A few thoughts on the Sotomayor nomination

Yes, it has been over a month since my last real post. My basic excuse is that I have been trying to hammer out an academic piece, have traveled across the country, then traveled half-way across the country twice. Yeah, blogging has been low on my priority list.
I suppose the biggest current events topic to happen recently on which I might have something interesting to say is regarding the Sotomayor nomination. If you scroll down and look at my May 2nd post, you’ll probably figure out that I wasn’t surprised by the nomination. In effect, Obama took the politically smart strategy by attempting to shore up two important constituent groups: women and Latin Americans.
Supreme Court nominations are difficult for me. To be blunt, no one I like will be nominated to the Court due to political realities. My views don’t fit neatly into the dominant judicial philosophies. I don’t like Federalist Society people because the ideology is naïve. I don’t like the “living Constitution” people because you can get the Constitution to say anything you want. I guess my preference is something closer to Paul Dehart’s Uncovering the Constitution’s Moral Design. (This is an interesting, but hard read. If interested in checking it out, you can find it at Amazon here: Uncovering the Constitution's Moral Design) The basic problem is that Dr. Dehart’s system is too complex for most people to be able to follow it without certain philosophical training. Politicians tend to not appreciate such things, so it won’t get any real Supreme Court play.
Getting back to Sotomayor, she actually doesn’t scare me as much as one might think. I am strongly pro-life. I have no idea what she is, which means she is probably not as adamantly pro-choice as Obama. I believe the government should help people when it will actually help them (NOT all the time). Her view on the role of government seems to be broader than my own, but not much.
One thing I will say is that she probably won’t be an intellectual powerhouse on the Court. Truth be told, I think that’s fine. Don’t get me wrong, she’s smart. She’s just not Scalia or Roberts smart. Few individuals are. But she is replacing Souter, who also wasn’t an intellectual superstar. As far as intellectual capacity, she will probably be right in the middle. I guess one way to put it is that she is well over minimum threshold for intelligence to be a justice.
Pending new information, I hope she gets confirmed. I hope she is confirmed because she will do less damage than most of the other options Obama had. I sincerely hope the Democrats don’t do to her what the Republicans did to Harriet Miers. I doubt that is much of a concern, though, because the Democrats know better than to alienate TWO core constituencies.

Why did Specter switch?

[Note: I intended to post this one about a month ago, so it is no longer particularly up to date. But, since no one reads this blog anyway...]

One of my favorite blogs, and one of very few political blogs I read regularly, is Jay Cost over at Real Clear Politics http://www.realclearpolitics.com/horseraceblog/. One of the reasons I like Cost is that he is relatively well versed in most sub-fields of political science and is able to translate them into plain English. His series on battleground states in the 2008 election was required reading for students in my campaigns and elections class.

The reason I bring up Cost today is that he had a unique perspective on the Sen. Specter defection. The typical line of thinking has been that Specter left the party because the right-wing of the party was out to get him. Cost brought out a different side of the story. He argued that the demographics were such that Specter was going to have a hard time as a Republican, even if he won the nomination. His political base of support is in the Philly area, but most of the Republicans in the state are outside the Philly area. Republicans from Central and Western PA have never particularly cared for Specter. I remember this from attending my overwhelmingly Republican college in Western Pennsylvania. Specter was deemed the prototypical RINO (Republican in Name Only).

The question Cost raised was whether Specter could have won Pennsylvania as a Republican with few GOPers in his Philly base and the ones to his west not being too fond of him. Chances are the GOP turnout for Specter would have been low, basically handing the seat to the Democrats anyway.

Now I’m not sure if Specter is the type to read blogs from RCP, but it would be interesting to hear his reaction. He and the media have been playing this up like the GOP has become narrow minded and exclusionary to diverse viewpoints. I have to say that there might be something to this. Several movers and shakers behind the scenes have been pushing Toomey to run and financing his campaign. The Republicans would seem to have a better shot at keeping the seat with Specter than with Toomey (although I’m not convinced of this). Why would they force Specter out unless they were pushing for party purification?

Well, the same thing happened not that long ago in Connecticut with this guy named Joe Lieberman. He ended up running as an Independent to keep his Senate seat. That was clearly a case of party purification (the moveon.org people were upset about his stance on the Iraq war) rather than practical politics. The Democrats got lucky that Lieberman still caucuses with them.

The Republicans were not so lucky and they lost Specter altogether. Sure, he will probably vote with them still from time to time, but that is little consolation given the numbers in the Senate right now.

But, returning to Jay Cost’s fundamental question, is this really an issue of party purification or just an issue of practical politics? Well, it seems to be both. The fact of the matter is that the Republican party in Pennsylvania has changed. The electorate would not have allowed Specter to win a primary. That is practical politics. If Specter wanted to keep his seat, he had to switch parties (or run as an independent with no institutional support, which was less likely to be successful). On the other hand, why did the Republicans of Pennsylvania reject Specter? Because of party purification. That probably was not on the mind if individual voters, though. They were thinking about the fact that they really didn’t like this Specter guy and would rather have someone else in office. Most individual voters don’t think on a macro-electoral level. They think about personal preferences. Why would a social conservative vote for a social liberal so that he could run against another social liberal?

Remember, in Pennsylvania’s last senatorial race, you had Bob Casey, a socially conservative Democrat, running against Rick Santorum, a socially conservative Republican. That’s right, two social conservatives. Two candidates NARAL hated. Why did the Democrats run a social conservative? Because they wanted to win. Why does it make sense now for there to be two socially liberal candidates? Pennsylvania hasn’t changed that much since 2006. Depending on turnout, Toomey might have a chance in this thing. Okay, not much of a chance, but a chance.

In Memory of a Good Politician and a Great Man

One of my favorite politicians died recently. I had been a Jack Kemp fan in my youth. I supported him for president in 1988, even though I couldn’t vote yet. I figured out years later that I had fundamental disagreements with him on tax policy, but that wasn’t why I was such a fan.

Maybe I am just a sucker for Republicans who used to play football. I am also a fan of Steve Largent and J.C. Watts. But I think there is something about playing football which enables you to interact with people who most Republicans don’t. As Kemp, a former quarterback, once pointed out, he had a vested interest in defending those who protected him on the field. He had an interest in looking out for the interests of those who he showered with after practices and games. Kemp developed a concern for those who may not have come from the same place as him, but became comrades nonetheless.

I liked Jack Kemp because he was a conservative for the right reasons. He honestly believed that the policies he espoused would not just help the rich and powerful, but also the poor and downtrodden. His motivation for conservative policies was not to maintain or strengthen the status quo, but to revolutionize the capabilities of those who society had shut out. He opposed the old welfare systems not because he lived in fear of “welfare mothers”, but because he honestly wanted to find a way to break them out of the generational cycle of poverty.

When I used to identify myself as a conservative (I no longer identify as a conservative, nor as a liberal or a moderate), I took the Jack Kemp tact of explanation. I was a conservative because I believed the conservative policies were the best cures for the social mess of the underprivileged. That was a play from Kemp’s book. On a lot of issues, I still believe the conservative policies are better suited to breaking the poverty cycle than do the liberal policies of those that are supposedly standing up for the little guy.

I must admit that I did lose some respect for Kemp during the 1996 presidential campaign where he did what VP candidates are supposed to do and backed the positions of the head of the ticket. In this case, Bob Dole was the Republican nominee and supported the California initiatives that basically shut down Affirmative Action and decreased services for immigrants. These were positions I know Kemp opposed, but he still kept in lock step with Dole.

In his private life, though, Kemp won me back. One of my favorite stories involves an African-American friend of mine who met Kemp while my friend was a college student in 1997. Kemp was speaking at his school and my friend had the opportunity to meet with him one-on-one during the visit. My friend was born, bred, and raised Democrat. His grandfather was a democratic city alderman. My friend wanted to meet Kemp because his grandfather actually said good things about this white Republican. So my friend emailed Kemp before his arrival on campus and asked if he could set aside a few minutes for a conversation. Kemp replied that he would in exchange for a tour of the campus. That tour lasted four hours. My friend came away respecting Kemp more than his grandfather. Kemp didn’t come anywhere close to converting him to the Republican party, but my democratic friend and the republican politician found a lot of common ground on steps that could be taken in urban neighborhoods to start turning things around.

That’s who Jack Kemp was. He was a man of principle who believed strongly in what he believed in, but was able to reach out and work with others to find common ground. He sought to find real solutions for the real life difficulties of real people. Even though he had just recently been the Vice-Presidential candidate for one of the two major political parties, he took the time to spend an afternoon with a young man who did not agree with him on many issues so that they could find common ground. I, for one, will miss Jack Kemp and the civility and principle he brought with him to the political realm.

Souter Resigns

Justice Souter is planning to resign. I had heard rumblings of such from my friends in Washington. In spite of the fact that he is relatively young, I was not surprised by the announcement. Rumblings of his discontent with Washington life were not new. Now is the perfect opportunity for someone like Souter to leave. He can ensure that his replacement is someone who thinks like him. With a like-minded President and Democratic control in the Senate, it is unlikely Souter would be displeased with his successor.

As regards judicial philosophy, Souter and President Obama seem to be very similar (although the president, being a politician before he is a constitutional scholar, as kept many of his views hidden). It is likely that the president will nominate someone who thinks very much like Souter.

Honestly, I had expected Ginsburg or Stevens to leave first. That being said, I predicted that the next president, if a Democrat, would have three vacancies to fill in her/his first term. I didn’t think Souter would be first, though (my predictive abilities regarding Supreme Court resignations have never been that good).

So, who is most likely to receive the nomination? There are a number of schools of thought. President Bush tended to nominate people he personally trusted (remember Harriet Miers?). He got shot down by his ideological base. In Alito’s slot, since he couldn’t get Miers, he would have loved to get Alberto Gonzalez, but there was no way the conservatives would let him get that either. I honestly thought Alito’s spot would be taken by a Hispanic, woman, or both. Bush tried one of each, and each got shot down by his base.

Due to Court demographics and political realities for the Obama team, the leading contenders for the new opening are women and Hispanics. This makes Sonia Sotomayor automatically a leading candidate. She is well-respected, moderately liberal, grew up in the Bronx projects, and is a Hispanic woman. However, if President Obama goes with someone he knows and trusts, the leading candidate is probably Elena Kagan, the recently confirmed Solicitor General. A second leading candidate in the “people the president knows and trusts” pool would be Diane Wood, who is a former colleague of Obama’s at the University of Chicago. If the president really goes with someone he trusts rather than standard politics, one might see the unexpected nomination of Valerie Jarrett.

The interesting thing about all of these names I just mentioned is that none are “radical” by judicial standards. True, all of them would vote to uphold Roe v. Wade, but you can’t really imagine an Obama nominee not doing that. (One of these days I will write a blog describing the utter lunacy of Roe from a strictly legal standpoint, but that will have to wait.) But with the possible exception of Wood, none of the women mentioned here hold surprising or particularly controversial judicial views. This would make it very difficult for the Republicans in the Senate to successfully fight against them. They will try, but I don’t foresee any success. But who knows, I’ve been wrong many times when it comes to Supreme Court politics.

The Employee Free Choice Act

Congress is currently in the process of doing something very important: stopping a bully. Normally when you hear the term "bully" it is in the context of international relations. That is not the case this time, however.

The bullies in this case are businesses with non-unionized employees. Under current U.S. law, if a certain percentage of employees sign a card saying they would like to consider unionization, then the company hosts a secret ballot election for the employees to determine if they will unionize.

That sounds fair, except for one major problem. The employer gets to decide the rules of the election. For example, if they want to make the election at 6 a.m. and not announce it (except to people who will vote against it), they can do that. If they want to force all employees to sit through a presentation about why it is a bad idea to unionize, they can do that. If they want to bar any pro-union people from distributing any information presenting their side, they can do that. The system is rigged.

The Employee Free Choice Act would “solve” these problems. If more than 50% of the members sign a card expressing interest in unionizing, then the election will be bypassed. (There will still be a secret ballot vote if 30% of employees publicly petition for an election.) This way management cannot manipulate the rules of the elections.

But this “solution” creates a new fundamental problem. The old system unfairly favored business. The new system unfairly favors the union organizers. Ask yourself why the union organizers would not want a secret ballot election if they already had a majority of the employees sign cards expressing that they wanted to unionize. They already have a majority, right?

Well, not necessarily. Union organizers have been known to “encourage” hesitant individuals to sign those cards. Some of my relatives have been socially ostracized for not supporting a union. One of my relatives (a truck driver) was “encouraged” to sign the card while a very large man holding a very large knife was watching intently. The truth of the matter is that just because a majority of the employees publicly signed a card saying they wanted to join a union does not mean a majority actually wanted to join a union. This is why it is so important to actually have a secret ballot. And the 30% exception does not help matters because you must get 30% of the employees to publicly stand up to their fellow workers.

So, the old situation is inherently unfair. The proposed solution is inherently unfair. What should be done? I propose common sense (I know, radical thought). How about having a secret ballot election that is run by a neutral party, such as a government agency? With a government body regulating the election, neither side is likely to try traditional manipulative and bullying tactics.

Now I have to say that I am quite certain that my proposal would not pass Congress. The Republicans are largely in the hip pocket of big business. The Democrats are largely in the hip pocket of big labor. Neither side will budge. What will probably happen is that the bill will pass in this Congress. Then when the Republicans regain Congress, everything will revert to the old rules. Welcome to politics.