Category: Politics


The Presidential Nominating Calendar

Sorry to interrupt the Symposium.  I always wonder if I should post during a Symposium, but anyway . . .

One theme of federalism scholarship is that we sometimes need central authority to prevent “a race to the bottom.”  In other words, with respect to certain regulatory topics, a state would be discouraged from acting on its own because business and people would flee to other states.  Of course, some people think that this constraint keeps states from enacting foolish policies, but on some subjects the constraint keeps them from adopting beneficial ones.  Only a national law can accomplish the goal, because moving to another country is harder.

The presidential nomination calendar provides an interesting perspective on this sort of state competition.  There is significant value in being early in the presidential primary season.  Candidates drop lots of money on TV ads and rallies in your state.  Your state’s issues get a lot of attention.  And you have influence over who gets nominated.  Why, then, doesn’t every state try to be Iowa and New Hampshire?  One answer is that Iowa and New Hampshire say that they will always change their election dates to be first, but that would lead to a clear “race to the bottom” without end.  Tradition supplies another reason, but the “tradition” of the Iowa caucuses only goes back to 1976.  No central authority is responsible.  The parties can try to influence the primary calendar, but they cannot compel a state to pick one date over another.  What accounts for the relative stability of the system in the last thirty years?  Perhaps there isn’t as much to the “race to the bottom” theory as one might think.  Or is there a kind of game theory equilibrium at work?


Putin Gays on the Agenda

When I hear about American supporters the new Russian homophobic legislation (or, for that matter, about President Putin and his aides who initiated such crazy legislation, which prohibits, among other things, even expressing tolerance towards LGBTs), I can’t help but recall a New York Time article from last year titled Homophobic? Maybe You’re Gay, which claimed that there is “empirical evidence of a connection between homophobia and suppressed same-sex desire.”


Discharge Petitions in the House

I was doing some research the other day and came across some interesting information about the use of discharge petitions in the House of Representatives.  When this rule was created in 1910 (after a revolt of back-benchers against Speaker Joseph Cannon), only 135 members were needed to obtain a petition and move a bill to the floor.  This was far less than half of the total membership, which meant that the minority party could almost always force a vote on legislation.  In the 1930s, the rule was amended to create the present standard that you need a majority of the House to discharge a bill from committee.

Moreover, until the 1990s signatures on a discharge petition were secret until and unless the majority threshold was reached.  That meant that it was easier to buck the party leadership, because the dissenters would be revealed only if they succeeded and only together.  Punishing twenty people is risky for the Speaker.  Punishing a few individuals is not.  In 1993, though, the House changed the rule and required that all discharge petition signatures be public.

In both respects (the number required and transparency), changes to the discharge petition have strengthened the leadership of the majority party.  It is hard to see how this has helped the country.


Diversity on the Supreme Court

While in recent decades the Court has become more diverse in some areas, such as gender and race, presidents have also appointed Justices with increasingly uniform educational and professional backgrounds. This lack of professional and educational diversity may be sub-optimal. Adrian Vermeule, for example, offers a carefully-reasoned argument for having at least one Justice with training in another discipline (he suggests appointing a Justice with a PhD in economics). At its most extreme, Vermeule’s argument insists that the professionally-diverse Justice have no training in law, to correct for correlated biases held by lawyer Justices.

My research suggests, however, that the extreme step of eliminating formal legal training will introduce a particular bias which some will find objectionable. In the past, Justices who did not attend law school were significantly more politically predictable than Justices who shared the benefit of formal legal education. Today, of course, a president choosing a Justice who did not attend law school would likely select a person who also has expertise in another field. But it is not clear a Justice with an advanced degree in economics or another discipline would exhibit the same political restraint as a Justice who went to law school. It seems more likely that Justices who attend law school will be either better-equipped or more inclined than others to vote independently of their personal political views. This may be reflected in greater levels of judicial restraint, incremental decision-making, and application of doctrines such as stare decisis.


Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?

Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.

History is rife with examples of Justices who disappointed their appointing presidents.   As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.”  My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.

My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.


The Senate’s Influence over Supreme Court Appointments

Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.

With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.

Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.

Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.

America’s Left: Find it on Twitter

Many thanks to Danielle for mentioning Barry Friedman and Dahlia Lithwick’s article “What’s Left? Have progressives abandoned every cause save gay marriage?” They argue:

[S]omehow, somewhere along the line, to be progressive … stopped meaning a commitment to help the poor. The central problems that defined the left from the early history of the Progressive movement through the Great Society are as urgent today as they ever were: Economic fairness; a war on poverty, meaningful education reform, voting rights, workers’ rights, racial justice, women’s rights, equal access to child care and health care. But while none of these social ills has been remedied in modern America (and many are now worse) all that talk about “welfare queens” seems to have scared folks off. Face it: There is not, and never has been, anything sexy about the minimum wage.

You certainly won’t find very egalitarian views expressed at a $10,000-a-plate Democratic Party fundraiser, or among the millionaire anchors of cable networks. But I think Friedman/Lithwick are looking for lefties in all the wrong places. Sure, the mainstream media isn’t going to take the concerns of workers seriously. It’s going to feature a lot of fauxgressives instead. But take a look at Sarah Jaffe and Josh Eidelson’s excellent podcast, Belabored. Both also do serious reporting on recent strikes and other labor actions led by people who, increasingly, have little left to lose. If you’re looking for direct legal interventions, check out the Center for Progressive Reform. They’ve been defending labor and environmental regulation for years.

As for welfare and poverty coverage: both Mother Jones and Alternet are outstanding. Sam Pizzigati of Too Much has doggedly exposed inequality. He’s also chronicled past actions (and present movements) to remedy grotesque disparities. There are many members of Congress who supported the “People’s Budget,” which tries to preserve health care and education funding.

Speaking of education: the dialogue about university life on twitter puts to shame any stuffy salon you’ll find on the New York Times’s “Room for Debate” page. Check out @reclaimuc, @zunguzungu, @tressiemcphd, @jhrees, @gerrycanavan, among many others. I think the single best magazine piece on the crisis in higher education today was written by two prolific tweeters, Aaron Bady and Mike Konczal. These are very exciting thinkers, thinking far more holistically and humanely than nearly anyone you’ll see featured in mainstream media.

Finally, in terms of progressive views of technology, Twitter is a godsend. As I completed an article on the role of algorithms in finance the past semester, I found inspiration in items shared by @dgolumbia, @evgenymorozov, @marginalutility, & @interfluidity. There are also communities I follow on health care and IP. Sick of hearing about financialization as a cure for pharma’s innovation fatigue? Follow @DrRimmer, or go whole hog for @JacobinMag’s feature on socializing pharma.

I don’t want to just give a list of names, but I will say this: no one should lament reformers “missing in action”. Virtual communities dedicated to protecting the interests of the disadvantaged exist, and can find each other now more easily than ever. A progressive press would do better to cover the existing left than to lament the failings of liberals.


Citizens United, Graffiti, and the Web

We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.

As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.

HT: Fred von Lohmann for noting the story on Facebook.

PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.


Volume 60, Issue 5 (June 2013)

Volume 60, Issue 5 (June 2013)

First Amendment Constraints on Copyright After Golan v. Holder Neil Weinstock Netanel 1082
Intraracial Diversity Devon W. Carbado 1130
When to Overthrow your Government: The Right to Resist in the World’s Constitutions Ginsburg et al. 1184
Interbank Discipline Kathryn Judge 1262


A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement Nicole M. Howell 1324

More on Writing and Why Clear Writing Matters

Lawyers must write. Academics must also write. Gandhi built a newspaper to get his ideas to the people. Again, writing is important. And good writing is even more important if the writing is about, or flirts with, politics. I have noted my love of Orwell’s Politics and the English Language. A main point is that when one writes in simple, clear sentences, one cannot lie. Lies are quickly revealed. I came across this passage from Hemingway and noticed a similar sentiment. Like Orwell, Hemingway explains why poor writing can work for a time, but is not good writing:

This too to remember. If a man writes clearly enough any one can see if he fakes. If he mystifies to avoid a straight statement, which is very different from breaking so-called rules of syntax or grammar to make an effect which can be obtained in no other way, the writer takes a longer time to be known as a fake and other writers who are afflicted by the same necessity will praise him in their own defense. True mysticism should not be confused with incompetence in writing which seeks to mystify where there is no mystery but is really only the necessity to fake to cover lack of knowledge or the inability to state clearly. Mysticism implies a mystery and there are many mysteries; but incompetence is not one of them; nor is overwritten journalism made literature by the injection of a false epic quality. Remember this too: all bad writers are in love with the epic. Death in the Afternoon, p. 54; (2002-07-25). Ernest Hemingway on Writing (No Series) (Kindle Locations 848-854). Scribner. Kindle Edition.