Affirmative Action and Supreme Court Politics

Everybody understands that affirmative action programs at universities are in jeopardy now that the Supreme Court has decided to revisit the issue. Everyone also understands that if the Court abandons its opinions in Grutter and Bakke, the change in doctrine will not reflect new data about the effectiveness of affirmative action or a diminution in public support for the policies.

Rather, everyone understands that the Court may override its previous decisions because the moderately conservative Sandra Day O’Connor has been replaced by the very conservative Samuel Alito. As the Court’s composition cycles from one side of the political spectrum to the other, so do its holdings.

It doesn’t have to be this way. Instead of having one partisan appointment after another, we could have one bipartisan appointment after another. In a recent post, I mentioned my forthcoming book (Two Presidents Are Better Than One, NYU Press 2013). I argue there that we can defuse partisan conflict in Washington by replacing our one-person, one-party presidency with a two-person, two-party presidency. A more consensual form of government can work in the United States as it has in parts of Europe.

Defusing partisan conflict would directly address the politicization of the judiciary. Since the defeat of Robert Bork’s nomination in 1987, the judicial appointment process has become increasingly divisive and subject to delay. The number of vacancies on the federal bench almost doubled during the first two years of the Obama Administration.

If we had Democratic and Republican executives sharing the appointment authority equally, they would regularly send moderate nominees to the Senate, and partisan politics would no longer play a role in the process. Judges and justices would be approved more swiftly, and their decisions would follow a consistently centrist path rather than a conservative path sometimes and a liberal path other times. That can do much to restore public confidence in the rule of law.

 

Comments

[Patrick Luff]

I see a host of problems with this proposal that are unrelated to judicial nominations (for example, it would entrench a political balance of power that may not hold in the future). More to the point, defusing partisan conflict only reduces the politicization of the judiciary when the Senate and the presidency are held by different parties, or when there is a sufficient minority of the opposition party in the Senate to block judicial nominations. We would expect in such situations to get more moderate judicial nominees in such situations, because the nominees will have to be palatable to both parties. A two-party presidency would shift the policy preferences of the executive toward the median, so that the midpoint between the preferences of the executive and the Senate would be closer to the Senate’s ideal point than it would when the Senate and the presidency are held by different parties, which ultimately places more power in the hands of the Senate than is the case under our present system.

[David Orentlicher]

Thanks for your comment. On the entrenching a balance of power, my proposal calls for two presidents from different parties, allowing for third-party candidates to share the executive power. That said, what entrenches the D-R balance of power is our winner-take-all elections for federal and state legislatures and executive branch positions. Strong third parties emerge in proportional representation systems. I'm not sure about your main point. A bipartisan executive branch will result in centrist nominees, regardless of the make-up of the Senate, and it's difficult to see a Senate majority having sufficient influence to force presidential partners much off the center, especially since filibuster-proof Senates are uncommon.

[TJ]

I assume you address this in the book. But we already have division of appointment authority when the president and Senate are controlled by different parties (or when the minority in the Senate has sufficient veto power to filibuster). I'm not sure--in fact I seriously doubt--that we have seen a reduction in the partisanship of judicial appointments. This makes perfect sense: because a divided power creates gridlock and paralysis in the political branches, the only place anything can get done decisively is through the judiciary, and that means the judiciary become more politicized and more partisan. And this dynamic makes me profoundly skeptical of your claims here.

[David Orentlicher]

This is an important point--if divided power currently results in gridlock, why wouldn't a shared presidential power result in gridlock in the executive branch? As you surmise, I address this question in my book. Elected officials engage in partisan conflict because they believe it can enhance their political power. Recall, for example, Sen. DeMint urging his colleagues to defeat health care reform so they could break the Obama Administration. But if two presidents share power equally, they gain nothing by fighting with each other. No maneuvering could change the balance of power. Thus, the only way to leave a legacy of achievement (which would be their primary goal) would be to work cooperatively. They would have the kind of relationship that principles of game theory tell us would promote cooperation.

[TJ]

It seems what you are saying is that if we made the filibuster really, really difficult to break and then permanently entrenched it--essentially giving both sides complete veto power--then Senators would stop engaging in partisan conflict, and their hunger for a "legacy of achievement" would lead to less gridlock. Certainly an idea that goes against conventional wisdom. But in my view it goes too much against the conventional wisdom to be believable.

[David Orentlicher]

As you suggest, the filibuster is a useful analogy. I think its presence in the Senate and absence in the House helps explain why we see more cooperation across the aisle between senators (e.g., Hatch and Kennedy) than between representatives. However, it is much more difficult to promote cooperation in a 100-person Senate than in a 2-person White House. While two presidents would have very strong incentives to cooperate and very weak incentives to fight, the incentives for senators are much more complicated. Securing a legacy of achievement in the Senate may or may not promote one's gubernatorial or presidential aspirations. As Mitt Romney is finding, an achievement in one setting can be viewed as failing in another setting. Also, when you have large groups, individuals may choose free riding and exploit the cooperation of their colleagues. Thus, it's much easier to maintain cartels with small numbers than large numbers. So while I think the filibuster is useful in promoting cooperation between Democrats and Republicans in the Senate, its ability to promote cooperation is more limited than would be a bipartisan executive branch.

[Kendall Isaac]

Having two presidents would lead us to assume they could play well in the sandbox together. I have extreme reservations about this notion. We already have a society where politicians advocate or endorse extremist positions solely because they are "supposed to" based on party affiliation. I fear a dual presidency would lead to unnecessary haggling in the executive branch and an inability for work to get done - since it would be unlikely they could agree for fear of offending their constituencies. Perhaps I am too cynical, but I cannot see it working. Now maybe if there was a 3rd independent who could be a tiebreaker....

[David Orentlicher]

I understand your concern, but for two reasons, I believe the two presidents would end up cooperating. First, their personal incentives to leave a record of accomplishment would drive them to cooperate with each other. Second, their constituencies would change in a way that favored cooperation. Currently, independent voters wait for the November general election, and primary voting is dominated by a political party’s core supporters. Thus, candidates often need to stake out ideologically strong positions. But in a two-person presidency, the ultimate outcome will be determined largely during the primaries. The Democratic and Republican nominees will typically finish in the top two positions in November. Accordingly, moderate voters who currently do not affiliate with a political party would recognize that their votes would matter only if they voted in the primary elections. This would drive more independent voters into the primary electorate, and moderate, more conciliatory positions would have greater appeal. As for a third, tiebreaking president, that would actually make for less cooperation. Each of the other presidents would try to form a coalition with the third executive.