Final thoughts on Kerry & Kos: I wonder if this gives us a preview of the Kerry '08 campaign strategy? Most would agree that Senator Kerry has one fundamental question to ask himself: "How do I beat Hillary Clinton?" One strategy would be to try to do to the front-runner (Clinton) what Howard Dean almost did to him when he was the front-runner. Call it "Howard Dean without the scream." How does blogging for Kos potentially fit into this strategy?

(1) Portrays Kerry as the outsider/anti-establishment candidate: Obstacle number 1 is the likelihood that the Democratic Party and MSM will annoint Clinton the front-runner early on. One way to contest this is to say he is the anti-establishment candidate and that he doesn't care what the establishment thinks of his chances. Obviously there is some difficulty to this--he seems about as anti-establishment as Bob Dole was in 1996 (and the Switzerland gaffe doesn't help much). Nonetheless, communing with the blogs helps him to cultivate an anti-establishment persona that distinguishes him from the front-runner.

(2) Portrays Kerry as the "fighting principled liberal": From this perspective it makes little difference whether the filibuster succeeds, what matters is his willingness to fight for it. In a year or two he can say that he fought for what was "right" even though it didn't succeed--i.e., he has the courage to be "right" rather than expedient. I suspect that we will be hearing about his leadership on the Alito filibuster effort down the road. Senator Clinton, of course, has been moving toward the center on a variety of issues in anticipation of positioning herself for the general election. This potentially opens up a space for a credible "principled liberal" on her left flank.

(3) Coopt the Kos: As the blogosphere grows, its influence undoubtedly will grow. With that, one can expect an increasing effort by politicians to coopt the blogosphere and even to gain endorsements from blogs. I have noticed, for instance, that a number of conservative blogs have been endorsing one candidate or another in the House Majority Leader's race. I don't recall blogs making these sorts of formal endorsements to the same degree in the past (maybe I just didn't notice). This positions Kerry for a possible Kos endorsement (and maybe other blogs) down the road, with all the PR and Internet fundraising advantages that may give him. At the very least, it makes it less likely that Kos will actively campaign against Kerry.

Obviously this is just speculation on my part, but I think this is really a pretty interesting and entrepreneurial move by Senator Kerry in light of his specific mission of trying to knock off Hillary Clinton. Moreover, it is not obvious to me what other strategy is available to any Democratic candidate seeking to challenge Senator Clinton. It will be interesting to see if this is a harbinger of things to come.

Update:

I see from the trackbacks to my earlier post this morning that Senator Clinton has announced that she too will be joining the filibuster and that Senator Kennedy is now blogging for Kos as well.

Update:

A Commenter points out that Senator Kennedy has posted a few times on Daily Kos in the past prior to the filibuster post.

The Washington Post has a story this morning worth a read, "Blogs Attack From Left as Democrats Reach for Center."

I found particularly interesting the references to Senator (and presumably Presdential-aspirant) Kerry's efforts to reach out to bloggers, such as his post this week on Daily Kos announcing his decision to try to filibuster the Alito nomination (and before that his comments on Iraq). My initial thought is that it is quite a savvy way by him of trying to establish his bona fides with the Democratic grass-roots base so as to try to peel away some of this constituency that otherwise seems naturally inclined Senator Clinton. The use of blogs in this manner, it seems to me, may be important in two ways. First, it allows for unusually well-targeted messaging to particular audiences at low cost, with minimal spillover to other audiences. Second, at least for the current moment in time, it provides a useful symbolic shorthand for politicians to define themselves with a particular "team"--i.e., simply by acknowledging and talking to these guys it provides a symbolic reaching out beyond traditional party establishments, in the same way that conservative politicians have used talk radio to cultivate a similar image.

Which prompts a final speculation--given the apparent inability of liberal talk radio (e.g., Air America) to get traction, I wonder if this has anything to do with the way that liberal and conservative blogs have evolved into having different structures. Think of it this way--if John Kerry were a conservative, he would have probably phoned-in a filibuster to Rush Limbaugh rather than blogging on Daily Kos. This leads me to wonder whether one explanation for the apparent difference between conservative and liberal blogs is that in some sense conservative blogs and talk radio work in tandem with each other, whereas liberal blogs essentially have to perform simultaneously both of the functions served by two distinct outlets by conservative media (talk radio and blogs). My impression is that liberal blogs tend to be in some sense larger and more centralized (such as Daily Kos), whereas conservative blogs tend to be more plentiful, smaller, and more decentralized in structure.

I'm raising the question of whether perhaps this is because because whereas blogs and talk radio essentially function as complementary technologies for conservatives, liberal blogs are essentially forced by the market into performing both the narrowcasting functions of, say, Powerline as well as the broadcasting functions of Limbaugh. Perhaps others have made this observation previously, or perhaps I'm just all wet, but Senator Kerry's blogging appearances on Daily Kos framed the question in a new way for me, so I thought I'd throw it out there. Most commentary I have seen tends to lump conservative talk radio and blogs together as essentially redundant "new" forms of new political technology, but its not obvious to me that is necessarily true.

If this is true, then it would predict that more liberal politicians might follow Sen. Kerry into the blogosphere, whereas we wouldn't necessarily expect to see conservative politicians reach out in exactly the same way.

Excerpted from the WSJ yesterday (I can't tell whether it is available for free on opinion journal or through my WSJ subscription):

The Roberts-Alito Court Thank you, Ted Kennedy and Ralph Neas.

Thursday, January 26, 2006 12:01 a.m. EST

With at least 52 Senators already on record in support, it's clear that--short of some smear ex machina--liberal Democrats can't stop Samuel Alito from being confirmed to a seat on the Supreme Court. So it's a good moment to consider what this says about our politics and what it means for the Court as it enters a new era.

One conclusion is that the confirmation of both Chief Justice John Roberts and Judge Alito marks the most important domestic success for President Bush since his 2003 tax cuts. These look like legacy picks. Despite the Harriet Miers misstep, Mr. Bush has now fulfilled one of his campaign promises. And with two distinguished conservative jurists joining Justices Antonin Scalia and Clarence Thomas, the Court is closer than it's been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles.

In this sense, the Alito-Roberts ascendancy also marks a victory for the generation of legal conservatives who earned their stripes in the Reagan Administration. The two new Justices are both stars of that generation--many others are scattered throughout the lower courts--and they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese's revenge.

The Roberts-Alito Court also represents a notable, and greatly satisfying, rebuke for the legal left and its "borking" strategy. They have long thought of the courts as their personal legislature, and they have shown they will do and say anything to keep control of it. But this time they lost, and on their own ideological terms.

Senator Chuck Schumer declared in 2001 that he wanted to turn judicial confirmations into battles over "ideology." The New York Democrat succeeded in doing so, but he ended up losing in a self-knockout. One reason Democrats couldn't defeat Chief Justice Roberts or Judge Alito, despite near party-line opposition, is that their filibuster strategy had made judges a top-line election issue in both 2002 and 2004.

The battle over their unprecedented filibuster of 10 appeals-court nominees helped to sweep Democrats out of the Senate in Bush-leaning states and give Republicans a larger majority. The Democrats who remain in red states--five of whom are up for re-election in November--saw all this and had no appetite for a repeat in 2006. The liberal interest groups that devised the filibuster strategy and wrote the anti-Alito talking points for Senators Ted Kennedy and Patrick Leahy thus contributed as much as anyone to Judge Alito's confirmation. Congratulations, Ralph Neas. It's your finest hour.

In contrast to the WSJ's evident glee, the NY Times is "frightened" of Judge Alito and is calling for a filibuster, "Senators in Need of a Spine":

But portraying the Alito nomination as just another volley in the culture wars vastly underestimates its significance. The judge's record strongly suggests that he is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances, elevating the presidency over everything else. He has expressed little enthusiasm for restrictions on presidential power and has espoused the peculiar argument that a president's intent in signing a bill is just as important as the intent of Congress in writing it. This would be worrisome at any time, but it takes on far more significance now, when the Bush administration seems determined to use the cover of the "war on terror" and presidential privilege to ignore every restraint, from the Constitution to Congressional demands for information.

***

Judge Alito's refusal to even pretend to sound like a moderate was telling because it would have cost him so little. Chief Justice John Roberts Jr., who was far more skillful at appearing mainstream at the hearings, has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment.

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

The latest issue of Econ Journal Watch is out and I wanted to call readers' attention to a couple of articles in particular.

William McEachern of the University of Connecticut has an article presenting evidence on the campaign contributions of "American Economic Association Members, Committee Members, Officers, Editors, Referees, Authors, and Acknowledgees." Subject to obvious caveats about the nature of the data set, McEachern finds that in the AEA generally the Democratic to Republican contribution ratio is 5.1 to 1 and that on average contributions to Democrats were approximately 20 percent larger than to Republicans. He also finds that about 10% of the editors of the American Economic Review contributed to candidates (9 out of 84 Americans), and of those, all of them contributed to Democrats. McEachern similarly studies the editors, referees, etc., of the Journal of Economic Literature, and Journal of Economic Perspectives. He concludes by asking whether it is possible that the ideological orientations of editors and referees have the potential for influencing their opinions as to the quality and relevance of various articles.

Dan Klein follows-up with an an essay on the possible implications of McEachern's research (and that of others) for the professional practice of economics. Klein makes the provocative argument that the editorial leadership of the AER's various journals may be reflected in the pattern of articles published there. These journals are among the most prestigious in the profession, so there is some import from this. Klein suggests that the ideological predispositions of the editors is reflected in the type of articles that are accepted and published (his argument that McEachern's data reflects itself in the articles published is largely anecdotal). Put crudely here (and with more nuance there), Klein suggests that "liberal" economists who serve as editors of the AER are less likely to publish articles that are critical of interventionist economic policies.

Note that itis not necessary for editors to be consciously-biased in order for ideology to influence publication processes. Ideological bias may mainifest itself as simply as the degree of skepticism applied to a given argument or the extent to which a reader believes that the author has "considered" competing explanations for the observed phenonmenon, for instance. Even more diffusely, what a given editor believes to be an "interesting" or "original" contribution will be colored to some extent by ideological views.

Note more generally that Klein's argument is anchored in the McCloskeyite notion of the economic enterprise as a sort of conversation among economists, rather than "truth" per se. In this McCloskeyite view, the preexisting ideological perceptions that economists bring to the table would be relevant to understanding this process in a way that it would not be in the standard Popperian sort of analysis of scientific economics. Obviously this assumption itself in Klein's paper is likely to prove controversial.

Both articles present the question whether subconscious ideological beliefs influence the publication process of professional economics journals. Klein also praises (p. 185) the role of blogs in creating a more spirited discussion about economics than is present in most scholarly journals. If that is so, and it does seem plausible to me, Klein argues that there is room for some degree of disclosure in the publication process to determine whether there may be ideological bias that may color editors' and reviewers' perceptions of an article.

There is an interesting analogy to Klein's--it is commonly expected that if someone has a financial interest in a matter or their research was financially supported that a disclosure is appropriate. Given that a person's ideological bias may also influence their independence, it is an open question whether it might also be appropriate to make similar sorts of disclosures about ideology. I'm not sure, but if Klein is right that ideological bias matters in professional publications (and he's the only one I have seen that actually looks at that question), the logic of the argument suggests that such disclosure might be appropriate.

These articles are sure to prove controversial, both in the findings of the data and the implications that the authors draw from them. By the way, Econ Journal Watch is a fascinating publication (most of the January 2006 issue is actually focused on completely different issues) in that it is an effort to create the sort of robust debate that is actually somewhat lacking in most academic journals today. In some sense it can be thought of as a hybrid between academic journals (in their seriousness and depth) and blogs (in their effort to create a real dialogue of ideas, rather than just a series of monologues).

If Klein is right, there does seem to be implications of this for law reviews. My impression is that most law professors work under the assumption that ideology is almost certainly present in the selection process of student edited law reviews, given the nature of the process. It is an observation frequently remarked upon in passing, but to which little thought is given as to the possible implications. It almost certainly influences where articles get accepted (or even read) and in my experience it can impact the editing process quite dramatically. I have no original ideas about whether this actually turns out to be a substantial problem in practice and if so what might be done about it. But it seems like an important question that has heretofore been largely ignored.

Anyway, while I don't necessarily agree with the entirety of the argument (just because I haven't thought it all through in depth) I thought the argument sufficiently interesting that I wanted to call to readers' attention this conversation in Econ Journal Watch.

This post by Joe Malchow is pretty neat--it shows alternative editorial cartoons drawn by the same artist, conveying three different perspectives on the balance between "civil liberties" and "national security," drawn from liberal, conservative, and centrist perspectives.

If you missed it, there's a nifty article in the Weekly Standard this week on Saudi Arabian bloggers as a force for liberalization and women's rights, "Blogging Saudi Arabia: Undermining the Wahhabis, one post at a time." On a related topic, Hugh Hewitt has a long, interesting article in the same issue of the magazine on the Columbia School of Journalism.

Sean Sirrine was at the scene of the snub as it was occurring and reports Justice Scalia's words--"My new Chief Justice has just been sworn in."

As Sean observes, "Sounds like he really has it in for that guy."

Assuming that Judge Alito is confirmed by the full Senate, the "precedent question" rears its ugly head--will party-line votes become the future of Supreme Court nominees? The heated Bork and Thomas confirmations did not appear to set a precedent, in that Ginsburg and Breyer were confirmed by overwhelming bipartisan majorities. Assuming Alito is confirmed on roughly a party line vote, will this set a precedent? Joe Malchow says "yes," what goes around inevitably will come around (and adds a pithy quote from Senator Jon Kyl to back it up). And the urging of the base will ensure that. The subsequent confirmations of Ginsburg and Breyer, by contrast, suggest that the Bork and Thomas experiences did not seem to set a precedent.

And while I have your ear, a question for the gathered. Leaving aside Vanguard and CAP (which seem to have evaporated as issues) is there a principled reason why a Senator might vote for Roberts but against Alito? Are there particular questions or elements of their record that would justify a different vote in the two cases? Moreover, it seems to me that by almost any reasonable analysis of the record, Alito looks much more like Roberts than either Bork or Thomas (whose confirmations were somewhat sui generis, for different but unique reasons), so it is not obvious to me why Alito's "no" vote total would look more like Bork's and Thomas's than like Chief Justice Roberts's.

While I'd be interested in hearing from anyone who can articulate a principled explanation for why one my vote differently on Roberts versus Alito, I'd be especially interested in hearing from readers who supported Roberts but would oppose Alito (as some 20 or so Senators appear poised to do). I ask because if there is a principled distinction between the two, that could very well shed some light on whether a party-line vote on Alito could be precedent setting.

Steve Teles weighs in on the Bruin Alumni Association and contrasts competing strategies for conservative reform of the academy. He argues that the "Federalist Society" approach of eschewing bomb-throwing has been more effective at getting conservative ideas legitimated in the legal academy than a more confrontational and combative style, which he refers to as the "Dartmouth Review" strategy (which is the BAA strategy as well). In fact, almost since its inception the Dartmouth Review has been doing teaching reviews similar to that of the BAA, as I'm sure student newspapers do elsewhere as well. (A reminder to interested readers that I was not and am not affiliated with the Dartmouth Review).

Steve's observations generally seem correct to me. But while I find the whole approach tasteless and more than a litte discomfiting, I'm not sure that I can agree that the strategy is counterproductive.

On the other hand, advocates of a more combative strategy might argue that we have both missed the real point, which is the need for fundamental change to the culture of the academy. And, indeed, I have heard some conservatives express the view that one danger of the approach that Teles refers to as the accommodationist or "Federalist Society" approach is that it runs the risk of coopting conservatives into the prevailing establishment, rather than meaningfully changing the establishment itself. (Let me stress that I am not implying here that the Federalist Society has "sold out"--I'm just borrowing Teles's terminology to describe a general type of approach toward the academy). In other words, conservatives are rewarded for their ability to "play nice" within the prevailing establishment, rather than being agents of change of the academy itself. In this view, conservatives are relegating themselves to permanent minority status because they are playing within the establishment structure and accepting the slate of rewards established there. Put otherwise, it is a serious question as to whether those who succeed within the establishment can be counted on to be agents of change of that same establishment, whether by temperament or by self-interest. To the extent that groups such as the Federalist Society simply bestow redundant rewards on those already rewarded by the establishment system, they run the risk of simply replicating the same establishment that they are titularly intended to oppose. The question here is not about whether this is true of this or that particular group, but whether the general approach gives rise to a temptation or general drift in that direction.

Consider an analogy that I have heard advanced in this context--the difference between the Republican Party of the 1970s and 1980s and the Republicans of the 1990s. The former group, led by the "Bobs" (Michael and Dole) were willing to accept the prevailing establishment rules--and permanent minority establishment. Bomb-thrower Newt Gingrich (and others, such as Lee Atwater), by contrast, used a more confrontational strategy and succeeded in overthrowing the establishment. The Bobs, of course, ridiculed the Gingrich types for the belief that either their strategies or their ideas could ever become majoritarian ideas. Gingrich, of course, intended to create an entirely new sort of establishment, a project which Tom DeLay then imperfectly took to the next level (before his fall, of course). And, of course, the new establishment eventually has come to take on many of the trappings of the establishment it supplanted.

An even more interesting question is whether the operation of both bomb-thrower groups such as the Dartmouth Review and BAA in combination with more establishment groups such as the Federalist Society may be an even more potent strategy for change than either strategy working alone. A third strategy is to simply give up on changing the existing system as hopeless and establish a completely alternative network of institutions (a counter-establishment), a position that many have come to support, especially religious conservatives. See, for instance, the rise of the home school movement, alternative universities such as Patrick Henry College, and in law, Ave Maria law school. That whole approach is beyond the alternative options addressed here, although it does seem to be an increasingly commonly-articulated strategy.

Now I'm not implying that the BAA in any way has thought this issue through with any sort of this type of care or strategic vision. But from a purely strategic and pragmatic reckoning it is not obvious to me that if the goal of the leaders of the BAA are to effect a fundamental cultural change of the academy that this is an obviously strategically stupid strategy that will inevitably backfire in the long run. It very well may turn out to backfire, as Steve suggests, but that is not as obvious to me as it seems to be to Steve. As Steve incisively observes, the purpose of strategies like the BAA or Dartmouth Review strategy seems to be to fundamentally delegitimate the entire apparatus of the establishment, much as Gingrinch did to the incumbent leadership in Congress, rather than accept permanent minority status within the prevailing establishment. I think Steve is right about that. The idea, as I take it, is to try to argue that the prevailing norms and self-governance of these institutions are corrupt to the core and should be replaced with a whole new ethos and system of governance (or in the case of the academy, I suppose they would argue "old" norms of less-political faculties).

In this sense, the BAA seems to be a flower from the same branch that has spawned the Academic Bill of Rights--the notion that universities have proven themselves to be incompetent at the task of self-government and that any catalyst for fundamental change is going to have to come from outside the academy. If that is the long-term goal of conservatives, then that is going to be much messier than the comparatively Marquis of Queensbury rules followed by the Olin Foundation and the Federalist Society, as opposed to more bare-knuckle groups like Horowitz's. Whether it is also more effective, is an open question. While I personally disagree with the Academic Bill of Rights, for instance, it is not obvious to me that it has been a strategic blunder for those conservatives who have endorsed it if they are pursuing a long run goal of a fundamental transformation of the American academy.

Steve notes that the "Federalist Society" approach is aimed at persuading fair-minded liberals within the academy of the intellectual merits of conservative and libertarian ideas. The BAA approach, by contrast, seems to be directed at constituencies outside the academy, such as alumni and state legislatures, who may have the power to change the academy from without. With respect to these consituencies, it is not obvious to me that it will be ineffective. Is it implausible that the BAA or similar groups could convince alumni to withhold alumni donations? And if that is the goal, is it obvious that this would not be an effective approach with those constituencies?

So leaving aside questions of taste or legality of the BAA, and viewing matters simply from a tactical level, it is not as obvious to me that it will be as counterproductive to the goals the group's leaders have as it seems to Steve. Indeed, I suspect that the approach will likely turn out to be quite effective with the outside constituencies toward which it is directed.

Again, let me stress that I am not endorsing this argument here and I am not implying that group that pursue an accommodationist approach have "sold out" to the establishment in any way. Teles argues persuasively that the Federalist Society approach may be more fruitful than the "Dartmouth Review" approach. But the counter-argument does not seem patently unreasonable to me for conservatives seeking to reform the academy, however, and it bears some further reckoning before being dismissed. Moreover, by remaining focused on a mission of change and avoiding co-option by the establishment, it is not inevitable that such strategies result in being co-opted. But it does seem like it is a greater temptation for those pursuing such an approach versus those pursuing a conscious counter-culture appraoch (such as the BAA), and it may be that those pursuing such strategies need to be extra-vigilant in ensuring that their tactics advance their long-term strategies, and not be content merely with permanent minority status or replicating the same establishment.

So, as I said at the outset, I find this whole approach more than a little disturbing, even leaving aside the legal issues that Eugene raises. And certainly I fear for the effect it could have on the classroom, especially among students perhaps even more than professors. But while tasteless and disturbing, I suspect that it will be somewhat effective. And, as a result and for better or worse, I expect the model to spread rapidly to other schools as well.

Update:

The New York Times reports today that the BAA has withdrawn its offer to pay students for course transcripts in order to save the groups "strident supporters" from possible legal action by the university. The reporter does not state who the BAA's supporters are or how she knows they are "strident." She does report that three members of the BAA advisory board have resigned in the wake of the offer and that group has raised only $22,000.

Steve Jacubowski at the Bankruptcy Litigation Blog has more on the Katz case noted by Stuart this morning.

I was teaching all day, so haven't had a chance to read it yet myself, but I thought Steve's post was an interesting take on the case.

A few weeks ago I posted on the new paper by Dan Klein and Charlotta Stern, "Narrow-Tent Democrats and Fringe Others: The Policy Views of Social Science Professors." The post spawned a vigorous and interesting discussion in the Comments (available here). It is also relevant to the Leagal Affairs debate that Orin flagged earlier today. I invited Dan to provide a brief response to some of your Comments if he wanted to, and I am delighted that he agreed to do so. Here is his response:

Todd Zywicki posted an entry on Charlotta Stern’s and my paper “Narrow-Tent Democrats and Fringe Others: The Policy Views of Social Science Professors,” to appear in Critical Review: An Interdisciplinary Journal of Politics and Society. The post was followed by 34 comments.

My 2003 survey of members of six leading scholarly associations has gotten a fair amount of attention. The “Narrow-Tent” paper is the big paper coming out of the survey. If you want to read just one paper on the survey, this is the one to read.

This memo is a follow-up to the set of Volokh comments.

Stern and I are open about our libertarian sensibilities. We agree with Gunnar Myrdal that such openness is the best way to avoid bias and advance discourse that involves deep-seated judgments and interpretations. For a review of Myrdal and a justification of disclosure of ideological sensibilities (and of exposé), please see my paper “Sense and Sensibilities.”

But many commenters say “A-ha!, these researchers are libertarians, and that undermines the whole study.” Sorry, but the conclusion doesn’t follow.

Many revert to l-v-c convention (that is, liberal v. conservative) in putting libertarians as conservatives. The paper shows not only that Dems and Greens are highly statist, but also that Repubs are much more statist than some think, and on some issues more statist than the Dems (e.g., immigration, military action, drugs and prostitution restrictions). My agenda is to criticize l-v-c. I think the terms “liberal” and “conservative” are simply degenerative. Other than code (in the US context) for Dem and Repub, they are terribly fuzzy. Our research tacitly criticizes Republicans and conservatism (in a narrow sense that is different from libertarianism), and I think that is one reason that conservatives ignore many of our findings. For example, the cluster analysis shows that conservatives (in the narrow sense made clear in the paper) are closer to the establishment left and even to the progressives than they are to the libertarians. This finding is remarkable. The first division in the cluster analysis is between the tiny, tiny number of libertarians (of which 40% vote Republican and 11% vote Democratic) and the vast mass of all others who are mostly significantly more statist.

For libertarians, the voluntary/coercive distinction is not only meaningful, but gives rise to important analytic structure in categories and formulations. The distinction is not black or white, but is a matter of degree. My goal is to make people on both the left and the right face up to the fact that they are much more agreeable to coercive policy than they are usually prepared to admit.

Responses to specific points:

1. The Dem’s tent is narrow. The study finds that over the 18 policy questions, the Dems have a narrower tent than the Repubs. (Note, one is a “Dem” based on saying he mostly votes for Dem candidates, not based on being registered Democratic, and likewise for Repubs.) Specifically, the sum of 18 Dem-group standard deviations is 17.1, while the sum for the Repub-group is 23.1. Thus, the sum is 35% larger for the Repubs. The greater diversity of the Repub tent is also shown by plotting the policy index scores for each individual in each group. The Republican group shows significantly more spread (pp. 17-19). Commenters including Gabriel Rossman, Bruce Wilder, and Justin challenge our finding, saying that the result comes from the libertarian selection and formulation of the 18 policy questions. They do not make the case, however. The questions are not remarkable, and the scoring is granular, based on a continuous scale, not a binary categorization into “statist” and “libertarian”. I really don’t see anything about the 18 questions that would deflate the diversity of the Dems or puff it up for the Repubs. Think about it, very few Dems really favor free enterprise and all favor redist/welfare state/protect the weak type policies. I suspect that in the mind of those on the left, the differences between progressives and the establishment left seem larger than they really are. Meanwhile Repubs have both libertarian types and (narrow) conservative types. Realize that the libertarians are often far-out in their opinions, so they stretch the tent more than their number would make one think. Thus, is it really surprising that the Dems have a significantly narrower tent? In the comments the only substantive challenge comes from Gabriel Rossman: “if they had asked about, say, gay marriage they might have found more uniformity among Republicans.” My guess is that we would find academic Dems to be quite uniformly supportive of gay marriage (as Stern and I are), while academic Repubs being more mixed (again, one must recognize that those with libertarian tendencies tend to vote Republican). My guess is that Rossman’s suggested question would have reinforced the narrow-tent finding.

2. Are Dems and Repubs much different? A commenter named “alkali” looked carefully at the 18 issues and notes: “the poll asked respondents to rate themselves on a 5 point scale (from ‘strongly support’ to ‘strongly oppose’) with respect to 18 particular policies. On 8 of the 18 issues, the average Dem is less than 1 point away from the average Rep. On no issue are the average Dem and Rep more than 2 points apart.” Two points. First, the “5 point scale” has a measure of only 4 units, so a difference of 1 is a difference equaling 25% of the scale, not 20%. The differences are somewhat bigger than it might seem. But, second, “alkali” is pointing out something that we highlight in the paper, even in the abstract, namely, that the Republicans are generally also quite supportive of status-quo interventions. Very few are serious supporters of individual liberty. Again, the cluster analysis shows that the (narrowly defined) conservatives are closer to the establishment left and progressives than they are to the libertarian cluster.

3. Regarding the libertarian formulation of the policy questions. Each policy question posits some form of government intervention and then asks degree of support/opposition. It is deliberately constructed to provide a uniform format suitable for creating an overall policy index of degree of statism v. libertarianism. Is there something wrong with that? I think that is the analytic contribution of the study. Many on the left object to it, but frankly I think that is because this method exposes their degree of statism. Gabriel Rossman writes: “the questions are horribly worded and reflect an extreme libertarian bias (for better or worse, things like legalizing heroin and eliminating progressive income tax simply aren't on the table politically). the proper thing to do would have been to adopt questions from the GSS, both because these questions are well tested and also because this gives a solid baseline of the general population.” While I agree that getting comparisons to the general population would be a great benefit of using GSS or other commonly used questions, the problem is that those questions do not get at the core analytic issue of statism v. libertarianism (coercive v. voluntary action). Most surveys are mired in the l-v-c swamp. The big difference between my research and practically all other work on political culture is that I avoid the l-v-c swamp.

4. Do the policy questions favor the Republicans? I do not think that the set of 18 questions are slanted so as to overstate the statism of the Dems and understate the statism of the Repubs. The whole realm of redistribution/welfare state, which the Dems are more statist on, is limited to just one question. Meanwhile, there are three separate questions for drugs, prostitution, and gambling, which are personal-liberties questions I had hoped to see Democrats be significantly more libertarian than the Republicans on (on the whole, they were only somewhat more, alas). Admittedly, the whole realm of military action is limited to just one question, but, hey, that issue is not really straight forwardly statist v. libertarian anyway (similarly with one other question, namely monetary policy), as there is a libertarian flavor to, say, toppling a Saddam Hussein (although Stern and I tend to lean against the Iraq invasion). On the whole, I feel that the findings about relative statism of Dems v. Repub voters are reasonable. Notice that this is about voters’ views, not regimes’ deeds. That the Republicans now in power in Washington have in fact been inimical to individual liberty is not relevant to what we are discussing.

5. Is Democratic really leftist? Justin has a point here, but I think it is pretty clear that we are focusing on the US context and that everything is dominated by the status quo.

6. Why is the academy dominated by the left? This question is tossed around by the commenters, often insinuating that we took a stand on the question. But Stern and I say at the start of the paper that we do not attempt to explain it. I do hope, however, that people observe our contribution to the explanandum: We provide knock-down evidence that Republican-voting PhDs who are members of the leading scholarly association in their field (American Historical Association, etc.) are significantly more likely to land outside of academia in the fields of sociology and history, and same with weaker effect in economics, political science, and legal and political philosophy. Also, across all six disciplines studied, in the multivariate regressions, the correlation between voting R and landing outside academia consistently holds up at 0.01 (see pp. 22 and 34).

I thank Todd Zywicki and The Volokh Conspiracy for hosting this discussion, and those who commented on paper for taking the time.

Daniel Klein, Professor of Economics, George Mason University

Joe Malchow points me to Professor Dershowitz's Chicago Tribune column "The wrong questions from the wrong questioners." (registration required). Dershowitz argues that the problem with Senate confirmation hearings is the Senators themselves: (1) they are too long-winded and self-absorbed, more concerned about speechifying and preening than questioning the nominee, and (2) they lack the expertise in law and cross-examination skills to do a competent job of the matter. While nothing can be done about the former problem, Dershowitz argues that the latter problem can be corrected by hiring trained lawyers to conduct the questioning:

The only way to remedy these problems is to get senators out of the questioning business. I propose that the Judiciary Committee take a page from other congressional committees and hire outside lawyers to conduct their hearings. They should bring in three or four first-rate trial lawyers with backgrounds in constitutional scholarship to ask the hard questions. Of course committee members will consult with the litigators to ensure that they cover all the issues of concern to the senators. But during the hearings, the senators' job will be to listen and then to vote.

He adds, "It is astounding that he should be allowed to join the court without identifying the political lens through which he will confront cases."

Leave aside for the moment the assumption that the purpose of confirmation hearings today is actually to elicit the nominees views on law, rather than the very Senatorial speeechifying that Professor Dershowitz bemoans. Why is it "astounding" that a person could join the Supreme Court without identifying the political lens through which he will confront cases? If the Senate lacks the expertise to make in-depth judgments about law, there are then two possible alternative responses it could take. First, we can try to provide the Senate with expertise in order to carry out this task. Or second, we could restore the Senate's functions to those for which it does have expertise. It is not obvious to me that the former approach is inherently preferable to the latter. For instance, recall the vision of the Advice and Consent Clause in Federalist 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

Under this view, the purpose of the Advice and Consent Clause is to ensure the independence of the judiciary brach from both the executive and legislative branches, by ensuring the qualifications, integrity, character, and independence of nominees and preventing the nominations of Presidential cronies. And, of course, for well over a century the Senate conducted no hearings at all on Supreme Court nominees.

One may agree or disagree with the more humble vision of the advice and consent power laid out in the Federalist versus that assumed by Professor Dershowitz. But it is far from "astounding" to consider the Senate conducting an inquiry focused on the character, independence, and qualifications of a Supreme Court nominee, rather than their political views. This is a more restrained function, and one for which the Senate quite obviously is competent to carry out. And, as Professor Dershowitz himself seems to implicitly comprehend, the structure, power, and expertise of the Senate (perhaps not coincidentally) seems to be much better-equipped to conduct the more tightly-focused inquiry described in the Federalist, rather than the sprawling process that it has become--and which Dershowitz wants to enlarge still further.

One also needs to keep in mind that the Seventeenth Amendment has dramatically reshaped the structure of the Senate in such a manner that I would argue it has made the Senate even less-equipped to effectively carry out the sort of inquiry that Professor Dershowitz advocates. The indirect election of Senators under the original constitution was designed to give Senators a degree of quality and independence from politics that is absent today. This could cut either way, but to my mind this increased politicization of the Senate tends to make the Senate less, rather than more, equipped to responsibly and competently carry out the advice and consent powers given to it under the Constitution. As we have seen, this is a primary reason why confirmation hearings have become precisely the political circus that Dershowitz deplores. Thus, if anything, I think that this change points in the direction of encourging a more restrained view for Senate confirmations, rather than a still more-expansive view.

Put otherwise, I think it is an open question as to whether the Framers would have entrusted the advice and consent power to the Senate in the same manner had they known that eventually Senators would be elected directly by the people in partisan elections, and as a result, the nature and tenor of the confirmation process would deviate so dramatically from what was originally anticipated.

For what its worth, I would say the same thing about Senate trial on Impeachment--as demonstrated by almost farcical political and partisan nature of the Clinton impeachment trial. When the Framers entrusted to the Senate the power to conduct trials regarding impeachment, they anticipated (whether or not naively) that the indirect election of Senators by state legislatures would tend to elevate to the Senate individuals largely independent of political pressures and selected based on their distinction, rather than politics (in contrast to the House, of course). One can see how with that anticipation the Framers could imagine the Senate sitting as a sort of jury weighing the evidence on the impeachment of a public official (such as the President). Had the Framers anticipated that Senators would later come to be directly elected, would they have entrusted to the Senate the power to conduct impeachment trials? It is not obvious to me that they would have. The performance of the Senate during the Clinton impeachment showed the way in which impeachment is now an extension of politics, rather than the Senate sitting as a sort of sober jury, relatively independent of political pressures.

So perhaps the real question to draw from these hearings is not how to enable the Senate to compensate for its lack of expertise so as to enable it to dig still deeper into the nominee's political vision, but rather, whether the Senate should consider confining itself to a scale of inquiry for which it actually might have expertise, and which arguably fits better into the logic of the Advice and Consent Clause in the first place, namely to preserve the independence of the Court from the other branches of the government. And which, perhaps not coincidentally, also seems more compatible with the actual institutional capabilities and expertise of the Senate.

True bliss. And an early birthday present (my 40th coming up next weekend).

Early lines have the Steelers favored by 3.5-4 points, which seems overly optimistic to me. I haven't seen the Seahawks much this year (the only time I remember seeing them is when they lost to the Redskins early on), but they sure looked tough yesterday. The Steelers need to come up with some way to run the ball (Willie Parker hasn't done much against good defenses this year, including the playoffs) and have to come up with a scheme to control Shaun Alexander. It strikes me that one edge for the Steelers may be their ability to blitz, which could offset some of the strength of that Seahawks offensive line. The real problem in thinking about the game is that the general softness of the NFC this year, and the particular softness of the NFC West leaves me simply uncertain about how good Seattle is. But they looked pretty darned impressive yesterday. Neither team looks particularly turnover-prone, so it should be a good, tough game.