Everyday Politics Blog

The Changing Nature of Judicial Appointments

By Scott Lemieux

Given the age and health of Justices Stevens and Ginsburg, there is a very strong possibility that President Obama will nominate two more Supreme Court justices.  (Or, given the changes in the political climate, perhaps one should say that he will nominate as many justices as are necessary to fill two slots.)   This returns us to the question of what kind of justices Obama is likely to nominate.   Another way to examine the question is through the typology put forward by the political scientist Sheldon Goldman.    Goldman points out that presidents have three different major agendas when they make Supreme Court nominations:

• Policy.  Presidents usually want to advance certain substantive policy, legal, and constitutional ends.   While even justices who presidents are strongly confident share their basic orietnation may not agree with every substantive outcome a president may desire, but justices selected on ideological grounds (contrary to what you hear from some pundits) tend to be quite predictable.
• Partisan.   As with cabinet appointments, presidents use Supreme Court appointments symbolically, to signal support to important constituencies.    Part of the reason some observers assert that Supreme Court justices can be highly unpredictable is that they forget that some appointments are made primarily to advance partisan rather than policy agendas.   Eisenhower's appointment of William Brennan to appeal to Roman Catholic voters and Reagan's appointment of Sandra Day O'Connor to fulfill a campaign promise made to women are important examples of a president priveleging partisan goals over policy goals.
• Personal.   In some cases, presidents will use judicial appointments to reward friends and political allies.   Most of Truman's appointments fall into this category, as do JFK's appointment of Byron White and Lyndon Johnson's appointment of Abe Fortas.    

These agendas are not, of course, mutually exclusive.   Presidents can be fairly confident that personal allies will support them on the issues most important to their appointer, although they may (White being the classic example here) be less reliable on other issues important to a President's constiuencies.    A shrewd political pick can allow the president more leeway in terms of ideology.

Recent presidents -- and Obama seems likely to follow this trend in general -- seem to have largely abdandoned the third category.    Obama's nomination of Sonia Stotomayor was a good example of a contempoary nomination in that it attempted to advance both partisan and policy agendas at the same time: appeal to two increasingly important Democratic constituencies with a historic appointment, while also advancing important policy goals.   

In future appointments, of course, Obama may have to make tradeoffs between various goals.   Particularly in light of an increasingly recacitrant Senate, it will be interesting see if he attempts to put forward a clear liberal candidate at the risk of a fight, or if he chooses a more moderate candidate in the hope of better serving other partisan interests.  

Why Change Is Difficult

Written for the student textbook blog, Everyday Politics.

In 1964, voters sent a new, young generation of Democrats into Congress. Lyndon Johnson won a landslide election against Barry Goldwater. With Democratic control over both Congress and the White House, Johnson and Congress passes a series of major legislation, including The Civil Rights Act of 1964, Medicare, and Medicaid. Another group of laws were passed aimed at reducing poverty, improving education, and improving life in inner cities.

Regardless of your opinion of the outcome of these laws, there is no question that major change happened in 1964, and it happened quickly. These laws marked a sharp departure from the past. Government bureaucracy, as well as the federal budget, ballooned in size. Lives changed.

When Obama came to office last year with a Democratic majority in both houses of government, many thought it was 1964 all over again. He promised major legislation in health care, education, and infrastructure.

One year later, Congress still has made no progress on health care. Their Democratic majority is slowly eroding, and the public has grown cynical.

Why was Johnson so successful in 1964, and Obama has not yet passed health care reform?

There are many possible answers to this question. Instead of giving you one definitive answer, I'll propose three possible answers to that question and let you debate this matter in class. 

1) Some might point to intervening variables, including the failing economy and the wars in Afghanistan and Iraq. In 1964, the economy was booming, and Americans were wealthier than ever before. They were more willing to part with the tax money than Americans are today.

2) Stephen Skowronek, in addition to coming up with this nifty model for classifying presidents, wrote that it has grown increasingly difficult for presidents to make change in the United States, because of the thick layers of bureaucracy that have formed and the customs that have arisen. In the past, when a Reconstruction President came to office, it was easier for him to act as a "battering ram" and create new orders. Now, even strong, talented presidents can only make small, incremental changes.

Skowronek might say that bureaucracies and powerful interest groups have arisen in the past several decades, and they have a strong interest in perpetuating the status quo around health care policy. They drag down the system and prevent change.

3) Others might argue that Obama is having trouble today, because all change is difficult in the United States. 1964 was the outlier or an anomaly. What made 1964 significant wasn't the party composition of Congress, but the mood within the country, which was unusually optimistic and in agreement that change needed to happen. That broad agreement and optimism from within the public was a freakish blip in our nation's history.

That unusual public spirit is the only way that radical change can happen in our country, because our governmental system was designed by James Madison, the master worrier. Madison was terrified of rapid change. He worried that with the increasing the franchise, the unwashed masses might make unreasonable and unwise demands of their government, so he put in all sorts of fail safes into the constitution. There are checks upon checks and a million ways for bill to go off course. Just look at how difficult it has been for the conference committee to find compromise between the Senate and the House versions of the Health Care bill.

Which explanation seems most plausible to you? Do you have a better answer to the question?

OBAMA AND THE COURTS II: THE STATE OF THE UNION CALL-OUT

By Scott Lemieux

I recently wrote about the possibility that Obama, facing a Supreme Court with a majority appointed by the previous Republican regime, might ultimately be embroiled in public conflict with the Court. I did not necessarily it expect to happen this quickly, but at last week's State of the Union Address President Obama expressed disagreement with the Court's recent Citizens United decision:

There is some disagreement about how unusual Obama's actions were. Certainly, there's nothing unusual about a President criticizing a Supreme Court opinion, and nor is it unprecedented for the President to engage in criticism of the Supreme Court during a State of the Union address. Other commentators have argued that the context of modern media -- having the Supreme Court in attendance on a live national television broadcast -- makes Obama's criticism of the Court new (and potentially disturbing.) The appropriateness of Obama's actions is, of course, a question of judgment. What will be more interesting to students of American government is whether or not conflicts with the Court will be a recurring pattern. It will also be interesting to see if Congress takes up Obama's suggestion to pass new campaign finance regulations to at least partially replace the legislation the Court struck down. But it's not surprising that some friction has emerged.

Reconciliation?

By David Watkins    

In his State of the Union address yesterday, Barack Obama said the following: "And if the Republican leadership is going to insist that sixty votes in the Senate are required to do any business at all in this town, then the responsibility to govern is now yours as well." This has become all the more true since the election of Republican Scott Brown in a special election to fill out the remainder of Ted Kennedy's term in the Massachusetts. This gives the Republican party the 41st vote necessary to sustain a filibuster in the Senate. The good news, for Obama and the Democrats, is that the Senate already passed a health care reform bill. the bad news is the House hasn't, and many members of the Democratic coalition in the house are unlikely to vote for the Senate's bill. (Prior to Brown's election, the path forward had been for the house to pass its own bill, and go through the reconciliation process to produce a compromise bill. Now, with going back to the Senate no longer a viable option due to a likely Republican filibuster, the House must pass the exact same bill as the Senate to avoid that final step).

If you've been following the news, however, you've probably heard people talk about another option--the house passes the Senate bill, and certain features of the Senate bill objectionable to house members are "fixed" in reconciliation. Reconciliation is the process by which congress "reconciles" (that is, changes, adds, or eliminates) parts of the law in order to conform with the budget. Since a significant portion of the current health care reform legislation has an impact on the budget, this could, in theory, work. Why can't republicans just filibuster the reconciliation changes? Political Scientist Sarah Binder provides the answer in her thorough post on reconciliation:

The Congressional Budget Act limits Senate consideration of reconciliation to 20 hours of debate and to 10 hours of debate on a reconciliation conference report. With a time certain for a vote, that means a minority cannot filibuster the effort to get to a vote. Why did senators create a fast-track for reconciliation in 1974? Chalk this one up to unanticipated consequences. Reconciliation was originally intended as a cleaning up mechanism to make the two congressional budget resolutions consistent with one another. When the Budget Act was revised and the second resolution dropped, reconciliation came to be used more aggressively for securing controversial policy changes.   

Be sure to click through and read the post for more details about the history and details of reconciliation. Is this likely to happen with health care reform? It's very hard to see. It would require, at a minimum, 50 out of 59 Democratic Senators willing to go along with this plan. Why wouldn't they? One reason might not is that they are nervous about setting a precedent--that major legislation can avoid the Senate's 60 vote requirement potentially weakens their power to effect legislation in the future. Some might object because they genuinely value the Senate's unique set of rules. Others might not be willing to go along with the plan because they strongly oppose the changes the House might demand in reconciliation. Whether the Democrats can get 50 votes in the Senate for reconciliation or 218 votes in the house for the Senate bill, will determine whether health care reform succeeds.

As a more general observation, as Scott noted in his most recent post, the current status quo in congress--strong party discipline (especially for the minority party) and polarization, coupled with the routine, everyday use of the filibuster--is not conducive to successful governing. Eventually, it will probably change. That change might come through the routinization of reconciliation, a change to the usage patterns or rules governing the filibuster, or less party polarization and discipline. Until those changes occur, expect Presidents to have an ever harder time enacting their domestic policy agenda.

Philanthropy and American Political Culture

by Laura McKenna

On January 12th, a massive 7.0 earthquake hit Haiti. Most of you watched the devastation on TV or read about the news on the Internet. We saw dead bodies on the street. We heard heart-wrenching tales of children trapped under the rubble crying for help. We saw people lying on stretchers with hacksaw amputations of their limbs.

And we responded. Fueled by social media, including Twitter, people called the Red Cross at 90999 and texted "haiti." To date, the Red Cross was able to bring in $8 million dollars through that effort. Overall, individual Americans donated $150 million in four days. That number marks a record for individual donations responding to a particular crisis, and social media no doubt played a large role in gathering funds.

With the ease of online donation forms and text donations, people are able to give easier than in the past with a checkbook,letter and stamp. Also, traditional donors are able to reach out to their less eager donor friends on Facebook and Twitter and urge them to give. 

While we have set new records for philanthropy, philanthropy is not that unusual for Americans. In fact, giving to others has long been considered a facet of American political culture.

Political culture is a set of widespread beliefs or values that are shared by a community. These values are passed down from parent to child and are taken on by immigrants as they assimilate.

American political culture is often defined as a commitment to individualism, capitalism, and freedom. Some have said that America's political culture is unique or exceptional, due to the common belief in Lockean liberalism among America's founders. Some scholars believe that American's exceptional political culture helps to explain why we have never had a strong Marxist or socialist party in our country. It may also explain why the United States has been so reluctant to establish a national health care system, while European nations have one for years.

Others have pointed to our roots as a Puritan nation and noted how that early religiosity helped shape our nation's history.

Another aspect of American political culture is our historic commitment to philanthropy. Alexis de Tocqueville noted the large number of charitable organizations in our country in the 1820s. According to the National Philanthropic Trust, 86% of American give to various charities and the average annual contribution was $1,620.

In a time where public morale may be at a low point, due to well publicized indiscretions of public figures, a flagging economy, and protracted wars abroad, Americans should take great pride in our willingness to open our pockets to help out a people on an island to our south.

The Senate's Collison Course

By Scott Lemieux

A political commentator points out an unusual aspect of the health care bill that recently passed in the Senate:

There’s no real precedent for such a major piece of social policy legislation as this health care bill being enacted into law on a party-line vote.

While in the past we might have expected to see some liberal Republicans vote for the health care bill and some conservative Republicans to oppose it, this didn't happen in 2009.   To use V.O. Key's term, "party in government" is probably at its strongest point in American history.   In large measure, this development is a result of the parties becoming more ideologically coherent -- one reason that the health care bill failed to attract the support of any liberal Republicans in the Senate is that there are so few left.    Even so, historically it would have been much more likely that Maine's Republican Senator Olympia Snowe would have voted for the legislation instead of the conservative Nebraska Democrat Ben Nelson, but the latter voted for the bill (after extracting some concessions) and the former didn't.

The rise of "party in government" the health care bill reflects, while often decried by political pundits who emphasize the virtues of bipartisanship, is seen as a good thing by many political scientists.   Disciplined parties have a major obvious advantage: they increase the accountability of government.   Ideologically coherent parties provide more information to voters and are easier to hold responsible for successes and failures.    At a minimum, there's no reason to think of increased party discipline and polarization as inherently bad things.

One potential problem, however, is that party discipline may have unusual effects in the American case.   Consider two of Lowi's principles of politics: "institutions routinely solve collective action problems" and "history matters."   The esoteric rules of the Senate, which allow not only minority parties but individual Senators to obstruct the operations of the body, present an obvious collective action problem, in that routinized minority obstruction would in the long run make everyone worse off by preventing any party from enacting a substantial agenda.    One reason that minority obstructions such as filibusters have been relatively rare is that loose party discipline means that Senators in the minority party may need the support of members of the majority party on another issue, so that the consequences of obstructionism manifested themselves much more quickly.    When there's little possibility of attracting support across party lines, conversely, senators will see much short-term loss from being obstructionist, and if they gain politically in the short term may put less weight on long-term consequences.   

So party realignment may put the Senate's rules and its traditions on a collision course.    If party discipline continues to be strong, it seems likely the recent de facto requirement that the 6o votes required to break a filibuster, rather than the 50 (or 51 if the minority party controls the White House) needed to pass legislation, are necessary to move a bill forward will eventually broken by a majority party willing to change the rules.    Until this happens, however, passing major legislation will be enormously difficult.

Anti-Poverty Laws and Ideology

With the recent downturn in the economy more people are relying on food stamps to feed themselves and their families. Blue collar workers, especially those tied to the auto industry, have been forced to apply for services. (Check out the interactive map in the New York Times to see the numbers of recipients in your county.)

Some facts about Food Stamps:

• 1 in 8 Americans and 1 in 4 children are on Food Stamps
• 36 million Americans receive benefits
• In some counties, half of all children receive benefits.
• Only 2/3rd of those who are eligible have applied for the benefits. 15 to 16 million more could be getting services.
• Now nearly 12 percent of Americans receive aid — 28 percent of blacks, 15 percent of Latinos and 8 percent of whites. Benefits average about $130 a month for each person in the household, but vary with shelter and child care costs.
• Almost 90 percent of beneficiaries nationwide live below the poverty line (about $22,000 a year for a family of four).

Americans are divided about how government should approach anti-poverty programs, such as the Food Stamp program. In general, liberals believe that government should provide services to assist the poor  either by providing direct payments or by providing subsidies for education or job training. Conservatives believe that welfare programs create a class of people dependent on government money and eliminate the incentive to find work. They believe that volunteer organizations and local churches can provide food for the hungriest Americans, and government should not be involved. 

In the 1980s, President Clinton revamped the welfare program in this country. He famously claimed that we were going to end welfare as we know it. Work requirements and time limits were placed upon  welfare beneficiaries. As a result, the number of people on welfare has declined, however little research has been done to examine the full impact on families and children.

The Food Stamp program has been less controversial than other anti-poverty programs, because few people are willing to let people starve in the streets. The actual cash payment per family is relatively small. The debates around the Food Stamp program have largely been about how to eliminate fraud. How do you make sure that a mother is really using the money to buy rice and beans for her children and not trading in the vouchers for money that will spent on drugs or alcohol?

What laws or policies do you believe should be put into place to help the poor in America? Is government or the community responsible for making sure that children aren't starving? Should government be spending more time coming up with laws that get at the root of poverty? Should they be setting up job retraining programs in the neediest areas? Do you believe that fraud is a big problem with Food Stamps? Has your local community been hard hit by the economic downturn? What policies or programs would you like to see in your area?