Chris Schroeder believes that my claim about judges being a central part of the 2002 election has a "serious non sequitur." Allan Ides says that voters choose to support a candidate "not necessarily because of that candidate's stand on any particular issue."
Let me review the bidding here: In response to Chris Schroeder's claim that elections "have a way of resolving an impasse," I initially asked how that was supposed to happen, since "there was already an election, which already sought to resolve an impasse." Chris then responded by asking to which election I was referring. "Not the 2002 election, I hope," because "The issue of the President's nominees getting votes in the Senate was no where an issue in that election" and "If anything, the 2002 election said the electorate doesn't object to filibustering nominees all that much." (I'll leave the contradiction inherent in these two statements alone for the moment). I then asserted, without citation, that "the confirmation fight was front and center in most of the contested elections" and that the pre-election hearings and slew of confirmations just after the elections were pretty good evidence that Senators thought this an important issue in the election. I was then asked for my evidence to support my contention that the confirmation fight was front and center in the elections (by whom, I do not recall), so I provided specific evidence of what I had previously thought was an uncontested point. Now Chris and Allan have shifted the debate to whether we can really rely on the fact that this was, indeed, a campaign issue, as evidence of actual voter opinion on the subject. With all due respect, in light of the evidence from campaign statements as well as responsive behavior in the Senate, it seems to me that the burden is on Chris and Allan to show that the issue was not relevant to the electoral outcome, not for me to prove that something as significant to the campaigns as was this issue was in fact relevant to the electoral outcome. Most political consultants I know don't waste a lot of time on issues that they don't think will move the electorate their candidate's way, and presidents are typically not in the habit of inserting gratuitous issues in stump speeches made in pre-election campaign swings. So if this issue moved a sufficient number of voters to have an impact on the election (as it appears), changing control of the Senate as a result, what more is needed for the electorate to convey its opposition to delays in the judicial confirmation process? John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -----Original Message----- From: Chris SCHROEDER [mailto:[EMAIL PROTECTED] Sent: Thursday, May 29, 2003 4:37 AM To: [EMAIL PROTECTED] Subject: Re: Judicial Watch suit against the Senate's filibuster John's response makes several sensible and reasonable points. At the same time, there is a serious non sequitur in it. Two sensible and reasonable points: 1. As for whether or not President Bush said during the campaign that he would appoint conservative judges, I certainly agree that he did. 2. As for "what we should make" of the fact that he is now doing what he said, there are any number of things to make of it. Among the most obvious: He is a man of his word. He is doing what I (and others) had expected him to do. Good for him. Consistency is not always the uber-virtue, but it certainly is a very significant virtue ni a politician. (I thought his father was right to compromise on raising taxes to compromise on the budget bill, notwithstanding the "read my lips" pledge, but that's another story.) The non sequitur: 3. As for whether or not the 2002 election resolved the policy impasse (which is how the conversation about the 2002 election got started), neither of these points speaks to that. There are at least three reasons: (a) Politicians say lots of things on the campaign trail. Voters can only vote up or down on any candidate taken in his or her entirety. Accordingly, any voter can be completely ignorant of some specific statement, or any voter can be indifferent to the content of some specific statement or any voter can be opposed to the content of some specific statement and still vote for that candidate. It is therefore quite often impossible to translate a candidate's victory into a definitive conclusion about the position of the electorate on most of the many things said on the campaign trail. (b) Even if there were a plausible case to be made that a major portion of the electorate understood some statement being made on the campaign trail and even if a plausible case could be made that all those who voted for a candidate did so because of the difference between that candidate and his/her opponent on that issue, that still would not necessarily resolve the impasse as a matter of electoral opinion. As the statement is subsequently put into action, you need to know what the electorate's opinion is of that action, if you are going to look to the electorate's actual opinions to resolve it. People can accede to the general statement of a position in advance and then object to its particular implementation. People can also change their mind, as President G.H.W. Bush did. In American politics, there is an enormous amount of talk about some victorious candidate having a "mandate" as a result of the victory, where this is taken to mean an electoral endorsement of a set of positions on contested policy issues and an authorization, perhaps even a command, from the electorate to put those positions into place to the maximum extent possible. Such mandate talk is almost always way overblown and counter factual rhetoric. A victorious candidate has a mandate to hold the position to which he/she has been elected, to perform its duties as best that person can do and to uphold the Constitution. How public opinion affects that person's judgment on any particular question is itself a question of judgment to be resolved by that person in the context of specific decisions, where lots of other influences will also be present, like the person's political principles, like the desire to be consistent (or pragmatic), like the person's evaluation of the impact ! of the decision on his/her re election prospects, like loyalty to faithful supporters or fear of losing important support. (c) And other elected officials have the same "mandate," which brings me to the last element of the non-sequitur. President Bush is not our only elected official. Nor are the Senators for whom he campaigned in 2002. Impasses get resolved as a practical matter when enough politicians are elected who take under consideration that complex set of influences on their judgment and then reach the conclusion that a certain action should go forward. Notice that all Karen Hughes could say about the President's position is that he will not back down from the kind of judges he picks. Fine. But nominees don't become judges by virtue of being picked by the President. Bruce Ackerman's theory on non-Article V constitutional amendments is hard for many people to swallow as a matter of constitutional theory, but in setting out the understanding of the American electoral process that underlies his theory, he really does make important observations about how elections work, or do not work, to solidify a policy position as representing the considered judgment of participants in our political process. Two of those observations are (1) that the policy has to have played a dominant role in a contested election and (2) that that role has to have been dominant in several consecutive elections. In my judgment, 2002 did not even meet the first criterion. Chris. >>> [EMAIL PROTECTED] 05/29/03 01:51AM >>> Allan Ides wrote (on May 24) John, with very rare exceptions, elections do not solve policy disputes. They choose leaders who often push agendas other than the ones in their announced platforms. If the public doesn't like a leader's performance, they vote her out at the next election. Allan, Sorry I've been a bit AWOL in responding. I agree that politicians sometimes (often?) push agendas that they did not campaign on. But what should we make of a politician who does exactly what he campaigned on? Bush said repeatedly, including during his nationally televised debates, that if elected he would nominated judges like Scalia and Thomas. He campaigned again on the issue in key Senate races in 2002. Does that not suggest that the filibuster is now being used to block the effects of the political process? (Someone else asked in another post about my evidence for the claim that President Bush campaigned on the confirmation issue in 2002 -- it was all over the media at the time, so I didn't think it necessary to provide citations. But I list a few here: Oct. 30, 2002 -- President Bush held a major East Room announcement of a new initiative to have the Senate vote up or down on nominees within 6 months. See, e.g., Robert S. Greenberger, "Bush Offers Plan to Speed Approval Of Judges, but Democrats Balk," Wall St. J. A6 (Oct. 31, 2002) Trent Lott announced shortly before the election that his first move should the voters elect new Republican Senate would be to call for votes on more than 80 stalled nominations. See Nick Anderson, "For Both Parties, a Time to Dream of What Could Be," Los Angeles Times A11 (Oct. 30, 2002). During a visit to Colorado just before the election, campaigning for Senator Wayne Allard, President Bush "thanked Allard for [helping to] secure appointments for conservative federal judges." Susan Greene, "Bush Pushes for GOP," Denver Post A1 (Oct. 29, 2002). Even Nan Aaron, Alliance for Justice President, acknowledged that Bush campaigned hard on the issue: "Undaunted by the Senate's rejection of two of his most problematic nominees, the president and his emissaries on the campaign trail pledge to continue nominating more of the same: ultra-conservatives beholden to special interests and out of touch with the concerns of ordinary Americans. Said Bush confidante Karen Hughes recently to an Iowa audience: "I can assure you [the president] is not going to back down in terms of the kinds of judges he picks." Washington Post A20 (Oct. 29, 2002). John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence
