Balkinization  

Saturday, May 19, 2007

The Meaning of 2008-- Partisan Entrenchment or Constitutional Moment?

JB

Tom Goldstein probably doesn't realize it, but his very interesting analysis of the effect of the 2008 election on the Supreme Court makes the case for Sandy Levinson's and my theory of partisan entrenchment in contrast to my friend and colleague Bruce Ackerman's theory of constitutional moments.

Let me explain.

Bruce Ackerman has famously argued that constitutional revolutions occur as a result of significant mobilizations by the American people over a relatively short space of time. After a triggering event, a national election signals a major constitutional transformation, and a further election ratifies the fact that a transformation has occurred, followed by acceptance of the new constitutional regime by the losing side. In Ackerman's view, constitutional transformations occur because Americans self-consciously choose them, and then signal and ratify these transformations through key elections which are "about" whether to proceed with the transformation.

By contrast, Sandy Levinson and I argue that constitutional transformations occur through the cumulative effects of what we call "partisan entrenchment," in which Presidents stock the federal judiciary with like-minded jurists. If a party can make enough appointments in a sufficiently short space of time, doctrines start to change. Our theory assumes that there are many contingencies in this process: for example, Presidents sometimes make mistakes in who they appoint. Moreover, the membership and ideological coherence of political parties shift over time, so that even if a party appoints every open Supreme Court seat from 1968 through 1993 (as the Republicans did) changes in the party's coalition may prevent a clear ideological transformation of doctrine. (Thus, even though Harry Blackmun and John Paul Stevens were centrist Republicans in 1969 and 1975, respectively, they are well to the left of the contemporary Republican coalition).

Unlike Ackerman, we also argue that the process of constitutional change may be quite gradual and that the public does not have to engage in self-conscious referenda on constitutional transformation. Moreover, we do not assume that the effects of partisan entrenchment are necessarily legitimate, only that they keep the Supreme Court roughly in sync with the dominant national coalition. Ackerman, by contrast, believes that constitutional moments are legitimate amendments to the Constitution outside of Article V.

Both we and Ackerman agree that if the public keeps returning a party to the White House, eventually this will result in changes in constitutional doctrine. For Ackerman, however, something more is needed-- a self-conscious mobilization on the part of the electorate demanding a constitutional transformation. Our explanation of the New Deal transformation is that the public kept reelecting Franklin Roosevelt to the White House and Democrats to the Senate, so that Roosevelt was able to replace eight Justices by the time the Court decided United States v. Darby and Wickard v. Filburn. If you keep returning the same party to the White House over and over again, eventually you are going to get significant changes in constitutional doctrine. Ackerman agrees, but argues that what was crucial was that the American public in the 1936 election self consciously sought and approved of constitutional transformation.

Which brings us back to Tom Goldstein's post. Goldstein points out that there are three Supreme Court seats in play as a result of the next election: Stevens, who is 87, Souter, who is 67 but is said to want to leave the Court, and Ginsburg, who is 74. All three are liberals. If the Democrats win in 2008, they will preserve the current ideological balance for the foreseeable future. But if the Republicans win the next Presidential election, and appoint new conservative Justices, they will have produced a six or seven person conservative majority. At that point, we might witness wholesale constitutional transformations in a number of areas of law, including affirmative action, abortion and gay rights, criminal procedure, and religion. It would be in some respects the vindication of the constitutional agenda of the New Right.

What is interesting about this scenario is that it would not happen because of a widespread and mobilized public support for major constitutional transformation. There has been no triggering or ratifying election in Ackerman's terms. The major Republican victories occurred back in 1980 and 1984 and in the Congressional elections of 1994, and, in Ackerman's view, no major constitutional transformation emerged from them. There have been no recent electoral landslides for the Republicans as in 1932 and 1936. Indeed, the opposition party won both houses of Congress in 2006, signaling, if anything, disappointment with the Republicans' one-party stewardship of the government.

Rather, the constitutional transformation, if it occurred, would happen because the Republicans won the White House in 1980, 1984, 1988, 2000, 2004 and 2008. Because they kept piling up Republican appointments, they eventually produced a situation where there were simply lots of conservative Justices who were also younger than most of the remaining liberals, setting up the possibility of a tipping point.

This tipping point phenomenon has happened before, in the period between 1962 to 1969. It was called the Warren Court, and it saw a major transformation in American constitutional law.

Now if the Democrats retain the Senate in 2008, they will probably force a Republican President to moderate his choices. Nevertheless, it is likely that replacing Stevens, Souter, and/or Ginsburg with two or three Republican conservatives would be enough to make pretty significant changes in the law. These changes might result in Democratic pushback, and possibly Democratic victories down the road. But it would be very hard to undo the changes quickly, just as it was hard for the Burger Court to undo everything the Warren Court did. That would not make sense under Ackerman's theory of constitutional transformation-- and he would regard the changes as illegitimate because they were not the result of a mobilized electorate demanding constitutional transformation. But it would make sense under our theory of partisan entrenchment, which is agnostic on the question of whether these changes are legitimate. (Of course, if the Democrats win in 2008, they will more or less retain the status quo, which will be consistent with both theories.)

What would it take for Ackerman's theory to recognize these changes as legitimate transformations of the Constitution? Well, it would probably require that the Republicans win the 2008 Presidential election by a decisive margin (as well as one or both Houses of Congress) and that the country demonstrate that it clearly wants to embrace a constitutional transformation along the lines the Bush Administration has sought for the past seven years. This would have to be followed by a confirming election that increased Republican majorities in 2010 and/or 2012. At that point, Democrats would have to agree that something significant happened in the country to which they had to acquiesce.

In Levinson's and my theory, even if the Republicans squeak through in 2008 (as they did in 2000) or win a modest majority (as they did in 2004), while the Democrats retain the Senate, that would give the Republicans the opportunity to transform the Constitution. What kind of transformation we would get, of course, would depend on the politics of the incoming President (Giuliani, McCain or Romney) and on the particular type of Justices he appoints.

So who has a better theory of constitutional transformations, Bruce Ackerman or Sandy and myself? Only time-- and possibly the 2008 elections-- will tell.

UPDATE: Mark Field points out in the comments that there is a third possibility: 2008 might be a transformative election creating a new Democratic majority that pushes for a progressive transformation of the Constitution. Far be it from me to downplay this possibility. If it does happen, however, it would create an interesting configuration among the three branches not seen since the New Deal-- a liberal Democratic President and Congress facing a conservative majority on the Supreme Court. Even with liberal replacements for Stevens, Souter, and Ginsburg, there is no way the Democrats can gain a working majority on the Court until Kennedy or Scalia retire. This raises the possibility that an energetic Democrat would receive little help from the Supreme Court, and might even be opposed by the Court on some issues, leading to a constitutional showdown of the type we saw during the 1930s.

All this, of course, is mere speculation. We do not know what sort of Administration the next Democratic President might create. Sandy Levinson and I have suggested that the next President, whether Democrat or Republican, will probably continue elements of what we call the National Surveillance State, which will continues to shift increasing amounts of power to the Executive in order to gather and analyze information believed necessary to promote National Security.

Comments:

There's a third possibility you left out: that the 2008 will be a transformative election in favor of the Democrats. It's time for one. Such elections tend to occur at roughly 40 year intervals (1800, 1832, 1860, 1932, 1968 are the usual suspects). The Bush Administration has so discredited his party that the electorate seems likely to turn back to the Dems.

If that happens, the focus will be on the other side. Of course the new President will get to replace Stevens (assuming, and hoping, that he lives that long). Perhaps Souter and Ginsburg as well. But by the middle of the new term, Scalia and Kennedy will be aging as well. The potential exists to shift the Court significantly to the left.
 

Mark:

The last transformative election was the election of Reagan in 1980. Nixon was not transformative. Rather, he was the last of the "Dem but lesser so" GOP Presidents.

The 2006 election was also hardly transformative. 2006 was a standard 6th year election where the majority party lost seats. The Dems picked up exceedingly small majorities by largely running center to center right candidates whose only campaign platform was that they were not Bush. Mr. Bush and his VP are not running in 2008.

In order to have a transformational election you need a transformational campaign platform. The Dems have none. The Dem Congress exhausted most of their ideas in the first 100 hours and are exploring new depths of unpopularity, below even the very unpopular Mr. Bush, in their efforts to surrender in Iraq.

The 2008 election will again be fought on the conservative ground Reagan established in 1980, just like every election after 1932 until 1980 was fought on the liberal New Deal ground FDR established.

It looks very much like a Giuliani v. Clinton race in 2008 to me. Every GOP candidate which has led by a much as Giuliani at this point in the race has won the nomination. There is no one on the left of the Dem party which can challenge the Clinton machine. Clinton's sky high negatives are among GOP and Independent voters. The Clinton name still has a great deal of cache among Dems.

I am amazed at the extent that the Dem media assumes that they have the 2008 election in the bag based in 2006. The GOP base did not turn out in the off year 2006 election because of Bush fatigue. General elections are different. With such a wide open field of non incumbent candidates, I expect a high turnout (by US standards) on both sides.

If I were the Dems, I would be scared to death of a Rudy v. Hillary race. Then again, after the dozens of recent liberal op-eds trying to convince GOP voters they really don't like Rudy, maybe the Dems are aware of this threat.

Rudy makes a slew of Blue states competitive while Hillary does not do the same for the Dems. Indeed, the Clintons are pretty much loathed by the GOP the same way the Bushes are loathed by the Dems. Unfortunately for the Dems, a Clinton is running in 2008 and a Bush is not.

Although it is early, I see Rudy being able to match Bush's 2004 popular vote and accumulating a comfortable electoral victory after picking up a couple normally blue states.

Assuming that this is the case, it will be interesting to see if Giuliani will indeed appoint conservative "strict constructionists" to fill the 2-3 slots he will have available to him. A Giuliani election would be a good test of Professors Levinson and Balkin's theory.
 

Is this Bush Derangement Syndrome or Bush Fatigue, Dr. De Palma? I'm not an expert, like you or Drs. Krauthammer and Barone, so I just can't tell.

Beloved Right-Wing Message Board Demands Bush Impeachment

Mark,

I agree with you. It all depends on whether the Democrats realize what the Republicans could see before the 2000 elections and capitalize on that. Considering the Republican base is fracturing, now is the time to play to our strong base. The problem is you have too many Democratic strategists who take their cues from Dr. De Palma here.
 

Bart, your mission, should you choose to accept it...

"I'd rather trade places with Jose Padilla," jokes Viet Dinh, a former senior Justice official under then-Attorney General John Ashcroft.

This message will self-destruct when the position is filled.

IMF
 

If I were the Dems, I would be scared to death of a Rudy v. Hillary race.

We should be so lucky...

Oops!

Any more bright ideas, Bart?

I can live with Hillary. Obviously not my first choice...
 

Couldn't Ackerman's theory alternatively predict that a Republican president won't be elected? Voters might recognize the magnitude of the potential shift on the court and react by electing a Democrat, essentially refusing to allow that shift -- or by electing a moderate republican who will minimize the magnitude of the shift?
 

Bruce Ackerman has famously argued that constitutional revolutions occur as a result of significant mobilizations by the American people over a relatively short space of time. After a triggering event, a national election signals a major constitutional transformation, and a further election ratifies the fact that a transformation has occurred, followed by acceptance of the new constitutional regime by the losing side. In Ackerman's view, constitutional transformations occur because Americans self-consciously choose them, and then signal and ratify these transformations through key elections which are "about" whether to proceed with the transformation.

How can an election be a ratification of a constitutional transformation when candidates do not run on constitutional transformations and the majority of voters only have the vaguest idea how the Constitution works?
 

Although it is early, I see Rudy being able to match Bush's 2004 popular vote and accumulating a comfortable electoral victory after picking up a couple normally blue states. - Bart "ever the optimist" DePalma

look at a poll.

even Hillary beats Rudy.

And, if I understand you correctly, you think Nixon was the last of the "moderate" republicans... a Dem but lesser so.

YOU ARE STUPID

i can't help resorting to the ad hominen.

you are like a missionary, doing, saying everything you can to convince people you're right... but, in the end, only making a fool of yourself.

NOBODY wants to live your in Amerikkka Bart.
 

Bruce Bartlett, a staunch conservative has this to say about 2008.

"Voter fatigue is going to wear heavily on the Republican nominee, who is not likely to have the same unity of party that the Democrat will have. It is obvious that there is no enthusiasm for any of the Republicans, which is why so many in the party are yearning for another candidate, such as former Sen. Fred Thompson, to jump in the race. The Republican nominee will be the last candidate still standing at the end of the day, which is not a prescription for party unity.

In any case, one need not accept my idea that the election next year is the Democrats' to lose to want to hedge one's bet. Many of the Republican Party's largest donors are already doing exactly that. BusinessWeek reports that John Mack, head of Morgan Stanley, a big Wall Street firm, is supporting Sen. Clinton. In 2004, Mack raised $200,000 for Bush's re-election. The New York Sun reports that a number of other big Bush contributors have also joined the Clinton camp.

These and other big money people are just the leading edge of what I believe will be a steady move into the Democratic sphere in order to have some influence on the next president. This helps explain why, collectively, the Democratic candidates are raising much more money than the Republicans.

It is too easy to write off such people as opportunists who just want to be on the winning side. There is a deep undercurrent of hostility to the Republican Party among many who formerly supported its candidates. They are simply disgusted with the incompetence with which the Iraq war has been waged, the total disappearance of fiscal discipline, and what they view as the party's incessant pandering to ignorant and intolerant yahoos on issues such as immigration, gays, global warming, abortion and stem cell research, among others.

No doubt, a great many conservatives will say good riddance to such people. However, if the Republican Party loses everyone except religious zealots, gun nuts, anti-tax extremists and pro-life absolutists, then it is not going to win any national elections. That's not a comment on the rightness or wrongness of the views of those I just listed -- it's simple math. There just aren't enough of such people to put together a winning coalition. The price of purity is political powerlessness."

But they won't lose you either Bart. Boot licking to the end.
 

There is also the possibility of substantial change in the context that renders tomorrow not like today. I'm thinking in particular of energy. If everyone has LESS, then the whole political concept of (neo)liberalism is toast. Remember, the Soviety Union broke up almost overnight. Expensive justice will not be available.
 

This comment has been removed by the author.
 

A few possible 2008 scenarios we are looking at... Giuliani is toast. Father Dobson won't touch him. The right can no longer count on the military vote -- unpopular wars will do that -- and their base has been whittled down to the hardcore xenophobes. It's immigration, not abortion.

That [Richard] Viguerie is ratcheting up the rhetoric to the point of saying if Giuliani is the candidate, "it will be time to put the GOP out of its misery" is significant.

This one looks most likely now, but that could change. Fred Thompson? In any case, expect wingers to stay home in droves.

There has been a lot of speculation about New York Mayor Mike Bloomberg running for President lately. Charlie Cook had a piece about it and there was an article in the L.A. Times today, among others. Bloomberg had a well-publicized meeting with Sen. Chuck Hagel (R-NE) a few days ago, which has fuled speculation about a Bloomberg/Hagel independent ticket. Bloomberg is term-limited as mayor of New York and is unlikely to challenge popular governor Eliot Spitzer in 2010 leaving the presidency as his only serious option.

Third party bids for the presidency always run into a simple problem: money...

Bloomberg is different. He has an estimated wealth in excess of $5 billion and has already been elected to competitive office twice--and running for mayor of New York (a very Democratic city) as a Republican is no mean feat. Rumor has it that he wouldn't think twice about simply writing his campaign a check for $500 million. With more money than the Democrats and Republicans combined, he would instantly become a serious candidate.

But could he win? Unlikely. Remember that to win the presidency outright you have to get 270 electoral votes. This means you have to come in first in a dozen or more states. Both the Democratic and Republican parties have a fair number of hardcore partisans who will never stray, no matter what. How many various from state to state, but it is almost always at least 30% of the electorate for each party. With 60% of the vote off the table, Bloomberg would have to capture nearly all the remaining voters to actually win the state. This will be very hard to do in a dozen or more states, especially the larger states, which have more than 30% partisan Democrats.

It is conceivable, though, that a Bloomberg candidacy could pull in enough electoral votes, say 30-50, to prevent any candidate from getting the required 270. In that case, the election would be thrown into the House of Representatives, where every state gets one vote. Wyoming gets one vote but so does California. Thus the party controlling the most state delegations could elect its own candidate. Currently, the Democrats control 26 state delegations, the Republicans control 21 state delegations, and Arizona, Kansas and Mississippi are split evenly and presumably would not be able to agree on a candidate (see map below). It seems very unlikely that even a single state would pick Bloomberg, no matter how well he did. If the House deadlocked, say 25-25, the Vice-President, chosen by the Senate (with each senator having one vote), would become acting President until a new House was elected in 2010.

A key question is: who would Bloomberg hurt the most? I think it depends strongly on the candidates. So far, most Democrats seem happy with their choices. My guess is that with Clinton, Obama, Edwards or Richardson, most Democrats would vote for the Democrat rather than any Republican or Bloomberg, who is also a Republican (in name only). Polls have shown that six out of 10 Republicans are not happy with Giuliani, McCain, or Romney. Some of these might bolt to Bloomberg. On the other hand, if Fred Thompson gets the nomination, most Republicans would probably support him. But it is also possible that some liberal Democrats might prefer Mayor Mike, who is probably more liberal than Clinton or Obama.

The most interesting scenario would be a Clinton-Giuliani-Bloomberg race. That would offer a wide choice. Voters could then choose between

- A pro-choice, pro-gay, liberal New York Protestant (Clinton)
- A pro-choice, pro-gay, liberal New York Catholic (Giuliani)
- A pro-choice, pro-gay, liberal New York Jew (Bloomberg)

Diversity galore! Turnout would no doubt be very high in New York, but perhaps somewhat lower in places like Alabama. If large numbers of Southern and Midwestern Republicans just stayed home, the Democrats could sweep the Senate and House races. Although the Republican get-out-the-vote operation is legendary, it could be a tough sell to convince people who abhored all three of the above to go to the polls just to vote for Congress.


However it plays, the conservative revolution is over.
 

Garth, given the current crop of front runners, "religious zealots, gun nuts, anti-tax extremists and pro-life absolutists," are exactly the people the GOP is most likely to lose.

I must insist that constitutional moments happen when the last necessary state ratifies an amendment. When the Constitution 'changes' otherwise, we're talking unconstitutional moments.
 

Anonymous Bosch said...

Bart: If I were the Dems, I would be scared to death of a Rudy v. Hillary race. Then again, after the dozens of recent liberal op-eds trying to convince GOP voters they really don't like Rudy, maybe the Dems are aware of this threat.

A few possible 2008 scenarios we are looking at... Giuliani is toast. Father Dobson won't touch him...That [Richard] Viguerie is ratcheting up the rhetoric to the point of saying if Giuliani is the candidate, "it will be time to put the GOP out of its misery" is significant.


Your post is a perfect example of the fear to which I was referring. I love it when the far left quotes far rightwingnuts in an attempt to convince a Republican that they really do not like a GOP candidate.

Because this is going under the radar of most of the Dem media, It may be a surprise to you. Rudy has been speaking before conservative Christian audiences for for months now to standing ovations.

Recently, Rudy spoke to a packed audience at Houston Baptist University about abortion:

Rudy Giuliani has said that if he hadn't gone into politics, his dream job would have been to play for the New York Yankees.

I can see it. The GOP presidential hopeful could be a natural. In fact, last week, in laying out his views on abortion to a conservative audience, he hit a triple.

First, in a political season where most candidates are bending themselves into pretzels pandering to their party's base in pursuit of campaign contributions, Giuliani did the unthinkable: He actually told an audience not what one assumes it wanted to hear, but rather what it needed to hear.

Second, in explaining his position on abortion, Giuliani spelled out a nuanced view that aimed for the center and, in doing so, stood out from much of the politics of today, fueled by the extremes and cast in terms of all or nothing.

And third, Giuliani argued that it was in the Republican Party's best interest to tolerate dissenting views and be more inclusive lest it drive away potential supporters when there are more important matters at hand, starting with fighting terrorism.

The candidate obviously intended to go on the offensive. It worked, sort of. Among the first to take offense were evangelical groups and social conservatives, who rushed to pronounce Giuliani's presidential bid over. Liberals in the media jumped in and did much the same thing, gleefully insisting that Giuliani had cooked his goose.

But someone forgot to tell those in the audience at Houston Baptist University, who gave Giuliani a standing ovation for his remarks. Some of them told reporters afterward that they appreciated his candor in addressing a thorny subject...


A few days later, Rudy appeared in the second GOP debate in SC before a largely Christian conservative audience and stole the show to a thundering applause with a slap down of the retreat from Iraq remarks by Ron Paul.

You know that I am staunchly anti abortion. Yet, so far, Rudi is be the best of the Presidential candidates IMHO because he appears to be by far the strongest war leader. He does not waffle or retreat like nearly every Dem and GOP candidate I have heard.

Although the left may not realize we are at war, most conservatives do and have family, friends or neighbors fighting that war. For conservatives, including many of us who support the anti-abortion movement, fighting and winning the war is issue one.

The abortion question is further mitigated because the President can do very little on the subject except appoint judges. Because he is not not flip flopping on abortion for political expediency, we are more likely to credit Rudy's promise to appoint conservative judges.

You Dems who dismiss Rudy do so at your own risk.
 

I may be misunderstanding something here, but it seems that the power of this theory is rather low in that it seems mostly descriptive. But perhaps someone can point me to a more detailed explanation.

Bart:
It's still a demi-free country, so you can shill however you want. But please don't clutter up the comments here with cut and paste GOP junk. If I want tripe, I can go read Redstate any time.

As for your other "points", I live in NYC so I don't need you to explain the former mayor to me. Personally, I think once the full spectrum of his behavior here becomes known, his only supporters will be the hard-core authoritarians like you. But I appreciate your telling us that your only criteria for governance is a love of unbridled power.

Oh, and by the way, you should get a new meme. Outside of bunkers and NRA redoubts, nobody is buying the "war on terror" meme.

PS: Mr. Reagan is dead, too.
 

Bart,

Its about time to lose Rudy. Fred Thompson is new bandwagon candidate. Time to get on board!

Someone else . . . Someone else . . .
 

DePalma... I love it when the far left quotes far rightwingnuts in an attempt to convince a Republican that they really do not like a GOP candidate.

Bart, there is no such thing as a "far rightwingnut" in comparison to you. There is no place to go to the right of you and there is no place to the right of you that you will not go. You are just better able to "blend" than Gordon Kahl and have realized it's better to become "big gubmint" and destroy it from within than to fight "big gubmint" from the outside.

Because this is going under the radar of most of the Dem media, It may be a surprise to you.

Which "Dem media" is that? The one that spends weeks reporting on crucial issues like Edwards' $400 haircut or Hillary's sex life?

Rudy has been speaking before conservative Christian audiences for for months now to standing ovations.

Good for Rudy. He's smart enough to know there is no point in going after the atheist and agnostic vote. What surprises me is how clumsy and inept your arguments are becoming.

Brett... Garth, given the current crop of front runners, "religious zealots, gun nuts, anti-tax extremists and pro-life absolutists," are exactly the people the GOP is most likely to lose.

That's the point. It was only a political strategy Rove recognized and employed before 2000. They have had their own constituency all along and you were never a member of that club. Just another "useful idiot".

I must insist that constitutional moments happen when the last necessary state ratifies an amendment. When the Constitution 'changes' otherwise, we're talking unconstitutional moments.

RandomSequence's critique of Professor Balkin's post on Constitutional Redemption:

Constitutional redemption? As if there exists some "constitutional soul" that has just been forgotten and buried? "Original meaning"? Do you have EEG hooked up to Madison's corpse? "Faith" in the constitutional project?

You're just re-writing "living constitutionalism" in evangelical language, which only further obscures the debate on what Constitution we should have. It's that very obscurantism that has gotten in this mess - hagiography of the founders, worship of the Constitution as a sacred text, and utopian ideas of legalism.

I'm quite tired of the danger to rationalism by pandering to mythicism.


As I said, I see his point. perhaps he can see mine. I'd rather Prof. Balkin "evangelize the living constitutuion" than have Brett's blind "worship of the Constitution as a sacred text".

Even Jefferson saw the danger in that.
 

You had better find something nice to say about Romney, Bart.

Even a blind man could see Giuliani was conservative toast as soon as that video of him in drag and kissing "The Donald" hit YouTube. Ma and Pa Kettle don't care what kind of "perverse debauchery" their conservative icons engage in as long as they keep it under wraps at the Bohemian Grove. No pictures. Certainly no video. Also, I also think most Americans are ready to "move on". 9/11 isn't the Alamo and without 9/11, Rudy ain't squat.
 

I think it's premature predicting the outcome of the election. A lot can happen between now and then, particularly new developments in the war, or a major scandal.
 

The results from a C-Span show on a focus group run by Dem pollster Peter Hart whose members are from deep blue Maryland and supposedly represent a cross section of the electorate should provide you Dems with something more to chew upon.

Its remarkable how close the focus group came to my posted predictions of the 2008 elections.
 

Wow. 12 people. That is a statistically significant sample, Bart.
 

It's worth keeping in mind that the current state of the Supreme Court as only a 4-1-4 split is a result of the disappointing appointments of false conservatives by Republican presidents. If Souter, Stevens, and Kennedy had turned out to be reliable conservatives, there would be only two liberals on the court today. If O'Connor had also been a reliable conservative, this would have been the case since 1993. If Brennan and Blackmun had been conservatives, things would have looked much different for decades back, and that's not even throwing in Earl Warren, another Republican appointee. The fact is that Republican presidents have moderated the influence of conservatives on the Supreme Court by consistently appointing more moderates and liberals than conservatives for the past several decades, and it isn't until the current president that you get a 100% conservative lineup from one president. This is in fact one reason Republican presidents keep getting elected. Conservatives are upset at the state of the court with respect to some key issues for them, and they want to try to move things rightward, often unsuccessfully.
 

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