Saturday, June 28, 2008
Roe and Partisan Entrenchment
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.
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.
HD kaliteli porno izle ve boşal.Post a Comment
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var