Arlen Specter Upset With Kagan

Arlen Specter is unhappy that Elena Kagan has not revealed her take on substantive legal questions. Given the potentially contentious nature of confirmation hearings, candidates often make general statements about supporting precedent and judicial deference. Kagan has not strayed from this script. This fact has Specter fuming, as The Blog of the Legal Times reports:

"You have followed the pattern which has been in vogue since Bork,” he said, referring to conventional wisdom that Supreme Court nominees have been hesitant to say much about their legal views after the nomination of the very substantive Judge Robert Bork failed in 1987. “It would be my hope that we could find some place between voting no and having some sort of substantive answers, but I don’t know that it would be useful to continue these questions any further."

Kagan's answer to Specter's question (about the legal standard in a particular line of cases) seems abundantly fair. She said that before deciding whether to reverse the test, she would have to read legal arguments and confer with her colleagues. This response, however, did not satisfy Specter. Now that Specter is a "lame duck" Senator, he does not have to appease any political party -- particularly the Democrats (his newly chosen party).

I Repeat: There Is "Very Little Evidence of Voter Anger Towards Incumbents"

After a string of primary elections last month, media commentators robotically ran stories reporting the vulnerability of incumbent politicians. Blanche Lincoln's failure to capture 50% of the votes in a strong 3-way contest and Arlen Specter's failure to win his first shot as a Democrat provided the most often cited evidence of incumbent jeopardy. But aside from these two contests, there was very little evidence of incumbent vulnerability.

Now that Lincoln has won the run-off election, there is still very little tangible evidence of voter anger towards incumbents. Even if polls show discontent, this might not translate into election losses for incumbents. Furthermore, these losses might result from other factors, such as ideology.

So far, only a few incumbents have lost their bids to retain an existing office. It is unclear, however, whether these losses resulted from anti-incumbent rage. Specter's loss, as I have analyzed elsewhere, likely resulted because he could not convince faithful Democrats (the folks who vote in congressional primaries) to support him following his lifetime in politics as a Republican.

Furthermore, during last month's Arkansas primary, Lincoln simply failed to capture a majority of the votes in a strong 3-way contest. In addition, labor and other liberal groups provided ample cash for Bill Halter -- Lincoln's strongest challenger. Ultimately, however, Lincoln pulled off the victory.

Two Republicans lost reelection bids in Utah (Sen. Robert Bennett) and in Nevada (Gov. Jim Gibbons). Their defeats, however, probably result from ideology or political scandal.

In Nevada, Gov. Gibbons had to deal with a nasty divorce and allegations of adultery and sexual assault. Also, among Republicans, more conservative factions in the party have threatened or ousted establishment candidates who, after getting elected, represented an entire state and not merely the partisans who vote in primary elections. Rand Paul's effort to retool his image following his controversial statements about civil rights demonstrates that Tea Party politics might not have mainstream appeal.

It is difficult to predict what will happen electorally in November. Thus far, however, the media's anti-incumbent spin is greatly exaggerated.

Very Little Evidence of Voter Anger Towards Incumbents

Many news outlets contend that the results of Tuesday's elections indicate voter anger against incumbents (see, e.g., here, here, here and here). But it is not clear that this is true.

Because no exit poll data exist, no one can truly document that a substantial number of voters acted out of hostility towards incumbents -- or even towards perceived "Washington insiders." Furthermore, other factors, such as ideology, were clearly relevant in some of the contests. Moreover, despite the pervasive rhetoric regarding an anti-incumbent fervor, only one incumbent actually lost a reelection bid yesterday.

Pennsylvania
In Pennsylvania, Joe Sestak defeated veteran Senator Arlen Specter in the Democratic primary. Specter is the only actual incumbent politician who lost a re-election bid on Tuesday.

Specter's defeat, however, probably has a lot to do with him running for the first time as a Democratic candidate. In 2009, Specter switched to the Democratic Party after it became clear that he would probably lose the Republican primary -- due to his support for the stimulus package.

Although Sestak characterized Specter as a career politician, Specter's previous party affiliation and political record probably played a large role in his defeat. A political party's base typically has more power in primaries than in general election contests. Specter simply could not convince faithful Democrats to choose him over a lifetime Democrat. This does not mean that Specter's incumbent status was irrelevant to his defeat, but it probably means that the media commentators are overstating the significance of incumbency to his loss.

Pennsylvania also held a special election to fill the House seat of the late John Murtha. Democrats, the incumbent party, kept this seat. Mark Critz, a former aide to Murtha, defeated challenger Tim Burns.

Kentucky
In Kentucky, Rand Paul won the Republican senate primary, defeating Trey Grayson. Paul, the son of Texas representative Ron Paul, is a doctor, while Grayson is the Kentucky Secretary of State. Neither candidate was even an incumbent -- although Kentucky Senator Mitch McConnell endorsed Grayson. This has led many commentators to describe Paul's victory as a defeat of the Washington establishment.

The Kentucky Republican contest, however, likely turned primarily on ideological grounds. The Tea Party movement, which has more pull among Republican primary voters than among the general electorate, endorsed Paul, who ran to the right of Grayson. Some Democrats even wanted Paul to win, believing that the majority of voters in the state will not endorse his political views in November.

On the Democratic side, Attorney General Jim Conway defeated Lt. Governor Daniel Mongiardo in a tight senate primary. This contest simply does not fit within the anti-incumbent narrative, and most media have not tried to describe the race in those terms.

Oregon
In Oregon, incumbent Representatives David Wu and Ron Wyden won their primary elections by wide margins. Incumbent House Democrat Kurt Schrader was unopposed. No incumbents lost in Oregon.

Arkansas
Arkansas provides the only other possible evidence of anti-incumbent fervor. Democratic Senator Blanche Lincoln faces a run-off election against challenger Lt. Governor Bill Halter. Lincoln had support from former President Bill Clinton and President Obama. Lincoln, however, could not get a majority of the votes in the 3-way contest -- although currently she has won more votes than her challengers.

This race does not represent the defeat of an incumbent because Lincoln has not lost. Furthermore, the results have a lot to do with ideology and political organizing. Halter ran to the left of Lincoln, who became the target of liberal anger due to her centrist positions. Labor unions, in particular, fought hard to defeat Lincoln by pumping a substantial amount of money into the state. These factors undoubtedly influenced the results of the election.

On the Republican side, a 9-year House Republican defeated 7 challengers to take the Republican nomination. This race simply does not substantiate the popular anti-incumbent narrative, nor does it prove voter anger against establishment candidates. The "Washington insider" won.

Final Take
If very little evidence connects Tuesday's election results with anti-incumbent fervor, why are so many media outlets running with the idea? Well, this narrative probably sounds more exciting than the truth. It is also easier to explain -- even if it is unsupportable by facts. Many persons in the news media have proven their ability to trade truth for excitement in the past. There they go again.

Update: Other bloggers have expressed dissenting opinions on this subject. See: The Death Of Independence and Anti-Incumbency Not the Issue.

Selective Outrage: Conservatives Invoked Reagan's Death to Promote Liberal Stem Cell Policies

Some conservatives are experiencing a meltdown because people close to Ted Kennedy have used the occasion of his death to promote one of his greatest passions -- universal healthcare. But many of the supposedly outraged conservatives have hypocritically invoked Kennedy's illness and death in order to argue against the very reforms that Kennedy favored during his life.

Conservatives' Selective Outrage Over Death and Politics
Conservatives are exhibiting "selective outrage" over the appropriateness of mixing death and politics. In 2004, the year that Ronald Reagan died from Alzheimer's disease, former First Lady Nancy Reagan, other members of the Reagan family, and many members of Congress -- including conservatives -- used his illness and subsequent death to encourage President Bush to adopt more liberal policies related to the use of stem cells. Some researchers believe that stem cell research could be useful in the search for a cure for Alzheimer's disease.

Nancy Reagan
Former President Reagan died on June 5, 2004. During the month prior to her husband's death, Nancy Reagan sensed that the end was near. So, she made a public plea for President Bush to loosen restrictions on the use of stem cells. The former First Lady said that:

Ronnie's long journey has finally taken him to a distant place where I can no longer reach him. . . .Because of this, I'm determined to do whatever I can to save other families from this pain. I just don't see how we can turn our backs on this.

Orrin Hatch
After Reagan died, 58 Senators, including 14 Republicans, sent Bush a letter urging him to ease restrictions on stem cell research. During a June 13 interview with the Times (UK), conservative Orrin Hatch, who signed the letter, specifically invoked Reagan's death in order to promote stem cell research:

Perhaps one of the smaller blessings of Ron's passing will be a greater opportunity for Nancy to work on this issue. If someone like Nancy Reagan cannot change the president's mind, I don't think anybody can.

Trent Lott
The same article quotes conservative Senator Trent Lott, who makes a similar appeal to Reagan's death. Lott said that:

I hope that affection for the Reagans and just plain human sympathy for the terrible ordeal that afflicted them both over the past 10 years will prompt some second thoughts in the administration. . . .I suspect there are many in the White House who hope that it just goes away. But I don’t think Nancy gives up anything that is close to her heart that easily.

Arlen Specter
Senator Arlen Specter (who at the time was a Republican) happily stated that Nancy Reagan would have a "profound effect" on the issue. Specter also signed the letter to President Bush.

What Is Wrong With Doing What Kennedy Wanted?
I only found one article (published on June 17, 2004 in the Chicago Sun-Times) that makes any substantial criticism of the political use of Reagan's death. This article, written by conservative commentator Robert Novak, criticizes Democrats for embracing Reagan for political gain. Novak, however, does not criticize conservatives who did the same thing.

Novak was trying to portray Democrats as hypocrites for embracing Reagan in death, but not in life. But if this is an accurate criticism, conservatives today should not express outrage towards Democrats who are using the moment of Kennedy's passing to bring attention to healthcare reform. Instead, they should attack conservatives who have cited to Kennedy's illness and death in order to distort the content of pending healthcare reform proposals and to undermine a central goal of Kennedy's political advocacy.

Shortly before his death, Kennedy wrote a letter to Duval Patrick, the governor of Massachusetts, urging him to appoint an interim Senator until the state could hold a special election to choose a replacement. Kennedy's aides said that he was concerned that Democrats would lack an important vote on healthcare reform unless his replacement was seated. In other words, during his last days, Kennedy himself encouraged his supporters to take the necessary steps to complete his unfinished business.

Democrats who remember Kennedy by advocating healthcare reform are simply implementing the Senator's last wishes. Republicans, however, are feigning outrage in order to defeat Kennedy's work on healthcare reform. I think it is abundantly clear which side is behaving inappropriately.

PS: Kennedy's supporters actually know that he shared their political goals. It is not clear -- but probably doubtful -- that Reagan would have supported very liberal stem cell policies.

Democrats Finally Seem to Accept the Truth About Specter

When the opportunistic Specter switched parties, Democrats cheered the move -- even though a few dissenting voices questioned whether his decision would advance the party's interests. Yesterday, Senate Democrats denied Specter seniority and relegated him to junior status on the Senate Appropriations and Judiciary Committees. The Democrats might revisit the matter after the midterm elections in 2010.

Specter recently caused a flap when he implicitly supported Republican Norm Coleman's exhaustive efforts to contest the extremely close Minnesota Senate race. During an interview with the New York Times, Specter was asked to comment on the fact that his decision to become a Democrat means that "there are no more Jewish Republicans in the Senate." In response, Specter said: "There’s still time for the Minnesota courts to do justice and declare Norm Coleman the winner." Many liberal blogs went into a complete lather. Specter has since stated that he "misspoke."

Specter also caused a near-meltdown during an interview with Meet the Press in which he twice denied ever saying that he would be a "loyal Democrat." He then proceeded to state his disagreement with key components of health reform supported by many Democrats.

Looks like the shiny moment of his defection has worn off already.

Talking Points on Souter Replacement?

Democrats in the Senate seem to have uniform beliefs about the person President Obama should nominate to replace retiring Supreme Court Justice David Souter. Senator Patrick Leahy believes that President Obama should pick someone "from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge . . ."

Similarly, Senator Arlen Specter has announced that:

I would like to see somebody with broader experience . . . We have a very diverse country. We need more people to express a woman's point of view or a minority point of view, Hispanic or African American . . . somebody who's done something more than wear a black robe for most of their lives.

Senator Harry Reid "hopes that Obama goes outside the existing legal system and finds a former governor or senator, or someone who has 'real life experiences.'"

And Obama himself has said:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook . . . It's also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

Senator Orrin Hatch, who like Specter and Leahy sits on the Senate Judiciary Committee, says that Obama will probably make the selection very quickly -- perhaps even before the end of this week. If President Obama will soon make his announcement, it is very likely that all of the Senate chatter about "life experience" represents talking points designed to create a narrative about the nominee. Stay tuned.

Cynical Outtake
The comments from these guys, espousing the virtues of nontraditional candidates, are somewhat amusing. Leahy, for example, has spent nearly 1/2 of his life in the Senate, first winning election in 1974.

Specter was first elected to the Senate in 1980. He has served in the Senate longer than any other person in Pennsylvania history. He is also the fifth-oldest person in the Senate. Furthermore, he recently switched parties in order to maximize the possibility that he will keep his job.

Reid began his career in Nevada politics in 1967. He became of member of the House of Representatives in 1982, and he became a Senator in 1987, a position he continues to hold. If voters applied the standards that these Senators want Obama to use when selecting a replacement for Souter, it is unclear whether either them would remain Senators.