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Partisan Asymmetry and the Courts


I have a review of Jeffrey Toobin’s new book up at the Prospect. To me, the most telling of the many telling details involves the circumstances of Obama’s decision to pick Kagan over Diane Wood:

This fight between political aims and the Constitution has not been fought on symmetrical ground. As The Oath makes clear, Republican presidents have made reshaping the federal courts a high priority since Ronald Reagan’s first term. Presidents Clinton and Obama, conversely, have not. This difference in priorities can be seen in the sluggish pace at which Obama gets federal judges confirmed, a result of Republican obstructionism and a slow speed of nominations on the part of the Obama administration. As Toobin notes, another telling example can be found in comparing the second nominations of Obama and George W. Bush. Bush accepted a bloody confirmation battle in order to get the arch-conservative Alito on the seat of the Court. Obama, conversely, passed up an opportunity to use an atypically large Democratic majority in the Senate to get something approaching a liberal equivalent of Alito confirmed, going with the safe choice of Elana Kagan. In a telling detail, Toobin reports that Kagan was chosen over Judge Diane Wood in part because as Solicitor General Kagan fought for a legal position on the repeal of Don’t Ask Don’t Tell that was to the right of the one ultimately chosen by President Obama. The kind of heterodoxy that would torpedo a nomination in a Republican administration can work to your advantage with a Democratic administration.

As I say, the skepticism about the courts Obama learned from Chicago liberals is in a sense well-founded; the courts do have less ability to produce social change than some progressives assume, and historically have been much more reactionary than is commonly assumed. But the problem is that 1)courts do a great deal to damage progressive victories, and 2)the current partisan asymmetry makes things worse than they have to be. Obviously, Obama isn’t going to need reminding about point #1 anytime soon

…UPDATE: To answer rea’s question, Kagan argued that the district court 9th Circuit ruling that DADT was unconstitutional was wrong and the Obama administration should appeal it.

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  • Jameson Quinn

    Obama has never had to worry about his left flank. They’re only voters; it’s not as if there are are any big donors there who could bankroll a primary challenge. And under plurality voting, only swing voters matter.

    Best argument for approval voting I’ve heard since… well, I’m actually in the middle of reading Reitz 2008 so not very long.

    Under approval, Obamalike candidates would still win, but they would have to at least glance in our direction once in a while.

  • rea

    I’m curious as to exactly what Kagan did wrong on DADT. A google search on Kagen “Don’t ask don’t tell” gets me a lot of right wingnuts saying that her inadequate defensee of the statute ought to disqualify her from being a Supreme Court justice.

    • Scott Lemieux

      See update.

      • Richard

        Wasnt that the position of the DOJ until DADT was repealed? I dont remember Obama or the DOJ taking a different position.

        • Scott Lemieux

          Wasnt that the position of the DOJ until DADT was repealed?


          • Richard


            Your link is to an article on DOMA, not DADT. I know that the Obama DOJ refused to defend the constitutionality of DOMA but I believe that it defended DADT until it was repealed. If I’m wrong (as could be the case), could you please link to something that discusses DADT and not DOMA

            • Richard

              Here’s a link to an article stating that the DOJ appealed the ruling holding DADT unconstitutional


              • Scott Lemieux

                You’re right. The disagreement is that Kagan wanted to appeal the 9CA ruling striking down DOMA and the Obama administration declined. Will update.

                • rea

                  Okay, and this comes from Tobin’s book, and not from the linked article? This is anonymously-sourced stuff about the adminstration’s internal deliberations?

                  I don’t have access to Tobin’s book, let alone to what went on in the administration. But you know, the advice she is claimed to have given is the advice that you would expect a solicitor general to give: (1) it was a legally viable appeal, given existing precedent, and (2) it’s generally the job of the Justice Department to make every reasonable argument to defend the constitutionality of a statute. I agree with Holder and Obama’s decision, but it was theirs to make; it’s not the role of the solicitor general.

                  Imagine you’re on a Star Fleet promotion board, considering the proposed promotion of Commander Montgomery Scott. Do you decide he’s too conservative to be a captain? After all, he has been known to advise that the engines may not be able to handle his captain’s proposed manouvers. No, it’s more complicated than that–giving that sort of advice is the job of the chief engineer, and doesn’t necessarly tell us how he would act on the bridge in the captain’s chair.

      • rea

        I’m still mystified, since there’s nothing at the link about Kagan’s role in all this.

        It’s quite an extraodinary event for the Justice Department to refuse to defend the constitutionality of a statute. That’s your criticism of her? That she didn’t get Holder and Obama to decide to do this at an earlier date?

        • Scott Lemieux

          No. I’m saying that Obama thought the decision was right (to the extent that he refused to defend the law) and Kagan didn’t and argued against taking that course.

          • Richard

            But now were talking about DOMA, not DADT (as it says, possibly mistakenly, in your review). So, without reading the book, I’m assuming that Toobin says that Kagan wanted to defend DOMA but that Holder and Obama overruled her and made the decision not to defend it? Correct?

    • L2P

      Lost here. Kagan’s position was “to the right” of the administration’s, and this was an important issue to the administration, but the administration still thought her position was a good thing (or at least a good enough thing for them to nominate her), in what sense is she “to the right” of the administration? Isn’t she representing “the position of the administration?”

      • Scott Lemieux

        No. The administration declined to appeal the 9CA ruling. It;s just that Obama admired her rule of law moxie for being willing to defend the constitutionality of a shitty law Obama didn’t think was constitutional or something.

        • Richard

          I don’t know if “to the “right” is your characterization or that of Toobin but I don’t think it’s quite accurate. She was the SG and took the traditional position that the Government defends the constitutionality of all laws passed by Congress. It was up to Holder or Obama to make the decision to deviate from the norm. I think her decision was more institutional deference than conservative

          • Scott Lemieux

            Except that she continued to disagree after Obama and Holder had come out against it. We’re talking about internal deliberations here. She thought the bill was constitutional on the merits, not out of deference.

            • Richard

              Ok. I take your word for it because you’ve read the book and I havent

  • AAB

    The good news is that Kagan has been pretty solid so far, and has written a few truly outstanding dissents (her dissent in Arizona Free Enterprise is one of the stronger ones I can remember reading).

    • Scott Lemieux

      Yes, that one was great. The Arizona establishment clause dissent was awesome as well.

  • What is particularly vexing about this is that judicial appointments are supposedly one of the best reasons to vote for a Democrat.

    • David Hunt

      They’re definitely one of the best reason to vote against Republicans…which means voting for Democrats since votes for vanity leftist third party candidates are effectively votes for Republicans. It’s not the ideal reason to vote for Democrats but it’s what we’ve got. I’ve considered my own party to be Anti-Republican since Tom Delay organized the mid-decade redistricting of the Texas Congressional districts. That’s when I decided that voting for Republicans at any level of government was an assault on democracy as it all eventually filtered up to support of the Republican national agenda. If I don’t know who the candidates are in down-ticket races for, e.g. Railroad Commissioner, I’ll simply vote for any candidate that is running against the Republican if there’s no Democrat. Green, Libertarian, Brain Slug, whatever.

      • Ed

        They’re definitely one of the best reason to vote against Republicans…which means voting for Democrats since votes for vanity leftist third party candidates are effectively votes for Republicans

        And vanity of course could be their only motive.

        • Scott Lemieux

          Point conceded; with Nader it’s more narcissism.

    • John

      That Democrats give you Kagan instead of Wood seems basically like nothing when compared to the fact that Republicans give you Alito.

      • Ed

        Yes, it used to be that the Republicans would occasionally nominate moderates or conservatives as opposed to proud reactionaries, but that time is no more, at least for the present. Still, the choice between Wood or Kagan is far from nothing and it does matter that Obama made it.

        • John

          I don’t know that it is at all clear at this point that appointing Kagan rather than Wood will matter in the long run.

        • Cody

          Kagan has been proven solid so far. She’s obviously very bright and at least fairly liberal.

          Only time will tell how “Progressive” she can rule. Perhaps Obama knows something about her politics that wasn’t apparent.

  • To me, this is another piece of evidence that both Republicans and Democrats police their left flank, slowly and surely moving the nation to the right.

    • FlipYrWhig

      This is probably true, but IMHO it’s mostly because the “left flank” of both parties is smaller than its right.

      Or, to put it another way, there aren’t many ways to stop the 20 rightmost Democrats from getting what they want, so they do. They function as a bloc, and practically as a third party — or maybe a second, come to think of it…

      • Jameson Quinn

        Or maybe it’s just that the right flank of each party has an easier time fundraising.

        • Cody

          Which is probably because the right flank is busy robbing all the money from the left flank through wage and benefit decreases?

  • courts do a great deal to damage progressive victories

    If your concern is only preventing the damage that reactionary courts will do to progressive victories, a moderate liberal will do just as good a job as a judicial left-winger. The conclusion to be drawn from the damage that reactionary judges have done is that there need to be more Democratic, and fewer Republican, nominations to the courts.

    The case that Democratic nominations to the courts need to be more liberal relies on the advancement of an affirmative program by the courts, not just playing defense.

    • Whoops.

      • mds

        Yeah, I figured something was wrong when “willard from Belmont’s” conclusion wasn’t that we need more rich white sociopaths as federal judges.

        • “I’m dismissing this case under the doctrine of canis est super tectum. All rise for me!”

          • Jameson Quinn

            Dog is on the roof???

  • Todd

    “Bush accepted a bloody confirmation battle in order to get the arch-conservative Alito on the seat of the Court”

    After he nominated noted Texas Lottery expert Harriet Miers to the Supreme Court.

    How high of a priority could it have been?

    • Incontinentia Buttocks

      It was a high priority for his fellow Republicans who pressured him into abandoning Miers.

      • Todd

        She was totally incompetent for the Supreme Court. Everybody pressured him to drop her. She was a complete embarrassment.

        He nominated an unqualified buddy. Again, how high of a priority could it have been for Bush?

    • Scott Lemieux

      1)As IB says, it was certainly a high priority for Republicans.

      2)Miers was, after all, a Texas Republican. Concerns that she would have been another Souter were misplaced. Miers shows that Bush was willing to appoint utter incompetents, not that he didn’t want doctrinaire right-wingers.

      • JRoth

        This I agree with.

        That said, the odds were certainly better of Miers becoming Souter than of Alito. Alito could spend 40 years as the only conservative on the Court without conceding a single vote; Miers, with no intellectual grounding and only a social attachment to conservatism, could conceivably have drifted left.

        You can’t make a plausible argument that Alito is less doctrinaire, even if you want to credit Miers with enormous fortitude. She wasn’t a Movement Conservatism (read Bircher).

        • Scott Lemieux

          I agree with this; Alito was a sure thing because of his track record, and conservatives were right to demand him. My point is just that Bush wasn’t trying to pick a moderate.

  • Richard

    Despite her use of the Socratic method, I believe she’s been a fine judge and no real reason to believe that Judge Wood would have been any better.

    • JRoth

      Now you see the true face of the American Left. Soft on Socrates.

      I weep for my country.

      • rea

        Socrates was objectvely pro-Spartan.

  • mds

    “Bush accepted a bloody confirmation battle in order to get the arch-conservative Alito on the seat of the Court”

    Actually, the Bush administration accepted that unless it literally put up Robert Bork again, Senate Democrats would grandstand a little and then collapse like a Wal-Mart card table.

    • Karate Bearfighter

      Your metaphor is ridiculous. I have bought several pieces of furniture from Wal-Mart, and they are all capable of standing up to minimal amounts of pressure.

      • Jameson Quinn

        And even stern looks.

    • UserGoogol

      I don’t know if I’d say that. Norms change gradually and Democrats are much more averse to changing legislative norms than Republicans, but the Democrats do eventually adapt. For example, if you look at graphs of legislative filibusters, filibusters went up during Republican minorities, but they stayed level during Democratic minorities.

      The hubbubs with the nuclear option and all that ended with the Democrats folding, but it was still a hubbub. Romney would presumably face even more, even if Democrats don’t play quite as dirty as Republicans.

  • david mizner

    I assume, though could be wrong, that conservative activists are also more intent on getting pro-business judge than liberal activists are on getting pro-workers ones. Obama couldn’t get away with picking a judge wobbly on choice (nor should he be able to), but can push through without much problem justices who are too pro-business.

    The notable thing about Dianne Wood is that she’s a populist – when was the last time a Democratic president named a populist judge?

    • Decrease Mather

      I assume, though could be wrong, that conservative activists are also more intent on getting pro-business judge than liberal activists are on getting pro-workers ones.

      Replace “liberal activists” with “Democratic Senators” and it’s far more true.

      • JRoth

        No, I think david is right all around. There are certainly activists who put equal weight on both, but the net weight, across the party base, is clearly pro-choice: look at the response by e.g. Slate “liberals” to the Chicago strike. And they were hardly alone. There are too many Saletan-style dicks who are soft on choice, but most of them are soft on labor rights as well, and in addition there are many more who are only soft on labor. Yglesias, for all his flaws, is AFAIK rock-ribbed on choice, but borderline hostile to labor*.

        * arguably not borderline, except that he won’t cop to it. If you won’t cop to a position, then you’re probably borderline,because ther are conflicts where you’ll end up on the other side.

  • The near death experience of the Affordable Care Act is the most obvious example, but in a variety of areas (including civil rights and environmental regulation) conservative judges have created conservative victories that Republicans in the other branches would not be able to achieve.

    What would be more likely to have caused the ACA decision to be 7-2 instead of 5-4:

    A. Bill Clinton’s district, circuit, and Supreme Court nominees being more numerous and more liberal.

    B. Al Gore becoming President in January 2009 and appointing judges exactly as liberal as Bill Clinton’s nominees, at exactly the same numbers.

    • Scott Lemieux

      Yes, obviously getting Breyers and Kagans from a Democratic president is infinitely preferable to getting Thomases and Alitos from Republicans. Admittedly, my credentials as a non-purist are open to question; maybe one of these days I’ll get around to blogging about Ralph Nader.

      At any rate, the low priority Clinton and Obama have put on judicial appointments matters much more for lower courts than it does for the Supreme Court.

      • JRoth

        This, to me, is the second biggest indictment of Obama (clinton was bad, but Obama is an order of magnitude worse). His hands-off approach to Fed appointments for most of his first term is arguably criminal negligence – damaging his own case as well as the nation’s well-being – but his refusal to even nominate judges, let alone fight for them, is egregious. No matter how awful Republicans are, there’s no reason to believe that they will, literally, block every possible nomination. Which means that Obama has left dozens of federal seats empty for lack of trying.

        It appears that he’ll get another term, and maybe he’ll finally turn his attention to this matter, but who can have confidence in it?

        • Joe

          He nominated judges and they were confirmed too. Others were nominated and blocked. There also was other stuff going on around that too. It’s easier to focus on ideological wars when you aren’t passing major legislation and stuff.

          I’m unsure how much less “egregious” it would have been to put some more people thru the wringer (I guess he could just tokenly nominate, w/o FBI investigations or anything) for little end. He COULD have done more, but it was a balancing of various complicated factors here. He did have reasons for doing what he did.

          • It’s easier to focus on ideological wars when you aren’t passing major legislation and stuff.

            Which brings us back to the second term…

  • wengler

    The progressive era of the judiciary was a blip caused by the dominance of New Deal politics for twenty years. The court will always be the holdouts of administrations past. This is why a guy like Stevens ended up being the most leftist person on the court- he was representative of a time that was not dominated by rightwing politics.

    The Democrats have been largely unwilling or unable to turn the tide against conservative rightwing ideology that has dominated for the past 30 years. 2008 really could’ve been a turning point, but instead the Republicans re-entrenched and the amount of bought off Democrats became a lot more clear. With the anniversary of Occupy, it’s apparent how we don’t really know what to do to get power(and sanity) back.

    • American politics have been turning back to the left since 2005.

  • Joe

    Toobin was the one who got all excited after the oral argument on PPACA. I’d liked a different source — perhaps someone who uses his leg work w/o his narrative style.

    Stevens’ historical analysis in Heller was shoddy. It was depressingly one sided. Liberal/centrist types like Tribe, Amar, Levinson supported individual rights with a more nuanced version of history. Regardless of the merits, on the slanted law office history front, Scalia’s was somewhat better.

    Alito was actually more important since O’Connor was a swing justice while Kagan was a 4th vote. Still, Obama wanted a non-judge there, which simply is not done any more. That is another reason to have a safer choice. Some said Kagan would have made a better third pick. This basically assumes re-election.

    But, really, how “bloody” was the confirmation battle? And, honestly, just how harder — all things taken into consideration especially — is Obama having a time of it? And, putting aside Richard’s question, Obama liked Kagan for various reasons. The DADT thing probably was minor. After all, it was balanced by her needing (faux as it might be on a controversy level) to defend her recruiter record.

    • Joe

      The fact Alito confirmation was not really “bloody” can be seen as a criticism of Obama for not choosing a different choice for Stevens (unlike Sotomayor, I was not a great fan of Kagan’s nomination, but honestly, I don’t know how much better Diane Wood would have been … who does really?). So, that furthers the Obama played it safe sentiment.

      But, the 2A stuff really is where some of us get off the bus. “Toobin explains how the NRA and other guns-rights groups transformed the understanding of the Second Amendment.”

      Eh. Actually, Heller is what the public at large thinks the 2A means — the average person probably, contra the “understanding” of some federal courts, thought we had a constitutional right to a gun but it could be subject to various regulations. Some form of the Breyer approach in Heller if a bit more supportive of some basic gun right.

      • L2P

        The public at large also thinks that a Montana sheriff can’t cross the state line into Idaho to catch a crook. And a lot of them think that if you fill out your income tax form JUST RIGHT, you never have to pay taxes again because of a special loophole.

        The public at large are idiots.

        • Cody

          Indeed. The smart people know you need a very expensive accountant to find this loop hole!

        • Joe

          I don’t think the average taxpayer thinks there is some special cheat to avoid taxes though I’m sure a few do. OTOH, a majority thinks there is a constitutional right to own a gun that can be regulated in many ways. ”

          Gun rights groups” didn’t have to convince them. It also is not a stupid thing to think (ask Tribe, Levinson, Amar, etc.) of as compared to the tax thing and the confusion about jurisdiction, which itself is not really “idiotic,” just a misunderstanding of jurisdiction.

      • tim

        the NRA did everything in it’s power to keep Heller out of the courts.

        • Joe

          Yes, the NRA was more conservative about the effort than the gun rights groups who thought it appropriate. Likewise, some gay rights groups opposed the Prop 8 case. Both times those who took the chance reasonably had a feeling they had the better feel of the public and the courts.

    • Scott Lemieux

      Stevens’ historical analysis in Heller was shoddy.

      Well, it was law office history. The question is whether it was worse than Scalia’s; it wasn’t. If you want to criticize a Stevens dissent on gun control, try McDonald; that was terrible.

      • Joe

        (1) I expect more from Stevens (2) I thought the question was if he was better in any real way than Scalia. On that level, don’t see it. And, there are plenty of material out there if he wanted to make a serious effort.

  • Ed

    Bush accepted a bloody confirmation battle in order to get the arch-conservative Alito on the seat of the Court.

    Toobin’s definition of “bloody confirmation battle” seems to be a bit loose. It seemed to me the Democrats mainly waived their arms and waited for Alito to foam at the mouth and scare people, and when he didn’t do that they were flummoxed.

    • JRoth

      You might be mistaking tactics for strategy. Historically, most SC nominations are relatively uncontroversial – Scalia got, what, 96 votes*? By those standards, Alito’s nomination was “bloody”, even if no Dem was willing to stand up as Kennedy did against Bork.

      Point being, there’s a huge gap between “winning after debate” and “passed by acclamation”, even if both have the same end result. Senators who vote for the President’s choice in the former feel that they’re owed more than ones who vote for the President in the latter.

      Say whatever you want about Bully Pulpits; Senators view being the only one to cross party lines VERY differently from being one among 30.

      * yes, different era. But IIRC Roberts got many more votes than Alito as well

  • LeeEsq

    I think that a lot of progressives view Courts as a means to progressive social change because of the Warren Era Supreme Court, where the Court was at its most liberal, and frustration at the slowness of the American legislative process at all levels of government. Before the Warren administration, liberals would laugh out loud if you called courts a means to progressive social change.

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