03 May 2008

Clear Reasons to Vote Democratic (1) ~ Those Legal Extremists of the Right

Richard Posner & William Landes from University of Chicago Law School - neither of whom run much risk of being mistaken for a political liberal - have posted this paper at the Social Science Research Network. In it (see Table #3) they rank the 43 Justices who've sat on the U.S. Supreme Court during the seven decades from 1937 through 2006 from most conservative to most liberal. Posner and Landes consider all votes in non-unanimous decisions in the areas of economics and civil liberties. They discover that 4 of the 5 most conservative justices during this entire period (Thomas, Scalia, Roberts & Alito) currently sit on the court. The fifth member of the top five (Rehnquist) only just left the court. Moreover, the current swing voter (Kennedy) as well as his immediate predecessor in that role (O'Connor) both are in the top ten most conservative Justices during this period. Kennedy only casts a conservative vote in these cases two-thirds of the time. The four horsemen of the right each vote conservatively from 74% to 82% of the time. By contrast only a single member of the current court (Ginsberg at #35) is among the top ten most liberal Justices. This sort of information surely gives the lie to the notion that the current court is simply driven by "the law." In this post over at Balkinization Brian Tamanaha wryly notes:
"It is reassuring that Thomas and Scalia follow "originalism" and interpret statutes according to their literal meaning, that Roberts "calls balls and strikes," and that Alito strictly "applies the law." I wonder what their numbers would have looked like had they gone ahead and voted their political views."
It certainly is reassuring. It ought to stiffen the resolve and dampen the bi-partisan collegiality of Senate Democrats in future confirmation proceedings. It also ought to dissuade all those progressives who are tempted to do something silly and vote for, say, Nader next fall [1] [2] or all those supporters of Barak/Hilary who insist that they won't vote for the other should their preferred candidate not get the nomination [3]. This alone ought to be enough to get everyone from center to the left to "hold-your-nose" in the upcoming election

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