Monthly Archives: May 2010

On Commencement Day, In Honor of My Favorite Student

It’s that time again.  As I have done ever since I started this blog in the late 1950’s, I take time out on Middlebury’s commencement day to sit down in my recliner before the fireplace,  light the used motor oil, pour a deep glass of single malt (thanks Paul), and raise a toast to you, My Favorite Student (MFS).

You know who you are.

You showed up at that first 8 am class in Twilight Hall, all bright-eyed and bushy-tailed, and remained awake for at least the first ten minutes of my opening lecture on why you should study American politics.  Moreover, you kept coming to the class even after the Political Science department, in its collective wisdom, loosened the requirements so that a basic course in American politics was no longer necessary to obtain a political science degree.  (That’s right, Parents.  And you paid over $200,000 for this education! Don’t blame me – I voted against it. Write your Congressman.  Or Trustee);

Your comments to this site made the Presidential Power blog one of the top 50 blogs for  political science students .  (Admittedly, this from a site that offers “online degrees”.  And there’s probably only 50 blogs dealing with political science, but nonetheless….besides, the progressive FiredogLake website likes us too!)

You listened to my lecture on the consequences of a legal career (the rhinoplasty to repair damage from cocaine inhalation, the estranged children, the massive debt, the adultery with the pool boy, the long hours writing briefs defending BP [“It was just a little spill! In Louisiana, for god’s sake!”] and, of course, the terminal cancer) and still asked me for a letter of recommendation to law school;

You wondered, after hearing my lecture on the American Revolution, during which I quote from memory and with perfect inflection Captain Kirk’s famous speech about the Constitution– “We, the PEOPLE!… Down the centuries you have slurred the meaning of the words!”: “Who’s Captain Kirk?”;

You understand why, despite your parents’ skepticism, political science is considered the “queen” of the social sciences, and why four years studying it has better prepared you to improve the world than if you had chosen any other major (but especially economics) – unless you blow it and go to law school;

You didn’t take my word for it, but asked for evidence;

You didn’t make me explain “Teabagging” during my lecture on the Tea Party movement;

You gave me a gift of a bottle of scotch after the final class lecture that wasn’t Old Smugglers and didn’t come in a plastic bottle;

You learned, from my grading policy, that 90% of success in life comes from just showing up;

You figured out that my political views and partisan affiliation are exactly the same as yours;

You entered my blog contests for a chance to win an “It’s the Fundamentals, Stupid!” t-shirt, and then sent me a picture of you wearing your prize.

You stifled a gasp when entering my office, and managed not to fixate on the coffee stains and food remnants.

You laughed at my jokes (“So these two hunters from Ripton went searching for bear….”) even after hearing them four times.

You understood that when I hectored you in class, it was to make a broader teaching point, and not (necessarily) to put you on the spot, (although your discomfiture was an added benefit);

You acknowledged that in the celebrated Dry-Dickinson exchange regarding Sarah Palin, I had the stronger argument;

You remembered not to bring your Strawberry, U-Pad or other handheld device to exams;

You wrote me a seemingly endless stream of emails before exams, asking all the questions that the other students wanted to ask but were too lazy (or nervous) to do so;

You realize that when we next see each other, I will have completely forgotten your name, but will remember everything you ever said to, or wrote for me, during your entire four years at Middlebury.  (Which means at our next meeting you must greet me by first telling me who you are.)

You compensated for my failed efforts, in the biannual election night presentations at the Grille with my colleague Bert Johnson, to avoid allowing the event to turn into a giant pep rally for a party or candidate, by bringing me free beer all night long;

And, finally, you taught me more than you realize during your four years here.  Students often don’t appreciate that our interactions with them provide the impetus and the spark for keeping up with developments in our field of interest, as well as learning about related events (like how to acquire The Cable).  The questions you ask me often became the source of lectures (or blogs!)  In short, education at Middlebury is an interactive process – a two-way street – from which I benefit as much, or more, than do you. That is why I stay in this job despite the fact that, as you all know, I work for free.

So, assuming you don’t get heat stroke today, let me end by sending you – My Favorite Student – best wishes in all your future endeavors.  Do stay in touch, and remember to thank your parents for getting you vaccinated, for rousing you out of bed for all those 5 am trips to the skating rink; for the endless piano lessons; for reminding you to finish those application essays; for instilling a strong sense of values based on discipline, hard work, and rooting for Boston sports teams; and for forking over the $76,000 a year (none of which went to me) to attend Middlebury College.  They did all this because they love you and they want to be sure you don’t have to move back home again.

And parents, you should realize that although you won’t ever see that money again, and that your kids are in fact going to move back home for a bit, it was money well spent.  Contrary to what you probably believe deep in your soul, you have not squandered your retirement, and your child did not waste four years by majoring in political science.  Read the papers.  Listen to the news.  More than any other discipline, it is politics that most determines whether tomorrow will be an improvement over today.  Your child has a head start in fulfilling that promise.

So, to paraphrase the late, great Richard Neustadt, “Trust the kids.”  After all, you were one too and look how your life turned out!  (Ok, never mind ….)

P.S. To My Favorite Student: If you would like to continue to get direct email notifications of new presidential power blog postings, please remember to provide me with an updated email before your Middlebury email expires. And the same goes for you parents out there who also wish to get blog notifications.  Unlike the Middlebury alumni office, I’ll never ask for money.  (But I won’t turn down an endowed chair!)

Good luck, stay in touch, and may your scotch bottle never run dry…. .

Blair Fails to Find the Philosopher’s Stone – Will Obama Keep Looking?

The recent resignation of Dennis Blair, President Obama’s national intelligence “czar”,  is no surprise, given the near impossible job he was tasked to do. Blair lasted barely a year as Obama’s chief intelligence officer, after taking office amid much fanfare and promising to change the intelligence gathering system. Although media reports blamed his resignation on the fallout from the Christmas Day crotch-bombing incident, its roots – as I’ve suggested in previous posts on this topic – run much deeper.  Blair’s demise is a reminder that bureaucracy may be the less sexy side of presidential politics, but in important ways it often determines whether presidents succeed or fail.  As evidence, consider the major events of the Bush presidency: the intelligence failures underlying 9-11, the mistaken belief that Iraq possessed WMD’s, the botched response at all levels of government to Hurricane Katrina – these are all fundamentally bureaucracy failures.  Similarly, in addition to the Crotch Bombing incident, we see Obama suffering political fallout from charges of lax government regulation of mines and of off-shore drilling.  In both instances, his response has been to shake up the relevant bureaucracies.

So bureaucracies matter in ways that presidents rarely understand when they take office, but inevitably discover when they are suddenly held accountable for the organizational failures that take place on their watch.  In Blair’s case, a Senate committee investigating the Crotch-Bomber incident focused on two areas: the failure to share information across intelligence agencies, and the FBI’s handling of the Crotch Bomber’s interrogation.  But these were only the most immediate manifestations of a more fundamental problem: finding the means to fulfill the coordinating role entrusted to Blair is, as the great public administration expert Harold Seidman put it more generally, the equivalent of the search for the philosopher’s stone.  That is, it doesn’t exist.

As Director of National Intelligence, Blair was ostensibly responsible for coordinating the 17 federal agencies of the U.S. intelligence community, including the CIA, the FBI and the Department of Homeland Security.  His office included the National Counterterrorism Center (NCC).  In its analysis of the Crotch Bombing, however, the Senate Intelligence Committee concluded  that the NCC was “not organized adequately to fulfill its missions.”

Although Blair had responded to these criticisms by making a number of organizational changes, they did little to overcome the fundamental problem that led to his resignation: he had a near-impossible job. The reason is that the various operating agencies responsible for gathering intelligence see little reason to compromise their autonomy by “coordinating” their efforts with other agencies.  Nor do they want to cede authority to a coordinating office, and with good reason.  Despite his lofty title, Blair had few tools to enforce that coordination.  When he tried to intervene on the CIA’s turf by clearing decisions regarding placing agents overseas, CIA director Leon Panetta rebelled and the White House backed Panetta. And, by blurring responsibility for decisionmaking and slowing the dissemination of information, the DNI’s office arguably impeded the ability of intelligence agencies to make use of actionable intelligence when they had it.  Moreover, much of the nation’s intelligence apparatus is run out of the Pentagon, which lies outside the DNI’s purview.

History shows that coordinating agencies work best, if at all, when they remain small, engage in no operational activities and posses the political clout – especially presidential backing – to enforce decisions.  (I’ve written about one such success: FDR’s appointment of James Byrnes to coordinate war production during World War II.) The best coordinators act much like judges, adjudicating disputes between agencies, but not trying to make decisions for them or to absorb their operational functions.  To do so, however, they must have the President’s unqualified support.  The DNI’s office, as it developed under Blair, possessed none of these qualities.  Instead, he seemed determined to expand its operational capacities.  And Obama repeatedly backed other agencies in their disputes with Blair.

The frustrating part of this story is that it was all too predictable. Indeed, this is latest in a string of efforts by presidents – almost all of which have failed – to bring bureaucracies to heel by entrusting coordinating authority to a White House-level czar.   In Obama’s defense, he inherited the coordinating structure from the Bush administration, which reluctantly established the DNI and NCC under pressure from Congress in the aftermath of the 9-11 attacks.  But I see no evidence that Obama recognizes the root of the problem.  Why should he?  Among modern presidents, he took office with perhaps the least amount of executive experience, and thus far has shown little evidence that he understands how government agencies work. Having nominated Blair amid much promise of change, Obama then undercut his authority by backing Panetta and other intelligence agencies that resisted DNI oversight.  And the White House was quick to shift blame to Blair’s office in the aftermath of the Crotch Bombing attempt.  These actions eroded what little authority Blair had.

It is easy to blame the President for bureaucracy failures. (See Bush!) In truth, the intelligence coordinating system Obama inherited was designed in large part by Congress, although it has subsequently evolved by growing larger and taking on operational duties in ways that its legislative creators did not intend.  But if Obama lacks the expertise to fix the problem, there are those in Congress who understand the issues (Representative Jane Harman comes to mind).  So far, however, their advice seems to have been largely ignored.  As a result, I’m afraid Obama will continue his fruitless pursuit for the philosopher’s stone, with consequences that are likely to be far reaching for his presidency, and for the nation.

Who Really Won Tuesday’s Elections? Parsing the Spin

Who really won Tuesday’s elections?

A. The Democrats did.   Despite all the talk of the coming Republican wave, they held onto John Murtha’s 12th congressional district Pennsylvania seat, with Democrat Mark Critz actually doing better than polls expected, besting Republican Tim Burns 52.6%-45.1% despite a concerted Republican effort to take this seat.  In Senate races in both Pennsylvania and Kentucky, meanwhile, Democrat turnout easily trumped Republican turnout, and it was up in Arkansas over previous Democratic primaries – a good sign that Democrats are poised to come out in force the upcoming midterms.

B. The Republicans did.  Once again, President Obama – the titular head of the Democrat party – pulled his now familiar Al Pacino impersonation, issuing the kiss of death to a Democrat candidate running in a statewide election. This time the victim was Arlen Specter, who switched parties in 2009 in part on the understanding the Obama would support him in the Democrat primary and that Democrats would clear the primary field for him.  Someone forgot to tell Joe Sestak.  Although Obama backed Specter, Specter still lost to Sestak, 54%-46% – a bigger margin than polls had forecast.  The lesson seems clear: when Obama campaigns, his candidate loses – exactly what Republicans want to see heading into 2010.  Moreover, Critz’ victory in the 12th district was largely fueled by Democrat turnout for the up-ballot Sestak-Specter Senate primary race, rather than for any particular support for Critz.  Come November, when the two square off again, Burns will benefit from a more balanced partisan turnout.

C. The Progressives did.  Sestak’s victory in Pennsylvania against an establishment Democrat backed by the party stalwarts, including the President, is evidence that Democrats will do better come November by running to the Left, not to the Center. In Arkansas, meanwhile, conservative incumbent Democrat Senator Blanche Lincoln could not break the 50% mark in the Democrat primary, in narrowly winning Tuesday’s race, 45%-42% over the more liberal Lieutenant Governor Bill Halter. Her margin was not enough to avoid a runoff election with Halter. These Senate races indicate that it will be better for Democrats give voters a real choice rather than simply the thinly-veiled warmed over Republican-lite policies espoused by Lincoln and Specter.

D. The Tea Party did. In Kentucky, although the Republican establishment led by Senator Mitch McConnell threw its collective weight behind Trey Grayson, libertarian candidate Rand Paul – backed by the Tea Party – crushed Grayson 59%-34% in the Republican primary in a race characterized by unusually heavy turnout.  In his victory speech, Paul promised not to back away from the Tea Party’s ideals of smaller, less intrusive government when running in the November Senate election.

In the days following Tuesday’s election, all four scenarios received backing in pundits’ sermons – which homily one heard depended on which particular Church of the Blog/Media Pundit one attends. By now, of course, you should know that I’m usually skeptical of efforts by pundits to weave a single narrative to explain election results that often are driven by different contextual factors.  This is particularly the case when we are dealing with special elections, as in Pennsylvania’s 12th congressional district, or elections with their own unique twist, such as a Democrat primary involving a former Republican senator.  Because these elections turned on somewhat unique circumstances, they likely defy a single explanation.  In this respect, all four explanations presented by various pundits may contain a kernel of truth, but none likely explain all the results.

And yet, I think the results are consistent with a particular hypothesis, one I’ve been cautiously developing as election results begin to trickle in. For some time, I’ve been skeptical that voters appear willing to turn on a dime – that is, that they will reverse the pro-Democrat direction they seemed to embrace in successive national elections beginning in 2006.  The more I analyze recent election results, however, the more I wonder whether what we are seeing is not a reversal of 2006-08 – it’s a continuation of that election cycle, one in which voters expressed anger at the party-in-charge by voting them out.  In the aftermath of the financial meltdown, the unprecedented budget deficit, and the perceived failure (true or not) of the government stimulus bill and bank bailout bills to create jobs or reduce home foreclosures, that anger seems only to have grown.  Now it is directed primarily at Democrat incumbents, but the motivation hasn’t changed: it’s “throw the bums out!”  Consider the following statewide election results table (contested Senate races only):

CONTESTED SENATE RACE THIS YEAR Did Incumbent/Establishment-Backed Candidate Lose?
Massachusetts Senate Race to Replace Kennedy YES
Illinois  Democrat Senate Primary NO BUT – Establishment candidate won only  38% of vote, with opposition candidates fragmenting support.
Indiana  Republican Senate Primary NO BUT – Opposition fragmented vote; Establishment candidate won with only 39% of the vote
North Carolina Democrat Senate Primary NO BUT- Establishment Candidate wins 36% of vote, Runoff to be held June 22.
Utah Republican Convention (to Determine Republican Senate Primary Nominee) YES
Pennsylvania Democrat Senate Primary YES
Kentucky Republican Senate Primary YES
Arkansas Democrat Senate Primary NO BUT – Incumbent wins only 46% of Vote. Runoff to be held June 8th

Now, there are self-selection effects here; contested races are typically those in which the incumbent is vulnerable or in which the seat is open.  So I don’t list races, such as Tuesday’s Oregon Democrat Senate Primary in which the incumbent Ron Wyden easily won renomination after facing no opposition.  Moreover, eight Senate primary races do not constitute enough data points to detect a trend.  Nonetheless the results, to date, are consistent with a common theme: there is a strong anti-incumbency tide driving electoral outcomes, regardless of party.   Moreover, I could go back further and cite off-year gubernatorial races in New Jersey and Virginia as consistent with this interpretation.

The anti-incumbency/establishment sentiment is the simplest explanation for Tuesday’s results, but one that is easy to miss because of analysts’ tendency to view politics through a fairly comprehensive and quite developed ideological lens. (Note that the major media outlets mostly framed the results as sending an anti-incumbent message, even if bloggers did not). That is, pundits on the Left and the Right tend to have a logically-constructed world view, one in which they view separate election outcomes as validation of a single political ideological scenario.  From this perspective, when voters vote, they do so because they support a particular set of policies and the candidates who espouse them.  So, in 2006 and 2008, the country sent a clear signal that it embraced Democrats because it wanted to move Left, toward the policies espoused by Democrat candidates: more government regulation of the financial sector, more government spending on jobs, health care reform, etc.

On Tuesday, however, we see races won by a Tea Party candidate, a Left-leaning Democrat and more mainstream candidates.  How to make sense of this?  What ideological signal is being sent?  Keep in mind that unlike political pundits pontificating on cable and in the blogosphere, most voters don’t, in fact, have a clearly developed world view.  In the parlance of political science, they exhibit little “attitude constraint”. That is, they are quite willing to hold views that are logically inconsistent and to vote in ways that seem somewhat contradictory, as in supporting Democrats in 2008 and Republicans two years later.  (I’ll develop this point in a later post that dissects the Tea Party ideology).  This does not mean Joe and Jane Q. Sixpack are voting randomly, without much thought.  In fact, if I’m right – a big IF – there is a very simple, consistent logic driving their vote through the three most recent election cycles, at least so far.

As further evidence that voter anger is driving results, consider that turnout was up in at least two of Tuesday’s contested elections. In the Arkansas primary, more voters showed up than did during the state’s 2008 presidential primary. In Kentucky the proportion of registered Republicans voting in the primary was actually greater than the proportion of registered Democrats for the first time in decades (although the absolute numbers of Democrats was higher, consistent with their higher overall numbers in the state.)  I don’t have Pennsylvania turnout figures as yet, although indications are that it was light.

Whether one agrees that Tuesday’s results are consistent with the motivations of voters in 2006 and 2008, I believe the unifying theme of Tuesday’s elections was voter anger directed at incumbents or those who are stand-ins for incumbency.  Americans don’t want ideologies, they want results, and they aren’t particularly choosy about who brings them those results.  In this respect, I think the Tea Party has probably come closest to tapping into a growing voter anger in part because as a social movement encompassing a diverse if combustible mix of elements – libertarianism, fiscal conservatism, populism and yes, even a touch of racism (but not, interestingly, moral conservatism) – it has proved flexible and adaptable enough to embrace candidates of different political stripes.  And yet we shouldn’t overstate the degree of support it has among those likely to vote in the general election come November. Many of those potential voters have not yet begun paying attention to the current electoral cycle and when they do the economy may be on the upswing.  For now, however, the Tea Party may represent the culmination of voter backlash dating back three election cycles, but if so they are only a symptom of that discontent – not the driving force.  I do not think they have the numbers to consistently focus that discontent in a particular direction – at least not yet.

So who really won Tuesday’s elections?  Angry voters did.

Revisiting Earlier “Specter-lations” on the Eve of the Pennsylvania Senate Primary

One advantage political scientists have over the media or pundits is that we have the luxury of revisiting earlier projections/explanations in light of new data or theorizing.  This is an advantage when writing a blog that tries to focus on the fundamentals driving political events rather than simply opining on the latest topical event.  In particular, when my projections prove wrong (a not infrequent occurrence as long time readers know), I see that as an opportunity to learn in the hope of increasing our understanding of political processes and outcomes.    At least that’s the goal.

In this vein, with voters scheduled to go to the polls in tomorrow’s crucial Democrat Senate primary in Pennsylvania (and in Senate primaries in three other states) , I thought it worthwhile to revisit several posts I wrote almost two years ago regarding Senator Arlen Specter’s decision to switch from the Republican to the Democrat party.  At the time I suggested that Specter’s switch was driven by electoral considerations, not ideological ones.  He was reacting to polling data indicating he would lose to the more conservative Pat Toomey in the Republican primary, so he changed venues to run in the presumably less challenging Democrat primary.  That switch, I suggested, would not appreciably change his Senate voting habits.  Here’s what I wrote:

“If I’m right, Specter’s voting record should keep him somewhere in the middle of the Senate pack, ideologically, over the course of the next two years.  If my poli sci colleagues are correct, he should move sharply left closer to the middle of the Democratic Senate voting ranks (say, into Dianne Feinstein/Harry Reid territory).   So we can revisit this issue in two years!”

Almost two years have passed.  How well did my prediction turn out?  Not very well at all.  In fact, based on Jeff Lewis’ roll call data, summarized in this chart by Simon Jackman, Specter’s voting record eventually shifted Left after his party switch, toward the middle of the Democrat Senate caucus, very close to Feinstein territory.  (Yes, this chart summarizing ideological placement based on roll call votes does not differentiate between significant and less significant votes, but it is a widely-used marker of relative ideological placement nonetheless.)


Why did I suggest Specter’s voting record would not change very much, and why was I wrong? When in the days after his switch Specter was one of four Democrats to vote against the Obama-backed budget resolution, thus appearing to validate my initial projection, I wrote: “So far, his biggest fear is not from the unknown candidate in the Democratic primary (he’s evidently counting on the Democratic Party clearing the field for him) – it’s from his likely Republican opposition in the general election.”

In my defense, then, at the time I made my initial projection that Specter would not change his voting spots, I assumed he was primarily focused on a challenge from the Right, not the Left.  As I warned at the time:  “Of course, if he gets a credible challenger on the Left in Pennsylvania, then all bets are off!”  However, I discounted a primary challenge in the belief that the Obama administration had negotiated a deal with Pennsylvania Democrats to give Specter an open field to the Democrat nomination.

That assumption turned out not to be true.  Since Specter’s switch, we have been reminded just how little clout presidents have in local party affairs, and  how the decision to run on the party label for a Senate seat in American politics is no longer controlled by party leaders.  Specter in fact faces a very credible challenger on the Left in the person of Joe Sestak. At the same time, my projection was made before the full scope of the anti-incumbent wave that now appears building in the run up to 2010 became evident. Not only does Specter face a primary challenge – if the latest polls are to be believed, he is in danger of losing! Although Obama has kept his promise to back Specter (and has even run ads on Specter’s behalf), the latest composite polling graph has the Democrat Senate primary in a virtual dead heat between Specter and Sestak.

Now, there are between 10-15% of undecided voters in these polls, so Specter may yet pull this primary out. Nonetheless, this is a far cry from the “open Democrat field” on which I premised my earlier projection. The irony is that Specter’s move left did nothing to dissuade Sestak from opposing him, and yet has likely made it more difficult for Specter to win the general election; even if he beats Sestak in the primary, polls indicate he will lose the general election to the Republican Pat Toomey.  It would have been far better for Specter’s electoral fortunes, I think, had he maintained his traditionally moderate voting record.

There are two important points to take home here. First, Specter’s potential demise – either at the hands of a Liberal Democrat or a Conservative Republican – is another reminder why we have a polarized Senate.  It’s not because voters in a general Senate election are more polarized – it’s because they often are forced to choose between two relatively polarizing candidates.  One could argue that neither Sestak nor Toomey are as broadly representative of the median voter in Pennsylvania as is Specter, but that may not matter if Specter’s not on the ballot in the general election.

Second, the signs continue to suggest that the anti-incumbent sentiment is shared by enough voters – not all of them Tea Party supporters – to make 2010 a potential “wave” election year.  Of course, as I have continually cautioned, it is easy to make too much of individual races. If Specter loses, pundits will undoubtedly suggest this is another indication of Obama’s weak political influence. Given the general anti-incumbent trend, and the historical inability of presidents dating back to FDR to influence midterm races, I’m not sure it’s accurate to lay the blame at the White House’s doorstep.

Nonetheless, after tomorrow’s Senate primaries (along with Pennsylvania, there are primaries in Kentucky, Arkansas and Oregon), and the Special Election to fill the U.S. House  seat in Pennsylvania’s 12th district formerly held by Representative John Murtha, Jr. (Murtha died last February), we will have a bit more information with which to try to assess the lay of the electoral landscape.  If I can, I’ll try to summarize the results when the polls close Tuesday night.

Meanwhile, with only four predictions in, I’ve extended the window on forecasting the Kagan confirmation vote for another week.  Remember, if you are a graduating senior, your job prospects will undoubtedly be helped if you nail this projection.  I am told that Mike Norris, a previous contest winner, used his victory to get a lucrative (six figures) job working for Bill Gates as a technology forecaster.

Will Kagan Be Confirmed?

In thinking in an earlier post about Justice Stevens’ replacement, I suggested that Obama would likely choose the most liberal woman he could get through the Senate.  I had in mind either his eventual choice, Elena Kagan, or Appeals Court Judge Diane Wood.  My guess is that Obama would have preferred Wood, who has a demonstrably more liberal outlook than Kagan, but at age 59, Wood’s judicial shelf-life is likely shorter than Kagan’s, who is only 50.  So Kagan, currently Obama’s Solicitor General and the former Dean of the Harvard Law School, gets the nod.

The question now becomes: will Kagan be confirmed by the Senate?  Note that she has already gone through Senate scrutiny once, when she won confirmation as Obama’s Solicitor General in March, 2009 by a vote of 61-31.  Both supporters and opponents of her nomination as Solicitor General, however, have noted that they believe that the criteria for a lifetime appointment to the nation’s highest court differ from considerations for a political appointee who leaves office with the president.  So we can’t necessarily use the previous vote as a benchmark for predicting her court nomination vote

As a court nominee, Kagan brings several strengths to the table:  she has some executive branch experience, both as solicitor general and from her four years working as a White House legal counsel and domestic adviser to President Clinton. Presumably she possesses a greater appreciation for the executive branch’s perspective on court rulings, particularly when it comes to implementing those decisions. Lacking time on the bench she has very little in the way of a judicial paper trail that can be used against her.  Some progressives may cite an abortion memo she wrote for Clinton as a mark against her, but I doubt any Senate Democrats will hold this against her.  And in her brief stint as Dean of the Harvard Law School, she reportedly demonstrated skill at coalition building.

At the same time, however, some of these strengths can also be viewed as weaknesses.  Despite Senate Judiciary Chairman Pat Leahy’s claim that Kagan will bring much needed diversity to the Court, she in fact has spent most of her professional life cloistered in academia, and her Ivy-League education (Princeton B.A., Harvard Law School J.D.) doesn’t exactly inspire confidence that she understands the concerns and hopes of Mr. and Mrs. Joe Sixpack. If confirmed, she will add still another Harvard law degree to a bench composed solely of Harvard or Yale-taught judges.  As Dean of Harvard Law School Kagan became embroiled in the “Don’t Ask , Don’t Tell” controversy by supporting the school’s policy of banning military recruiters from campus as long as the military prevented openly gay individuals from serving.  Harvard’s policy was rescinded only after Congress, with the support of the Supreme Court, threatened to block government aid to the schools who prevented the military from recruiting on campus.  And there is undoubtedly other material in her otherwise sparse legal writings and decisions as Solicitor General that can be used against her.

Is this enough material to mount a challenge to Kagan’s nomination?  It is if the Republicans view opposition to be in their political interest. Frances Lee, a political scientist at Maryland, has recently written an interesting book titled Beyond Ideology:  Politics, Principles and Partisanship in the U.S. Senate in which she argues that in this era of strongly unified congressional parties, the electoral fortunes of both Democrats and Republicans are increasingly linked to the President’s ability to get his legislation through Congress.  Lee’s argument, I think, can be extended to a president’s judicial nominees.  As a party, Democrats benefit if Obama’s nominee is confirmed, and Republicans gain if her confirmation is blocked.  This means that as we head into the stretch run to the November midterm, Republicans are less likely to view Kagan’s nomination in terms of her judicial philosophy, since she isn’t likely to change the ideological balance on the Court in any case, and instead use the confirmation hearings as an opportunity to remind voters why Republicans offer a viable alternative to the Obama-led Democrats. The key question becomes how to frame their opposition. In my view, Kagan’s weakness is not her judicial record or paper trail – she doesn’t have much of one – or her ideology (most observers peg her as a pragmatic liberal but there’s a lot of squishiness here).  Instead, I think Republicans will attack her for being part of the northeast intellectual “elite” that lacks empathy with “ordinary” Americans across the country.  They will try to paint a picture of Kagan in which her upbringing, her professional life, her opposition to military recruitment and her F.O.O. (Friend of Obama) credentials will all be combined to portray her as a judge who will be out of touch with the interests of the “common people” living in Smalltown, USA.

Will such a strategy work?  Recall that Sonia Sotomayor was confirmed with a vote of 68-31. All Democrats who voted supported her. Nine Republicans, listed here, also voted for Sotomayor, while 31 – including then Republican Arlen Specter, opposed her.  I’m assuming that no Republicans who opposed Sotomayor will vote for Kagan.  That leaves the nine Republicans listed here as potential swing votes.

Republicans Voting to Confirm Sotomayor

Sen. Lindsey Graham (S.C.)
Sen. Lamar Alexander (Tenn.)
Sen. Christopher Bond (Mo.)
Sen. Susan Collins (Maine)
Sen. Olympia Snowe (Maine)
Sen. Richard Lugar (Ind.)
Sen. Mel Martinez (Fla.)
Sen. Judd Gregg (N.H.)
Sen. George Voinovich (Ohio)

As a woman and an Hispanic, it was hard for moderate Republicans to vote against Sotomayor.  I think it will be easier for some of them to oppose Kagan, so I expect the Republican “no votes” to increase above 31.  How much above?  I’ll set the over/under at  35 votes (all Republican) in opposition.

Ok, it’s time to weigh in.  Give me your thoughts on the Kagan selection, and the likely number of votes in opposition to her confirmation.

As usual, an “It’s the Fundamentals, Stupid!” Presidential Power t-shirt – modeled here by Mike Norris, a previous contest winner – is at stake. (Notice the “Thanks Teddy” poster in the background of Mike’s picture – undoubtedly a reference to Teddy Williams, the great Red Sox outfielder).  In case of ties the winner will be determined by a coin flip.


Contest open until Friday – get your votes in!