Beto, We Hardly Know Ye!

This is the second of a two-part post recounting my visit to a Beto O’Rourke house party in the New Hampshire lakes town of Meredith.  You can read the first post here. In this post I’ll describe what I saw and heard after Beto arrived.

Reminder:  Unless in quotation marks, I’m paraphrasing what I heard, based on notes taken at the time along with my live tweets.

Beto entered the living room as the staff-led chant of “B-E-T-O Let’s Go Beto!” reached a crescendo (which they had to hold for a bit longer than anticipated when he stopped just outside the door to greet a visitor).  In person Beto appears slightly taller than I expected based on media clips, and thinner as well.  Although this was his 4th campaign stop of the day, he showed no signs of fatigue; rather, he exuded an earnestness and energy that border on hyperactivity.   His staff positioned him in the center of the living room, where he could make eye contact with the circle of people around him and on the overhanging balcony.

Beto Surveys The Room

 After a few opening remarks commenting on the excessive size of New Hampshire mosquitoes, and the beauty of the surrounding landscape (“I certainly came at the right time of year!”), he launched into his campaign spiel, which was fascinating both for the breadth of topics he covered and the almost-stream-of-conscious manner in which he presented them.  He began by noting that he had attended a Lights for Liberty vigil the previous night, and it was a reminder of the danger our democracy is in when children who have committed no crime are incarcerated by the government.  From there he segued into a reminder of the Civil Rights Movement’s accomplishments a half century ago, and linked that to the need to expand access to health care while making it more affordable (here he related the story of Petra, a special needs child who would need a lifetime of health care which would be unaffordable without caps on lifetime healthcare spending), and to maintain access to abortion clinics and to clean drinking water before turning to education policy and student debt.   After listing these problems, he asked, rhetorically, how do we meet the challenges?  Here he touted his own candidacy, focusing on his race in Texas where he came within 2.5% of unseating Ted Cruz, and noted he did so by running a campaign in which he visited all the counties in Texas.  He emphasized his belief in hearing all voices, which was the centerpiece of his campaign, and he boasted that he had unlocked Texas’ 38 electoral votes.

Beto then opened the floor for questions.   Interestingly, while the questions weren’t confrontational, they did push Beto to clarify or defend his positions – these weren’t softball tosses.   The first question came from an individual who had benefited under the Affordable Care Act (he had treatment for a heart condition) and worried about losing his private health insurance.  This issue has become something of a fault line among Democrats, pitting the more “moderate” candidates like Biden versus the progressives led by Warren and Sanders.  (It is fascinating, however, when you consider that Biden’s “moderate” position includes moving toward a public option – an issue that was viewed as too radical to be part of Obamacare in 2009.)  O’Rourke said we need to move toward universal coverage, but maintaining choice as we do.  Health care, he said, should be high quality, guaranteed but also allow those who like their current doctors to keep them.  Low-income individual should have the right to enroll in an expanded Medicare program, while maintaining the current system of private care.

He was then asked what he would prioritize as president, and like Biden earlier in the day, O’Rourke highlighted climate change, which he described as an existential crisis.  Here he mentioned that this was an issue that was particularly pressing to the younger generation, and he cited his concerns for his own children, ages 12, 11 and eight. 

Would he ban LBGT “conversion therapy”?  Beto: “Yes” – and he used this topic to address the need to prosecute hate crimes.

How would he address the Palestinian-Israeli conflict?  (The questioner prefaced this with a condemnation of Israel’s occupation of Palestinian territory. A follow up question from another individual also touched on this topic.)  O’Rourke said he would pressure both parties to accept a two-state solution, which he argued is the only viable resolution, but said it was also important to understand that the U.S. could not “impose” a solution – it could only assist the two parties in achieving their own resolution.  He acknowledged that he did not support the BDS (Boycott, Divest and Sanctions) movement. Here he noted the need to lead by example, and criticized the Trump Administration for providing aid in support of the Saudi intervention in the Yemen civil war.

How would he tackle the pending insolvency in entitlements program without adding to the deficit?  O’Rourke would raise the caps on income tax for Social Security and would rescind the Trump tax cuts, and use the additional revenue to shore up entitlement programs.

On foreign policy, he criticized the Trump administration, noting that the Obama nuclear deal with Iran was about as good as we could get and that engaging in a trade war with China without allies is a bad idea. 

Did he support compulsory voting?  No.  Instead, he wants to make it as easy to vote as possible, through same-day registration, making Election Day a national holiday, strengthening the Voting Rights act, ending gerrymandering, and upgrading election security, including paper receipts for voting.

Finally, he was asked what kind of a leader he would be?  Here he emphasized the importance of setting the proper “tone” and he cited his interaction with voters in New Hampshire, and the need for accountability to the voters, as indications of how he would lead.  Democracy, accountability and service were his watchwords, and he promised to pursue the national interest, rather than catering to the polls.

When the Q&A ended, he went out on to the deck for the obligatory selfies.

Lining Up For the Obligatory Selfies! Don’t Worry – He Has Staff For That!

Here he is with another local politician of note.

She’s A Politician Of Note In Vermont

I came away impressed by Beto’s knowledge of policy and his rapport with voters. For someone who came on the national stage only recently, he is well-versed in national issues. More importantly, perhaps, he exudes an earnestness and likability that contrasts with the more polished – some might say cynical – veneer of established candidates like Biden. No wonder Beto’s very young staff clearly adores him. It’s been a while since I’ve seen a candidate who seems to embody the idea that politics is a force for good in a way that attracted younger voters.

And yet – he has not caught on. As we left, I was asked by a reporter whether I thought I was visiting a campaign that was in a downward spiral.  I replied that it was still early in the campaign, and that polls were not necessarily very predictive of outcomes at this stage. The reporter’s question is a reminder that if the press narrative deems O’Rourke candidacy no longer viable, it may very well become a self-fulfilling prophecy.   Since my visit to his campaign, two more New Hampshire polls have come out.  The St. Anselm poll has Beto at zero support, and the CNN/UNH has him at 2%.  Clearly, he has an uphill road to climb if he is going to break into the top tier of candidates here.  This puts even more pressure on him to have a strong debate performance in two weeks.

As we left, I took one last picture, capturing Beto in his best JFK pose. I could not help but wonder if the sun was setting on his candidacy, or that this is the dawn of a new era in American politics. To be continued…. .

Is The Sun Setting On Beto’s Candidacy?

B-E-T-O! Let’s Go Beto!

Beto O’Rourke broke into the national consciousness when, as a sophomore member of Congress, he challenged Republican Senator Ted Cruz in the 2018 Texas Senate race.  Although initially given little chance of unseating Cruz, O’Rourke parlayed an unconventional  grass-roots campaign (he visited all 254 counties in Texas) and savvy social media presence, fueled by record-breaking donations in outside money from Democratic activists, to come within 2.7% percentage points (220,000 votes out of 8.3 million cast, or roughly 53% of voters) of beating the sitting Senator.  That was the best performance by a Democrat for statewide office in several decades, and the evidence suggests that O’Rourke’s campaign boosted Democrats down ballot, with the Party picking up two U.S. House seats, two state Senate seats and 12 seats in the state House. While analysts continue to debate how much of the outcome reflected displeasure with Cruz and the changing demographics of the state more generally, the race immediately vaulted O’Rourke into national prominence.  

Now O’Rourke is trying to catch lightning in a bottle again, this time while running for President.  To do so, he is emulating his Texas campaign, by again adopting a grass roots strategy centered on voter outreach and funded by small donor activists.  So far, however, despite an initial burst of enthusiasm, and a significant haul in campaign cash,  in response to his March 14 announcement (complete with talking hands) on social media that he was seeking the presidency, O’Rourke has struggled to recapture the magic of his Texas campaign.   His support in the RCP aggregate national polls peaked at just under 10% in the immediate aftermath of his announcement, but he has since dropped to 2.5%, which puts him below the top five candidates in the race, including South Bend Mayor Pete Buttigieg, whose candidacy has stolen some of O’Rourke thunder, and funding, among small donors.

O’Rourke Is The Pink Trend Line

Nor was O’Rourke’s standing helped by his recent debate performance, where he found himself targeted by fellow Texan and former Housing and Urban Development Secretary Julian Castro for his views on immigration, specifically whether to repeal section 1325 of the federal immigration code that criminalizes illegal entry into the country.  Castro wants to make illegal entry a civil offense under most circumstances, rather than a criminal one, arguing that as currently written the law provides a justification for Trump’s policy of incarcerating parents who enter the country illegally and separating them from their children. O’Rourke is in favor of maintaining the code as it is to provide a legal means to prosecute those engaged in the drug trade and human smuggling. However, Castro claims individuals engaging in these actions can be prosecuted under different laws.  The exchange was prompted by moderator Jose Diaz-Balart’s asking, in Spanish, what O’Rourke would do on his first day as president. O’Rourke responded in Spanish by discussing his immigration policy, including his vow not to prosecute those seeking asylum in this country.  He had obviously prepped for this question, since he views immigration as one of the signature issues with which to different himself from Trump, and from fellow Democrats, particularly given his background in Texas. However, he seemed surprised by Castro’s attack regarding section 1325, and Castro’s charge that “If you did your homework on this issue, you would know that we should repeal this section.”   

As I have discussed elsewhere, how the media interprets debates, particularly when rendering verdicts regarding who “won” and who “lost”, can independently influence how these events are perceived by the public. In the media’s search for signature moments, it is easy for them to exaggerate the impact of one exchange in a two-hour debate.  So I was curious to hear O’Rourke on the campaign trail, without the media filter.   Toward that end, we left the Biden rally last Saturday and headed north to New Hampshire’s lakes region, where O’Rourke was scheduled to host a “town hall” in Meredith, a picturesque town nestled on the shore of Lake Winnipesaukee. It turned out, however, to be more properly characterized as a house party – one of the signature events in New Hampshire in which a party activist hosts a candidate for the opportunity to interact in a more personal setting.  

After a long day on the road, and the heat of the Biden rally, we could not help but be impressed by the beautiful (and much cooler!) setting when we finally arrived.  

This Is How To Hold A Campaign Event!

This was the last event of the day for O’Rourke and we were curious regarding what kind of turnout he would get, particularly since we had been told that this was “Trump” territory (he won Meredith in 2016 over Clinton, 2160 to 1,709.)   When we arrived we were greeted by a young, enthusiastic but very professional staff, who signed us in, gave us a Beto sticker and then ushered us into the house to await Beto’s arrival.  There were about 20 people when we arrived, but the number soon swelled to close to 80 or more, and we were encouraged to move closer into the living room to allow space for late arrivals.  I took the opportunity to canvas my fellow guests.  Several were from out of state – two from California! – and they said they were there primarily to see what Beto was like, but were not necessarily supporting him.  In the center of the room, Beto’s staff had handed out Beto signs, including to one to this very young voter, which generated much cooing and smiles from all of us.

And then we were told Beto had arrived, and the staff led us in a chant of “B-E-T-O! Let’s go, Beto!” which rose to a crescendo as he entered the building.  In my next post I’ll describe his stump speech, and the audience reaction.


The Times, We Are Campaigning! (Starting With Biden)

Those readers familiar with my 2016 election coverage remember that I strongly believe that to fully understand a presidential candidate, it is necessary to see them in their natural environment: on the campaign trail, speaking to, and with, voters.   Without attending the rallies, it is easy to let prior assumptions drive election analysis, as happened to me when I initially failed to understand the scope of and reasons for Trump’s support, and instead was too quick to write off his presidential candidacy.  (For my analysis of what I saw and heard at his campaign rallies, see here). Direct observation also helps sidestep the influence of a media that is often too eager to fit a campaign event into an existing narrative that may not fully capture what actually occurred.

With that in mind, and given that the “invisible” primary has become slightly more visible (thanks to the first set of debates (see my debate analysis here), once again I’ve begun my quadrennial madness, dashing from campaign event to campaign event in order to give you an unvarnished (as much as possible) ringside seat for what is shaping up to be another fascinating, and portentous, election.  My initial focus will be on the Democrats’ side of the nominating process, since that is where the action is.  We begin with my visit to a Biden campaign event in New Hampshire, once of several he held in the Granite state yesterday.  Biden, of course, was coming off a subpar debate performance two weeks ago highlighted by his exchange with Senator Kamala Harris regarding mandatory busing to integrate public schools – an exchange that, as replayed by the media, likely contributed to a post-debate erosion in Biden’s polling support.  Much of the polling support Biden lost appeared to move to Harris, as she saw her polling numbers increase by about 8%, pushing her into a virtual tie for second in national polls, with Sanders and Warren.

RealClearPolitics Polling Averages

So, I was eager to see how Biden would respond in the aftermath of the debate.  Would he continue to position himself as a front runner, focusing primarily on his ability to beat Trump?  Or would he respond to the attacks by his Democrat rivals?  As it turned out, he did a little of both.  (As always, in writing these posts I am relying on contemporaneous tweets send out by me during the event, notes taken by my fellow campaign analyst and wife Alison, and my increasingly faulty memory.  All references to statements by others are paraphrased, unless in quotation marks.)

We arrived at Mack’s Apples, a picturesque little farmer’s market in Londonderry, just as Biden launched into his speech.  Although Biden was speaking from inside a small barn, most of the 300 or so people attending (but not the media) were outside, trying to stay cool on an extremely hot day. 

Inside The “Barn”

Biden prefaced his talk by saying he was in the race for three reasons: health care, climate change, and to bring the nation together. We did not hear Biden mention his Democrat rivals by name, but it was clear they were on his mind when he launched into a strong defense of the Affordable Care Act, arguably Obama’s signature domestic achievement, saying he would oppose any effort to replace it.  In a not-so-slightly veiled barb at his opponents who are pushing to supplant the ACA with some version of Medicare-For-All, Biden argued instead for strengthening and extending the existing health care legislation, in part by adding a public option, which he sees as both a less expensive and more politically feasible approach.  He also sought to link health care to criminal justice reform by emphasizing the importance of drug treatment as an alternative to incarceration for addiction.

He then turned to climate change, saying everything else pales in comparison.  He promised that the first act of the Biden presidency would be to rejoin the Paris climate accord, which generated strong applause from the audience. He noted that although the U.S. contributes 15% of global carbon emissions, it should use its position of influence to work with other nations to reduce overall emissions.  Trump, he argued, hurt this effort by isolating the U.S. and damaging relations with our allies – a pattern Biden pledged to reverse, citing his extensive experience on the Senate Foreign Relations committee. He also pointed out that there were immediate steps the country could take to curb emissions, such as increasing the number of charging stations for electric cars.  

Biden’s final point centered on an issue that has gotten him into difficulties with some of his opponents: the need to work with political opponents to get things done, which he sees as crucial to bringing the nation together. The President, he said – using language drawn straight from Richard Neustadt’s classic work Presidential Power “must be able to persuade.”   (At this point I tweeted that he had already earned my vote simply by quoting my dissertation adviser! – if I voted. Which I don’t.)  He defended the need for political pragmatism and pointed out that it was that focus on reaching across the aisle for support that led to Democrats’ victories in predominantly red states in the 2018 midterm elections.  He also made a plea to the millennial voters, arguing that they could have a transformative impact if they voted at the same rates as everyone else.  

Biden finished on a rhetorical high note by trying to draw contrasts with Trump and his political supporters. “We are for hope, they are for fear,” he roared, “We are for unity, they are for division” and finishing with “We are for truth, they are for lies!”   The music kicked in, and he waded into the small crowd in the barn to meet and greet, followed by a line for those seeking selfies with the candidate.

Biden Meeting and Greeting

Biden took no questions, and in total his talk lasted perhaps 15 minutes. This was a quick campaign stop wedged in among longer events he held in other spots in NH that day. In that time, however, it was clear that he was not apologizing for some of the stances for which he has been criticized, particularly his effort to position himself as the candidate best able to get things done, even if it means working with political rivals, and as someone with a voting record that supports that contention.  His tone was feisty, as he doubled down on what seems to be the core of his candidacy: that he has the best chance to beat Trump – a point reiterated by an older man when I asked him what he thought about Biden’s speech.  “It was great.” he said.  “He’s the only one who can beat Trump.”  “Well, that’s what he said,” I responded.  “He’s right,” the man replied.

It remains unclear whether Joe will get the chance to prove that claim, or whether Democrats will view him as too old, and too willing to compromise core Democrat principles as articulated by the more progressive wing of the party.  On the surface he remains as folksy and confident as ever, continuing to banter with the crowd from his SUV as he left the event. Meanwhile, we headed north to see Beto O’Rourke in action.  It was an entirely different campaign experience – one I’ll post about tomorrow.

Biden Has Left the Building!

On President’s Day, We Celebrate The Guardian of the Presidency

It is Presidents Day – a time to repost my traditional column commemorating the late, great Richard E. Neustadt. This year the post seems particularly timely, given President Trump’s decision to declare a national emergency in order to free up money to fund construction of a wall along the United States’ southern border with Mexico. Although Trump’s critics view the declaration as another sign of Trump’s authoritarian tendencies – a view consistent with many political science arguments regarding the effectiveness of unilateral presidential action, I suspect Neustadt would have a different reaction to Trump’s decision. He almost certainly would view it as a sign of presidential weakness – not strength. To understand why, it is worth reviewing Neustadt’s argument.

Until his death in 2003 at the age of 84, Neustadt was the nation’s foremost presidency scholar.  In his almost six decades of public service and in academia, Neustadt advised presidents of both parties and their aides, and distilled these experiences in the form of several influential books on presidential leadership and decisionmaking.  Perhaps his biggest influence, however, came from the scores of students (including Al Gore) he mentored at Columbia and Harvard, many of whom went on to careers in public service.  Others (like me!) opted for academia where they schooled subsequent generations of students in Neustadt’s teachings, (and sometimes wrote blogs on the side.)

Interestingly, Neustadt came to academia through a circuitous route that, unfortunately, is rarely used today. After a brief stint in FDR’s Office of Price Administration, followed by a tour in the military, he returned to government as a mid-level career bureaucrat in President Harry Truman’s Bureau of the Budget (BoB) in 1946, gradually working his way up the ranks until he was brought into Truman’s White House in 1950 as a junior-level political aide.  While working in the BoB, Neustadt took time to complete his doctoral dissertation at Harvard (working from Washington), which analyzed the development of the president’s legislative program.  When Truman decided not to run for reelection in 1952, Neustadt faced a career crossroads. With the doctorate in hand, he decided to try his hand at academia.

When he began working his way through the presidency literature to prepare to teach, however, he was struck by just how little these scholarly works had in common with his own experiences under Truman.  They described the presidency in terms of its formal powers, as laid out in the Constitution and subsequent statute.  To Neustadt, these formal powers – while not inconsequential – told only part of the story.  To fully understand what made presidents more or less effective, one had to dig deeper to uncover the sources of the president’s power. With this motivation, he set down to write Presidential Power, which was first published in 1960 and went on to become the best-selling scholarly study of the presidency ever written. Now in its 4th edition, it continues to be assigned in college classrooms around the world (the Portuguese language edition came out a few years back.) Neustadt’s argument in Presidential Power is distinctive and I certainly can’t do justice to it here.  But his essential point is that because presidents share power with other actors in the American political system, they can rarely get things done on a sustained basis through command or unilateral action. Instead, they need to persuade others that what the President wants done is what they should want done as well, but for their own political and personal interests.  At the most fundamental level that means presidents must bargain. The most effective presidents, then, are those who understand the sources of their bargaining power, and take steps to nurture those sources.

By bargaining, however, Neustadt does not mean – contrary to what some of his critics have suggested – changing political actors’ minds.  As I have written elsewhere, Neustadt does not mean that presidents rely on “charm or reasoned argument” to convince others to adopt his (someday her) point of view. With rare exceptions, presidential power is not the power to change minds. Instead, presidents must induce others “to believe that what he wants of them is what their own appraisal of their own responsibilities requires them to do in their interests, not his.” That process of persuasion, Neustadt suggests, “is bound to be more like collective bargaining than like a reasoned argument among philosopher kings.”

At its core, Presidential Power is a handbook for presidents (and their advisers). It teaches them how to gain, nurture and exercise power. Beyond the subject matter, however, what makes Neustadt’s analysis so fascinating are the illustrations he brings to bear, many drawn from his own personal experiences as an adviser to presidents. Interestingly, the book might have languished on bookstore shelves if not for a fortuitous event: after his election to the presidency in 1960, President-elect John F. Kennedy asked Neustadt to write transition memos to help prepare him for office. More importantly for the sale of Neustadt’s book, however, the president-elect reportedly was photographed disembarking from a plane with a copy of Presidential Power clearly visible in his jacket pocket.  Believe me, nothing boosts the sale of a book on the presidency more than a picture of the President reading that book!  (Which reminds me: if you need lessons about leading during a time of crisis, President Trump, I’d recommend this book. Don’t forget to get photographed while reading it!)

But it takes more than a president’s endorsement to turn a book into a classic, one that continues to get assigned in presidency courses today, more than two decades after the last edition was issued.  What explains Presidential Power’s staying power? As I have argued elsewhere, Neustadt’s classic work endures because it analyzes the presidency institutionally; presidential power, according to Neustadt, is primarily a function of the Constitutionally-based system of separated institutions sharing power.  That Constitutional grounding makes Neustadt’s analysis of continuing relevance.   And while many subsequent scholars have sought to replace Neustadt’s analysis with one of their own, for the most part they end up making his same points (although they often don’t acknowledge as much) but not nearly as effectively.

Neustadt was subsequently asked to join Kennedy’s White House staff but – with two growing children whom had already endured his absences in his previous White House stint – he opted instead to stay in academia.  He went on to help establish Harvard’s Kennedy School of Government, wrote several more award-winning books, and continued to advise formally or informally every president through Clinton. After the death of Bert, his first wife, he married Shirley Williams, one of the founders of Britain’s Social Democrats Party (and now a Baroness in the House of Lords), which provided still another perspective on executive politics.  He also continued churning out graduate students (I was the last doctoral student whose dissertation committee Neustadt chaired at Harvard.) When I went back to Harvard in 1993 as an assistant professor, my education continued; I lured Neustadt out of retirement to co-teach a graduate seminar on the presidency – an experience that deepened my understanding of the office and taught me to appreciate good scotch.  It was the last course Neustadt taught in Harvard’s Government Department, but he remained active in public life even after retiring from teaching.  Shortly before his death he traveled to Brazil to advise that country’s newly-elected president Lula da Silva.

What might Neustadt make of the Trump presidency?  That is a topic worthy of a separate post.  But I suspect that in contrast to many of my political science peers, who have expressed a fear that Trump’s authoritarian tendencies pose a threat to the Constitutional order, Neustadt would have a different concern:  that Trump’s inexperience – compounded by his initial decision to surround himself with equally inexperienced aides – has led to an exceptionally weak presidency, one unable to provide the energy and institutional stiffening that Neustadt believed was indispensable for making our system of shared powers work toward solving national problems.  To be sure, that weakness might yet lead a frustrated president to lash out against his political enemies, and to engage in extraconstitutional actions that could further weaken the presidential office. If so, my colleagues’ fears may yet be realized. For now, however, I suspect Neustadt would worry not that Trump’s presidency was too powerful – but that it was not powerful enough.

The recent emergency declaration perfectly illustrates Neustadt’s thesis. Trump issued it only after failing to persuade the Democratically-controlled House to fund his proposed border wall in the amount he requested, and after the nation endured a 35-day partial government shutdown that failed to gain Trump any additional traction. Although Trump might yet be able to use the emergency to reallocate appropriated money toward funding the wall, it is a potentially risky strategy – as are most instances in which presidents act “unilaterally” through “command” authority to achieve objectives. In this instance, Trump’s actions will almost certainly be challenged in court, and the long-run repercussions on his sources of influence are at best uncertain. All this is consistent with Neustadt’s warning that unilateral efforts to achieve presidential objectives are typically a sign of weakness, not strength and that in the long run they frequently undercut a president’s sources of bargaining power – particularly his public prestige and professional reputation, to say nothing of his formal powers. It remains to be seen how this latest effort to exercise command authority will play out, but I suspect it will prove costly to Trump in the long run.

In the meantime, take time today to hoist a glass of your favorite beverage in honor of Richard E. Neustadt, our own Guardian of the Presidency. If you are interested in learning more about him, there’s a wonderful (really!) book available on edited by Neustadt’s daughter and that blogger guy from Middlebury College (see here). It contains contributions from Doris Kearns Goodwin, Al Gore, Ernie May, Graham Allison, Ted Sorensen, Arthur Schlesinger, Jr., Harrison Wellford, Harvey Fineberg, Jonathan Alter, Chuck Jones, Eric Redman, Beth Neustadt and yours truly.

Here’s to you,  Dick!

The Danger in the Kavanaugh Vote

If the executive summary of the FBI investigation released by Senate Judiciary Chairman Chuck Grassley accurately captures the underlying FBI findings, it appears that Judge Kavanaugh is on track to be confirmed as the next Supreme Court justice, consistent with what I suggested in my previous post. We may know more regarding how the remaining undecided senators will vote after today’s cloture vote to end debate. If he does get majority support, his confirmation is likely to be on a near-straight party line vote, with most, if not all Senate Democrats voting against him.  It is understandable why they do so, and why Republicans will vote to confirm him.  It also poses potential risks to the future of the Court.

Why do Democrats oppose Kavanaugh if there is no clear evidence to corroborate Dr. Ford’s allegations of sexual assault?  Because he is a Republican, and is unlikely to rule in ways on the Court that most Democrats will find acceptable.  In fact, I suspect this fear has been the primary motivation behind Senate Democrats’ opposition all along. Republicans, of course, are motivated by similar political reasoning. However, because it is still viewed as unseemly to defend one’s confirmation vote on partisan reasoning, senators rarely if ever admit to this motivation.  And, in their defense, it is understandable why.  As an unelected body, the Court’s legitimacy depends in part on the fiction that justices are “priests in robes” who impartially decide cases based on legal reasoning and precedent.   As Judge Kavanaugh said in today’s Wall St. Journal op ed piece, “The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.”

But, of course, the Supreme Court is very much a partisan institution, in the sense that justices’ decisions in legal cases seem to generally fall along distinct ideological lines.   This is not always the case, of course, and other factors do influence judges’ decisions, but it happens enough that political scientists can discern clear voting patterns consistent with a certain ideological viewpoint.  Nonetheless, justices like Kavanaugh continue to insist that they vote in a nonpartisan manner.  As my Syracuse Law Professor and former colleague Keith Bybee argues, that hypocrisy serves a valuable function.   By portraying justices as “neutral” umpires who call “ball and strikes” according to some shared, widely-accepted view of the legal strike zone, it is more likely that the Court’s ruling will be accepted by the majority of people.  The alternative – to view judges as naked partisans – would risk delegitimizing the Court, and making it less likely that partisans from the other side will comply with Court edicts.

Alas, this legal fiction is in danger of being stripped away. As the parties have become better sorted, in which ideology increasingly lines up with party labels, we have seen both political parties engage in tactics designed to win popular support in order to gain an ideological majority on the Court.  This has led to increasingly bitter confirmation fights dating back at least to Reagan’s unsuccessful effort to appoint Judge Robert Bork to the highest court. The bruising battle regarding Kavanaugh’s confirmation is but the latest illustration of this trend.  Senators do so for an understandable reason: the Court, as an important political institution whose members sit for life, has the capacity to influence public policy for years to come. As a result it makes perfect sense to base one’s vote according to a justice’s perceived ideology. However, it is even better if a Senator can clothe that support or opposition in some higher principle – it cannot simply be about politics!  Instead, they claim to be voting on a more important issue: “This is a vote against a racially-based high-tech lynching!”  “This is a vote for women everywhere who have been sexually assaulted!”  Much of the opposition to Kavanaugh seems consistent with this approach, even if the logic seems at times somewhat tenuous.  For example, Democrats’ claim that Kavanaugh’s Senate testimony indicates he lacks the proper judicial temperament seems to ignore what his 11-year record on the bench tells about his judicial “temperament.”  Anyone truly interested in assessing this aspect of his demeanor would be combing his actual judicial behavior across the previous decade, rather than basing a conclusion on what he admits was a deeply emotional response to what he perceived to be as unfounded attacks on his family name.  It certainly suggests that Democrats are not really opposing him because of questions regarding his temperament.

To be sure, senators may even convince themselves that this high-minded principle is their primary motivation.  Even if they do not, it makes perfect political sense to adopt this public posture, if for no other reason than to sway public opinion.  The risk, of course, is that if the argument seems increasingly out of step with the facts, or as a blatant political move (see Republican opposition to Merrick Garland) as perceived by the general public (as opposed to activists on both side) the “principled” stand may impose a political cost.  We shall see if either party pays a price in the upcoming midterms.  Early indications are that the Kavanaugh controversy may have energized Republicans, raising their interest in the midterm election to that of Democrats’.

However, there is a bigger worry.  It is that these partisan-driven confirmation battles pose a long-term risk to the Court’s perceived legitimacy.  In that regard, there is some evidence that approval of the Court has declined in the last two decades, at least as measured by survey data.

So far, however, that disapproval has not manifested itself in outright refusal to abide by the Court’s rulings. There is no guarantee that this support will persist in the face of obvious evidence that the Court is, first and foremost, a political institution driven primarily by partisan rulings.   Some veneer of “principled” reasoning is crucial to its continued public support.   Chief Justice Roberts, who is likely to become the new swing vote on the court in closely decided decisions, seems to recognize this and there is some evidence suggesting it has driven his vote when the Court is closely divided.  Is it enough to save the Court’s reputation as an impartial arbiter of constitutional issues?  We shall see.

So far, we remain committed to the belief that we are a government of laws, and not of men and women.  May it always be so.