The Stevens Retirement and the Senate Midterm Loss

Over at PrawfsBlawg, Jonathan Siegel has questioned Senator Arlen Specter’s (D-PA) suggestion that Justice Stevens should wait until next year to resign. Professor Siegel (correctly, I think) has observed that the midterm election loss – where the President’s party loses seats in Congress – will likely reduce the Democratic majority in the Senate. If you doubt this, take a look at the latest Cook Report Senate race ratings. If Stevens hopes to help Obama by strategically timing his resignation, he should announce his retirement now and hope that Democrats can nominate, confirm, and appoint a successor before the midterms. Few phenomena in political science approach the status of iron-clad rules, but the midterm election loss is one you can bank on.

For Republicans, the optimal strategy is to delay or block any replacement’s nomination. I’ll hazard a guess that they face little downside risk of being viewed as obstructionist by probable Republican voters or independents who may vote for Republicans in 2010. Voter turnout will be low in November 2010 and it will be Republican. If you like Obamacare, you’ll stay home and be content. If you don’t, you’ll be heading to the poll to register your protest. Plus, if Stevens is seen as playing a political game by strategically timing  his resignation in aid of Democrats, there’s no reason that Republicans can’t play that game too. For good measure, all will cite approvingly/disapprovingly to the 1968 Fortas filibuster and the attempted 2006 Alito filibuster.

The Senate’s midterm election loss has not always been a foregone conclusion. Pre-17th Amendment, the “voters” who elected U.S. senators were state legislators. They were a committed and unusually well-informed group of voters. Their voter turnout was consistently high whether it was a presidential year election or a midterm election, and perhaps as a result there was no Senate midterm election loss. The odds of the President’s party losing or winning seats in the Senate was, by my count, about 50/50. It’s really only with direct election that we see the Senate midterm election loss appear as a regular phenomenon. By contrast, the House, which has always been directly elected, has always displayed the midterm election loss.

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