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Asymmetric Polarization and the Courts

[ 170 ] August 9, 2017 |

Really good piece by Ian Milhiser:

Gorsuch possesses all of the virtues that lead to personal success and none of the virtues that enable compassion. Clever and cocksure. Diligent and immune to self-reflection. His ascension to the Supreme Court represents a triumph of the Republican will. And there are many more of him waiting in the wings.

The reason the orange goon in the Oval Office is able to find such extraordinarily talented individuals to fill the federal bench is because he’s not really the one choosing them. As a candidate, Trump openly admitted that he worked with two conservative groups — the Heritage Foundation and the Federalist Society — to come up with lists of potential Supreme Court nominees that would be acceptable to conservatives. Neil Gorsuch was on one of those lists. So were Thapar and Larsen, along with two other people Trump nominated to federal appeals courts.

Indeed, as Sen. Dick Durbin (D-IL) noted at Judge Bush’s confirmation hearing, affiliation with the Federalist Society “turns out to be a ticket that needs to be punched” to get on “the Supreme Court, and the highest courts in our land.”

Judge Kevin Newsom, who the Senate confirmed to the Eleventh Circuit last Tuesday, is a member of the Federalist Society. Bush led one of the Federalist Society’s lawyer chapters. Three of Trumps’ future court of appeals nominees spoke at the Federalist Society’s annual lawyer’s convention in 2016, as did several individuals on his list of potential Supreme Court nominees. The Federalist Society’s executive vice president, Leonard Leo, served as “Trump’s subcontractor on the selection of Gorsuch,” and Leo also played a major role in selecting President George W. Bush’s Supreme Court appointees. As Jeffrey Toobin writes, “Leo is responsible, to a considerable extent, for a third of the Supreme Court.”

There is nothing comparable to the Federalist Society on the left. That is, there is no group which has the same ability to identify the best and the brightest lights in the legal profession, screen them for ideological purity, and that also has the influence necessary to fill the bench with their people.

To be clear, there is a liberal group, the American Constitution Society, which strives to play a similar role. ACS, which I worked for during part of the Bush administration, was founded as an explicit counterpart to the Federalist Society. Yet ACS members, including myself, spent much of the Obama years watching their heroes get crucified by Senate Republicans. ACS itself became a place to hear pep talks from slain martyrs.

[…]

Indeed, delivering a learn-from-my-example-young-ones-even-though-I‘m-locked-out-of-top-jobs speech has become a kind of badge of honor reserved for many of the leading lights of the progressive legal community. The best example of this genre was offered by Pam Karlan, a Stanford law professor, voting rights expert, and current ACS board member that Obama considered for a judgeship but ultimately did not nominate.

“Would I like to be on the Supreme Court? You bet I would!” a defiant Karlan told Stanford law’s graduating class in 2009. “But not enough to have trimmed my sails for half a lifetime.”

The best minds of the left give inspiring speeches, while the greatest intellects of the right wear black robes.

In case it is unclear, little of this is ACS’ fault. Much of it is Barack Obama’s fault. President Obama was fully aware that nominating proud, brilliant, outspoken liberals was a great way to get drawn into a filibuster fight. And he often decided that such fights weren’t worth it. As Dahlia Lithwick wrote while Obama was considering who he should nominate to the Supreme Court seat that eventually went to Justice Elena Kagan, “the hardest question I keep getting from liberal law students—and the most painful to answer—is why so few of their heroes are in serious consideration.”

It’s implicit in Ian’s point about how Obama’s nominations improved after Democrats finally blew up the filibuster for judicial nominations, but we shouldn’t just blame Obama for the fact that intelligent left-liberals like Pam Karlan are considered beyond the pale while Republicans pack the federal courts with Alitos and Gorsuches — Senate traditionalists (most notably Pat Leahy) engaged in a lot of unreciprocated power-sharing with Republicans, most ridiculously by restoring the blue slip rule that will once again be abandoned.

Still, Democrats making the Supreme Court a major issue during elections would be BLACKMAIL.

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  • McAllen

    The biggest problem with Democrats is that they play by rules Republicans have long since abandoned.

    • diogenes

      Carrying a position paper to a knife fight…

      • Bruce Baugh

        That’s one of your best one-liners yet. I imagine I’ll be quoting it in the future. :)

        • diogenes

          Thank you, and no patent, so enjoy!

      • Thirtyish

        That’s brilliant.

    • Joe Paulson

      One party caring about good government and norms does affect things there.

    • TJ

      True. There’s no Marquees of Queensbury Rules in MMA.

      • JamesWimberley

        Marquess. A marquee is a posh big tent for pissing out of.

  • diogenes

    Basically, it’s going to be a lifetime of trench warfare for liberals to get back to the table. It took the evangelicals 30 years from the wilderness to calling the shots.

    Electing a Democratic president ever so often is not going to cut it.

    • If the left wants to create an equivalent of the Federalist Society, it will take a lot more than organizing law student groups and meetings. It will involve supporting those groups, funding speakers for those groups’ events (speaker fees and travel costs for speakers on the organization’s approved list, paid by the national organization). It means causing law students to believe that joining can help, will help, or may be the best or only path toward getting a desired judicial clerkship, and convincing judges to make membership an important consideration when reviewing applicants for clerkships. It also means identifying and advancing a core legal/political philosophy that will support all of the above.

  • NeonTrotsky

    It seems that part of the problem is that large parts of the left simply don’t care about the courts. Jacobin publishes a piece every time the left loses a supreme court seat that basically goes “the courts will always be conservative so we shouldn’t bother” and it’s pretty infuriating, because the courts do matter, and there is really nothing inherently conservative about them. The post war period that the left likes to be so nostalgic about was possible in large part because of liberal decisions by the courts, and causes from abortion to civil rights that basically weren’t getting anywhere legislatively still made significant progress through legal action. And this isn’t even getting into how conservative courts can basically block major progressive legislative victories even with a Democratic president and majorities in both houses. The VRA would still be intact if the Supreme Court had better members, and so would the complete ACA medicaid expansion. I’ve literally had people tell me that the only difference between Democratic and Republican judges is on abortion and that it doesn’t matter anyway because they’ll never reverse Roe, which is quite frankly an incredibly stupid statement on both counts.

    • LeeEsq

      Liberals and leftists have both under-emphasized and over-emphasized the importance of the judiciary. The Jacobin piece isn’t wrong in that the judiciary has traditionally been the most conservative branch of government in most democracies in both a small-c don’t rock the boat sense because of the importance of precedent in judicial decision making and in an ideological sense because of who gets to be judges. At the same time other liberals have over-emphasized using the courts of achieve progressive policy when they are having trouble at the executive and legislative levels. That’s fine for issues regarding due process, equal rights, and equal protection under the law but its horrible for say things like lack of affordable housing or healthcare. Some issues really do need to be handled at the legislative level.

      • btfjd

        True, but even the best progressive legislation is at the mercy of the Court, as FDR learned during the first few years of the New Deal. Many of his signature programs were declared unconstitutional (NIRA, AAA, etc.). And this was at a time when Roosevelt had been elected by landslides, and had huge Democratic majorities in both houses of Congress.

        Moreover, the damage the Court can do is not limited to specific legislation. The two biggest factors in US elections over time are money and demographics. Citizens United allowed big money pretty much unfettered opportunity to influence elections, and Shelby County opened the door to voter suppression on a massive scale. This, in turn, allows the election of more R’s, who put more conservatives on the bench, and so on.

        • LeeEsq

          And when FDR tried to deal with the Supreme Court in a political manner, he got slapped down hard by his own side. An independent, non-politicized judiciary is important to many people.

          • Bizarro Mike

            The trouble with this, just like the maintenance of so many norms, is that they can’t be maintained unilaterally.

            • LeeEsq

              Many Democrats want to maintain them unilaterally.

              • Mark Dobrowolski

                Then enjoy Republican governance.

        • Scott Lemieux

          Right. I’ve written about this, but a lot of liberals — and it seems likely that Obama, who taught with Rosenberg and Sunstein, was heavily influenced by this view — conflate “litigation can only accomplish so much” (true!) with “courts are not that important” (false!)

          • TJ

            When did Obama ever say or suggest Courts aren’t that important?

    • eclare

      “causes from abortion to civil rights”

      Bah! Unimportant identity issues! Who cares! /s

  • JKTH

    The best minds of the left give inspiring speeches, while the greatest intellects of the right wear black robes.

    Also white robes.

    But to the broader piece, isn’t a lot of it just making the banal point that nuking the filibuster and having control of the Senate is important?

    • wherewhich the werewitch

      Distilling down to that banal point eliminates everything the piece said about the Federalist Society and the ACS, which means your “a lot of” qualifier is doing… a lot of work.

      • JKTH

        But again, Milhiser is comparing Federal Society judges who got in post-filibuster to ACS people who were locked out because of the filibuster. The fact that Republicans draw judges from the Federalist Society and the ACS isn’t its equivalent seems less important in how the judiciary is shaped than the filibuster existing.

    • Anna in PDX

      Upvoted for the white robes reference only. I don’t agree with the other point. I think we need to talk about individual policy issues and institutional issues and not only about elections. We can contain multitudes.

  • LeeEsq

    Judges like Alito and Gorsuch might be a lot closer in belief to the median Republican than intelligent left-liberals like Pam Karlan and Goodwin Liu are to the median Democratic voter because the Democratic Party covers a much wider ideological ground. Nominating people like Kagan and Garland might be what at least a plurality of Democratic voters prefer.

    • Scott Lemieux

      The idea that the typical voter has specific ex ante preferences about judges is nuts. The typical voter has no idea who John Roberts is.

      • NewishLawyer

        Fair but the Evangelical wing seems to have grasped that power to slow social progress exists through the courts.

        • McAllen

          But that’s worked because the Republican party doesn’t really need to please the median Republican voter when it comes to picking judges, they need to pick the factions that care about the courts, and the Evangelicals have made themselves one of those.

      • Joe Paulson
  • NewishLawyer

    I think there is the issue that NeonTrotsky mentioned, a lot of left groups don’t want to work within the system for change because that legitimizes the system that they would rather tear asunder.

    Another issue is that for the highest reaches of the Federal Bench (and maybe State Benches too), there is only a small path that can get you there even among left-liberals. You need to be a top student at a top law school and then clerk and then go into academia, corporate law, government, and maybe some higher-end nonprofit org. I think Obama nominated one plaintiff’s lawyer to be a Federal Judge in Rhode Island. I don’t know many Federal Appeals judges with plaintiff’s experience. Or Criminal Defense experience.

    • LeeEsq

      Most state judges are elected, so what you really need to do get on the state bench is be very active in party politics and hope that your district is dominated by your party. Your right about the very limited career path for Federal judges though. You need to go to the right and very limited number of law schools and then have the right career afterwards.

      • Denverite

        Most state judges are elected

        This really depends on where. State judges vary from elected-every-cycle to appointed with life tenure (or something approximating it). In Colorado, for example, they’re appointed by the governor and then they stand for retention votes periodically (the retention intervals depend on the level of the court).

        • Just_Dropping_By

          Probably worth further noting about Colorado that the governor appoints judges from a list of candidates compiled by a merits selection committee, so the risk of patronage, nepotism, etc. in the initial appointment process is limited.

          • NewishLawyer

            The same thing seems to happen in CA. There is an application and then a merits committee selects from those applications for the governor to nominate. After that there are retention elections.

    • Denverite

      I think Obama nominated one plaintiff’s lawyer to be a Federal Judge in Rhode Island.

      At least in Colorado, Obama’s three district court nominees were the federal public defender, a plaintiff-side employment lawyer, and a state court judge who had been a biglaw partner before his nomination. For the Tenth Circuit, as I can recall, he nominated a federal magistrate from Oklahoma, the Wyoming AG, and a Kansas state appellate court judge. None of them had classical top school-clerkship-biglaw backgrounds (though the magistrate did clerk for the Tenth Circuit).

      • Just_Dropping_By

        Yes, but arguably that degree of diversity in the backgrounds of appointees was possible because, at least in my impression, the Tenth Circuit and its districts are treated (unfairly) as something of a joke by legal elites.

    • a lot of left groups don’t want to work within the system for change
      because that legitimizes the system that they would rather tear asunder

      which they can’t do.

      so, their only effect is to drive people away from using the system we do have for good purposes.

      • LeeEsq

        I don’t think that a lot of liberal and leftist groups want to tear the system asunder really. What I think is more accurate is that many of them are overly enamored with activism and think tank work because it allows them to remain pure rather than working through formal political structures because that requires compromise. You also need to spend a lot of time on boring issues and cases in addition to the exciting ones through formal politics.

  • Joe Paulson

    “implicit in Ian’s point about how Obama’s nominations improved after Democrats finally blew up the filibuster for judicial nominations”

    Yes, it’s a pretty important thing. Trump and the Republican Senate doesn’t have to worry about extended battles on even totally benign nominees that will be basically unanimously confirmed (this happened). And, you still have people saying the Republicans are doing this “thanks to Harry Reid,” as if that was some big mistake (and ignoring Harry Reid alone couldn’t do it).

    Having people like Cornelia Pillard, who defended family leave in the Hibbs case, e.g., on the D.C. Court of Appeals was a lot more likely after the filibuster for executive appointments ended. Obama still put a lot of liberals on the courts while doing a lot of other stuff even before that. Yes, be nice if it was more, but the filibuster and having so much other stuff to do did make that harder.

    I think the article is somewhat unfair to Obama overall in that respect, even if general idea that more attention should be put on the courts is a good message.

  • Joe Paulson

    As Dahlia Lithwick wrote while Obama was considering who he should nominate to the Supreme Court seat that eventually went to Justice Elena Kagan, “the hardest question I keep getting from liberal law students—and the most painful to answer—is why so few of their heroes are in serious consideration.”

    Kagan was a pretty good choice.

    • McAllen

      This is a good point. Kagan’s been good, and Sotomayor’s been fantastic. I’m sure Karlan would be great on the Supreme Court, but how much better would she be than Sotomayor?

      • well, since her votes would have counted twice as much, she would have been twice as good.

      • markefield

        We won’t see the real test of this until (unless?) the liberals on the Court have a majority. Then, and only then, will we see how much difference it might make.

        • Joe Paulson

          On Earth 2, Sotomayor is thinking about being the co-chief justice once RBG retires, having five votes on many issues. On Earth 1, people are blaming RBG for not retiring already.

    • Thrax

      Also, if Karlan had been nominated and confirmed in 2010, there might have been some 9-0 decisions that went 8-1, or some 8-1 decisions that went 7-2, but there are approximately 0 close decisions that went in a conservative direction because Kagan was in the majority. We can all gnash our teeth in 2035 that Kagan is holding the Court back when four Karlan-clones are on the Court, itching to issue strongly liberal decisions, but until then having Kagan on the court isn’t making things any worse.

      (Yes, I’m aware of the NFIB Medicaid decision that Kagan, along with Breyer, signed onto. Even if that wasn’t a horse-trade, and I suspect it was, it still didn’t tip the balance.)

    • twbb

      Kagan was a terrible choice at the time who fortunately turned out to be a good justice.

      • Joe Paulson

        I disagree she was a “terrible” choice even if (though I disagree with that too) someone says she was a “bad” choice or whatever. She was also a unsurprising choice for someone like Obama to make. But, the end result is what matters really.

      • Justin Runia

        lol wut

        • wjts

          Campos was pretty critical of her nomination. Mostly, as I recall, because she was something of a blank slate and a legal academic with no judicial experience.

          • twbb

            That was my opinion at the time as well, and I was extremely irritated by all the “luminaries” in the law school establishment assuring us that we could trust them that Kagan would be great. Though nobody ever said the legal academy lacked arrogance.

            • wjts

              It seemed a little overblown to me at the time, but I didn’t think it was a totally batshit position.

        • twbb

          Uhh, yeah, “lol wut” really only makes sense when you’re responding to something absurd on its face, and not something that was a fairly common viewpoint at the time.

          I’m guessing maybe you either don’t remember or weren’t really paying attention to the Kagan nomination at the time?

          Maybe the first paragraph here could help:
          http://www.lawyersgunsmoneyblog.com/2010/07/elena-kagan-barack-obama-and-the-american-establishment

          • Justin Runia

            I didn’t read the piece you are referencing, but I certainly remember the “blank slate” criticism about Kagan when she was the nominee. I don’t know how you get from “blank slate” to “terrible”. If anything, the positive outcome that many people vouched for would perhaps cause someone to re-assess their skepticism and their priors, but hey, doubling-down with a “you got lucky” is also an option…

            • twbb

              For Supreme Court of the United States, picking a career administrator with minimal legal experience (and her work as Solicitor General was not particularly impressive) AND minimal legal scholarship, in your words a “blank slate,” is a terrible decision. SCOTUS is not something you gamble with.

              “If anything, the positive outcome that many people vouched for would perhaps cause someone to re-assess their skepticism and their priors, but hey, doubling-down with a “you got lucky” is also an option…”

              Because she turned out to be good does not magically change what happened when he picked her. It also does not mean, as would be a necessary assumption on your statement, that I should in the future delegate my personal judgment to Lawrence Tribe.

  • LeeEsq

    Another reason why more ideological conservatives get on the Supreme Court, Courts of Appeal, and District Courts is that they have organizations like the Federalist Society that groom them to be judges and promote them. Republicans seem better at farm teaming than Democrats. What is the liberal equivalent of the Federalist Society that argues for Living Constitutionalism and seeks to promote liberal lawyers for federal judgeships and clerkships? Liberal lawyers need to organize better to promote themselves.

    • McAllen

      What is the liberal equivalent of the Federalist Society that argues for Living Constitutionalism and seeks to promote liberal lawyers for federal judgeships and clerkships? Liberal lawyers need to organize better to promote themselves.

      To be clear, there is a liberal group, the American Constitution Society, which strives to play a similar role. ACS, which I worked for during part of the Bush administration, was founded as an explicit counterpart to the Federalist Society.

    • PotemkinMetropolitanRegion

      I am one hundred percent sure that at my law school alma mater ACS does an incredible job of filtering qualified candidates to clerk for leading liberal judges, with success. Judgeships, on the other hand…

      ETA: What gets me is how elite liberal clerks for Supreme Court justices (Take Neal Katyal, for instance) toss their ideological bona fides with platitudinous op-eds on how great a man/judge Gorsuch is, while 100% knowing that Gorsuch will gut Roe, limit voting rights, and constitutionalize police torture. Whereas rightwing SCOUTS clerks like Carrie Severino (head of Judicial Crisis Network) know where their bread is buttered and thoroughly trash judges like Garland, who as of 5 years ago was a perfectly moderate jurst and is now a cultural islamofascist with a knife between his teeth.

      • NewishLawyer

        The one thing I remember about the Federalist Society v. the ACS at my law school is that the Federalist Society had really good catered lunches. The ACS not so much. You can attract students on a budget with really good catered lunches but the Federalists would have more money for such things I guess.

        • Princetonlawyer

          Although, to be fair, the Federalist Society are all assholes. Witness (as God is my witness) my classmate: Mick “the Mickster” Mulvaney. I have no idea whether he was a Fed Soc member in law school, though; the Fed Soc has become less of a joke and more of a nightmare/plague in the past 25 years. IMHO, BLSA was the best law school group.

        • LeeEsq

          I’m not sure if catered lunches expresses why the Federalist Society does well in promoting judges. It can’t hurt though.

          • wjts

            I expect it helps attract prospective members. Come for the sandwiches, stay for the lifetime of strict constructionism.

            • NewishLawyer

              Better than sandwiches. They would get catering from places like Burma Superstar

              • LeeEsq

                I guess a problem with liberal-leftist earnestness is that many of us don’t like the fun side of politics and networking like the parties and the spreads.

                • wjts

                  I think plenty of folks on the liberal/left side like that sort of thing. I suspect the problem is that we don’t have anyone willing to foot extravagant catering bills.

                • LeeEsq

                  Many of us would probably like this but I can easily imagine an overly earnest sort getting really annoyed by it because all politics is supposed to be a deadly serious business and food and drinks are a sign of corruption and trying to buy votes.

                • Hogan

                  Oh well, if you’re going to cite your imagination as evidence . . .

                • clay

                  You aren’t cashing those Soros checks?

                • wjts

                  I don’t know about yours, but on mine the memo line says “Destroy America”, not “Catered Buffet”.

                • DAS

                  Actual conversation I had with my AP calculus teacher (who was a fellow Jew and fellow Democrat)

                  DAS: I am still waiting for the money I’m supposed to receive due to Trickle Down Economics
                  Mr.I: Heck, I’m still waiting for the money I’m supposed to receive as part of the International Zionist Conspiracy. You haven’t received your check, have you?

                • DAS

                  If our Democratic club at least had the decency to have the trappings of a political machine (cigar smoke filled rooms with appropriate booze to go with said cigars), I’d become involved ;)

              • wjts

                I don’t know enough about Burmese cuisine to come up with an alliterative joke for that, though.

        • Solar System Wolf

          The Federalist Society at my law school thought it would be fun to debate if women should be in the legal profession at all, and whether people of color were all unqualified affirmative action admittees taking the place of more qualified white men.

          ACS wasn’t a thing yet when I went to law school, or at least not at my school.

          • NewishLawyer

            Being that I went to law school in San Francisco, the Federalist society at my law school couldn’t be that bad and were smart enough to know it. They might be the exception to the rule though.

            They even had Judge Reinherit speak as a guest though I can’t remember the topic.

            • Joe Paulson

              Reinhardt could explain how judicial activism is appropriate and then the Federalist Society can agree, just debate details.

        • BiloSagdiyev

          Did these catered lunches have fancy elitist sandwiches with intimidating foreign names?

          • Hogan

            Indeed they did, but the FS were considerate enough not to admit any non-elite college graduates who would have been confused and alarmed by seeing three different varieties of salami.

    • DAS

      In general we need to do a better job of “farm teaming”, not just in terms of the courts. The conservative movement was able to succeed because they made sure (oftentimes without drawing attention to themselves and their actual agenda) that they had candidates for all sorts of offices, e.g. school boards. How do Democrats recruit and manage local talent? I dunno if we really have a machine on the ground in most of the country, and in the cities everything centers around political machines Democratic clubs that are too insular and often (at least perceived as) corrupt.

      As has been pointed out here before, conservative Republicans didn’t become a force to be reckoned with by running conservatives for president every 4 years.

      • LeeEsq

        Absolutely correct. Republicans start farm teaming their to be politicians in college. The Democratic Party not so much. I think again, part of this that young liberals are overly enamored with activism or think tank work because they are sexier than the drudgery of local and state governments and you don’t need to risk losing an election.

        • NeonTrotsky

          This is purely anecdotal and I don’t have any hard data to back it up, but it seems like Republicans have an easier time getting cushy industry gigs between election runs, and there isn’t necessarily an equivalent for the left. A lot of Democratic candidates end up being drawn from the pool of “consultants” which is a nebulous field that seems small and difficult to break into. A lot of talented young Democrats end up in bottom-feeder nonprofit positions that pay barely more than minimum wage, and it’s hard to ponder running for office in such a position.

          • LeeEsq

            There can’t be that many cushy industry jobs availsble, especially when you consider the plethora of state and local offices in the United States. Wing nut welfare is a thing but mainly for former politicians at the federal level. Wealthy conservatives aren’t going to maintain thousands of people between elections if they loose.

          • TheBrett

            This might be why there is so much insiderism in the Democratic Party at the federal level. If you manage to secure a well-paying gig for a Democratic politician, liberal think tank, or liberal lobbying position, you hang on for dear life.

      • NewishLawyer

        My very anecdotal understanding of European political parties is that they start young and have camps for teenagers and stuff. The Norwegian terrorist Brevik (spelling?) massacred teenagers at a summer camp run by the Norwegian Labour Party/Social Democrats.

        Americans seem to find this kind of thing corny except Republicans. College Republicans is much more of a springboard to power within the party than College Democrats. Karl Rove got his start as a College Republican and was first interviewed in 1972 as a College Republican looking very much the hippie but still being a right-winger.*

        I also suspect that a lot of liberals are bored by the bread and butter issues that dominate local politics and this is why it is hard to recruit and build up at that level.

        *The video of this surfaced in 2004 during the Bush II reelection. Rove looked like he might as well have been a member of the Byrd’s complete with Paisley shirt, mop top hair, and those square sunglasses that hippies loved but he was shilling for Nixon.

        • Daniel Elstner

          My very anecdotal understanding of European political parties is that they start young and have camps for teenagers and stuff. The Norwegian terrorist Brevik (spelling?) massacred teenagers at a summer camp run by the Norwegian Labour Party/Social Democrats.

          “Anders Breivik”

          Yeah, all parties have youth organizations and it is common for youth organization leaders to emerge as new important party figures and eventually end up in government. This culture is particularly strong with the social democratic parties.

        • LeeEsq

          Outside the United States, the central party apparatus often has more control on who runs for office and where than the local office.

    • TheBrett

      It’s hard to get this ball rolling when your side has a lot less financial backing. The Federalist Society has been backed by the Kochs, the Scaifes, the Mercer family – they can throw all kinds of events and scholarships, etc.

      • BiloSagdiyev

        And note that leading conservative intellectuals…

        (BARF)

        like Dinesh D’Souza and Ann Coulter were on the farm team at well-funded (Olin money?) conservative college papers and, to the best of my knowledge, have never worked a real job or met a payroll or been an entrepeneur or cattle rancher or ironworker or gotten calluses on their hands like a workin’ man does in the heartland where workin’ men work and get calluses on their hands. Nope, they’ve been pelicans since before the age of 21.

        (n the lingo of the late, great Smokey Yunick, some people are pelicans: all they do is eat, squawk, and shit. My term for such mouthpieces of the right wing noise machine is “intellectual rodeo clowns.” All they have to do is get the bull that is the GOP base charging after something else, by saying something. Even if it’s stupid. Especially if it’s stupid. Just get them charging in a new direction.

  • AMK

    There is nothing comparable to the Federalist Society on the left for the same reason there is nothing comparable to the Koch political network or talk radio on the left—because the hard right is a fringe movement with very little organic support or broad-based constituency outside its own bubble. It needs these highly disciplined organizations to exist politically, because otherwise it’s just a handful of lunatics here and there.

    By contrast, what people like to call “the left” is at this point really just different flavors of the majority view on law and politics. You don’t need a federalist society to screen out common sense.

    • LeeEsq

      You do need something to promote people your want to be judges though.

    • —because the hard right is a fringe movement with very little organic support or broad-based constituency outside its own bubble.

      That may be so, but it is very well funded. And for a fringe movement it seems to be doing pretty well for itself.

      • LeeEsq

        In a very populous country, a fringe movement is also going to have lots of people in it. Liberal policies might poll better but that doesn’t prevent people from voting for conservative Republicans over liberal Democrats in actual elections.

        • DAS

          I blame JFK (or more accurately his ghostwriter) for a preference for liberal policies not translating into support for liberal Democrats: a lot of people won’t vote for a politician whom they perceive as merely pandering to their own personal preferences. They want a politician who “bravely” does unpopular things. The particulars of Republican cowardice (support for unpopular but easily labeled as “fiscally responsible” spending cuts, militarism) are all too easy to sell as bravery. The particulars of Democratic positions are all too easy to tar and feather as political cowardice.

          • NewishLawyer

            I don’t think you need to go that far but IIRC there were studies during the Obama year that showed Democrats wanted their politicians to compromise and GOP supporters wanted their politicians to “stick to their guns.”

            • Phil Perspective

              Yes, and as the Obama years wore on I bet you can guess what happened to the share of Democrats that wanted to compromise.

          • BiloSagdiyev

            The GOP: Profiles in Jackass.

    • DAS

      The left has tried to establish such organizations, but when it does, the “liberal” media freaks out about it. It’s easy for a far right astroturf organization to gain support when “even the liberal media” treats it as a grassroots organization. It’s hard for a left-leaning organization to gain support when “even the liberal media” acts as if it is an extremist, left wing group.

      Remember most people are not getting their political news from left leaning blogs. The best case scenario for where most people get their political news is the mainstream media.

  • aged like a fine cheese:

    The main selling point of the Democratic Party establishment always seems to be “lesser of two evils”, reinforced by a strong dose of “nice not entirely barbaric, yet, reproductive freedom you’ve got here, shame if anything happened to it”.

    The ability of the Democrats to effectively use abortion rights as a hostage to ensure co-operation from the left of their party is one of those tactics that works too well – it’s rational, so it always gets the desired result, but because of that they become too reliant on it and it weakens them elsewhere. The strategy is itself very vulnerable to the demographics of a small group of men and women. A cluster of deaths or retirements could leave a Supreme Court which was unambiguously decided, either pro or anti abortion rights. And with this crucial issue – one of massive and inescapable salience to the whole population – taken away, the case would be much less easy to make, time after time.

    • sigaba

      In short, heighten the contradictions on the backs of poor women.

  • sanjait

    Maybe I’m a naive partisan, but I figured the main difference stemmed from the way liberals primarily want a fair judiciary that serves its intended purpose, while conservatives want a pure one they can own.

    That leaves us playing defense and them playing offense all the time. The asymmetrical existence of well orchestrated mechanisms for them to get ideologically conforming justices groomed and nominated stems from this basic dynamic. We just haven’t been as committed to it, and we aren’t as inclined to conform or build “societies” around conformance.

    • Maybe I’m a naive partisan, but I figured the main difference stemmed from the way liberals primarily want a fair judiciary that serves its intended purpose, while conservatives want a pure one they can own.

      Yes. One side is committed to governing, and the other is committed to ruling.

      • sanjait

        It sounds like a self-righteous and self-serving interpretation, which should make us wary, but … FM if it’s not true.

    • DAS

      I think a key aspect of the difference is media coverage coupled with how many people still perceive the mainstream media as liberal. Whenever Democrats/liberals attempt to develop institutions of the sort that Republicans/conservatives have, “even the liberal media” has a major freak-out about how shrill and partisan the Democrats/liberals are being (even while they celebrate the astroturf produced by Republican/conservative institutions as grassroots). And most people respond to these sorts of freak-outs by distancing themselves even further from a liberal/Democratic identification, figuring “if even the liberal media thinks the Democrats are being so shrill/partisan, the Democrats must be extremists”.

      My ur example of this is when liberals started forming 501(c)(4) organizations: NPR, which frequently feted Stephen Moore (among whose claims to fame is establishing Club for Growth, a 501(c)(4) organization, which helped yank the GOP right-ward), had a major freak-out about how 501(c)(4) organizations were distorting their beloved Democratic party.

      • sanjait

        The reality is that most of the traditional media is populated by liberals. A now vast conservative-dedicated media has emerged that numerically “balances” this to a large degree, but what we think of as “mainstream” media is dominated by journalists who, if they were being open and honest, would clearly be liberals.

        But in a pattern very similar to the one I postulated for the judiciary, liberals in media actually try to balance their coverage and live up to journalistic ideals of objectivity, to the point that they bend over backwards to a ridiculous degree to be “fair.” They go out of their way to air “both sides,” giving airtime and page space to idiot conservative arguments and idiot conservative commentators well beyond their merits, and if anything, they overcompensate for their own liberalism by imposing double standards on liberal politicians.

        The conservative media has no such compunctions, and thus we get the dynamic that exists, where conservative media says the earth is flat and the MSM discusses how opinions on the shape of the world differ.

        It’s aggravating, to say the least.

        • DAS

          If it were only a matter of bending over backwards (urged along by the constant working the refs of GOoPs complaining about liberal media bias), that would be bad enough, but there are at least three other dynamics at play:

          (1) not only are most mainstream journalists clearly liberals but liberalism is an important part of their identity to the point where they cannot abide by the idea that they may not, in the grand scheme of things, be all that liberal. So when someone more liberal than they comes along, they have a tremendous psychological need to dismiss that more liberal voice as shrill or extremist, lest those liberal journalists have to cede their position at the left edge of the Overton window

          (2) even though liberal journalists feel the need to balance their own perceived bias by “giving airtime and page space to idiot conservative arguments and idiot conservative commentators”, they do not feel a similar need to balance finely honed Republican talking points with equally finely honed Democratic ones, since those journalists figure that they are delivering the Democratic side on their own. But the journalists’ arguments simply are not as refined or persuasive as the professionally developed talking points are

          (3) in conservative parts of the country, many people don’t actually know any liberals, so they base their ideas on who liberals are and what liberals stand for on what kinds of people journalists are and what journalists stand for. If those journalists are wankers, well then, people figure liberals are a bunch of wankers.

          • BiloSagdiyev

            “So when someone more liberal than they comes along, they have a tremendous psychological need to dismiss that more liberal voice as shrill or extremist, lest those liberal journalists have to cede their position at the left edge of the Overton window”

            And that, my liege, is how anti-war protests of 100,000 people or more are invisible.

            ” in conservative parts of the country, many people don’t actually know any liberals”

            Or, they do, but don’t know it, because those liberals have an instinct for self-preservation.

        • Hogan

          The reality is that most of the traditional media is populated by liberals.

          *Social* liberals.

          • Aaron Morrow

            I’ll go one better, and speculate that more of the traditional media which talks about politics and policy is populated by libertarians than liberals.

            • diogenes

              I’ll go one more step. They are socially liberal, but economically Republicans. The ones we see/read are paid some serious bank, and they want their tax cuts, too.

          • sanjait

            True.

            Though they are also liberals in the “reality has a liberal bias” sense.

            But they aren’t economic populists. They, in my impression, tend to have little working knowledge of economics and don’t think deeply on the subject, and sub-consciously adopt conventional wisdom type opinions on economic and fiscal matters. This leads to unexamined assumptions like “the deficit should be lower and entitlements should be cut.”

            • BiloSagdiyev

              And that stimulus spending is some pie-in-the-sky liberal gravy train reflex. Even in 2008.

              Mmmmm… gra-vy-piiiie.

          • diogenes

            Exactly.

  • PotemkinMetropolitanRegion

    I get this (board member of an ACS chapter in law school), but what is the marginal vote difference between a Kagan and a Karlan? Some of this may be Democratic wishy-washiness, but isn’t the story what kind of candidate can survive a Senate vote that overrepresents rightwing whites in rural states?

    • It’s also worth remembering that the ideologues don’t move the Court much (except, you might argue, to the extent they actually make good arguments that persuade colleagues). Thimas believes a lot of out-there things about the law, for instance, that get 1 or 2 votes on the Court and never become law. Black and Douglas took their silly formalist position in free speech cases for 30 years, and never got close to 5 votes for it.

      Having people who can round up 5 votes for things is a lot more important than ideological purity on the Court. Indeed, we talk about Gorsuch and Alito, but the most valuable conservative justice right now is Roberts and it was Rehnquist before him.

      • Scott Lemieux

        The Court ended up much closer to the Black/Douglas position on free speech than to the Frankfurter position, in part because of their brave dissents to awful Cold War decisions.

        • You can certainly argue they moved the Overton Window somewhat, but I suspect that was more due to the fact that the Warrens and Brennans of the world were simply less panicky about “OMG Communism!” arguments. And the country changed after the 1950’s.

          Black and Douglas were courageous only in the same way Thomas in Kelo is courageous- yes they pointed out injustice, but they did it while taking an extreme position that persuaded nobody. I think if you want an actual precursor to the modern approach to free speech law, it’s Brandeis’ concurrence in Whitney v. California.

          • Scott Lemieux

            It’s not an extreme position, really, and on political speech has essentially been adopted. There’s not a nickel’s worth of difference between Brandenberg (speech is protected unless it constitutes an “incitement to imminent lawless action”) and Black/Douglas (speech is protected unless it’s brigaded with illegal conduct.) It’s true that marginal cases are not as easy as Black made them sound, but that’s true of any legal standard.

            It’s true that on obscenity they never got the votes, largely because Warren and Brennan let their instinctive prudishness override their usual commitment to free speech. But the Black/Douglas position (what is labelled ‘obscenity’ is speech, and is therefore protected by the First Amendment unless brigaded with illegal conduct) is correct and Warren and Brennan were wrong, and this led to a lot of people being harassed and a lot of wasted time by judicial officials trying to apply opaque standards for no good reason.

            • Joe Paulson

              And, even on obscenity, home possession was protected & the ultimate Miller test as applied generally protects most things. Any abuses, including for “pandering” (a product of a horrible Brennan ruling), are obviously wrong.

              • Mike_Masinter

                The Miller test does not protect nearly so much of what we think of as sexually explicit speech, whether written or visual; recall what Miller empowers the government to criminalize, subject to community standards, quoting from Justice Burger:

                (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

                (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

                The 9/11 attacks derailed Attorney General Ashcroft’s announced plan to task U.S. Attorneys with prosecuting adult obscenity cases in an effort to crack down on sexually explicit conduct. But the Bush administration did secure a few obscenity convictions before turning its attention to GWOT. The Obama administration did not bring adult obscenity prosecutions, preferring to target unprotected child pornography. Although state prosecutors remain free to prosecute under Miller compliant state statutes, they don’t because such prosecutions are expensive, because community standards have changed since Miller, and because so much freely available obscene under Miller material on the net is beyond the reach of state prosecutors.

                • Joe Paulson

                  You left out 1/3 of the test.

                  I said “most,” so there will be cases, but the actual cases basically involve hard core pornography. I don’t think that should be made criminal, but we aren’t talking Tropic of Cancer or even Deep Throat.

                • Mike_Masinter

                  I know, and I referred to community standards. Little to none of what is readily available on the net has serious value, and therefore remains vulnerable to prosecution subject only to community standards and prosecutorial resources. Of course Tropic of Cancer is protected under the serious value standard. Deep Throat — not so much; in its heyday it triggered a prosecution in the far from buttoned up Florida Keys. Happily a jury acquitted the exhibitor, presumably on the basis of community standards. But not every place is Key West, and had Ashcroft had his way, we’d have had FBI agents in rural Montana, Tennessee and elsewhere engaging in phone, mail, and web based transactions as a prelude to laying venue in those jurisdictions for federal obscenity prosecutions. If community standards swing back in some kind of third great awakening, it could happen again. Free speech law is not the reason sexually uninhibited speech has become readily available; technology and changing community standards are.

                • The Bush DOJ took down Max Hardcore. He was a far cry from Tropic of Cancer.

                • Mike_Masinter

                  The Bush DoJ also prosecuted Karen Fletcher under the federal obscenity statute for writing obscene short stories and posting them on her rarely visited website, and Christopher Handley for importing his manga collection. Both pled guilty; neither should have been prosecuted.

                • Scott Lemieux

                  This is right. On its face Miller allows most hardcore porn to be criminalized. It hasn’t worked out that way because 1)lower courts applied a narrower standard in practice and 2)prosecutors haven’t pushed the envelope. But it was a really bad decision that led to a lot of wasted time and money.

                • This isn’t right. Community standards liberalized. Explicit porn is now protected under Miller. It’s only the really gross stuff that raises an issue.

                • Joe Paulson

                  The Miller ruling was bad but not sure how “really” bad it was as compared to realistically how obscenity law was going to be applied after the justices got tired of watching movies over and over again.

                  How it was applied is somewhat telling there. And, yes, it was not likely the Supreme Court was going to simply have no limits for consenting adults to purchase obscenity.

                • Joe Paulson

                  For those unclear about the test, your summary was somewhat unclear. Anyway, even in a somewhat more conservative age (as seen, e.g., what is shown on broadcast television now), Deep Throat was acquitted.

                  You referenced Ashcroft’s prosecutions. The sorts of thing involved there [per a later comment, generally speaking] are a lot more hard core than “Deep Throat,” and don’t just involve singling out one specific movie at any rate.

                  Free speech law is not the reason sexually uninhibited speech has become readily available.

                  Technology has always been important — as seen, e.g., the printing press — but free speech law mattered a lot. Sexual materials already was starting to be more protected in the 1950s (as compared to when writing about contraceptives might get you arrested). Roth et. al. opened up the market considerably.

                  Community standards also will always be an important matter too as it is in various cases. Hold to the rest. Even there, given the third prong of Miller, a single conservative community isn’t enough.

                • Mike_Masinter

                  In what sense were Karen Fletcher’s written short stories or Christopher Handley’s manga collection “a lot more hard core than ‘Deep Throat?'” To be sure the sex portrayed was out of the mainstream, but, unlike Deep Throat, neither involved actual human beings engaging in actual sex.

                • Joe Paulson

                  I began with saying “most,” and even without the edit (after seeing your response below), that means there will be bad cases. Are those two the norm of Ashcroft’s pornography campaign? No. I think not.

                  The two cases cited seem rather borderline to me at best, especially since the Supreme Court has protected virtual child porn. If prosecutors are going to go too far, stuff involving children is likely a major temptation.

            • Scott, reasoning and doctrine is important. How does New York v. Ferber come out under the Black/Douglas test? Now how SHOULD it come out?

              I can agree with you that obscenity jurisprudence is stupid (it is), but that doesn’t mean that “no law means no law” (the Black/Douglas reading of the First Amendment). They also got in trouble on symbolic speech cases, with Black rejecting the concept entirely and Douglas suddenly getting into the sorts of doctrinal fineries that he had earlier pretended didn’t exist.

              Further, while Brandenburg is a broad speech protective test, it’s important to remember that lots of incitement and threats are unprotected, and that’s a very good thing. The Nuremburg Files abortion website got shut down, you can no longer burn a cross in Virginia, etc. To say that Brandenburg is “the same” as Black and Douglas’ position is way off- Brandenburg limits government power in a useful way while permitting limitations on speech that just about everyone would say should be permitted, whereas Black and Douglas would have taken us into the land of formalism, where instead of asking whether something really posed an actual danger, we would decide whether it was “conduct” or “speech” and allow dangerous “speech” while allowing crackdowns on non-dangerous “conduct”.

              The rest of the Court knew this. So they didn’t go down that road. Brandenburg is the classic product of Brennanism– it’s like New York Times v. Sullivan. You create a very narrow test while rejecting Black/Douglas absolutism. And you end up with something that persuades 5 justices while being very speech protective. That’s how the Court works.

              • Also, just in case that comment is too deep in the weeds, consider the famous issue of flag burning. It’s non-dangerous expressive conduct that offends people. Now compare it to the Nuremburg Files website, which listed names and pictures of abortion providers, called them Nazis, and contained a bunch of veiled threats and incitements implying that the providers should be murdered.

                Pretty obviously, the correct result is that the flag burning should be protected but the Nuremburg Files should be unprotected. And yet Black’s test would lead to the opposite result. Douglas gets flag burning result correct (but not the Nuremburg Files) by ignoring the speech-conduct distinction that he had advocated for along with Black in previous cases.

                The point is, as much as it seems attractive to be doctrinaire and absolute, it doesn’t get the cases right. Indeed, the right wing justices are guilty of this same thing, all the time.

                Black and Douglas happened to be right about anti-Communist laws, but they didn’t develop good doctrine. And developing good workable doctrine is how justices really influence the law.

              • Mike_Masinter

                To the contrary, you can still burn a cross in Virginia as a form of expressive conduct provided that you do not do so with the intent to intimidate another person (or in a place in which, for reasons unrelated to expression, open burning is prohibited). Barry Black of Virginia v. Black fame did not commit a crime by burning a cross at a Klan rally held on private property, and Virginia v. Black reversed his conviction, vacating and remanding only the convictions of Elliot and O’Mara. On remand, the Virginia supreme court reinstated the conviction of Elliot because the jury that convicted him of burning a cross on his neighbor’s yard with the intent to intimidate was not instructed that it could infer intent from the fact of cross burning, and O’Mara, his accomplice who pled guilty, had his conviction reinstated as well.

                • But this is the thing. The intent to intimidate portion of the test is exactly the sort of thing that Douglas and Black rejected in their dissents. They didn’t like, at all, the idea that courts would muck around in such subjective factors in determining whether to restrict speech. No law meant no law.

                  So instead, they favored a conduct-speech distinction. And Black would have said that ANY cross-burning is conduct and unprotected. Douglas would probably end up about where Brennan and other modern liberal justices are, but in doing so he’d apply exactly the sorts of tests he rejected in his dissents.

                  You can’t get to any sort of sensible doctrine using Black’s and Douglas’ approach. Just like you can’t interpret the law sensibly if you take Scalia’s position on legislative history, and you can’t interpret the takings clause to bar wide swaths of governmental economic regulation like Thomas would. These sorts of categorical tests don’t work.

                  What Brennan did is less sexy, but it works better.

                  It’s actually fascinating because Scott and I are on the diametrically opposite sides on this than we are on political issues. In politics, Scott is always arguing for pragmatism, take what you can get, and forming coalitions. But he admires Justices who really didn’t know how to do that and were the bomb throwers on the Court. (And it’s a totally fair jab at me that I admire justices who do something that I abhor when politicians do it. But the difference, for me, is that the Court is not only deciding cases but formulating doctrine and interpreting laws. And in those areas, consensus really does produce the best result, which isn’t really true when it comes to legislation.)

                • Mike_Masinter

                  Justice Black did not age well, and in his later years lost his taste for freedom of speech, whether in the form of words or expressive conduct. Justice Douglas never was much for doctrine; that’s why his influence has faded over time in comparison to Brennan. As others have noted, first amendment free speech law has developed free from the confines of original meaning, as a kind of constitutional common law beginning with the Holmes and Brandeis dissents that gave birth to contemporary doctrine. Where it goes in the years ahead has a great deal to do with how long ALK remains on the bench.

                • Actually, as much as I dislike modern conservative justices, I do think most of them are at least somewhat better on free speech than the conservatives of the past were. Alito is pretty bad, but if you look at a number of major free speech cases, he’s out there on his own. I certainly don’t see any conservative theorists out there taking the types of positions that, e.g., Bork took. Most of them made their peace with a First Amendment that protects various forms of “radical” left wing speech.

                  The big fears of a shift to the right on the Court are on a bunch of other issues– social issues like abortion and gay rights, of course, and voting rights, but also on economic regulation issues where you could really see an attempt to impose judicial limitations on economic liberalism and the regulatory state. But I actually think free speech would survive for the most part.

                • Mike_Masinter

                  Compare the Kennnedy majority opinion with the Alito concurring in the judgment opinion in the unanimous 5-3 Packingham v. North Carolina decision. Add Justice Gorsuch, subtract justice Kennedy, and add a Justice to be named, and the 3 become the new majority. I’m less optimistic.

              • Scott Lemieux

                Scott, reasoning and doctrine is important. How does New York v. Ferber
                come out under the Black/Douglas test? Now how SHOULD it come out?

                Under the B/D doctrine, child pornography would not be constitutionally protected because it is brigaded with illegal conduct.

                They also got in trouble on symbolic speech cases, with Black rejecting
                the concept entirely and Douglas suddenly getting into the sorts of
                doctrinal fineries that he had earlier pretended didn’t exist.

                Obviously, there are marginal questions for every doctrinal approach — this is not an interesting critique (although I agree Black could be too cavalier.) OTOH, the B/D approach has the value of clearly resolving many questions that open-ended balancing tests like Frankfurters, or the Roth and Miller obscenity tests, leave open.

                it’s important to remember that lots of incitement and threats are unprotected

                But, of course, Douglas and Black don’t claim that incitement or threats are always protected speech. The D/B position is not “speech is absolutely protected.” It is that speech is protected until it is brigaded with conduct. Once you understand what their actual position is the contradictions you attempt to identify vanish.

                • Scott, your explanation of Ferber doesn’t work. Child porn DEPICTS illegal conduct. But speech that depicts illegal conduct is speech, not conduct. If Douglas considered it conduct, his obscenity votes wouldn’t make sense, because a lot of the sex in 1960’s porn violated various laws.

                  And no, Douglas’ position was not that incitement was “brigaded with conduct”. It was that pure speech couldn’t be punished. ANY definition of “conduct” that makes ordinary incitement “conduct” certainly justifies the WW1 draft resistance prosecutions, and I am pretty sure Douglas thought they were unconstitutional.

                  Speech / conduct doesn’t work. That’s why Douglas and Black never convinced their colleagues. It was an immature attempt to use formalism to avoid the hard choices the Constitution calls for. Just like Scalia used to do too.

                • Scott Lemieux

                  But, again, you misunderstand the Black/Douglas position. “Speech is protected unless it’s briagded with action” is not an absolute division between speech and conduct. The whole point of the phrase is that there is a point where speech acts become closely enough related to conduct the state has a legitimate interest in regulating that it loses a claim to First Amendment protection.

                  It’s critical to note here that both Black and Douglas joined the opinion in Brandenberg — not just the judgment, the opinion. Neither had any objection to the “incitement to imminent lawless action” exception to the First Amendment. Their only concern was that the opinion did not explicitly disown the “clear and present danger” test, which applied in cases like Schenck and Dennis allowed the state to regulate speech that was not an incitement to imminent lawlessness. It just isn’t true that Black and Douglas drew an absolute line between speech and conduct. They did believe that “incitement” had to be very narrowly defined so as to not permit the state to punish any radical speech a la Schenck and Dennis — and that’s what Brandenburg did, which is why they joined the per curiam.

                • They joined Brandenburg, yes, but Brandenburg is inconsistent with their earlier “no law means no law” dissents. I have no objection with them joining a pragmatic opinion, but that doesn’t mean the earlier, non-pragmatic position they took wasn’t wrong. No law never meant no law, Scott.

                  And the way you are defining conduct makes it a useless concept. A sit-in or march is speech brigaded with conduct. So is burning a draft card or a flag. Meanwhile the “conduct” element of possessing expressive material (the issue in Ferber) is close to zero.

                  Black and Douglas hated that you had to definitionally balance First Amendment rights. So they, loke Scalia after them, said “it’s easy! “no law means no law!” and therefore no balancing.

                  While they were right that the rest of the Court was underprotecting speech in the 1950’s (just as Thomas is right that the Court is underprotecting property being seized for private development now), “no law means no law” never worked as 1A doctrine and the definitional balancing the Court was doing did, as long as they applied it in a less deferential fashion, which happened once Brennan and Warren took control of the Court (just as Thomas’ approach to the Kelo problem is too absolutist and would lead to bad results).

                • Scott Lemieux

                  They joined Brandenburg, yes, but Brandenburg is inconsistent with their earlier “no law means no law” dissents.

                  It’s not. You just didn’t understand them.

                • So no law means no law, except where speech is specifically intended to incite imminent lawless action?

                  I am not saying they never voted to uphold restrictions on speech. I am saying that “no law is no law” was never going to become the law and Brandenburg does not ask if it is “speech brigaded with conduct”. Rather, it tightens the clear and present danger test so that hypothesized “dangers” are out by requiring real imminence and a real scienter element.

                  “Speech brigaded with conduct” was an unworkable test. Even if it would have resulted in better results in some cases, such as some forms of adult obscenity.

  • I’ve been trying to lurk and not comment for reasons that aren’t worth getting into but I will make an exception for this.

    Scott’s right on a very superficial level. But in fact there is an effect of polarization on Dem nominees too. In case you haven’t noticed, there haven’t been any Byron Whites lately. Most ideologically charged cases go 5-4 with Kennedy as the swing vote. And that’s because liberals vote as a block.

    Indeed, I am pretty sure this is very much a product of polarization. Because, for instance, Ruth Ginsburg was, as an academic and liberal, pretty critical of both the rationale and specific holding of Roe and had a somewhat different approach to abortion rights, but hasn’t once taken the position on the Court that there needs to be an adjustment of the doctrine to what she advocated 40 years ago. And that’s because the right hangs on a thread, and due to that, you just apply Casey, vote as a bloc, and don’t take any chances.

    Had Merrick Garland got on the Court, he would have done the same thing. He probably would have voted almost identically to Karlan in the politically charged cases. And this bloc voting is actually a lot more important than getting strident leftists who are as far left as Gorsuch is right.

    • Sentient AI From The Future

      Go back to lurking.

    • sanjait

      As a very amateur observer of SCOTUS this looks plausible to me.

      Would be interesting to look at data on voting patterns to validate this, and such data surely must exist somewhere. Though we’d have to be wary of concluding that just because many cases go 5-4 that the libs are a monolithic block. I’d look instead at how often the libs vote against each other relative to the conservative bloc as a key metric, although still, there may be some bias in how the cases get selected that leave the libs no reasonable choice but to vote with each other more of the time.

      IOW, someone who is less amateur than me should look at the data and interpret it wisely.

    • Richard Gadsden

      The personal preferences of the liberal justices may be relevant on a 6-3 or 7-2 court.

      • Less than it would appear, because you still need five votes.

        The Court has always been controlled by the people who can gather them.

  • rewenzo

    I’m not sure I get the big problem Milhiser is talking about. From reading Toobin and Milhiser, the Federalist Society is basically an organization that vets potential conservative judges, and makes the picks for presidents.

    Why is that a big deal? Are Democratic presidents running out of capable lawyers they can turn into federal judges? Given that there are eleventy billion lawyers in this country, are we at risk of not having enough ABA-rated “well-qualified” nominees to SCOTUS?

    Is it that Democratic judges are not delivering results? Are they not as ideologically sound, to an appreciable degree? While I agree that it would be better for liberal firebrands to be appointed rather than moderate democrats or liberals who believe in stare decisis, is there that much of a difference in projected voting record between Elena Kagan and Pam Karlan?

    To me, the only problem is that Democrats did not control the Senate and the WH for a long enough time.

    • Paul Thomas

      The issue is with the people the Democrats have put on the lower courts, a disturbing percentage of whom are just terrible.

      E.g., as I cite above, the judge who issued the insane nationwide injunction against the overtime rule on the most specious possible grounds, thereby giving Trump’s corporatist friends cover to revoke it, was a Republican whom Obama inexplicably appointed to a district court position.

  • TheBrett

    If they stuff the Supreme Court with Gorsuch-style reactionaries upon retirement by Anthony Kennedy and (maybe down the line) Breyer and Ginsberg, Democrats need to seriously consider increasing the Supreme Court and Court of Appeal number of judges. There’s nothing sacrosanct about nine Justices – it’s been higher in the past.

    • Joe Paulson

      It was 10 justices for a few years in the early 1860s and even there the 10th justice was in effect because of California. I think the expansion idea is a reasonable idea but don’t think that will help the cause too much.

    • markefield

      The Dems will need to increase the number of Justices simply to account for the stolen seat occupied by Gorsuch, unless Kennedy waits for a Dem president before he retires and Ginsburg and Breyer hold on that long. If we don’t do that, the Court will strike down voter protection statutes and perhaps even Dem policy legislation.

    • Chauncy Gardner

      The question that I have never come to terms with in regard to expanding the USSCT, is what the impact would be on stare decisis. If, as some have suggested, the court grew to 27 justices, each with 18 year terms that were staggered to minimize the impact of any single election. To further de-politicize the court, cases could be heard by randomly assigned panels of any odd number. In that case, what would prevent one panel from overruling a decision made in the prior session? Would there be USSCT internal splits that would require en-banc hearings as the ultimate appeal?

      • TheBrett

        That sounds about right. The ultimate appeal would be an en banc hearing of the whole court if a dispute emerged between one panel and another, and a majority of the court votes to hear it.

      • Joe Paulson

        Consider court of appeals — they have panels and en banc is used at times to clarify questions regarding circuit precedent.

  • jim48043

    I wonder what the likes of Elihu Root, Endicott Peabody, and Henry Stimson would think of Gorsuch and his ilk.

  • pseudalicious

    I hate that every time Ian opens his mouth on Twitter, DSA/Rose Twitter has to shit all over him just because he dares to work for CAP. The idea that Milhiser, of all people, is a centrist or Republican Lite is fucking bananas. And I would really, really like democratic-socialist policies to take hold in the US! But Jesus, the Twitter contingent is stupid and assholeish. Not that the HRC contingent always covers itself in glory? But man. I think these folks hate CAP (why???) more than they love socialism.

    • farin

      CAP is extremely influential; Twitter randos are less influential.

      • CAP is influential within narrow wonky and academic circles, as far as I can tell. That may exceed the number of Twitter users who see left activists’ tweets but among the Twitter users, probably a lot have never heard of CAP otherwise.

    • Phil Perspective

      I hate that every time Ian opens his mouth on Twitter, DSA/Rose Twitter has to shit all over him just because he dares to work for CAP.

      Maybe it’s because Ian has espoused some shitty opinions of late?

  • Hondo

    It’s great that Leahy didn’t descend into the gutter with the republicans. I like to think that’s what separates us from the animals, I mean republicans. On the other hand, fuck them, next time we have them down for the count, kick them in the fucking balls.
    If this unilateral adherence to integrity continues, we can have it inscribed on the headstone of the Democratic party that, “Yeah, we stood by watching while they destroyed the country, but we maintained our integrity!”
    Another point regarding this, “President Obama was fully aware that nominating proud, brilliant, outspoken liberals was a great way to get drawn into a filibuster fight. And he often decided that such fights weren’t worth it.” This characteristic of Obama’s has sent me fucking ballistic more than a few times. I’m glad to see someone else say it as well. We don’t need another Obama. We need someone who thinks it often is worth the fight. We need someone who can scorch the earth with zero remorse more than even Curtis LeMay would have dared.
    “When they go low, we kick them in the fucking balls” shoud be their campaign motto.
    Or, the new democratic party slogan should be: “Democrats 2018: Come with us if you want to live.”
    (Thanks to Mike the Mad Biologist.)

    • sanjait

      I literally lol’d when reading that new slogan.

    • econoclast

      It should probably be “fucking teeth” for the sake of the metaphor.

      • farin

        “When they go low, we stamp on their fucking throat and never let up.”

        • Gregor Sansa

          “When they go low, we curb stomp.”

  • Millhiser talks about purity and while that’s true, the Federalists are much more mainstream than the newer grassroots movements like the Tea Party. They also have some, sometimes Jewish, libertarians who aren’t on board for the theocracy, I’d think (I know one). They seem, nomination politics aside, to be playing to beat liberals within the rules of a game liberals accept.

    It sounds like CAP and ACS serve that purpose on the left, I guess? Liberals generally seem more comfortable asking questions and raising objections than signing on for ideological purity though.

  • gyrfalcon

    Late to the party, but I think it’s noteworthy that, in spite of having held the office for 20 out of the 44 years since Roe v. Wade, Democratic presidents are responsible for the nominations of just four of the fourteen Supreme Court justices confirmed in the same timeframe. Replace Stevens or (especially) Souter with a reactionary in the mold preferred by modern conservativism, and the Court and country is in a much more repressive and depressing place.

  • Paul Thomas

    Part of the problem here is that the Democrats, for some reason, cannot seem to wrap their heads around what became obvious to Republicans decades ago– nominating milquetoast moderates, then acting all surprised when those moderates often produce (https://scholar.google.com/scholar_case?case=10008305156137140529&q=chamber+of+commerce+v+nlrb&hl=en&as_sdt=20000006) decisions (https://scholar.google.com/scholar_case?case=9085695063441256587&q=johnmohammadi+v+bloomingdales&hl=en&as_sdt=20000006) that you find abhorrent (https://scholar.google.com/scholar_case?case=11718381151052036097&q=overtime+rule+texas&hl=en&as_sdt=4,367&as_ylo=2016), is politically idiotic.

    I mean, for fuck’s sake, Neal Katyal was repeatedly mentioned as a judicial candidate under Obama. Neal Katyal, the guy who’s about to argue before the Supreme Court that corporations should have the right to strip their employees of the right to bring class-action lawsuits against them. The mind boggles.

    And pretending that the repeated failures of your party to nominate people who actually have good politics means that judicial nominations are somehow not important is not just idiotic, it’s head-in-the-sand perverse.

  • LosGatosCA

    There are lots of differences between Republicans and Democrats. Most of those reflect well on Democrats, but a few of the differences reflect very, very poorly on Democrats as slow or non-learners.

    Still, Democrats making the Supreme Court a major issue during elections would be BLACKMAIL.

    Actually it’s just against their nature. Two things Democrats, collectively, have been very bad at in my lifetime:

    1. Understanding the difference between compromise and premature capitulation.
    2. National constituent service.

    They clearly are learning, very late in the game, about #1. And while they are currently shut out of power in any branch, it’s hard to know if they have made any progress on #2.

    Have Republicans ever turned their back on constituents interested in anti-abortion corporate toadies getting judicial appointments, have they ever appointed cabinet secretaries that hated the missions of the departments they led (Interior, Labor, EPA,SEC, etc), and on and on. And if they fail (like Bork) do they create a rallying cry for the base that lasts 2 generations or more?

    What do Democrats do for unions (I’m throwing up in my mouth right here), who do they (re)appoint to critical economic management positions (Greenspan, Bernanke, Geithner) and then wonder how their folks get screwed economically and in every other way possible. How do you win the popular vote in 6/7 presidential elections and you are in real danger of going to a 7-2 Supreme Court disadvantage that could last for 35 years.

    One side plays hardball, presses every advantage, never gives up or gives in. While the other side wants to just get along, not play that hard (Gore in 2000, Obama in 2016, Pat Leahy forever) because a killer instinct is just ‘not us.’

    Somewhere along the line Democrats (collectively) have just decided that having a hard edge to run the tough departments like Defense and managing the economy are just not their preference or responsibility a good portion of the time. They have essentially conceded that Republicans are allowed to be tough uncompromising bastards and the job of Democrats is to just wrong their hands in dismay when the Republicans play tough uncompromising bastards.

    • Phil Perspective

      Part of it has to do with the fact that the Democratic donor class is far more conservative than actual Democratic voters.