General

Along with the entire House of Representatives and 37 U.S. Senate seats, voters this November will be going to the polls to elect thousands of state senators and representatives. Eighty-eight of the nation’s 99 state legislative chambers are up for election this year. And while these state legislative elections are less glamorous and attract far less media attention than elections for federal offices, their results will have important consequences for the direction of public policy in the states. In the states, just as in Washington, there are often dramatic differences between the approaches favored by Democrats and Republicans on major policy issues such as taxation, education, transportation, and the environment. Social issues such as abortion and gay marriage have also produced intense partisan conflict in many states. In addition, the results of this year’s legislative elections will also determine who will control redistricting. The process of drawing new state legislative and congressional district lines could affect control of state legislatures and the House of Representatives for the rest of the decade. So what can we expect in November? In his excellent overview of the outlook for this year’s state legislative elections in last week’s Crystal Ball, Tim Storey explained that

Elections for the thousands of state legislative seats that determine partisan control of states are typically provincial battles drawing relatively little attention from national media. These legislative elections are often called hidden elections. However, the spotlight this November will spill over to these down-ballot races because redistricting is around the corner, so the results in hundreds of races in the hinterlands could have long term implications for partisan control of Washington. In all but six states that use some form of commission, the initial authority for redrawing House districts belongs to the state legislature. Even though the election is still three months away, an eternity in politics, historic trends and political signs point to a Republican year in state legislative races this fall and that could spell trouble for Democrats in Washington for years to come. If Republicans fare well in legislative elections as it appears they might, combined with likely GOP gains in many of the 37 gubernatorial races this fall, they will have a decided advantage when the redrawing of congressional districts starts early next year. The 2011 redistricting could be the first time since the era of modern redistricting began in the 1980s, following the 1960s landmark

California voters recently approved a ballot initiative that would drastically alter the Golden State’s election system. Instead of the traditional two-stage electoral process with separate Democratic and Republican primaries followed by a general election between the major party nominees along with any independent or third party candidates, the new system would feature an open primary in which all candidates would run together and the top two finishers regardless of party would face each other in the general election. Thus the general election could involve a Democrat and a Republican, two Democrats or two Republicans. Theoretically a third party or independent candidate could make it into the runoff, but that would be rather unlikely. Backers of the “top two” primary system, including California Governor Arnold Schwarzenegger, argue that the reformed electoral process will encourage candidates to adopt more moderate positions in order to appeal to a broader primary electorate and that this will, in turn, make it easier to achieve bipartisan compromise and avoid the gridlock that has paralyzed the state in recent years. But how realistic is the claim that the new primary system will reduce partisan polarization and gridlock? The assumption underlying this claim is that polarization is largely

President Obama’s selection of Solicitor General Elena Kagan to fill the seat of retiring Justice John Paul Stevens was hardly a surprise. It was a well known fact that the President’s personal regard and respect for Kagan has been deep and longstanding. But as the carefully orchestrated minuet that will be her confirmation hearings ramps up, a familiar trope will emerge: We know what’s in the nominee’s head. But how can we trust her heart? This theme was sounded by Senate Democrats at the confirmation hearings of then-Judge John Roberts as one interlocutor after another asked him variations on what I have come to characterize as the “cardiologic” model of Supreme Court Jurisprudence: “Judge Roberts,” they would intone, “Clearly you have a superior legal mind and an extraordinary legal resume, but what’s in your heart?” Roberts was able to deftly sidestep this type of questioning, with reassurances to Senators Diane Feinstein and her colleagues that his heart functioned perfectly, but also by explaining repeatedly that the heart is not the relevant organ in the judicial project. As “neutral umpires,” in Roberts’ parlance, the only thing that matters to a jurist is the strike zone. And you determine that with your

For the past two decades I have taught at Sweet Briar, a liberal arts college for women in central Virginia. Faddish theories about gender-based education have come and gone during those same twenty years, but one constant remains. The undergraduates in my constitutional law classes adore meeting women Supreme Court justices. Last month I delivered a lecture at the U.S. Supreme Court, and my students dutifully attended. They were appropriately impressed when Chief Justice Roberts introduced me. But they were downright exuberant when they phoned me on their way back to campus with the news that they had met Justice Sonia Sotomayor. The most junior justice, and only the third woman ever to serve on the nation’s highest tribunal, must have been working late, for my students spied her as she left her chambers at nearly 8:00 p.m. They recognized their judicial hero and, in a rush of excitement, approached the diminutive justice, who wore a stunning bright red cape. By their account, the Court’s first Latina member could not have been more gracious, even agreeing to stop after a long day on the job and have a photo taken with her youthful admirers. The memento will be especially meaningful

The following piece was written in the hour after the historic April 15 leaders’ debate in the UK and published by the Guardian the next day. From an American perspective, there was a clear winner in the first-ever UK party leaders debate, the Liberal Democrats’ Nick Clegg. He looked sharp, was consistently articulate, and was able to challenge the other two candidates pointedly and effectively. By contrast, the other candidates gave unmemorable performances. Just as advertised, the incumbent Labour Prime Minister seemed to belong to a pre-television era. Gordon Brown came across as old and leaden without seeming especially wise. The Tories’ David Cameron was stiff and occasionally uncertain, with an upper-class manner that appeared high-handed at times. Having said that, Clegg had it easy. At least until this debate, almost no one thought of him as the next prime minister, so the pressure was off. Both Brown and Cameron were respectful and friendly because they coveted his voters. Both the Labour and Tory candidates occasionally used Clegg as a battering ram against the real opponent. In an American context, the three party leaders were marvelously articulate, putting U.S. politicians to shame, including Barack Obama—who can be stilted without his

During my first meeting with Justice John Paul Stevens in his Supreme Court chambers back in 1985, he impressed me with his charming modesty, Midwestern common sense, keen intellect, and judicial temperament. All of these traits, which he applied so skillfully to this work on the Court over the last thirty-four years, will make him a tough act to follow for President Obama’s second nominee to the nation’s highest tribunal. Justice Stevens’ independence defies facile ideological labels. Just when it seemed that he had crossed over the Court’s center line and joined the liberal bloc for good, he would veer back toward his self-perception as a judicial conservative. Stevens’ ideological flexibility has its roots in his early life and career. Educated at the University of Chicago and Northwestern Law School, rather that the Ivy League, he clerked for another Midwesterner, U.S. Supreme Court Justice Wiley Rutledge, an FDR appointee and distinguished civil libertarian. Stevens labels Rutledge one of his “judicial heroes.” A Stevens classmate at Chicago, Charles Percy, who became a moderate Republican U.S. Senator from Illinois, called Stevens to his office in 1969 and told him that he would like to suggest his name for the U.S. Court of

While nobody was surprised when Justice John Paul Stevens announced that he was leaving the Supreme Court just a few days before his 90th birthday, many had hoped he would hold off until after the midterm elections. Just a few short weeks after the bruising congressional fight over health reform legislation, and with the Senate as polarized as its been in recent memory, a hot summer’s wrestling match over the composition of the Supreme Court looked to be in nobody’s best interest. But retire Stevens did, and President Obama is faced with a decision that has very little to do with his view of constitutional jurisprudence and everything to do with his stomach for constitutional blood sport. The courts have always been a core issue for the GOP and the Stevens announcement has already unleashed a torrent of speculation that the as-yet-unnamed nominee to replace him will be “outside the mainstream” and “radical.” While the rumored shortlist–comprised of federal appeals court judges Merrick Garland, Diane Wood, and Solicitor General Elena Kagan–is so far from “radical” as to be, well, boring, the chatter already suggests that if the President wants to spare himself a fight, the safe bet is Garland. Garland

The U.S. Supreme Court is neither democratic nor easily changed, to some Americans’ delight and others’ dismay. No one would seriously propose that we elect Justices—just take a look at the tawdry contests in states that put their supreme courts and various judicial posts on the ballot. But is the third federal branch so perfect that it is immune from reform? This question is worth asking again since we are facing yet another Court confirmation battle. Justice John Paul Stevens is retiring at the age of 90 after 35 years on the Court, a simple fact that in itself encapsulates the static nature of the institution. The American public just might be ready to consider a judicial reform or two. While the Supreme Court’s approval level in most recent surveys is in the 50s, citizens are not inclined to view the Court as positively as they once did. Conservatives still remember the liberal Warren Court and many unpleasant (to them) decisions since, not least Roe v. Wade, while liberals harrumph when they recall Bush v. Gore in 2000 or, more recently, the Citizens United decision that some say will open the floodgates even more for corporate money in the election

The University of Virginia Center for Politics sponsored recently a study of message testing polls, as part of its commitment to ensuring “Politics is a good thing!” As a service to our Crystal Ball readers, we now present the preliminary results of this research. As we approach another election season, there is the possibility that you will receive a telephone call and be asked to participate in a political message testing survey. Campaigns will present both negative and positive views about the candidates to determine what messages might change your vote. If you find this annoying, you will not be alone. Political message testing polls are potentially problematic. They generate complaints from respondents, negative attention in the popular press, denunciations from political opponents and operatives, and criticism from academic and media pollsters. Political message testing polls are frequently confused with Push “Polls” (high-volume political advocacy calls conducted under the guise of a survey), a practice that is condemned by industry organizations such as the American Association for Public Opinion Research (AAPOR), the National Center for Public Polls (NCPP) and the American Association of Political Consultants (AAPC). These organizations routinely receive complaints about “push polls” that turn out, on closer examination,

Discussions of the current political situation and comparisons between the 2008 election and earlier contests frequently overlook a crucial fact. As a result of changes in American society, today’s electorate is very different from the electorate of twenty, thirty, or forty years ago. Three long-term trends have been especially significant in this regard: increasing racial diversity, declining rates of marriage, and changes in religious beliefs. As a result of these trends, today’s voters are less likely to be white, less likely to be married, and less likely to consider themselves Christians than voters of just a few decades ago. The combined impact of these trends on the composition of the electorate has been dramatic. Married white Christians now make up less than half of all voters in the United States and less than one fifth of voters under the age of 30. The declining proportion of married white Christians in the electorate has important political implications because in recent years married white Christians have been among the most loyal supporters of the Republican Party. In American politics today, whether you are a married white Christian is a much stronger predictor of your political preferences than your gender or your class

During his first term, George W. Bush was arguably the most successful party-building president since Franklin D. Roosevelt. Like FDR, who fashioned a Democratic coalition that dominated American politics for a generation, Bush during his first four years in office helped the Republicans post gains in Congress and around the country that many in the party viewed as the cornerstone for a similarly long-lived GOP majority. But during his seemingly ill-starred second term, the Republicans have hemorrhaged seats up and down the ballot–losing their majorities in both houses of Congress, dropping hundreds of seats in the state legislatures, and giving up enough governorships to leave the GOP with less than half of them for the first time in more than a decade. As a result, with barely a year to go in his administration, that part of Bush’s legacy–as a party builder par excellence–remains very much in question. Over the course of his presidency, Bush has thrown himself into the role of party builder with gusto that few, if any, of his predecessors have matched. He has helped the GOP and its candidates raise tens of millions of dollars and he has stumped extensively for Republican candidates who tapped the

We’ve been away for a while, traveling America discussing our new book, A More Perfect Constitution. The opportunity to discuss the U.S. Constitution–and what might be done to improve it–has been a special one, and I thank the thousands of people who have attended lectures and come to book-signings and participated in webchats on the topic. The National Constitutional Convention in Washington, D.C. on October 19th was an enormous success, too. We’ll be continuing the discussion for a long time to come, and those of you with thoughts on the subject should visit our website, www.amoreperfectconstitution.com. People approach the Constitution with great reverence, as they should. But it’s vital that we never stop trying to invent a better mousetrap. That’s what the Framers wanted us to do, and we’ve been lax in fulfilling their wishes. The most stunning impression left by the debate over the Constitution is just how much polarization exists in the nation. Repeatedly, I found that Democrats and liberals were afraid their opponents would grab control of any effort to revise the document, and Republicans and conservatives were terrified of the same thing in reverse. Perhaps in a generation, if we are lucky, the polarization will have

Kentucky Governor From the very first posting on the Crystal Ball for the governorship race in Kentucky this year, we predicted that Governor Ernie Fletcher would be very unlikely to be reelected. Absolutely nothing has happened all year long to change our prediction, and we stick with it. We rather suspect that any Democrat would have won, but former Lieutenant Governor Steve Beshear has fit the bill for the Democrats rather well. He has avoided most controversies, and kept the focus on the corruption issue, which has proven to be Fletcher’s undoing. As of September, Beshear led Fletcher by 20 points in statewide polling. We do not believe that the race will even be particularly close, and we would expect a very sizable victory by Steve Beshear. Obviously, this is a Democratic pickup. What does this imply for 2008? Not very much, though you will never believe it from the commentary that will follow a Beshear victory. Kentucky is still a Red state, and unless there is a Democratic landslide afoot for 2008, it is still likely to vote Republican presidentially. Of course, we remember that Bill Clinton carried Kentucky in both 1992 and 1996, though the vote for Ross

Over the past few weeks, I’ve learned that almost everyone takes some time to absorb new ideas, especially a big one like a second Constitutional Convention. The hidebound nature of humanity, and the deep polarization that currently exists in American society, make most people inherently suspicious of any novel proposal. That’s understandable, but I hope that as people think and read further about the subject, they’ll see that we can take a good system and make it better–not today or tomorrow in a rushed manner, but after a long period of thoughtful discussion and debate that could last a generation. The opposite alternative–to do nothing, to stand pat, to say we don’t trust ourselves and our fellow citizens to achieve constructive change–is not only depressing, it’s wrong and dangerous. Societies that stop evolving and progressing are doomed. There are ways to evolve and progress outside the Constitution, of course, but the basic document of state must be a part of this forward-looking process. In this column, I’d like to talk a little bit about my idea for a “Bill of Responsibilities” to match the Bill of Rights, specifically, the addition of a requirement that every able-bodied person between the ages