Even Absentee Votes Are Counted

There’d a weird rumor going around, particularly among conservatives it appears, that absentee ballots are not counted unless a race is close enough for them to make a difference. I find it odd that conservatives of all people seem so blase about the idea that some voters aren’t getting counted.

It appears to me that the rumor is being spread by Trump supporters who use it to explain that Trump actually won the popular vote, because, they say, absentee voters are more conservative. Therefore, if all those ballots were counted they would show Trump getting more popular votes than Clinton.

The American Thinker blog’s Steve Feinstein seems to be the go-to source on this. First argued that Clinton might “win the number of votes counted, but not the votes cast.”

States don’t count their absentee ballots unless the number of outstanding absentee ballots is larger than the state margin of difference. If there is a margin of 1,000 votes counted and there are 1,300 absentee ballots outstanding, then the state tabulates those. If the number of outstanding absentee ballots wouldn’t influence the election results, then the absentee ballots aren’t counted.

Noticeably, he doesn’t provide any source for his claim. But in contemporary American political discourse, apparently even “Thinkers” don’t need to provide evidence for their claims.

But in a subsequent post he backed down a little.

Perhaps it would have been more accurate in my blog post “Hillary wins the popular vote – not” to characterize the inconsistencies in the handling of absentee ballots as a town-by-town situation rather than a blanket statewide scenario. There are not, to my knowledge, any formal statutes that forbid the counting of absentee ballots until or unless the in-person state ballots have been counted first.

No laws forbidding the counting of absentee ballots. Well, that’s some comfort, but are there laws requiring their counting? He doesn’t say, and by way of evidence he gives us unnamed county officials admitting to slacking off in the vote-counting business.

However, in conversations with town officials, I have learned that it is not unusual for some officials, faced with late-night eleventh-hour time horizons and an overwhelmingly one-sided vote tally up and down the ballot, to adopt a somewhat laissez-faire attitude and call it a wrap when uncounted or unreceived absentee ballots are not of sufficient number to influence the outcome. To think that every town official adheres to an unfailingly airtight approach – even when the outcome anywhere on the ballot in that district is well beyond even the slightest question – is to have an unrealistic faith in a theoretical process that is naive to a frighteningly mind-numbing degree.

Far be it from me to be naive about local officials, but it still doesn’t answer the question of whether they are supposed to count those votes; that is, whether they have an official duty to count them.

So let’s find some slightly more authoritative source than a blog that doesn’t identify its sources. Secretaries of State are in charge of elections in their states, so what they say might have some weight.

Absentee Ballot Counts
There are widespread rumors circulating on the Internet claiming that absentee votes are not counted, or they are not counted unless election results are close. All valid votes that are legally cast in each election are counted, including absentee ballots. It can take a little longer to incorporate absentee voting tallies into final election results, but all votes are counted – regardless of whether the number of outstanding ballots can impact the results of an election or not.

Do some local officials slack off? Perhaps. But it’s clear they’re not supposed to. And as we’re seeing right now, that supposed “late night 11th hour time horizon” is bunk. States are still counting electoral ballots, because they don’t face a deadline of getting them done on election night. As the Secretaries of State go on to say,

  • In most states, absentee ballot counting begins on Election Day. Forty states and the District of Columbia follow this practice. Thirteen states of these states and the District of Columbia specify that the polls must be closed on Election Day before absentee vote counting can get underway: Alaska, Alabama, District of Columbia, Illinois, Maine, Massachusetts, Minnesota, Mississippi, New Hampshire, New Mexico, Pennsylvania, South Dakota, Tennessee and Washington.
  • Nine states allow absentee vote counting to begin prior to Election Day: Arizona, California, Colorado, Florida, Iowa, Nebraska, North Dakota, Oregon and Utah.
  • Maryland allows absentee vote counting to begin after Election Day.

[See also a state-by-state breakdown.

So a good number of states are going to be counting electoral votes after the polls close, but what is their actual deadline? In time to get a state’s vote officially certified so its electors can be made official. The National Archives and Records Administration keeps the official certifications of votes. States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the Electors. …

December 19, 2016

The Electors meet in their state and vote for President and Vice President on separate ballots.

December 19 – 6 days = December 13. If no controversy ensues — and remember, The American Thinker’s Feinstein is specifically talking about states where the vote is not close, so no controversy is likely — the states have until then to count the absentee ballot. That “late-night eleventh-hour time horizon” occurs over a month after the election.

But, someone might argue, I haven’t proved that a complete count of ballots is actually required. There is no “national Election Code that governs the tabulation and publication of all election results.” Like most aspects of elections this is handled at the state level, a reflection of American federalism, so we have to look at it state by state. As far as I can tell from a brief search, some states don’t explicitly say that all votes must be counted, but their ballot-counting laws are written in a way that assumes votes will be counted.

For example, Florida law requires that “If any vote-by-mail ballot is physically damaged so that it cannot properly be counted by the automatic tabulating equipment, a true duplicate copy shall be made of the damaged ballot in the presence of witnesses and substituted for the damaged ballot.” Note the “any” — to know if any vote-by-mail ballot is damaged, you have to open it. The law doesn’t say “if any vote-by-mail ballot that is opened is damaged.” The legal assumption in this law is that the ballot will be counted.

California requires that the counting of absentee-ballots be open to the public, and that a member of both the Democratic and Republican county committees be present, as well as representatives from the parties of any other person on the ballot. I find it difficult to imagine that in such a situation no one would object to leaving some citizens’ votes uncounted.

Texas is more explicit.

After the polls close or the last voter has voted, whichever is later, the counting of ballots shall be conducted continuously until all the ballots are counted.

To summarize, there is no reason to believe that there is a general practice of not counting all votes because doing so is unnecessary and election officials face time constraints.

Posted in The Democratic Process | Tagged , , , , , , , , , | Leave a comment

Liberals, Trump, and the Anti-hero

Liberals are wondering how anyone could have voted for Trump. No single answer explains it all, but here’s what I think is part of it.

Liberals, not alone, love their comic book anti-heroes, the guy who rejects the establishment and its rules and swaggers across the stage smashing and breaking things in the name of what he thinks is right. For the fans of the anti-hero, the rules must be set aside when they get in the way.

Liberals love those characters as much as anyone else.

And so they praised Obama when he acted unilaterally in the face of a recalcitrant Congress exercising its check and balance. They even treated the Congressional majority’s exercise of its constitutional authority as illegitimate.

You don’t think Obama is an anti-hero? Of course he is. He has his dark side, bombing relentlessly in multiple countries in pursuit of goals, with no clearly defined strategic objectives. But he’s good at heart, seeking what is right and good. And when the rules get in the way, he ignores them.

But you’re not the only ones who like anti-heroes.

Posted in Uncategorized | Tagged , , , , , , , | 4 Comments

Could a Unicameral Congress Better Rein in Presidential Power?

Kevin Flohe asks, “Do you think a unicameral legislature would be more or less effective at reining in executive power?”

Sorry, Kevin, but it’s a long answer. That’s why I moved it to the blog.

TL/DR version: At the margin, but the size of the effect would depend on the structure of that legislature.

I haven’t thought about that particular question before, but I’ve thought a lot about the growth in presidential power and Congress’s inability to rein it in. My answer is, at the margin, yes, but how effective would depend on the structure of that unicameral legislature.

The Framers envisioned Congress as one institution set up against another institution, the two of which could check each other effectively. What they did not seem to realize is that Congress is not one institution, not in any functionally coherent sense. Even more, it’s not simply two institutions, as we might think because it is bicameral.

In 1885, when Congress generally dominated the president, Woodrow Wilson wrote his doctoral thesis on how Congress did not provide good leadership because each member being responsible to a regionally limited set of voters, it could not focus on the national interest, only on a competing set of regional interests.

So what has changed to make presidents more powerful? Not the structure of Congress, but the system of selecting presidential nominees. Congress could dominate presidents back then because party leaders selected presidential nominees. Today the general public selects them, so party leaders, including Congressmembers, have lost that power over presidential hopefuls.

Not having that power over presidents, Congress would need to be more functionally coherent as one institution of government set against another in order to exercise effective constraints. But Congress has not become more coherent — regional interests still prevail over institutional interests.

Bicamerality is at best neutral in regards to the regional interests, but may make them marginally worse. The House is worst here, because House members are more likely to have a homogenous constituency they dare not buck.

Another important factor the Framers didn’t predict was the effect of party interest, which often works against controlling presidents, to the extent party members don’t want to harm their own party. This interacts with bicamerality, because while in any case one chamber may be desirous of checking the president and the other not, when there is divided party control of Congress bringing both chambers to bear against the president is even harder.

So now we can see what eliminating one chamber would do. It would eliminate the difficulty of needing to get two separate bodies to come to agreement on reining in a president, and how to do so. I suspect that’s what Kevin might have been thinking of. But it depends on party control. When the president’s party controls the single house of Congress, it would probably have no effect. But when the opposition party controls, the problem of the other chamber being controlled by the President’s party eager to protect their own is eliminated. So at the margin, situationally, this would likely help Congress rein in presidential power, at least more so than at present.

But just eliminating one chamber would not wholly relieve us of the regional interests that keep legislators from focusing on the national or their own institution’s interests, as envisioned by the Framers. Eliminating the House in favor of the Senate would have more effect than vice versa, but that is the less likely choice of chamber to keep if we shifted to unicameralism. So the size of the effect of unicameralism is dependent also on which chamber we keep, assuming we don’t change the remaining one.

If we change that one remaining chamber so that legislators are elected nationally — using a list proportional system, legislators would be less regionally beholden, and likely to be more able to focus on institutional interests and the national interest.

In summary, yes, a unicameral legislature ought to make reining in the president easier, at least at the margin, but the size of the effect depends on how much the legislators are distracted from collective interests by regional interests.

Posted in Executive Power | Tagged , , | 4 Comments

Gary Johnson’s Narrow Path to a Likely Loss in the House

The #neverhillary/#nevertrump crowd is looking closely at Gary Johnson’s prospects for breaking through as a third party president. Everyone agrees they are slim, but many think it’s not impossible. My conclusion is that it’s not that implausible for Johnson to deny either Clinton or Trump an electoral majority and throw the election into the House, but once in the House his odds are vanishingly remote.

This is a first-pass analysis, so I may have missed some important points, and I’m open to constructive criticism. I also haven’t yet reviewed and revised, because it’s already taken more time than I can afford to spare to write it. If parts are not clearly written, please let me know, but please don’t bother to point out minor errors.

Initial Assumptions
If we begin by assuming each party wins the states they’ve won at least three of the past four years, we get Clinton:251, Trump:212 with 75 votes outstanding in the so-called swing states. That’s a huge Hillary advantage. Just winning Florida, which over the past four elections has gone for each party two times, would put her over the top. So would winning both Virginia and Ohio. This initial electoral map looks like this: Continue reading

Posted in Politics in General | Tagged , , , , , , , | 4 Comments

How Scalia Answered My Question

Antonin Scalia once answered my question and drew a laugh from the audience. But that’s ok. The laughter was directed at someone else, and Justice Scalia was wrong.

Some years back, in need of money, I sacrificed part of my summer to teach AP American Government in the Junior State of America summer program in Washington, D.C. One of the highlights of the program was lectures by various government officials, and on one of those days we trekked down to the Supreme Court to listen to Justice Scalia.

At some point in his talk Scalia mentioned that everyone should read the Federalist Papers, because that’s how we know how to interpret the Constitution. Having talked about the federalists and anti-federalists in my class, I leaned over to one of my students and and whispered, “Ask him if we should read the Anti-federalist Papers.”

My student raised his hand, Scalia called on him, he asked the question, and Scalia responded, “The anti-federalists? They lost!” And everyone laughed at my poor student.

But Scalia was wrong, and wrong in a disturbing way for a man who claimed to be an originalist. The anti-federalists, it is true, did not stop the Constitution from being ratified, but they did help shape public understanding of the Constitution, and most importantly, they were the driving force behind the adoption of the Bill of Rights. A bill of rights was the price to pay for getting the Constitution ratified, and the federalists paid it. Herbert Storing, the great constitutional historian and editor of The Complete Anti-Federalist, said that the anti-federalists were equally deserving of being called Founders of the Republic.

The Federalist Papers, as critical as they are, were written to explain, defend, and promote a Constitution that lacked the current Bill of Rights. In fact in Federalist 84 Alexander Hamilton argues against a bill of rights.

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta… It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

The Federalist Papers, then, are no real guide to interpreting the Bill of Rights, because they refer only to a Constitution that lacks one. It is the anti-federalists who make clear to us the purpose and meaning of the Bill of Rights.

There is one bit of guidance, though, in Hamilton’s argument, when he says that bills of rights “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” He sees this as a danger, and the clear implication is that properly understood, we should not see the Bill of Rights as an exclusive list of rights; that the absence of a mention in that list does not mean the absence of a right. Madison and the First Congress tried to mitigate this danger with the 9th Amendment, but Scalia famously disliked that Amendment, claiming it was outside the purview of the courts.

Scalia not only misunderstood the role of the anti-federalists, and not only misunderstood the limitations of the Federalist Papers, but given the one a clear statement in those Federalist Papers–which he claimed were how we understand the Constitution–about bills of rights, he ignored it.

There have been a number of articles written about Scalia’s interpretive incoherence. I generally agree with them all. Scalia’s textualist originalism was a pose, a persona, employed primarily as a marketing tool for the Scalia brand rather than as a serious tool for constrained legal analysis. Anyone who doubts this need look no further than Gonzales v. Raich, where Scalia ignored his own prior originalist arguments about the limits of the interstate commerce clause so he could uphold federal regulation of marijuana grown for personal consumption. But brand identity is often far more powerful than the underlying reality, in large part because it is more comforting and less challenging. I don’t expect conservatives to admit to, or even privately recognize, that Scalia is largely a myth, because conservatives are no more likely than anyone else to relish the discomfort of seeing past their favorite brand images.

Posted in Laws | Tagged , , , , | 3 Comments

Sodomy and Strategy

Social media is agog with the claim that Michigan lawmakers are considering a bill to ban anal and oral sex, aka sodomy. Here I explain two things. 1. Why the claim is false, and Michigan lawmakers are doing no such thing because sodomy is already banned in Michigan but not really. 2. Why Michigan lawmakers aren’t removing the ban. Remember, I’m a professional political scientist; do not try this at home.

1. Michigan Is Not Trying to Ban Sodomy; It’s Already Banned (but not enforceable)
This headline from rawstory is typical of what’s been going around social media today.

And it’s not just them. In addition to a number of ignorant bloggers, lots of “news” sources are reporting this false claim.

But, no, the sponsor of this bill, Rick Jones, is not trying to ban sodomy–he’s trying to keep people convicted of animal cruelty from adopting animals. The text of the bill is here.

In part of the bill Jones was defining to whom the law applied, and that part of the bill contained the language about “abominable and detestable crime against nature either with mankind
or with any animal.” But that language already exists in the law–it’s not new language. Here is a screen capture of the relevant part of the bill.

What you see here is the current language of the law marked up for the bill. The bolded text is proposed new language, the strikeout text is proposed deletions, and the text that’s neither bold nor struck out? That’s what the law already is.

So this bill would not criminalize sodomy. Jones was not making any proposals about sodomy at all. And while it would be good to eliminate that language, the truth is that it’s dead language anyway; it’s not enforceable. The Supreme Court ruled laws banning sodomy unconstitutional in Lawrence v. Texas back in 2003.

So all you Michigan sodomites can just relax; the cops won’t be breaking down your doors when you commit this abominable and detestable crime against nature.

And all those “news” sources that are reporting this falsely should be condemned for dishonesty and/or laziness in the strongest terms. We may need journalism, but that doesn’t stop 98% of journalists from being the worst kind of hacks.

2. So Why Not Get Rid of that Language? Because of Strategy
First of all, because Jones is focusing on something entirely different, and everyone’s just mad that he’s not focusing on their pet issue, which they wouldn’t even be aware was an issue if he wasn’t focusing on that other thing. Right? So give him a break.

More importantly, he’s trying to be a smart strategic lawmaker. In his own words,

“The minute I cross that line and I start talking about the other stuff, I won’t even get another hearing. It’ll be done.”

Let’s break down the sausage works of legislation here.
1. Jones needs a majority of lawmakers to vote in favor of his bill.

2. Some lawmakers will vote against the bill, because any bill that is not a purely symbolic statement of American greatness and the importance of mothers will have somebody voting against it.

3. So Jones doesn’t want to encourage extra votes against his bill by tacking on an issue that’s irrelevant to his main issue.

4. Some small number of legislators would vote against a bill deleting unconstitutional language from the law just because they’re uptight moralists who oppose sodomy (and probably rum, but not the lash) and want to keep it illegal even if the law can’t be enforced.

5. Some larger number of legislators don’t care much one way or the other but don’t want the folks back home–and a future campaign opponent–accusing them of favoring sodomy, so they might vote against changing that language because it just isn’t worth the trouble.

6. Add the lawmakers in items 2, 4 and 5 together, and maybe there’s a majority against a bill that deletes the sodomy language. Leave the unenforceable sodomy language, and you only have to worry about the lawmakers in group 2.

It’s that simple.

Posted in Laws | Tagged , ,

Caplan and the Crank; or Don’t Touch My Meds, You Bastard

Some years back I met a guy who eagerly billed himself as “the angriest mayor in America.” He was coming to speak to some of our students. He eagerly told me that he hated economists, except this one economist, a guy who unlike all the other economists told it like it really is. He then proceeded to spin some bullshit that, of course, nearly every economist rejects. But he’d found that one guy with an Econ PhD who confirmed his economic beliefs, and that was the evidence he needed to support his claim that he was right and almost all economists were wrong.

Bryan Caplan would surely shake his head in amused or weary acknowledgement of the mayor’s foolishness. And yet Caplan has done the same, in choosing Thomas Szasz as his go-to psychologist. Szasz argued that the mental illness/disease model was wrong, and that “there is no such thing as ‘mental illness’” (source). Although rejected (at least in his more extreme pronouncements) by the majority of the psych profession,* Szasz confirms for Caplan what Caplan wants to be true about psychology. That is, Caplan wants to treat these issues as merely one of preferences. Continue reading

Posted in Politics in General | Tagged , , , , , , | 9 Comments

The Horror of Not Breathing

A hard coughing fit, the kind where you cannot stop and you cannot draw breath, is an overwhelming emotional experience for me that leaves me mentally drained.

I had severe asthma as a child. It wasn’t the debilitating non-stop puff-the-inhaler-between-every-word stereotype you see on television. I’ve never met anyone like that, and doubt there are many. I was very physically active, taking long bike rides through the country, playing countless hours of basketball in our driveway with my brother, and enjoying hiking and camping. I played trumpet and french horn in the band, which requires a bit of wind.

I have the kind of asthma that comes suddenly and leaves you frantically gasping to suck in air, and that can last for days or weeks. I remember spending days at a time lying on our couch desperately trying to draw in enough oxygen and not being able to. I felt like I was suffocating…I was suffocating, and I felt certain I was going to die, and at times I wished it would just happen already. This is not my only memory from from what was a rather typical smalltown childhood, but it is a significant memory–the helplessness of a 10 year old experiencing the very edge of dying, for hours at a time, and not being able to do anything about it.

In high school I started getting monthly allergy shots, and the frequency, and for the most part the severity, of my attacks decreased. But they never went away completely.

I have almost died. In 1990 one of my roommates brought home a cat, one of my allergy triggers. I ended up in the emergency room for several hours, laying next to a 27 year old HIV positive heroin addict who looked like he was 60 and who was also dying. I did find out that asthma patients get shuttled to the head of the line at the emergency room. That guy who cut three fingers off with a table saw, or the person spitting up chunks of lung may look bad, but they’re not going to die in the next thirty minutes; the non-breather will.

After about two hours of treatment, they came to me with the release papers and the doctor was talking to me when suddenly my throat closed up completely. I wasn’t gasping for breath–I had no breath at all. None. The doctor looked closely at me, then called out to some others to get me to some other place “stat!” And as they ran me down the hall, literally putting a needle in my arm while we were moving, my oxygen-starved brain could only think, “I’m on Emergency.”

After another hour–during which my fiancee was in a state of befuddled concern, because they’d told her I was about to be released and because she’d seen a man with his jaw shot off and watched a door fly open and a man yell, “My name is Snake, and I shot him dead,” while police tried to control him–I was finally released. The doctor said, “We thought we’d lost you.” I asked him what he meant, and he looked at me like I was an imbecile and said, “You couldn’t breathe.” Ohhhhh. I’d assumed that being in the hospital meant that of course they would keep me from dying. I realized then that my condition was so severe that even emergency medical help in a first-world hospital might fail.

I get these attacks occasionally. I’m quicker to go for medical help than I used to be.

Several years ago my college was renovating part of my building complex. The dust–most probably the specific chemicals in the dust–caused a series of severe attacks that my regular medications were barely controlling. One day I stayed home from work and tried to get an appointment with my doctor. Her office didn’t return my calls, and by the time my wife got home I was desperate. I don’t mean concerned or needy, I mean desperate, as in I can’t breathe and that horror of being a child, helpless and dying, was engulfing me. The black pit of despair is a well-coined phrase–at those moments I sense a vast emptiness before me, a snuffing out of my own self, the end, with nothing to follow. Again to the emergency room, and again they resurrect me. And I found a new doctor and my boss moved me to another building for the duration of the construction.

Several years ago I was teaching a summer AP Government class at Georgetown University, where they were constructing several buildings. The dust was bothering me, but it was under control. But one of my students did not have it under control. She ran out of my class one day, and I followed her outside where she sat on a bench struggling to breathe. As I called our office to have them send help, her eyes rolled back, she lost consciousness, and stopped breathing. This scene replayed itself several times over the next week, with repeated trips to the emergency room. On another occasion she had just returned from the emergency room and one of the RAs and I took her to eat at the Georgetown dining hall. As we began to walk out, I noticed that she had suddenly lagged behind. I turned, saw the look of horror in her eyes before they began to roll back, and caught her just as she fell. Yelling for someone to call 911, the RA and I tried to wake her and get her breathing again. We did, the medics arrived, and she went right back to the hospital. Two days later her parents arrived to take her home.

Just before writing this, I was taking a sip of coffee and it went down my windpipe. You probably know the coughing fit that ensues all too well. What you may not be familiar with is a 50 year old man experiencing a rush of terror that strips away all his adult dignity and composure, reducing him to a lost and frightened child on the verge of tears.

Childhood associations are amazingly strong. The sound of a wooden screen door slamming shut invariably brings a visual memory of the cabins at our church camp, and the scent of honeysuckle takes me back to my grandmother’s house. It’s visceral, and I couldn’t shake those associations even if I wanted to. Now imagine that unshakable visceral association is one of horror.

That’s what a mere coughing fit means to me.

Posted in Uncategorized | Tagged | 2 Comments

Wrong, Do It Again!

And today, the only possible agent of political reform is the President.

Lawrence Lessig, explaining why he ran for president, and reminding me yet again that most lawyers are lousy political scientists.

Posted in Executive Power | Tagged , ,

A Non-partisan Argument Against Justice Obama

Hillary Clinton, never one to miss an opportunity to pander, told a prospective Iowa voter that he had “a great idea,” in suggesting she appoint Obama to the Supreme Court.

It’s a terrible idea, and that has nothing to do with how I feel about Obama’s presidency, his character, or his qualifications for the job.

My friend Ed Brayton, who blogs at Dispatches from the Culture Wars, noted on Facebook that “Obama’s record on civil liberties and in cases before the Supreme Court is pretty terrible. I would have no faith in him as a justice.” He has been bad on civil liberties, but sometimes people change their perspective when they’re in a different position (c.f., Earl Warren). I’m not positive Obama would be a horrible civil liberties justice (although I’d be happier with the appointment of someone with a better track record, for sure).

Others might worry that Obama is too much of a leftist, because apparently there are people who still believe that. I don’t find that a serious concern. More pointedly, some might note that he doesn’t have any judicial experience, and that having been a part-time teacher of constitutional law isn’t the most impressive resume for a SCOTUS appointee. But of course it’s a fairly recent tradition that all appointees must have lengthy judicial experience, and one that appears to me to be largely driven by the American Bar Association’s inappropriate assumption of the role or arbiter of qualifications for a public office (and we worry about the Koch brothers!). Personally, I I think there are umpteen thousand Americans who are qualified for the job, and presidents’ talk about selecting “the best” person is 100% FDA Prime bullshit. And a little less technical lawyering and a little more understanding of the Constitution as more than a legal document–I’m looking at you, Tony Scals–wold be good.

But my overriding concern is the growth of presidential power. And one of the factors promoting that has been a Supreme Court that has been less eager to check presidents, and that–according to political scientists Matt Crenson and Ben Ginsberg in their book Presidential Power: Unchecked and Unbalanced–is at least in part because more and more Supreme Court justices have extensive background in the executive branch, rather than gaining experience elsewhere. They become enculterated in the concerns and needs of the executive, and more willing to give presidents some leeway, rather than trying to keep them in check.

Presumably, presidents have always appointed judges whom they found politically congenial. What has changed is that preisdnets no longer choose judicial appointees with legislative backgrounds, and the political milieu in which judges originate presumably affects their institutional affinities and sympathies. During the nineteenth century, federal judges typically emerged from the country’s electoral and representative systems. …

The fact that many federal judges had served, continued to serve, and often would serve again as legislators helped to reinforce legislative primacy by ensuring that the federal bench would hvae a certain respect and partiality for legislative institutions. …

Judicial deference to legislative power has practically disappeared today …

What has changed in recent decades is the character of judges’ political and governmental experience. Few recent or contemporary federal judges have ever served in a legislative body, but many have served in executive agencies or in federal or state judicial institutions…Today’s judges are recruited primarily from executive and judicial positions, not from legislatures. [pp.305-314]

Crenson and Ginsberg have a table showing the decline of federal judges with judicial legislative experience from a high of almost 81% in 1830, to 38% in 1900–around the time presidential power began its upward trend–to 4% in 20005. We need fewer judges with executive backgrounds, not more, and certainly not one so deeply steeped in sympathy for the office of the presidency itself.

LBJ adviser George Reedy, in The Twilight of the Presidency regretted that the President has become so sheltered that there is no one to tell him “go soak your head” How likely is it that a Justice Obama would tell future presidents–not just a President Hillary Clinton, but a President Rubio, Cruz or Trump, too–to go soak their head?

Posted in Uncategorized | Tagged , , , , , | 2 Comments