Frank, I'd be very interested in seeing the exit polls you mention. What I recall is that most of the major news organizations abandoned reporting of exit poll results in 2002 because of serious, unresolved flaws. See, e.g., http://cnn.ch/ELECTION/2002/data/epolls/states/GA/S/01/epolls.html ("Due to problems with exit polls from Voter News Service (VNS), no exit poll data is available for the 2002 elections").
I don't mean to turn this into a policital science debate (although I am always happy to have Keith Whittington's perspective whenever we veer that direction), but I think there are serious constitutional implications about the role of the electorate in controlling the direction of government here. If, as Chris Schroeder contended (whether as an aside or not, I think the point is well-taken) elections are ultimately supposed to resolve impasses, just what does it take for an election to do so? Here are two possibilities. 1. An issue appeal to one's base, to get them motivated to turn out in large numbers and effect the outcome. 2. An wedge issue appeal to moderate, or swing voters, designed to have a sufficient number of them "swing" to your candidate in order to win the election. Frank seems to be of the opinion that #1 was the principal (only?) effect of the confirmation issue in the 2002 election. If so, why is that not sufficient? Or why is it any less sufficient that the appeal in #2? Seems to me that it must be sufficient, at least when the appeal is made publicly, as this was (rather than surreptitiously, as John Kennedy's appeal on civil rights issues was reportedly made during the 1960 campaign, in order to attract African-American voters without losing white southern Democrats). Such an appeal to the base, that does not lose the swing, is as legitimate, it seems to me, as an appeal to the swing that does not lose the base. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -----Original Message----- From: Frank Cross [mailto:[EMAIL PROTECTED] Sent: Thursday, May 29, 2003 10:16 AM To: [EMAIL PROTECTED] Subject: Re: Judicial Watch suit against the Senate's filibuster It's always difficult to speculate about what produced electoral results. There is some evidence from exit polls, though, where voters report what motivated their choice. In the 2002 election, as I recall, the voting was heavily motivated by policy on terrorism and national security. Often, the economy shows up in these polls. When they've asked about Supreme Court appointments, they generally come in as a very low factor. I doubt judicial appointments drive campaign results When Republicans campaigned on the court appointments, I suspect that this was a play to strengthen their position with their conservative base, rather than to gain swing votes necessary to win. But the great thing about elections is, they continue to happen. If John Eastman is correct, the Dems are just handing Bush and the Republicans a strong issue for the 2004 campaign. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
