Politics: January 2006 Archives

Looks like Alito was confirmed this morning, in the most partisan supreme court confirmation vote in history, 58-42. Here's the roll call vote, but it's easier to just remember that except for Nelson (NE), Conrad (ND), Johnson (SD) and Byrd (WV), the Donkeys and their nominally independent ally all voted no, while the only Elephant who didn't vote Yes was Chafee (RI).



This bothers me. Let's stop pretending to ignore the forty ton dead baby in the room, Roe vs. Wade. I'm going to try to keep my personal opinions on abortion out of this to the maximum extent possible, but they are basically that although I am revolted by the concept and think it should be socially discouraged as much as possible, I also think that it must be legal with comparatively few restrictions. I will admit I would rather there was not one more abortion ever again, but to outlaw it in general would be a clear violation of principles I hold more important than that. I say this for disclosure; this is not really about abortion per se as it is about necessary compromise and distortions of the political process.



The issue with Samuel Alito was not competence, or fitness for the court. He was and is obviously, overwhelmingly, qualified. The issue was one party feeling that a certain court decision is wrong, and choosing a judge who is reasonably likely to vote to limit or reverse it next time the issue comes up. That party also happened to have won the presidential election, as well as a majority of senatorial ones. The presidential one gives the person we elected president the right and privilege of picking a supreme court judge whose philosophy is more or less in alignment with his own. That's part of what presidential elections are about. If the american people don't like it, they should have elected someone else president. However, indications are that a vast majority of the american public does like it. Not just in polls, but in elections. The Elephants, making this a campaign plank so it's not like this was any deep dark secret, won 55 senate seats and the presidential election. Senatorial seats are the one election nobody in the world can gerrymander, and although I can conceive of ways to gerrymander the presidential election, it certainly wasn't done in 2004, or if it was done, it didn't materially alter the result (run "Democrats charged election tampering 2004" through a few search engines, and contrast the news stories, including convictions, that come up with what comes up when what you get when you run the same searches replacing the party affiliation with "Republican").



Now the other party, the Donkeys, did not win the presidential election. This means that while the President might consult with them, and did in both the Roberts and Miers nominations at least (The Donkeys failing to come to Miers aid hoping for someone even better being one reason she had to withdraw), the maximum involvement in the process that the president could theoretically be legally required to give them is this up or down vote that they just got. In fact, since they only won 44 senate seats, plus a nominal independent but a de facto ally, the president would have been within his rights to ask the Elephant senators only into his office, and go down the list of potential nominees until he found one fifty one Elephants or more could support. He didn't do that. He was a lot more accommodating and consultive than that, and he could have gotten a candidate significantly more in the Donkey faces than Alito.



The reason the Donkeys are holding their breath until they turn blue is quite simply that they are being held hostage by a radical element within their own party. This element was presented with a surprise victory thirty-three years ago that they probably shouldn't have won, and they knew at the time they shouldn't have won (Roe vs. Wade was a real shocker at the time, including to the victors, as I'm barely old enough to remember). The word "abortion" appears nowhere in the constitution, and in fact, there is not one word in the document itself or any of it's amendments having to do with the issue or anything with significant association with that issue. The one item that appears to have significant direct association is the part about reserving powers not explicitly delegated either to the states or to the people.



Nor does the approach the constitution takes give us, the citizens, any rights. It acknowledges that we have rights, and prohibits their removal by the federal government.



The function of the Supreme Court's power of review, under Marbury vs. Madison, is not to legislate. Rather it is to say when the government has stepped over the limits upon their authority drawn up in the constitution. In the early years of the Republic, even this much was seriously debated by our founders, and there was a large faction who believed that the corrective factor should be the next election, and I am not certain they were wrong. It certainly should keep the citizenry more involved in the electoral process.



Based upon, you know, the actual words on the paper of the constitution and its amendments, not to mention well-documented intents of the framers, one could build a serious case that it isn't the federal government's business at all. Power not specifically reserved to the federal government, goes to the states or the people per the Ninth Amendment. Indeed, had the Supreme Court in 1973 made a serious case instead of incidental that it was reserved to the people and not the states, I think it might perhaps have been more accepted, but they did not (text of Roe vs. Wade decision here), instead relying mostly upon a different segment of the Fourteenth Amendment than the one that extends the limitations on the federal government to the states.



Whatever your opinion of that argument, the fact remains that this removed what should have been a political decision from the legislative branches at whatever level and arrogated them to the judicial. This was clearly not what the courts were intended for, nor is it what they were designed for. But because it was a national "Get out of doing your job FREE!" card for legislators at both the state and national levels, it was allowed to stand. Those legislators didn't want to face enraged voters, as they would no matter which way they voted. A good way to lose votes, and no way to gain. Is it any wonder there have been so few legislative challenges?



On the other hand, the nature of the supreme court decision prevented what should have happened: A reasonable compromise which likely would have resulted in women being able to get abortions, with varying restrictions in the case of fetus viability, if the woman was herself a minor, and notification, either before or after the fact, of other stakeholders such as any husband the woman might have, and exceptions having to do with medical reasons limiting the restrictions. Absent Roe vs. Wade, we would have come to some accommodation on the issue that, if perfect for very few, would have been completely unacceptable to only a very few as well. Furthermore, the issue would be settled with only minor movements, not this great flaming controversy that we face today. Perhaps the standards would be very different in some states from others; I can only observe that bus tickets are cheap, and so anyone shopping for a better venue for an abortion doesn't have a very high wall to get over. In fact, a one way ticket is even cheaper; they could stay and become part of that state's bulwark against a tightening of the laws by voting in that state.



But the real difficulty lies in the surprise victory gained by one side that, however politically powerful, is nonetheless in the minority. So now instead of one side of the issue being energized, we now have two. Furthermore, those who were handed the surprise victory were and are a critical block in what was the ruling party, without whom that ruling party would certainly fall, and even today when they are no longer the ruling party, without this block of votes they would not be competitive nationally.



For the first few years, no worries. Abortion wasn't an issue in the election of 1972; I have no idea what Richard Nixon's position was. Reagan made some hay on it in the 1976 primaries, but once Ford beat Reagan for the 1976 Elephant nomination, it wasn't an issue then, either, as no Donkey opposed to abortion could get nominated. Heck, they won't even let them speak, nowadays. But by 1980, anti-abortion folks had had time to organize, and they were a large portion of the reason why Reagan won - he made it a campaign issue and they responded by supporting him, both with their votes and with their activism. I do not understand upon what grounds their opponents claim this was somehow evil, and at this point both "dogs in the fight" of the issue were energized, although one was trying to guard a bone that they had come into its possession almost accidentally, the other wanted that bone.



Indeed, Reagan's picks for the court (O'Conner, Rehnquist elevation, Scalia, Bork, Kennedy) were no problem until we got to Bork. Obviously qualified, perhaps the foremost legal scholar in the nation at the time, there was a definite track record that said he'd likely vote to overturn Roe vs. Wade, and he would have been the fifth vote, making it a majority. Well, although this was exactly the sort of nomination he'd been elected to make, there were 55 Democrats in the senate at the time. This meant Reagan needed some crossovers.



He didn't get them. Indeed, the nastiness of the attacks on Robert Bork set a low for politics at the time, and subsequent antics by both parties can be traced back to this incident. So-called "pro-choicers" perceived themselves as having their backs to the wall, as if a reversal of Roe vs. Wade would somehow permanently outlaw abortion nationwide. Indeed I recall hearing them make this false argument in several venues at the time; it helped them energize their troops. They not only took no prisoners, they metaphorically ate their own dead.



Other accusations were made against Robert Bork, but anti-abortion was the one that stuck, enough to get him rejected by the senate, anyway.



I regard this entire concept as wrong-headed in the extreme. I want to see the nominee's decision-making process. If we really want an independent judiciary, I regard any questioning as to how a nominee would rule in any specific case to be prejudicial and grounds for recusal should it actually come before the Court, because they are certainly not approaching it ab initio, having publicly and improperly painted down their own options. It is harder and correct, although less welcome to issue activists, to get a sense for how they think to decide if a nominee is fit to be on the court. It is not acceptable for an outstanding legal mind to be rejected because said nominee would likely vote the other way on any particular issue. But the forty-ton dead baby in the room, that Ted Kennedy and the Kossacks and NOW bloviated about ad nauseum, was that Alito - correctly - would not answer questions about how he would vote directly related to specific issues. To wit, their pet issue, abortion.



This was the issue with Thomas, and would have been with Souter, too except that the abortion activists were happy with him. Nonetheless, president's who wanted a prayer of getting a pro-abortion candidate through learned from Bork - nominate someone without a track record on the issue. I'm not going to go into whether or not I believe Anita Hill at this point, but it was the pro-abortionists who gave the story legs. It was not enough that there be an inconclusive record, their requirement was an affirmative siding with them.



Clinton ran on a platform that included legal abortion; when he won, it was no surprise to anyone that he nominated pro-abortion judges. The Elephants, in the minority then as the Donkeys are now, realized that elections have consequences and did not obstruct. Indeed, the vast majority of them were able to vote for them despite the nominees decided - and known - proabortion preferences. The nominees were qualified, and there were no grounds to reject them that were not clearly prejudical.



Roberts kind of got a pass because the Roe vote was 6-3 and he ended up replacing Rehnquist, who was against anyway, having written the original dissent. No worries, no danger, obviously qualified, some slanders get tossed around but he gets a pass on the Bork treatment.



Alito is an actual step away, replacing a member of the Roe majority which may (and I emphasize may) now be down to 5-4 with his confirmation. So the pro-abortionists panic. They know they can't win the President's mind, they know they can't win a party line vote, as the majority of the american public favors more restrictions on abortions and so, blindingly obvious, the party that sponsors that wins more elections and is now in the majority in both houses of Congress. So smear and filibuster was the order of the day, and he gets the full Bork treatment.



Now the only way this whole thing makes any kind of sense is if the pro-abortion forces cannot win nationwide on the ballot, and this does seem to be the case. The Donkeys had a peak of 61 senators in 1977-79, 57 in 1993-95, the Jeffords switch in 2001-2002 was as close as they've come to majority party since.



Nonetheless, I believe an actual Roe vs. Wade reversal would be a disaster to the Elephants. The anti-abortion forces, having largely gotten what they want, will pack up and go home, becoming a less potent force. They'll still agigate on the state and local scale, but not at the Congressional level. Indeed, had the Donkeys not been so decidedly pro-abortion, it's likely they would have more seats now. This is the issue that has largely lost them the South and Midwest. Reagan won 49 states in his re-election but had to deal with a Donkey Congress his whole tenure. Bush was re-elected, primarily because he understands the war on terror, by a much smaller margin but still gets to work with an Elephant Congress. The longer it takes, the worse it's going to get for the Donkeys. They should go limp on this issue, at least as far as Supreme Court nominees go, and start proposing legislation making it affirmatively legal to get an abortion. That was the right thing to do thirty years ago, and remains the correct thing to do now. Let's have the discussion and come to the compromises that we're all equally uncomfortable with. I do not believe that it would be a return to the dark ages, and any representation I have seen to the effect that it would has been clearly on the level of hyperbole, whether it was intended thusly or not. Yes, abortion will probably still be legal almost everywhere and there will probably be some restrictions most places. This is quite reasonable. Fact is, few abortions are performed because of medical necessity. The vast majority are purely voluntary. Fact is, parents are responsible in all other ways for their children and not permitted to resign the responsibility without a willing replacement. Absence of parental notification and permission isn't usually about theocrats who won't give permission; it's usually about giving the children an easy out so mom and dad don't know and won't ground them. This is an argument we as a society should have had thirty years ago, same as every other country in the world. The fact is that the Supreme Court ruling, by premepting the argument, has kept it from happening and distorted our political processes for thirty years now. One group got a surprise present that they're fighting tooth and nail to hang onto, despite the fact that they are clearly in the minority. It's past time this was changed.



Unfortunately, this is not something the Donkeys can stomach risking. They're in the minority electorally, and the trends are sufficiently strong that some Donkey incumbents may be put in danger next election cycle. They know they've lost the electorate; what they do not understand is that the anti-abortion crowd has too. The abortion plank in the Elephant platform is firm but is not too prominent for a reason. It gets the the Elephants the anti-abortion folks. If these voters are unhappy with the priority the Elephants give it they are certainly not going to the Donkeys. Similarly, it's time for the Donkeys to turn this from a Supreme Court issue into a real election issue. Most voters do not favor general illegality, and therefore, the issue is likely to be a winner there where it is a loser at the "we must control the Supreme Court" level. If the pro-abortion fanatics get upset with the Donkeys, where are they going to go? The Elephants? I think not.

Strata-Sphere has called for a RINO Stampede on the subject of Alito's confirmation.



Dick Durbin has said he'll filibuster.



Professor Bainbridge was first out of the box with an item saying he doesn't want the "nuclear option" used.



I agree.



Why?



Alito went through the tough part - and he came off as looking professional, reasoned, judicious, and supremely qualified. His detractors did not.



On high profile nationally televised hearings, this man demonstrated he's more fit to be making top level decisions than his detractors.



Go ahead and filibuster him. Make the President's day. Make Karl Rove's week. Make the RNC's entire campaign season. Because I guarantee that the average voter is going to be repelled by these tactics. On October 27, I wrote:

Best guess and best hope: One thing a lot of people don't understand about President Bush is that he's got cojones. The president will find a severely qualified conservative jurist smart enough to understand the politically generated hell they are going to go through in confirmation, and loyal enough to stick it out to the end even if the nomination appears doomed. The point is that's the only way to get some control of the confirmation process back, by naming someone who possesses the obvious qualifications to be on the court who is nonetheless subjected to something that makes what happened to Robert Bork downright friendly. Even if the Donkeys win that vote, they lose politically. If they lose it, they break even - both sides are energized, the Donkeys by the loss, the Elephants by what the Donkeys did to this poor person who is obviously qualified for the post.

If the Donkeys want 2006 to be the year the Elephants take control of Congress in the way that the Donkeys did at their peak (280 in house, maybe 60 in senate), they should be all means continue pandering to the hard-liners.



The average voter agrees that Alito deserves a thumbs up, or at least a vote. Furthermore, filibusters have an association with the civil rights filibusters of the sixties.



Something else: No virtual filibuster. Make the Donkeys stand up there and talk in open Senate about what an extremist Alito is, while everybody who wants to can put up video or transcripts of what was said and what was done. We know who will come off looking like extremists, and it's not Alito. He's got liberals who worked for him defending his integrity. He's got older judges with impeccable liberal credentials defending him as qualified and mainstream. There are fifteen years of his decisions as a judge, and the Donkeys have nothing to show him as out of the mainstream.



(The Donkeys really should be more careful in their choice of tactics. Alito is much closer to mainstream thought than either of Clinton's two nominees. If the Elephants want to stop future Ginsberg-type nominations cold, they've got all the ammunition they need)



When the gang of 14 first announced itself, I thought it was the a Bad Thing. But by October, I knew I was wrong. The Coalition of the Chillin' was right. Given their history, I doubt that the Donkeys on the gang of fourteen can justify Alito being "extraordinary circumstances" and "out of the mainstream" without torpedoing anybody whom that sort of pandering appeals to (i.e. the hard left) would find acceptable. So by voting to filibuster, they would be defeating themselves, and the whole purpose of the gang of fourteen was that they're not that stupidly partisan.

Of all the political parties, my personal sympathies lie closest to the official platform of the Libertarian Party. Nonetheless, I have never been a registered Libertarian, never sent them money, and likely never will.



The Libertarian Party, you see, is primarily interested in ideological purity. They've been hijacked by those among the most extreme of all libertarians, and have consistently taken an "all or nothing" approach to politics. If you're not for the purists ideological position, you don't belong.



This is a good way to marginalize yourself, and indeed, the Libertarian Party has done just that. Their candidates consistently run somewhere in the mid single digits. You tell each other you're "fighting the good fight" and congratulate yourself when everybody is disgusted enough with the major parties that you get 8 percent of the vote. This is a great way to keep the faithful together, but a truly awful way to move things in your direction politically. The impact on the political process of the Libertarian Party is basically zero. The majors may be aware that the Libertarians exist, but with all the libertarians off doing their own thing and no observable effect upon which of the two major parties wins, they have no reason to care.



Other groups no larger than the Libertarian Party wield an outsize political influence. For instance, the bisexual and homosexual political groups have a base that, depending upon who does the counting, runs from three to five percent of the electorate, but angering this constituency is something no politician does lightly. Why? They may be more affluent than average, but not notably so, and probably no more so than Libertarians. Well, they do give money, while libertarians are not noted for their generosity towards other parties' politicians. But mostly, because they engage the major parties. They practically own the Democrats, but they have a lot of influence in Republican circles as well. More to the point, for a long time they have worked to earn political capital from the majors. For years, they endorsed - and worked for - any candidate who was less unfriendly to their issues than their major opposition, graduating to working harder for candidates that were actually friendly, to the point now where the issue is not usually which candidate is friendly to gay issues, but which candidate is friendlier. It was a long hard slog for them, and perhaps they've abused their power a little of late, but you have to respect and admire them for what they have accomplished. They have taught politicians nationwide that "gay-bashing" is hazardous to their political ambitions, while being "gay friendly" is conducive. They may not be a major block, but given how narrow many victories are, they are a critical one, including and especially if a major party wants control of the legislature. Three points away from your opposition's candidate and towards yours might not tip every race, but it will tip enough such that if you're competitive in the first place, you'll win it. But in order to do it, you have to work with the major parties.



This is the lesson that libertarians need to learn if they want to have an effect on national policy. It may be very gratifying to a certain mindset to keep your ideals so pure that there is no chance of any actual effect upon the course of the country. But if you focus less on getting into office yourself, and more on rewarding politicians who come closer to your positions than their opposition, you wield more real power. Eight percent is a joke in an election, if that's all you get. But the difference between forty-six and fifty-four percent is the difference between going back to your old career and going to the capitol. Newly elected legislators are known to be grateful to those who put them "over the top," and to want to keep those folks on the list of people that are happy with them.



Furthermore, a lot of ordinary citizens really like moderate libertarian positions, but are profoundly uneasy with "purist" libertarians. Ronald Reagan's coalition made smaller government one of their principal planks, and it won on two of the strongest electoral margins in living memory. Decriminalizing or legalizing marijuana polls very strong numbers, but change the question to "should every currently illegal drug be legalized?" and the vast majority will turn against you. The rational, obvious thing to do is take the easy victory, and see how it works out. In a few years, it may be that the electorate will support legalizing the next echelon of currently illegal drugs, and dropping restrictions on marginal cases. This also has the advantage that if it turns out that we're wrong, we find out about it before we've got thirty million heroin junkies and fifty million cocaine addicts.



Indeed, true libertarian policies have never been tried on anything like the scale of the United States, so incremental steps in that direction is likely to be a good thing. Libertarian politics and economics and social science sure looks good on paper, but so does communism. One of the major things wrong with communism, it seems, is that it requires communists to acquire power. All the power, to where there is no opposition force with enough power to restrain them. And that following communists acquisition of power, they insisted upon an immediate and as radical shift as they could possibly manage, with the results anyone who hasn't been living in a bubble these past eighty years is all too familiar with. It didn't work, but the communist rulers would not admit it, and no one inside the system could force them to. I can hear people snorting with derision about the very notion of libertarians practicing censorship and coercion, but are you prepared to bet the future of the United States on it? Especially when there is no necessity, that's a sucker bet - a pointless risk where you could lose but can't really win because there is nothing to gain by giving any group a monopoly on power.



I see nothing in any major libertarian-backed policy that requires an "all or nothing" approach. Indeed, for most of them an experimental movement in that direction, intentionally either limited in scope or in accomplishment, would be important confirmation of libertarian theory, assuming it is successful. There is clearly not adequate evidence to presume that no further experimental proof is necessary, and that libertarian theory must be implemented in full without further error checking.



In short, I could be wrong. We could be wrong. If so, incrementalism will reveal it.



Therefore, there is no rational reason for libertarians not to engage with anybody "going their way". Small government republicans and chamber of commerce republicans on one hand, and civil rights democratic groups on the other. Whichever politician, whichever major party, is willing to give more precedence and importance to libertarian values. Work with them, do your best to help them beat their opponent. Once upon a time, libertarians wielded significant power in this way. Indeed, I happen to believe that the statist ascendancy dates from the libertarian self-destruction as a potent political force. The country could only benefit from a libertarian return to the fold of the major parties.