. But I do think there should be aggressive pushback on the GOP’s obsessive focus with it.)
I’m not so sure there’s all that much paranoia involved in social conservatives’ concerns about Supreme court appointments. They’ve got Roe and a number of state level rulings to demonstrate that liberals are perfectly willing to use the Court to impose essentially irreversable policy changes on social issues. Heck, one more liberal justice, and you guys would have effectively repealed the 2nd amendment in the Heller case.
I don’t see the paranoia here.
I’m not saying that Democrats should come out for interpreting the federal constitution to require gay marriage at this point.
Gah! See, here you buy into the right wing framing of the issue as activist judges saying the Constitution “requires gay marriage,” rather than framing the issue as unconstitutional discrimination on the basis of a person’s gender by the state/federal gov’t. That is, if the state/federal gov’t is going to grant all sorts of benefits to people who engage in the ritual of “marriage”, it can’t discriminate in handing out such benefits on the basis of sex, which is a much less controversial proposition (or at least should be).
ugh – fair point. i’ll reword in future
Some of these critiques stem from legitimate policy differences – others are the product of a generation of paranoia-mongering.
Really, publius: given the way the GOP has reacted to its electoral losses in 2006 and 2008, and where the Party seems to be headed now, what (on any practical level) is the difference?
Instead, the opposition seems like it will have a distinctly 2004 tone – lots of gay marriage and uber-nationalism (e.g., “anti-military” claims). In fact, it will be more intense than 2004 in that abortion will be loudly emphasized.
I do get the impression that, for some members of the Republican base, the highlight of their participation in national politics was wearing a purple band-aid at the 2004 convention. I wonder: for how many years will we have to tolerae their attempts to relive those glories?
“you guys would have effectively repealed the 2nd amendment in the Heller case.”
you mean, maintained and upheld over a century of settled jurisprudence, as well as the plain meaning of the text, by rejecting the ridiculous and unhistorical individual-rights fabrication.
yeah, good thing those conservatives are so concerned about stare decisis.
“you mean, maintained and upheld over a century of settled jurisprudence, as well as the plain meaning of the text, by rejecting the ridiculous and unhistorical individual-rights fabrication.”
In a word, no. Nice fantasy, though.
sure, over-simplified and caricatured.
exactly like your fantasy about “repeal.”
i’m sure we can both write about the topic like grown-ups, but if you start with fantasies, then you’ll get fantasies back.
Publius, if all the base required was “a good show” — like those adorable contrarian speeches Specter used to give before he voted the party line — I wouldn’t care. Problem is, if past experience is any guide, the party will continue to vote lockstep, not just orate. Enough DINOs will join them that we’ll be lucky to get another pro-business, pro-cop moderate like the rest of the so-called liberal wing of the current Court. An actual lefty Justice is out of the question.
One of the biggest prizes in our system is a Supreme Court appointment, so it is cold comfort that this show may send more moderates to the Democratic Party in the future. Those hypothetical new voters won’t be able to change the Court until more spots open up. Besides, consider where the moderate center IS these days — like Specter, they won’t change their beliefs, so they’ll just swing the party further right. It appears to be true that the moderates didn’t leave the party, the party left them, so they remain pretty dern right-wing by the standards I grew up with. More of them in the party may mean more nominally D votes, but not more votes total for any Justice (or any other issue) to the left of St. Ronnie.
Anything that marginalizes the authoritiarian cranks we had running the country is good, but I wish the pendulum would swing a little further, or faster, or something.
“They’ve got Roe and a number of state level rulings to demonstrate that liberals are perfectly willing to use the Court to impose essentially irreversable policy changes on social issues.”
1. Roe was a 7-2 decision.
2. The Supreme Court is irrelevant to state-level rulings.
3. “Essentially irreversible policy changes on social issues” is a rather well-poisoning way of referring to extending the rights of the people. Or perhaps you prefer a Court that takes away rights?
4. Bitch, please. Like conservatives don’t try to enact their policy preferences via the courts.
The GOP needs to find a way to persuade people who aren’t already in the choir – particularly young people.
No they don’t. If you’ve watched any of these nominations for the past 20+ years you should know that. It’s not something most people care about so it’s all about working the senators and repeating “judicial activism” and “legislating from the bench” over and over and over.
“One of the biggest prizes in our system is a Supreme Court appointment”
Maybe we should be revisiting this little development.
Here’s my prediction: Obama will nominate Diane Wood, who’s actually the most palatable pick to non-wingnuts out of the currently-circulating shortlist. It’s consistent with FTC’s noises about picking up antitrust and it opens up a circuit seat.
Social conservatives will freak out about her decisions against violent anti-abortion protesters. Unfortunately for them, there are plenty of conservatives out there who’ll hear “violent protesters” and think of William Ayers and Malcolm X. (Obama’s speech at Notre Dame had some larger strategic significance here.)
But since they’re going to freak out about any of Obama’s picks on that basis (and because Obama’s not going to nominate anyone who isn’t a reliable pro-Roe vote), he might as well stake out his ground there anyway. Should be interesting.
I’m not saying that Democrats should come out for interpreting the federal constitution to require gay marriage at this point.
Speaking as a gay man, I’m not sure I want the federal constitution interpreted to require gay marriage–I’m sure some of my fellow gays would prefer to remain single . . .
Maybe we should be revisiting this little development.
Ah, for the halcyon days when Presidents appointed Justices with no thought of preserving partisan gains. Which days were those, exactly?
“On their part [the Federalists] have retired into the judiciary as a stronghold”–Thomas Jefferson
Crafty, what on Earth would make you happy? Even with Republican presidents for twenty-two out of thirty years, Roe is as safe as ever, and the court has decided that we cannot execute the retarded and that no one can be executed for any crime short of murder. I shudder at what you think a good and liberal court might look like.
Crafty, I also hate and despise terms like “DINO”. Who are you to decide who is really a Democrat and who isn’t?
If I had less class, I’d tell you to stick it where the sun don’t shine.
“Ah, for the halcyon days when Presidents appointed Justices with no thought of preserving partisan gains. Which days were those, exactly?”
I’d say that it still rather different from “One of the biggest prizes in our system is a Supreme Court appointment”
It is different from, as Balkin says “Elections matter, but primarily because they decide who becomes President and who holds the balance of power in the Senate, thus affecting who gets appointed to the courts.”
Sebastian, my and Balkin’s statements seem substantively equivalent to me. What is the difference you see?
Lebecka, I get to say it b/c I vote Democratic, contribute $$ to the party, and sometimes get involved in party politics. Also, because this is (a) America, and (b) a blog. But enjoy your sexual fantasies. I would answer you substantively, except that you haven’t given me a clue what you think. All Democrats are good? Differences don’t exist? Differences don’t matter? I should respect my masters? Feel free to explain civilly.
Andrew R., since I’m not a media stereotype, I don’t really care all that much whether backward states can outlaw abortion, or can only deny funding and add onerous and humiliating conditions to drive it underground, so long as none of my friends have to live in those states. Similarly, I’m not too invested in whether executions are incredibly rare, or merely extremely rare. (Tho I am a little curious as to why you seem to mind that we “can’t execute the retarded.”)
No, I’m more upset when, for instance, the Supreme Court throws out a complaint that Ashcroft and Rumsfeld crafted policy to discriminate against Arab and Muslim prisoners, because in the opinion of five rich white men who knew the defendants, it was inherently implausible, so there was no need to collect any facts to see whether it happened. (Iqbal v. Ashcroft, last week). Or when our Chief Justice cracks jokes about species extinction. Or when the Court holds that juries are perfectly competent to find that State Farm routinely denied collision claims unless sued, but not competent to award punitive damages proportionate to the scope of that policy, so that punitive damages awards no longer have any meaningful effect. Or when the “liberal wing” agrees that states can’t outlaw an industry norm of requiring consumers to send disputes to arbitration mills. For example. There are lots of others.
“but not competent to award punitive damages proportionate to the scope of that policy, so that punitive damages awards no longer have any meaningful effect.”
??? Wouldn’t that be “compensatory damages”, by definition?
No time for a full explanation, but briefly, in several decisions in the last 10 years or so, the Court effectively limited punitive damages to the same size as compensatory damages. Maximum recovery in practice is 200% of harm to the plaintiff personally (100% compensatory + 100% punitives), no matter how reprehensible the conduct or how many other people were harmed. Let ’em bring their own suits, said the Court in its wisdom. And if a class action is impracticable — as where the defendant denied good AND bad claims so that you would need separate trials for each customer — too bad, there is no way to hold the company to account.
Note that this policy is easy to sell as a move against Those Evil Trial Lawyers who terrorize poor innocent deep-pocket companies. And it probably WILL reduce lawsuits. The trouble is, it will reduce ALL suits — meritorious as well as shoddy — thus increasing the power imbalance caused by wealth. It also takes away society’s most effective and flexible tool for punishing corporate misconduct.