an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
David, far be it from me to suggest that elections don't matter a great deal for constitutional development. That they do is the central claim of Sandy Levinson's and my theory of partisan entrenchment. It's nice to know we have a fan. But there is still the question of why Roe v. Wade survived in the face of a series of Republican Supreme Court appointments, a question that, at first glance, the partisan entrenchment theory would seem not to answer very well. Since I'm one of the advocates of the theory, it has fallen to me to deal with the problem.
Your explanation to this quandary appears to be-- just dumb luck. Well, dumb luck does explain some things, but I would prefer to push the question a little further. That is because Roe is not just any decision that happened to survive. It's one of the most important decisions in contemporary American politics, and the Republican Party's platform has, since 1980, been devoted to overturning it.
So if Roe has survived five Republican appointments since the failure of the Bork nomination, it's worth asking whether the cause is just dumb luck. Are the Republicans just that incompetent on this key issue? Hence I've tried to offer an account that explains, based on incentive structures, why a president might choose more moderate nominees on a key issue of his time than he would otherwise choose. The reason I've offered is that presidents will do this if they believe that this will help them preserve a coalition.
Mark Graber of this blog, in a famous political science article back in 1993, argued that one of the Supreme Court's functions is to keep political coalitions together by taking the heat for particular hot button issues that would split the dominant coalition apart if it had to confront them directly. He suggested that abortion was such an issue for the Republicans. If that's so, then presidents would probably take this fact into account in making Supreme Court nominations. Hence the reverse litmus test.
This account also meshes with the idea that Presidents tend to temper their appointments when they face a hostile Senate. A president who appointed a outspoken opponent of Roe would lose votes at the margin that might be sufficient to deny confirmation. Some of those votes at the margin would be Republican Senators bucking their President's choice. (Think of someone like Arlen Specter, for example.) Choosing a nominee who will only hollow out Roe increases the chances that Senate Republicans will vote more or less as a block.
You are correct that this account doesn't explain the nomination of Clarence Thomas, a strong opponent of Roe. That nomination would seem to have made absolutely no sense given that the Democrats controlled the Senate in 1992. All other things being equal, the President should have appointed some one far more moderate on abortion rights to get past the Democrats in the Senate. So why did President George H.W. Bush nominate Thomas? The answer is obvious. President Bush felt fairly strong pressure from all sides to appoint an African-American to replace Thurgood Marshall. Thomas was the obvious (perhaps the only) high profile conservative to fill that slot, and Bush calculated that the Democrats (and moderate Republicans) wouldn't dare turn down an African-American nominee. He was correct. My assumption is that Bush nominated Thomas not because of his views on Roe v. Wade but because Thomas was both conservative and black. Those considerations were paramount in his calculations.
Since Presidents have a short to medium-term time horizon, and since political calculations are always changing, we can't assume that Republican Presidents will follow the strategy of hollow-out- but-don't-overturn indefinitely. (For example, it would make no sense if the country as a whole eventually became markedly pro-life.) But it does help explain why Roe is still in place, especially in the crucial period between 1987 and the appointment of Ruth Bader Ginsburg in 1994. During that period the Republicans had made three straight appointments to a Court that was already thought to be on the verge of overturning Roe v. Wade. What emerged was Casey, which limited Roe in several respects, but did not formally overturn it. Casey is the classic example of the hollow-out-but-don't-overrule strategy.
I'm perfectly willing to consider other accounts that are broadly consistent with the basic assumption of partisan entrenchment theory-- that elections matter. The one I've offered, which tries to understand why Presidents make certain appointments and not others, seems to me the best one. Another account would argue that the Justices themselves are motivated to keep their party's coalition together. I think this is not consistent with judicial role understandings. But if you want to resuscitate that account, or if you have another one besides dumb luck, I'd be delighted to hear it. Posted
by JB [link]
This would appear to be the product of odds and socialization.
The profession of law is disproportionately liberal, so there are fewer conservatives to choose from.
Those lawyers who do not have a firm set of conservative ideological beliefs (movement conservatives) are more likely to change their views ("evolve") to be accepted by the disproportionately liberal legal culture.
Thus, Republican presidents have a greater failure rate than Democrats in picking judges who will actually implement their ideological policies.
Do you see any mileage in the much simpler Al Franken theory that it's essential for rich economic conservatives that cultural conservatism fail, so that the carrot or resentment can forever be dangled over the head of the culturally conservative poor?
Stupidity is a much simpler explanation. Justice Souter, an intellectual lightweight and wrong (if you are conservative) on nearly every decision, was appointed by President G.H.W. Bush at the recommendation of John Sununu, a stupid person, who thought that Souter's lack of a paper trail would guarantee confirmation. The lack of a paper trail also guaranteed that Sununu's guesses about how Souter would vote on critical issues were dead wrong.
One might want to take a look at David Yalof's important book, PURSUIT OF JUSTICES: PRESIDENTIAL POLITICS AND THE SELECTION OF SUPREME COURT NOMINESS. Yalof points out that the Justice Departments in both the Reagan and Bush I Administrations were divided between conservatives who wanted to overrule ROE and moderates who did not. Conservatives won slightly more often than moderates, although both Souter and O'Connor were victories for the moderate faction. When Bork and Ginsburg were defeated, the moderate faction won out again with Kennedy. In short, we do not have a failure of Republican presidents. As Yalof documents, we have victories by more moderate factions in the Republican party. They were not sure about O'Connor, Souter, and Kennedy, but they had pretty good guesses. Bush II went 2-2 in large part because that moderate faction does not exist in his Justice Department
REPUBLICAN PRESIDENT: Thank you for your time, Judge. One more question before you go.
PROSPECTIVE JUSTICE: Please.
REPUBLICAN PRESIDENT: You have a stellar conservative record on a wide range of issues, you belong to all of the right conservative legal groups, attend the right parties and conventions. Given all that, can you promise me that, if push comes to shove and you are the swing vote, you will vote to uphold Roe?
PROSPECTIVE JUSTICE: Excuse me, did you say "uphold"? Do you mean "overturn"?
REPUBLICAN PRESIDENT: I mean "uphold," but only if you're the swing vote.
PROSPECTIVE JUSTICE: Does my appointment depend on this?
REPUBLICAN PRESIDENT: Maybe.
PROSPECTIVE JUSTICE: You do realize that we're appointed for life terms, right?
REPUBLICAN PRESIDENT: Of course.
PROSPECTIVE JUSTICE: Then ... OK, sure. [Thinks: "Sucker."]
Sorry, this does not pass the smell test. No one who isn't already willing to no longer be invited to the right parties is going to agree. They got partly unlucky with Kennedy, vastly unlucky with Souter, and since then they have vowed never to be unlucky again and have acted accordingly. A Republican President dooms Roe unless the Democrats can (and are willing to) block any nomination of one who would oppose it.
But there is still the question of why Roe v. Wade survived in the face of a series of Republican Supreme Court appointments, a question that, at first glance, the partisan entrenchment theory would seem not to answer very well.
It would seem very difficult to attribute the survival of Roe to any conscious strategy on the part of Republican presidents. After all, if Reagan had gotten his first choice (or probably if he had gotten his second choice) rather than Kennedy, or if Kennedy hadn't changed his mind after oral argument in Casey, Roe would have been overturned in 1992. I don't think Kennedy's last-minute change of heart was at all something that Reagan intended.