Why a Compromise on Judicial Nominees Makes Cents

If the controversy over appellate court nominees is largely fueled by special cause lobbyists, then a compromise makes sense. From the point of the view of the interest groups, successful use of the nuclear option would remove controversies in the future. You'd only be able to lobby the Senate to get a majority, much harder than the current situation. That means you'd have less occasion to send junk mail to your supporters, rousing their fervor. The only downside to the compromise is the story of the boy who cried "wolf"; it would tend to undermine credibility. But damage to credibility can be repaired over time, so rationally, both sides should agree on a compromise in order to preserve the issue for future fund raising drives.

Reasons I'm a Liberal (Revised)

I'll add as I think of them. Here's a pretty good summary, albeit a bit bloodless.

1 I'm more concerned about incorporating the Golden Rule in our institutions than about erecting stone tablets of the Ten Commandments.

2 Like Julian Simon, I believe people are the greatest natural resource, so if we have to throw money at problems, let's aim towards the schools, not the military.

3 Like Madison, I believe diversity is essential to a republic's survival. The more people of diverse opinions and interests the better.

4 I believe in the power of people, working together, to accomplish good, whether the organization is a charity, a religion, a corporation, or a government. As Benjamin Franklin said: "we must all hang together or we will each hang separately", an organization accomplishes more than individuals.

5 I don't think it's soft-headed to understand a person before judging them.

6 I don't think it's soft-hearted to strive for everyone to be well, and well-fed, well-housed, well-educated, and at peace.

Poor Harry Blackmun--Juan Non-Volokh on David Brooks Column, Revised

Juan Non-Volokh comments on David Brooks column, blaming Roe v. Wade for partisanship on justices.


The partisan divisions over judges are not Harry's fault. Blame Ike. He picked Earl Warren, who led the Court into what conservatives saw as upsetting hallowed tradition (Brown, Baker v. Carr), favoring Communists, coddling criminals (Gideon and Miranda), removing religion from public life (Engel), etc. etc. I believe all of Volokh.com are too young to remember those days, but "Impeach Earl Warren" was a war cry of the right, dating back to the late 1950's. Warren was even under attack by the ABA leadership (then a stalwart of the right).

That was part of the context for LBJ's selecting his successor (Warren got cute, too cute, by resigning in 1968 dependent on a successor, thus giving LBJ the chance to name the successor--LBJ named Abe Fortas):

This source provides a summary of Warren's career, including this discussion of the result:

" On July 11 the Senate Judiciary Committee opened hearings. Shortsightedly, Fortas accepted the Judiciary Committee's invitation to testify. He was the first CJ nominee in history ever to do so. Warren had declined to do so, letting his record speak for him. Senators could not impeach Warren, but they whiplashed Fortas for cronyism with LBJ and drew him into a discussion and defense of several Warren Court decisions, many of which were decided before Fortas had joined the Court. On September 13, the embattled and embarrassed Fortas wrote Mississippi Senator Eastland, the anti-Warren Court Judiciary Committee chairman, that he would no longer testify. The full Judiciary Committee finally approved the Fortas nomination 11-6, moving it to the Senate floor. A coalition of southern Democrats and Republicans, urged on by Nixon, began a filibuster which could not be stopped by sufficient votes for cloture. Fortas wrote to LBJ requesting that his nomination be withdrawn. Immediately LBJ complied with deep regret. Everybody then besieged LBJ with a new nominee, but the proud old Texan refused to name a Fortas substitute. "

Rick Shenkman at POTUS writes:

" Any number of turning points could be selected. One that stands out was the 1968 fight to stop LBJ from naming Abe Fortas chief justice of the Supreme Court. Nothing like it had ever been seen in American history by one measure. For the first time ever opponents staged a filibuster to block a president's nomination to the Supreme Court."

The Post covers the Fortas filibuster here:

Ralph Luker at Cliopatria discusses Blackmun and incidentally agrees that Warren and the Fortas fight were keys.

The Roe decision was significant because it was the Burger court, thus undermining any belief Republican appointees would reverse the direction of the Warren court was undermined, and it was a hot button issue for a new group. Where the hardhats had seen the court as pinko, now their wives became involved.

Finally, Justice Scalia in the O'Connor/Breyer/Scalia discussion on C-Span traced the partisanship back "50 years", meaning for once he and I agree.

Agendas and Dog-Whistle Politics

Today sees William Safire discussing the origins of the phrase "dog-whistle politics", meaning messages that reach an intended audience but not others. And the Washington Post Outlook section has Jeffrey Birnbaum writing on "The Forces That Set the Agenda" " [warning, as of 2pm the link was faulty, giving only the title and not the text of the article]: "

In the grand scheme of things, Social Security isn't the nation's biggest fiscal problem. That's not my view. That's the assessment of Douglas Holtz-Eakin, a Bush political appointee before he became head of the nonpartisan Congressional Budget Office, who says that looming financial calamities in Medicare and Medicaid are larger and more immediate worries in a strictly budgetary sense." He goes on to discuss the role of organizations like AARP in making Social Security a focus. Small businesses played a key role in the estate tax debate.

I see both as relating to David Broder's column on the judicial nominee fight (see my post here).

The common thread is the individualization of politics, retail politics. In the 1940's and 50's, there were 3 TV networks, a handful of radio stations, some national magazines like Readers Digest, Life, Time, Colliers and that was it. Politically there was big business with the NAM and the Chamber of Commerce, big labor with the AFL and the CIO, and big agriculture with the Farm Bureau and Farmers Union. Throw in a few membership organizations like Knights of Columbus, Elks, League of Women Voters, American Legion, AMA, and ABA and you had the major political players.

50 years later media has proliferated, the membership organizations have lost their dominance, and mail-based advocacy organizations have multiplied. The key to all this is the original bureaucratic organization, i.e, the Post Office, with junk mail and the computerization of data. The new organizations spend much less time socializing at local and state levels and much more time raising money through mailed appeals and targeted media--dog whistles. Both Robert Putnam ("Bowling Alone" and "Better Together: Restoring the American Community") and Theda Skocpol "Diminished Democracy: From Membership to Management in American Civic Life" have written on this theme. They convince me.

Because people learned how to use computers to develop mailing lists, they could create magazines targeted to niche audiences. They learned how to massage census data and commercial data to refine their advertisements and magazines. From there it was a short step to applying the tools to politics, creating advocacy organizations to support lobbyists on K Street. In my own area of agriculture, the dominance of the Farm Bureau has been challenged by all the commodity groups, each one organized around a crop. The politics of specialization works differently than the politics I was taught in the 50's and 60's. While we still have farm bills, much of the Congressional work is done through the appropriations process and amendments to "must pass" legislation, whether it's the budget reconciliation measures, emergency legislation responding to agricultural "emergencies", or whatever. You get the explosion of "earmarks" of money for projects that never went through peer review in the case of science or through the authorization process in the case of pork.

With specialized communications networks and organizations at their disposal, political operators can work outside the vision of the mainstream media, whether it's to agitate the waves over judicial nominees or to fight over social security when Medicare is really in much greater trouble.

Can blogging, or anything else, change this? Doubtful.

David Broder on The Appeal of A Court Fight (washingtonpost.com)

David Broder early this week wrote a cynical column saying that politics is occuring on the Hill:

"the more important reason [for the uproar over appeals court nominees], I suspect, is that the interest groups that have mobilized over the judiciary find it very useful to broaden the battleground beyond the Supreme Court....

To maintain their supporters' interest -- and the flow of contributions that finance their staffs -- the interest groups need more fights. And that is what the regular turnover in the ranks of the appeals courts provides.

It matters not to these groups how much or how little the broad public knows of the records and personalities of these appointees. As long as activists can be convinced they are threats to the system -- or martyrs -- that will suffice."

I believe he was in error in not tracing the controversy back to Fortas (see this post) but otherwise is right on. Political rhetoric these days is devalued; issues which seem important lose their criticality when viewed over time and compared to the great issues of the past. (ed.: there speaks the disillusionment of the old). I saw a reference to "dog whistle" politics, that is issues directed towards the base that completely bypass the centrist voter. There's also a study that uses that logic to explain a rise in partisanship--parties are able to focus their message to their partisans, without losing the appeal to the center.

Never Buy Version 1.0 (Harshaw Rule 1), Mypyramidtracker.com (Revised)

Revised April 23:
Apparently the system is working now. I'm a little dubious of the site as far as usability goes, but I always think I could do things better so disregard this sentence.

Comment April 22:
As if any further confirmation of Harshaw Rule 1 was needed, USDA released a new Website to support its new food pyramids. The idea is to provide personalized advice based on age and body mass index, with the further option of recording your food intake and exercise day by day. Nice idea, but insufficiently tested and supported. In a word, they underestimated the interest. Big mistake, because anyone turned off this week is unlikely to return.

I signed up for the food/exercise option and found the site working slowly earlier in the week. This morning I tried to login again and got an error message that a user should never get. To quote part of it:

The viewstate is invalid for this page and might be corrupted.

Description: An unhandled exception occurred during the execution of the current web request. Please review the stack trace for more information about the error and where it originated in the code.

Such a message should be intercepted and a more user-friendly message supplied instead. Contacted support, which was a hassle itself (the error message window should have a mailto link there) and got two responses, explaining that they were overloaded and I'd probably have to re-sign up. It's good I didn't spend much time recording what I usually eat and do or I'd be really angry.

User testing is one of my pet peeves, maybe this will trigger more blogging on the subject.

Update on USDA Position on Payment Limits

Interview with Secretary Johanns clarifying [sic] administration's position on cutting farm program payments.

Bernstein's Question for Liberals

Professor David Bernstein at The Volokh Conspiracy poses an interesting question, unfortunately one that liberals have to face for 3 more years and maybe longer:

"if you are a liberal to moderate Democrat, would you rather have an outspoken libertarian like Justice Janice Rogers Brown on a federal appellate court, or even the Supreme Court, or a more typical cautious conservative Republican who got his position in part through pure political loyalty (cynics may say hackery)? Is Justice Brown's intellectual independence a plus from your perspective, because she is perhaps less likely to acquiesce to the wishes of the Bush Administration, or a minus, because she won't give a fig about what the New York Times editorial page says about her judicial opinions and is therefore less likely to 'mature' in office? "

My answer is, give me the hack. Before I go on, I should admit I know very little about the current appeals court nominees. I think I know something about living and about American history. That tells me I'd rather have the Brennan, Blackmun, or O'Connor type than the Scalia or Thomas. Or rather, give me a person who's shown signs of "growing", of making mistakes and learning from them, of living a full life exposed to the currents of the society and the world, yes, even including the NYTimes editorial page. (That test might have excluded Judge Souter, who seems notably insulated from the world.)

Bernstein goes on to raise the issue of individual rights in the midst of the war on terror, which may go on indefinitely. That is one difference--I see the war on terror as petering out and not posing a major threat to civil liberties. The different perspective is one reason for my preference; too much will happen in the next 20 years that we can't predict. I don't want to trust someone who found the truth at 25 and hasn't learned since.

University as Information Traps

By mistake I taped a Charlie Rose interview with the President of Stanford, which was interesting. Rose asked how he would go about improving a school. The answer was rather general, hiring a good dean, hiring great professors which helps attract great students. The implication I drew from the discussion is that it's a circular process, a virtuous circle. Good leadership and one great professor helps attract other great professors and then great students. (He claimed that Stanford was continually raising the number and quality of its applicants.)

It struck me that the whole process has a dynamic of its own. The university invests in the school, the great professor invests by moving to the university, the great students invest by attending--it's to the advantage of everyone to portray the school as great. No alumnus wants to say that her aluma mater was a poor school. The university becomes an information trap, a black hole, in that it captures all negative information and only permits positive information to be aired.

I suspect you could extend the analysis to other organizations. Political appointees in DC are known for going "native" after they're appointed to head agencies. No one who's been in office for 6 months wants to say I head the worst, most disorganized, ineffective organization I ever saw. Perhaps the only exception will be John Bolton if he wins confirmation.

Karl Rove on Mainstream Media

Dana Milbank's report yesterday in the Post caused me to think more highly of Karl Rove (not a difficult job). Rove thinks the mainstream media is more oppositional than liberal:

"His indictment of the media -- delivered as part of Washington College's Harwood Lecture Series, named for the late Washington Post editor and writer Richard Harwood -- had four parts: that there's been an explosion in the number of media outlets; that these outlets have an insatiable demand for content; that these changes create enormous competitive pressure; and that journalists have increasingly adopted an antagonistic attitude toward public officials. Beyond that, Rove argued that the press pays too much attention to polls and 'horse-race' politics, and covers governing as if it were a campaign."

That seems about right to me. Though you have to add in other factors--the MSM don't seem to have had much exposure to the broad scape of America, lack historical and comparative perspective, have neither the time nor expertise to understand the workings of many organizations and institutions, and follow the crowd.

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