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Monday, October 31, 2005

Mr. Justice Pareto

Say what you will about Judge Alito, but I think this is a moment to praise President Bush for being a uniter, not a divider.  The 2006 elections are coming up, and in any event politics and fundraising are in a stage of permanent activity, in or out of election season.  The Miers nomination didn't allow Democrats to fundraise and stir up voters, because they were waiting for the GOP to self-immolate; and it was difficult for stalwart GOP-side interest groups to fundraise or get out front on political consciousness-raising, because support for her was lukewarm and actively fundraising against her would have brought repercussions from the White House and the GOP down the line.

Happily, the nomination of Judge Alito is a cure for all ills.  Conservatives can actively fundraise and engage in political activity, using Judge Alito and generally, the coming apocalypse as a hook.  And so can liberal groups!  So, assuming that "follow the money" and "whose ox is gored" are still the operative instructions when seeking to understand developments in Washington -- even in the case of judicial nominations -- then it seems to me everyone's better off with an Alito nomination.

Note that none of this is a comment on Judge Alito's qualities.  (I may have more to say as I learn more about him -- although I can preliminarily say I hope this is not the occasion for a return to the "unclear option" debate.)  My views on Judge Alito's merits as a nominee are largely beside the point in this post -- as, I would say, they are largely (but not entirely) beside the point for the political parties and the interest groups, who care about the substantive issues but care as much or more about maintaining strong loyal core membership, raising money, perpetuating their own existence, and conducting the permanent campaign.      

Posted by Paul Horwitz on October 31, 2005 at 11:25 AM in Law and Politics | Permalink

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» Blogospheric Norms and Judicial Nominations from The Debate Link
So Sam Alito is Bush's "take two" judicial nominee. And the blogosphere, predictably, is abuzz. Everybody has an opinion--and unlike the Miers nomination, in which the primary reaction seemed to be confusion, people seem quite sure of themselves on t... [Read More]

Tracked on Oct 31, 2005 6:44:28 PM

Comments

In general I assume that if there is any misunderstanding, it is my own fault for not writing or thinking more clearly. Cheers, PH

Posted by: Paul Horwitz | Oct 31, 2005 6:52:56 PM

Paul H -- that's a fair point; what you say in your comment makes perfect sense. Sorry if I misunderstood what you were saying in the post.

Posted by: Scott Moss | Oct 31, 2005 6:46:47 PM

The view that liberal interests groups will oppose a Bush nominee less because of genuine ideological concerns and more as a matter of "revenue maximization" is, I think, a fairly evidence-less form of knee-jerk cynicism.

The inner party is always the most fanatical, Scott...

the more I think about this, the better the Orwell analogy fits.

Posted by: Paul Gowder | Oct 31, 2005 3:02:19 PM

The view that liberal interests groups will oppose a Bush nominee less because of genuine ideological concerns and more as a matter of "revenue maximization" is, I think, a fairly evidence-less form of knee-jerk cynicism.In the end, though, it should be noted that whether their motivations are sincere or financial, post-Roe, the left will oppose any Republican nominee to the Supreme Court, period. Lest it be forgotten, the usual suspects bleated at the time that confirming Stevens and Souter would mean the end of the world. The sky, obstinately, refused to fall.

Of course, if the liberals actually believed their own propaganda, they would surely let Roe die its natural death in the confidence of its irrelevance. It strikes me that the sincerity of the belief in their majoritarian status can be seen as an inverse function of the fervency of their defense of Roe and its progeny.

Posted by: Simon | Oct 31, 2005 2:41:00 PM

But I don't, to be fair, think it's simply a matter of revenue maximization -- although theorizing that this will be a factor on the margins is, I think, not simply cynical. Rather, I think it is in the nature of interest groups -- their ability to form, to thrive and survive; their need to maintain close ties to their constituents, and the pressure on them not to be outflanked or condemned as sell-outs by their core constituency; and not least, the existence of resources, and a modus operandi -- ie., speaking out, forming coalitions, lobbying, releasing ads, taking meetings, raising funds -- with a concomitant tendency to assume they ought to use these resources in any given case, and a pressure on them to do so. In short, I believe that many or most interest groups form for ideological reasons; but once they have formed, I think a variety of pressures, organizational norms and customs, and broader norms and incentives affecting interest groups generally, will tend to impel them toward action -- both activism and fundraising -- that is partly or even substantially ideologically based, but also institutionally based, reflexive, and strategic. The Alito nomination will encourage polarized behavior on the part of the interest group community, on the left and the right, for all of these reasons, I think.

Posted by: Paul Horwitz | Oct 31, 2005 2:33:14 PM

My experience is that the liberal interest groups are real ideological true-believers, not bureaucrats interested primarily in maximizing the funds/size of whatever organization they happen to run. I assume that's true of many of the social/religious conservative groups too. The view that liberal interests groups will oppose a Bush nominee less because of genuine ideological concerns and more as a matter of "revenue maximization" is, I think, a fairly evidence-less form of knee-jerk cynicism.

Posted by: Scott Moss | Oct 31, 2005 2:20:53 PM

I suspect that the nu-cu-lar option will inevitably make an appearence at some stage. The Democrats regard Justice Kennedy as a conservative vote, believe that Roberts is a conservative vote, and therefore see Alito as finally giving the Conservatives a working 5-4 majority on the Court. Are they going to fight that to the death? You betcha!

However, I think their concerns are premature. With Justice O'Connor's departure, the pressure on Justice Kennedy to become the court's new swing vote will be intense, and I suspect that he will succumb. Furthermore, it is very much too early to say how our new Fearless Leader will turn out; his troubling willingness to sign on to substantive due process during his confirmation hearings may have been unavoidable puffery, or it may have been a sincere expression of his jurisprudence. Depending on which of these two poles is closer to the truth, in Roberts, we have either a Rehnquist or a Kennedy, neither of whom vote(d) with - or reason(ed) along the lines of - Scalia and Thomas. In practise, I think that confirming Alito will not drastically change the court's balance (a change I think desirable); the court will then have three "good" jurists, four liberals, a "who knows" in the center seat, and, of course, Justice Kennedy. If the Rehnquist Court was more properly the O'Connor Court, the first few terms of the Roberts Court - at least until Stevens or Ginsburg is replaced by a reliable conservative jurist - will more properly be the Kennedy Court. No overturning of Kelo, no overturning of Casey.

I'm pleased it's Alito, but I think that the left's fears are somewhat premature.

Posted by: Simon | Oct 31, 2005 1:24:40 PM

the political parties and the interest groups, who care about the substantive issues but care as much or more about maintaining strong loyal core membership, raising money, perpetuating their own existence, and conducting the permanent campaign.

I've never thought of this before, but is there a viable analogy to Orwell's 1984-notion of "permanent war" in the relationship between the Democrats and the Republicans? Like Oceania, Eastasia and Eurasia, each party is too powerful to be destroyed, they're fundamentally all the same, and they spend most of their time in regional skirmishes over the swing voters, who are parallel to the African countries in 1984...

Posted by: Paul Gowder | Oct 31, 2005 12:31:38 PM

My views on Judge Alito's merits as a nominee are largely beside the point in this post -- as, I would say, they are largely (but not entirely) beside the point for the political parties and the interest groups, who care about the substantive issues but care as much or more about maintaining strong loyal core membership, raising money, perpetuating their own existence, and conducting the permanent campaign.

That's an untrue and offensive thing to say.

Posted by: alkali | Oct 31, 2005 12:20:05 PM

I think there are a variety of highly unclear aspects in the debate over the nuclear option. Plus, it's a moniker that better describes the debate than either "nuclear" or "constitutional." I've used this term before, in a so-far-fruitless effort to advance it as a meme. I'll just have to keep trying, and I feel reasonably confident at this point that the Alito nomination will give me a chance to trot out discussion of the filibuster issues all over again.

Posted by: Paul Horwitz | Oct 31, 2005 11:45:44 AM

Is the nuclear option also unclear? I like the (unintentional?) play on words...

Posted by: Dan Markel | Oct 31, 2005 11:31:42 AM

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