Judges, "Conservatives", and the "Gang of 14"

John McCain, it comes as no surprise, is still having trouble with conservatives. Given his own conservative stances--which always take a hard-right turn close to election time--it is a little surprising that the right wing of his party is so concerned. Ann Coulter, Rush Limbaugh, and other media clowns aside, there are serious reasons for the senator to worry that he will not be able to corral the base of his party for the November elections.

We might reduce the entire question to one of judges. For the self-styled, capital "C" conservatives in the Republican Party, the issue of what judges has become paramount. McCain has earned conservatives' distrust primarily because of his membership in the "Gang of 14," a bipartisan Senate clique that sought compromise in the growing crisis over George W. Bush's judicial appointments. Stonewalling appointments--nothing new, by the way, and a tactic of the Republicans during Clinton's administration--led Republicans to threaten to change the Senate rules. Current rules require a vote of 60 Senators to agree to stop debate before voting to confirm or deny a presidential appointment. Such rules guarantee that the minority party is not shut out of the process of giving "advise and consent" during the nomination process. Dubbed the "nuclear option," the rule change would have forced an up or down vote on any nominee by the president. It would have had the effect of greatly speeding up the judicial nominating process, provided that the same party (and presumably the same factions within that party) controlled the Senate and the Presidency. The Gang of 14 made the political bargain. Agree not to nominate anyone too radical, said the Democrats, and we will make sure you have the votes to get the nominee to the floor. McCain and other Republicans said fine. The deal was struck, the nuclear option was taken off the table, and two of the most conservative men ever to sit on the Supreme Court were successfully nominated and approved.

It was hardly a Faustian bargain, but conservatives have regarded McCain with suspicion ever since. Whether this is justified, even from a radical conservative viewpoint (as opposed to a principled or pragmatic one) is up for debate. Whether it proves detrimental to McCain's bid for the presidency remains to be seen, but it seems fairly clear that the "base" of the republican party feels betrayed, left out in the cold, and most likely won't venture out to the polls this year, at least not in the numbers that they did when Karl Rove cajoled them to come out and vote for W.

Buried beneath this story of coalition building with in the two-party system is an extraordinary assumption: that judges truly are the most important officers in our republic. They have, of course, always been important. But is it so important that McCain has to send up signal flairs (Ted Olsen is his new best friend, e.g.) and drop a whole constituency come election time? Maybe so.

Historically, judges have wielded tremendous power, but not over the kinds of subjects that conservatives are now concerned with. First and foremost in the minds of today's religious conservatives are questions about the separation of church and state (establishment clause) and abortion. But these are not issues resolvable in the courts, regardless of the will of the justices or, for that matter, the original meaning of the Constitution.

The real question, it seems, is precisely what difference judges can make in everyday issues.
Throughout most of our history, judges have been conservative bulwarks against radical political change. This was true even when they were actively ruling in favor of corporate and industrial America's expansion and declaring trade unions illegal in the late-nineteenth century. It will doubtless remain true into the next century.

From this standpoint, McCain's position in the "Gang of 14" should not be a liability. It was an old fashioned conservative compromise, one that preserved the existing rules, took account of
minority views, and resisted the kind of radical shift in politics that might destabilize politics permanently.

Hardly a thing, in other words, that would upset true conservatives.

Preemption and the Health, Welfare, and Morals...

There is good reason to wonder about what drives the Supreme Court's thinking about the issue of preemption. Briefly, preemption is about federalism and suggests that powers assigned by the Constitution to Congress necessarily preempts a concurrent power in the states. The first significant case concerning this arose in Sturges v. Crowninshield in 1819. In that famously big term (think McCulloch v. Maryland, Dartmouth College v. Woodward), John Marshall helped empower the U.S. government over that of the states, thus giving judicial sanction to questionable congressional legislation and restricting the power of states over corporations. Although by far the most equivocal of the opinions, Sturges contained the seeds of the powerful doctrine of preemption. This would have far reaching consequences beyond those presented by the bankruptcy statute in question in Sturges.

This might seem just a matter of historical curiosity, but it is not. Preemption has been at issue in a number of cases in the twentieth century, and is front-and-center in the case of Warner-Lambert Co. v. Kent, which is to be argued on Monday, February 25. The issue is tort liability and whether the state of Michigan can pass laws allowing state residents harmed by pharmaceutical companies to sue them in state courts. They do so to protect state residents (claim the states) even though drugs have been approved by the Food and Drug Administration. In order to get into court, the plaintiffs must prove a "fraud on the FDA." Pharmaceutical companies have argued (successfully in the past, particularly in Buckman Co. v. Plaintiff's Legal Comm.) that such liability claims conflicted with federal law and were thus void.

There are several collateral issues here that are worth attention. The first has to do with whether the states possess authority to protect their residents' "health, welfare, and morals," (the police power, traditionally) or whether such power has been surrendered to the federal government. The Tenth Amendment would suggest not, but modern constitutional law has not been kind to such claims.

In a complicated federal system, preemption is a major issue. In this case, it does not appear that the Michigan statute will stand, although the respondent in the case (plaintiffs in the original case) plead that Michigan will probably repeal the statute anyway, and as such the Supreme Court should not get involved. Nevertheless, the current Supreme Court is not made up of members who have been particularly kind to the over-assertive federal government. It might well be worth watching what the Court does in this little-noticed case.

and now, the superdelegates

The Democrats survived Super Tuesday, or at least Obama did. The party higher ups are clearly chewing their tongues over the possibility of a divided convention, which could spell disaster for the November elections. Possibly no one expected Obama to come out ahead in the delegate count after February 5, and he now has a clear lead.

Which means, oddly enough, that he won't get enough to win the nomination. It has become apparent that the arcane rules for deciding the nomination will leave the superdelegates with the deciding votes. The superdelegates are the party officials--members of Congress, state party chairmen, members of the national committee, and major leaders. There are 796 of them in all, and many have already "pledged" one way or the other their support.

They are not, however, bound by such pledges. Unlike the elected delegates, the superdelegates are not bound even by their own word. They are, after all, politicians. A few have been known, over the years, to change their minds on certain important subjects.

Since this block of 796 delegates hold the key to power, the question is who gets the superdelegates and why? Conventional wisdom would give the Clinton machine the edge. They have the party apparatus and webs of loyalty that suspend many in their net. And even Chelsey Clinton is making campaign calls (most famously, to the women on the View).

But there are good reasons to think of Obama as having the advantage. It is possible that his steamrolling campaign will convince many superdelegates that he is the best shot for president in 2008. He is, after all, the only fresh face in this entire field (Huckabee may protest now). His momentum is undeniable. His fundraising abilities remarkable. Hillary, after all, is busy lending her campaign money.

So what factors really will determine the superdelegates' loyalty? I think the answer may be more cultural and public than Washington insiders would like to believe.