This partisan gap is in some ways analogous to the phenomenon of “asymmetric polarization” that social scientists have documented. As the filibuster of Justice Gorsuch demonstrates, we are at a liminal moment in political time, in which Democratic Party leaders are showing a new appetite for playing constitutional hardball in response to President Trump.See Nolan Mc Carty, What We Know and Don’t Know About Our Polarized Politics, Wash. 8, 2014), Rz K [ perma.cc/3N3B-JKB2] (“The evidence points to a major partisan asymmetry in polarization. Will they close the hardball gap with their Republican counterparts in the months and years ahead? The answer to such questions may be clouded temporarily by the political and constitutional turmoil wrought by the Trump Administration, which has put some unusual cross-pressures on congressional Republicans.Tags: Nursing School Essay SampleReseller Business PlanChange Over Time Essay ExampleEssay Letter About FloodEssay On Overprotective ParentsFind Good Hard Man ThesisNurse Resume Writing Service ReviewsHow To Write Psychology PaperEdgar Allan Poe EssaysExtended Definition Essay Fear
This might seem like a reckless prediction to make at a moment when so much is in flux. Although Tushnet allows for the possibility of judicial constitutional hardball, his account focuses on legislative and executive actors, and the most straightforward cases of hardball often occur in legislatures.
But this Essay will document a number of longer-term dynamics that seem poised to perpetuate the divide. Legislative bodies teem with rules and norms, not expressly required by constitution or statute, that govern the interactions among political blocs within the institution.
Despite the widespread belief that both parties have moved to the extremes, the movement of the Republican Party to the right accounts for most of the divergence between the two parties [since the 1970s].”). We hazard no guess here about when a post-Trump political order will arrive or exactly what shape it will take.
As we discuss below, asymmetric constitutional hardball is not simply an epiphenomenon of asymmetric polarization, although the latter is almost certainly one of the former’s causes. 1457, 1459 (2001) (noting the distinction between “the small-‘c’ constitution—the fundamental political institutions of a society, or the constitution in practice—and the document itself”). Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. But our account of recent constitutional history leads us to offer one important prediction.
When Trump subsequently defeated Clinton, Senate Majority Leader Mitch Mc Connell announced that “the American people simply will not tolerate” Democratic efforts to thwart President Trump’s choice for the Court. For a critical discussion of the choices made by Kar and Mazzone in construing the historical record, see Josh Chafetz, Unprecedented? President Obama did not choose to raise the stakes.
Alexandra Jaffe, Mc Connell: Public “Will Not Tolerate” Dems Blocking SCOTUS Pick, NBC News (Jan. Judicial Confirmation Battles and the Search for a Usable Past, 131 Harv. He did not, for instance, threaten to install Judge Garland on the Court on a theory of implied or forfeited Senate consent, as some commentators urged as early as April 2016.
If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.
* Marrs Mc Lean Professor in Law, University of Texas School of Law. For valuable comments and conversations, we are grateful to Bruce Ackerman, Jack Balkin, Joseph Blocher, Curt Bradley, Jessica Bulman-Pozen, Josh Chafetz, Guy Charles, Kimberlé Crenshaw, Walter Dellinger, Ryan Doerfler, Nita Farahany, Cary Franklin, Jonah Gelbach, Jamal Greene, Adam Katz, Jeremy Kessler, Marty Lederman, Maggie Mc Kinley, Gillian Metzger, Caleb Nelson, Eric Posner, Jed Purdy, Kelsey Ruescher, David Schleicher, Peter Schuck, Neil Siegel, David Super, Eric Talley, Mark Tushnet, and workshop participants at Columbia, Duke, Harvard, and Penn law schools. Research Serv., IN10469, Supreme Court Vacancies that Arose During One Presidency and Were Filled During a Different Presidency 1 (2016).
Newt Gingrich, Opinion, Newt Gingrich: Schumer Shutdown Turns into Schumer Surrender, Fox News (Jan.
24, 2018), (on file with the ); see also Tim Murphy, Liberal Activists Are Furious that Democrats “Caved” on the Shutdown, Mother Jones (Jan.