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Breaking! Lawless Obama Administration Uses So-Called “Article III” to Usurp Rule of Law!

[ 14 ] May 24, 2013 |

Damn Obama and his diabolical “court-packing” plan of getting one judge confirmed to the D.C. Circuit (out of 4 vacancies) in 5 years!

And, of course, even that nominee was very much a compromise candidate. I’ve been meaning to discuss Mark Graber’s excellent new article on the implications of elite polarization for the Supreme Court — and I’ll have more on it later –but Srinivasan is interesting case because he tests its limits.   An important product of increased polarization between Republican and Democratic elites, Graber points out, is that judges who are part of the same broad “team” tend to be pretty predictable even they don’t have much of a track record.   Kagan, a very blank state candidate, has for example a voting record pretty similar to Sotomayor.  

For much of American history, this hasn’t been true.  A Democratic president could appoint both Brandeis and McReynolds, Frank Murphy and Jimmy Byrnes, not because McReynolds and Byrnes were “mistakes” but because southern white supremacists and Jewish and Roman Catholic progressives were all part of the Democratic coalition and were all represented in Supreme Court appointments.   Even Souter in a sense was only half a mistake — it’s not exactly that he wasn’t a conservative, it’s that he represented a strand of New England conservatism that no longer has any place in the national Republican Party.   It’s very unlikely that Harriet Miers, an even blanker slate than Kagan, would have had a voting record that much different than Alito or Roberts; there’s a big difference between a contemporary Texas Republican and a New England Republican of the 80s.

Particularly as a potential Supreme Court nominee, Srinivasan will be an even more interesting test case than Kagan; the fact that he’s chosen to be part of the Democratic “team” is pretty much the only evidence that he’d be a progressive judge.  His tenure on the D.C. Circuit will therefore bear watching.  But unlike 40 years ago, it’s very possible that his votes and opinions will be broadly similar to a more clearly liberal nominee. And it’s virtually impossible for him not to be substantially more liberal than the Republican appointees on the D.C. Circuit.

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  1. TT says:

    I haven’t read the article, nor am I a lawyer or Constitutional law scholar, but it seems to me that on the biggest questions (e.g. Bush v. Gore, overturning the ACA, torture/civil liberties, campaign finance, corporate law) that Republican-appointed judges are much more devoted to their “team” than are Democratic-appointed judges. Witness the parade of arguments used to stop the Florida recount or to overturn the ACA, arguments which, even to a layperson, were transparently absurd and opportunistic. Is that a wrong assumption to make?

    • Jon says:

      I think it’s a fair assumption to make going forward, but between Blackmun, Souter and Stevens, and even O’Connor and Kennedy, Republican appointees have tended to end up on the other team more than Democrats (at least recently) have ended up on the other team. The first three I mentioned became reliable “liberal” votes the latter two prevented a full repeal of Roe v. Wade. I think abortion politics tend to distort people’s picture of where someone really is, just because it’s been (or at least was) such a dominant issue over the years.

      I think the elephants would claim that Roberts belongs on that list, but only because they really think the ACA is unconstitutional, not because he has anything other than a conservative/republican record.

  2. The problem is, that, over the last 40+ years, there have been a hell of a lot LESS Liberal or Progressive Judges nominated by Democratic Presidents who were confirmed, than there have been truly Conservative Judges, appointed by Republican Presidents, and confirmed by Republican Senate’s.

    Democratic Presidents have nominated mostly “Centrist” jurists – with the very, very, rare Liberal or Progressive one, getting approved.

    And so, the march of ‘The people’s court(s)’ continues, moving ever further to the right!

    The Democrats have been paying for the price of denying Robert Bork his SCOTUS seat, for the last 25 years.
    And, thank goodness the denied him. The man was an Authoritarian maniac!

  3. Corey Robin says:

    Very interesting post, Scott. Quick question/possible correction: You write “An important product of increased polarization between Democratic elites…” But don’t you mean between Democratic and Republican elites? Or am I misunderstanding the point?

  4. Incontinentia Buttocks says:

    I haven’t read Graber’s article (only the abstract that you linked) but this claim — especially its absolute symmetry — seems questionable to me:

    Most Republican elites presently take far more conservative positions on most constitutional issues than the average Republican. Most Democratic elites take far more liberal positions on most constitutional issues than the average Democrat.

    I think, in both parties actually, the relationship between elite (which Graber defines as most affluent and educated) and rank-and-file opinion is more complicated that this claim indicates. For example, average Republican voters (at least in Oklahoma) can be even more extreme in their Constitutional views than the most affluent and educated Republicans are.

    There’s certainly more partisan polarization, but I think it has to do more with the old party coalitions (which overlapped ideologically to a certain extent) breaking down in the quarter century following the Civil Rights revolution of the 1960s (as the OP suggests) than with the extremism of party elites.

    • Incontinentia Buttocks says:

      I forgot to add: while Republican appointees to the federal courts have become much more conservative, Democratic appointees to the federal courts, while perhaps more tightly ideologically clustered, have not become notably more liberal than the most liberal judges of the past. Thurgood Marshall, e.g., would still be to the left of all of the Justices on the SCOTUS today.

    • Scott Lemieux says:

      Yes, I will address this — the article definitely needs some Hacker/Pierson. Polarization definitely has gone both ways but it’s not symmetrical.

  5. gocart mozart says:

    Article I, Sec. 2, par. 3 trumps Article III. Black presidents only get to appoint 3/5th the number of judges as other presidents.

    • Lee Rudolph says:

      +0.6!

    • Joe says:

      Obama not being an ‘other person,’ but a free black, the 3/5 allotment would not have been applied to him. Likewise, moving on to reality, the Republicans weren’t going to play nice with some white guy in his position. Or, is the fact that Clinton was by some lights the “first black President” somehow applicable here, down to his impeachment for (or arising from, giving that wasn’t the ultimate charge) having sex with a white woman?

  6. Joe says:

    Off topic, after seeing David Bernstein’s critical review of the FDR book, I see the author of the OP is cited on the Amazon page providing a very positive review. Ah balance.

  7. [...] Pat Caddell? Zell Miller?) But, anyway, assuming they exist these Democrats are idiots falling for ridiculous Republican spin. There really isn’t any comparison between the banal act of filling existing vacancies and [...]

  8. [...] Kagan so far (compared with Alito and Roberts on the other hand) is evidence for Mark Graber’s theory that we should expect Supreme Court nominees to reflect a more consistent set of values based on [...]

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