The Volokh Conspiracy

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.