January 16, 2006

Do you remember that the Supreme Court wasn't an important issue in the 2004 election?

The nomination of Samuel Alito has focused us on the importance of winning presidential elections. Many opponents of Alito say that a majority of Americans don't want the Supreme Court to become as conservative as he would make it. Many who don't oppose him will say that too, but we also accept that the election has consequences and think that the President gets to pick someone who shares his general philosophy (assuming the person is well-qualified).

In this context, it's quite interesting to remember that the issue of Supreme Court appointments was not emphasized in the 2004 election. A few weeks before the election, I wrote a post titled "What we're not talking about":
[W]hat is not being talked about that you would have thought you'd hear plenty about?

Supreme Court appointments! This was a huge issue in the 2000 election, when we were told the next President was sure to appoint two and maybe even three or four new Justices, and we--especially we women--were encouraged to feel quite alarmed about it. Here's speculation about particular appointments, in the October 4 Newsweek (including the ridiculous notion that President Kerry might appoint Hillary Clinton to the Supreme Court). The Sacramento Bee today asserts that "All Eyes" are "on Aging Justices," which, first of all, is not true (no one seems to be bothering); and second of all, is offensively ghoulish. (Why are we so solicitous of the needs of old voters, but openly take a deathwatch attitude about old Justices?) The Bee article is not based on statements by the candidates and notes that Kerry hasn't made the issue a "centerpiece" of his campaign. It quotes those who would like to see the issue on the front burner. Here's an AP article noting the absence of candidate attention to the issue.

I see there's a Daily Kos piece from Saturday, "Crank up The Supreme Court as an Issue in this Campaign!"
Is there any reason the Kerry campaign isn't making the Supreme Court a HUGE issue? ...

There's been a lot of talk recently about a possible decline in support amongst women for John Kerry. How about ratcheting up the Roe v. Wade/Supreme Court issue in the last few weeks?
As if the Kerry campaign might somehow have just forgotten about abortion and the standard way to make it a big issue. (Those Justices aren't getting any farther from the grave!)

Why don't the reporters delve into the question why the Kerry campaign decided to drop the issue? I could speculate, here in my dining room in Madison, Wisconsin: Some research showed the issue hurt Kerry. But why don't the professional journalists reveal the actual strategies of the campaigns? The AP reporter -- prompted by Kos? -- just dusts the cobwebs off the old deathwatch warnings heard in the 2000 campaign and calls up the head of a "liberal-leaning" group and a "conservative-leaning" group for some stock verbiage.
Bush won (and Kerry lost) on other issues, chiefly national security. A lot of people who voted for Bush -- myself included -- would have been happier with a liberal hawk. Our vote for Bush doesn't represent a preference for more judges like Scalia and Thomas (as Bush promised us during the campaign).

Could Kerry have torn away enough Bush votes if he'd used the Supreme Court issue? I rather doubt it. I myself was fully aware of the consequences with respect to the Supreme Court, whether Kerry talked about it or not. But the national security issues were more important to me. The Democrats would like to have a shot at some Supreme Court appointments, and we might very much like to see those appointments, but unless they produce a candidate who can satisfy national security-minded liberals, it's not going to happen.

32 comments:

Mark Kaplan said...

When thinking about future presidents and Supreme Court nominations there's a lot of talk about whom Hillary Clinton might nominate. Then I read your post about Laura Bush's positive thinking about a Condi Rice candidacy. It suddenly struck me that a Laura Bush vs. Hillary Clinton election could be just as interesting as a Condi Rice vs. Hillary Clinton election.

Amire said...

merhabalar...

Old Dad said...

I'm surprised that progressives don't champion nominees like Judge Alito--a judicial conservative--rather than judicial activists.

I have no way to assess how personal convictions influence Supreme Court Justices. Like Dershowitz, I think it's probably very hard to filter them out entirely, yet Judge Alito seems to have a very good track record in that regard. You might criticize his jurisprudence, but there seems to be very little evidence that he is an ideologue.

Judicial activism only works when you can win Presidential elections. Until then, progressives should support true judicial conservatives--that's the best course for all of us.

Sloanasaurus said...

The Supreme Court is and was the top issue for conservatives. The Supreme Court is directly related to issues such as gay marriage, the pledge of the allegiance - subjects Kerry did not want to talk about. How about partial birth abortion - Kerry did not want to talk about that either. Perhaps Kerry didn't want to talk about it because he was afrid that conservatives would turn out to vote in higher numbers in places such as Ohio and Florida.

There are significant majorities in this country willing to place restrictions on abortion and for banning partial birth abortion. If Roe were struck down, we would be left with what this large majority wants, legal abortion with more restrictions in every state and a ban on partial birth abortion in every state.

Perhaps the people know this already, which is why conservatives will continue to win elections until Roe joins Dread Scott and Plessy vs. Ferguson in the dust bin of bad Supreme Court decisions.

JohnF said...

Sounds like Ann wants to rewrite "Mrs. Robinson":

"Where have you gone, Joseph Lieberman,
Annie turns her lonely eyes to you..."

Ann Althouse said...

Yeah, I was for Lieberman, but he didn't do too well among Democrats, and he's currently being shunned, isn't he?

DCWilly said...

It continues to amaze me how people assumed then and assume now that George Bush is somehow "stronger" on national security and terrorism. I find it very telling that in the 2004 election, the places most affected by September 11th, (NYC and DC) and the ones most likely to sustain another terrorist attack (given their symbolic value) both voted strongly for Kerry. As a DC resident, nothing scares me and my fellow citizens more than the bullseye terrorists have placed on our city, and yet it remains strongly Democratic and supported Kerry overwhelmingly. As past and future potential victims, we voted in 2004 realizing that our lives were at stake more than the rest of the country (national security in this instance means our personal security), with the exception of Manhattan, which also heavily supported Kerry. Interestingly, while the Pentagon is in Virginia -- a red state, it is in Arlington, Virginia, a notoriously blue enclave within the state.......so it just fascinates me when people who live in places that will never realistically get hit by terrorists vote for people on "national security" grounds when the people who will likely die if terrorists ever go nuclear (New Yorkers and resisdents of DC), think Democrats best protect them -- which, as evidenced by the 2004 elections, they do. I think our perspective is a just a bit more keen here.

Elizabeth said...

It was an issue for me, despite what the media and debates focused on. I appreciate Ann's explaining her position on defense, though. I see the sense, from her perspective, but I see nothing in George Bush's actions that support it, which is why I didn't vote for him, coupled with my determination not to help advance the reactionary right culture war. I fear his imprint on our courts will long outweigh his role in national defense. I fear that much more than I do terrorism,

Henry said...

Interesting to me that the strongest intellectual attack on Alito -- that he may be too deferential to executive power -- would never have come up in the 2004 presidential election, even if the Supreme Court was an issue.

In fact, the opposite is true. For extremely powerful historical reasons (New Deal, Civil Rights), Democrats are opposed to textualist judges who might limit the federal power. I hope, seeing how that power can be used when the opposing party is wielding it, they begin reevaluating that stand.

Simon said...

DCWilly,
I think that point - that the two cities directly attacked on 9/11 voting for Kerry - would carry more weight if those cities did not routinely vote democratic. It's too simple to assess the impact in terms of which way the cities voted; you would need to look at the deviation from the average in appropriately normalized data to determine what the real impact was.

Simon said...

Henry:
"For extremely powerful historical reasons (New Deal, Civil Rights), Democrats are opposed to textualist judges who might limit the federal power. I hope, seeing how that power can be used when the opposing party is wielding it, they begin reevaluating that stand."

I have no doubt of this whatsoever. It seems to me that ever since they got their asses handed to them in 1994, the Democrats have been repeating the mantra that this period of GOP hegemony will soon pass, that the Democrats' return to power will come after the next election. It was on perfect display when we talked about a Rice candidacy last week: Eli said something to the effect of "it doesn't matter, she won't win, the GOP is gone after the next election." Democrats have been saying that since the dust settled in the fall of '94, which is precisely why they defeated the balanced budget amendment and the term limits amendment: they thought that they would return to power in 1996, so passing these limits would hobble them, not this temporary GOP majority. I'm willing to bet that, a decade later and no closer to winning a majority, at least some now regret that choice.

As soon as the Dems start to realize that they will not inherit the mantle of power by birthright - i.e. that their control of Congress is not a natural phenomonon that will return in time - more and more of them will start to realize that maybe this originalism thing is kind of neat. At the same time, the GOP is already abandoning its actual commitment to originalism (so far as it ever existed) in favor of lip service to the original understanding.

The reason is simple: a return to the original understanding would drastically cut back on the scope of government, which works against the interests of any entrenched majority, Democrat or Republican. If Scalia's opinion in Hamdi had come down the pike under Clinton, the GOP would have cheered it to the rafters; when it actually came out, there was only sullen silence (this was before Raich made it respectable for conservatives to whine about Nino).

DF said...

The part I don't understand is how this will really be a factor. Assume GWB gets one more vacancy (Ginsburg or Stevens) and puts in a conservative, and they overturn Roe. How would this fire up women if most- especially in liberal bastions- will see no difference. They will still have legal abortion. You don't get fired up if your rights are still there. I doubt the six or seven states that wouldn't have abortion would make much of a difference.

Jacob said...

But it'll put a Republican candidate in a vice. If the cater to their anti-abortion base and come out in favour of banning abortions, then those women's rights will be threatened and they will get fired up. On the other hand if they don't, then their base might take a hike when they realize that Republican's don't actually intend to stop abortions.

Ultimately, this depends on the pragmatism of the anti-abortion movement. If they come out for heightened abortion restrictions (limiting trimesters, parental consent etc) then probably nothing will happen. But you'll have the ultras agitating for more. I guess it'll come down to whoever wins.

BJK said...

The title of the post strikes me as odd, because the Supreme Court has been the driving factor in my last two Presidential Elections.

Additionally, the "Appointing justices like Scalia and Thomas" line was part of Kerry's talking points against the President in '04, and came out during at least one of the debates. That line itself traces back to the Republican Primaries (IIRC) in 2000.

The people who were concerned about the Supreme Court knew who they were voting for.

Jack Roy said...

This is rather incidental to the main point (made elsewhere and with probably a lot of statistical evidence) that presidential voters just don't cast their votes based on Court appointments, but I did notice Prof. A's mention of the supposed pledge by Bush to appoint Justices that resembled Scalia and Thomas.

I'd always had a faint recollection of candidate Bush making such a pledge; however, slumming through the comments of a blog (the name of which escapes me) a conservative commenter challenged his or her liberal opponents to point to an actual quote by the candidate. I was rather surprised to find that I couldn't get manage to track one down using Google (although if I still had my student Lexis account, who knows). Whether Bush actually never said it, or said it on background, or if one of his aides said it on background, I really don't know. But I did find it odd.

Harkonnendog said...

DC Willy,
The voters of New York and DC did not vote for Kerry because they thought Kerry could protect them from terrorism better than Bush.

86% of those who voted for Bush said terrorism was the primary reason. Only 14% of those who voted for Kerry said terrorism was the primary reason.

It is vice versa when it comes to Iraq.

Unless I'm reading this:
http://www.cnn.com/ELECTION/2004/pages/results/states/US/P/00/epolls.0.html
link to CNN wrong...

Steven said...

Lieberman would have had my vote, and I prefer Bush on judges.

But the heirs of McGovern would have bolted to Nader in that case, and so Bush would have beat Lieberman anyway. Instead, we got the Democrats trumpeting Kerry's military experience, as if nominating even a genuine McClellan could have overcome a Copperhead platform.

Smudge Rev said...

Dems keep complaining about not being able to get their message out. I think they do a damn good job of getting their message out and by choosing Howard Dean as a messenger, they assure that us red staters get it. We just ain't buying it. One of my criteria in voting for president is: I'm more likely to vote for the guy that doesn't call me an idiot. The dems need to convert some votes from us idiots, and so far they aren't doing a very good job of it.

Sloanasaurus said...

"....I fear his imprint on our courts will long outweigh his role in national defense. I fear that much more than I do terrorism...."

This quote is the problem with democrats and it is why Democrats will continue to lose elections.

I think most democrats today naively think that our civilization is indestructible or at the very least immune to terrorism. It's not. Think about it a little harder.... A constant threat of terrorism would eventually snowball and change everything that our civilization holds dear and could bring down our civilization, which is why we need to fight it (preferably in places like Iraq).

John in Nashville said...

One irony about Judge Aliton's likely succession of Justice O'Connor is that, if the two new members of the Supreme Court align with Justices Scalia and Thomas--which is by no means certain--the most powerful person in the judicial branch would be the wingnuts' bĂȘte noire, Justice Kennedy of Lawrence v. Texas and Planned Parenthood v. Casey fame.

Elizabeth said...

I think most democrats today naively think that our civilization is indestructible or at the very least immune to terrorism. It's not. Think about it a little harder.... A constant threat of terrorism would eventually snowball and change everything that our civilization holds dear and could bring down our civilization, which is why we need to fight it (preferably in places like Iraq).

I don't believe our civilization is indestructable, not from without, nor from within. Bush uses fear to leverage his agenda. Iraq? What inch of U.S. soil has Iraq ever threatened? We opened the borders for terrorists to come to Iraq, and used the Iraqi people's lives callously in our "flypaper" strategy. Meanwhile, where's Osama? And everytime the polls dip for Bush, he rachets up the terrorism fears to justify breaking the law. No, that's not strong on defense, that's just fearmongering and pandering and powergrabbing. You can live on your knees, but I don't want to.

Gerry said...

"I'd always had a faint recollection of candidate Bush making such a pledge; however, slumming through the comments of a blog (the name of which escapes me) a conservative commenter challenged his or her liberal opponents to point to an actual quote by the candidate."

During 2000, he did not point directly to Scalia or Thomas, but instead pledged repeatedly to appoint 'strict constructionists.'

Case in point, the Oct. 3 2000 debate. "I’ll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy. I believe that the judges ought not to take the place of the legislative branch of government, that they’re appointed for life and that they ought to look at the Constitution as sacred. I don’t believe in liberal, activist judges. I believe in strict constructionists. And those are the kind of judges I will appoint."

Simon said...

"One irony about Judge Aliton's likely succession of Justice O'Connor is that, if the two new members of the Supreme Court align with Justices Scalia and Thomas--which is by no means certain--the most powerful person in the judicial branch would be the wingnuts' bĂȘte noire, Justice Kennedy of Lawrence v. Texas and Planned Parenthood v. Casey fame."

The same thought occurred to me. See It falls to Justice Kennedy, 10/31/2005: ". . . I think Kennedy will more than ever feel the allure of becoming the court's swing vote; the pressure on him to defect will be intense, and I think he will likely succumb."

Simon said...

Regarding Bush's pledge, I seem to recall he was on Tim Russert's show sometime in 1999, and said he'd appoint strict constructionists. Asked who his favorite justices were, he suggested "Anthony Scalia."

Which is hilarious, because neither Tony nor Nino can really be described as "strict constructionists."

Sloanasaurus said...

"...Meanwhile, where's Osama? And everytime the polls dip for Bush, he rachets up the terrorism fears to justify breaking the law. No, that's not strong on defense, that's just fearmongering and pandering and powergrabbing..."

This is pathetic leftism. You continue to reveal yourself, as other liberals have done, as not being serious about National Defense. All you do is complain... complain that we are doing too much to defend the country.

Terrorism fears ratchet up when there are more attacks. The problem we have is that there haven't been any attacks so people have turned their attention.

I like your question... Where is Osama? Where is Osama? Where the hell is he. Why isn't he directing his 10,000 man strong army of trained terrorists who went through camps in Afghanistan from 1997 - 2000. Why isn't Osama hitting the propaganda campaign hard taking advatage of PR mistakes we make. Why isn't he travelling to the front to motivate his troops. Hmmm...

Henry said...

And everytime the polls dip for Bush, he rachets up the terrorism fears to justify breaking the law.

Elizabeth -- is "breaking the law" a reference to the NSA program? If so, I'm not sure how a New York Times revealing a secret program started half a decade ago is relevant to your thesis. If not, what are you talking about?

Henry RB said...

I think Ann's comment is based on unfamiliarity with many social conservatives' views. For many social conservatives, the only reason to vote for Bush is his appointment power. I personally disagree with him on many issues (for example, environmental issues and his profligate spending), but I don't want legal recognition for gay marriage, and a President Kerry would've guaranteed that. The other thing to keep in mind-especially if you are socially liberal-is that there is a discourse on this issue that largely escapes the media and even the blogosphere, because it is seen as unfashionable to be against gay marriage, and certainly to base one's votes on that. People harbor these opinions and vote on them, but don't necessarily advocate them publicly. But the results of ballot initiatives on the issue speak for themselves. I think many who are socially liberal would be surprised to know what their conservative friends' private views are.

Simon said...

"I think many who are socially liberal would be surprised to know what their conservative friends' private views are."

I think many who are socially liberal would be surprised to know what their liberal friends' private views are. One only has to look at the polling data in the gay marriage ballot initiatives and constitutional amendments, and compare those votes to the votes for conservative candidates to realize that there is a discrepancy.

Elizabeth said...

Henry and Sloan, you're both disingenuous. It's not soft on defense to argue that we can't throw out our founding principles, the Magna Carta and the history of free people to hand over unrestrained, unjustified power to a president. It's not just liberals who are up in arms over Bush's actions. Go over to reason.com and read a few level-headed, pro-defense libertarians, like Cathy Young. Henry, if all you're reading is the NYT, no wonder you're not up on details.

Elizabeth said...

Henry, if you're referring to Clinton era searches, the AP today reports they were legal--the act at that time did not require warrants for physical searches. Clinton signed the change requiring warrants. So what's this about a 10-year program? Clinton followed law, Bush didn't.

http://thinkprogress.org/2006/01/17/ap-reports-facts/

Henry said...

"Half a decade" Elisabeth. I'm just referring to the age of Bush's NSA program.

See, the problem with your statement isn't the word "powergrabbing" its the phrase "every time the polls dip"

fish said...
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