Does the Career of David Souter Tell Us Anything About the Current State of “Conservatism” in America???

With Friday’s announcement that Justice David Souter is retiring from the Supreme Court, attention has turned to how President Obama will approach the vacancy and attempt to put his imprint on the court. In much of this discussion, the conventional wisdom has been that the balance of the court is not likely to change with the confirmation of Souter’s successor. Pegged as a member of the four justice “liberal” wing of the court, Souter has been viewed—especially among those on the left—as a reliable defender of choice, the separation of church and state, and other progressive stances . As such, he has become the justice that conservatives most love to hate. For those on the right, Souter’s decisions have been those of an apostate in light of the assurances originally made by his supporters including President George H.W. Bush.

This picture of Souter, I’d argue, is off base. Justice Souter, it seems to me, is not a “liberal” as we tend to define the term. Similarly, those who argue that his “conservatism” never materialized on the high court are misreading his approach. While I don’t want to argue that Souter’s jurisprudence is analogous to either the Democrats’ or Republicans’ ideologies, untangling his record and style might help us understand some of the troubles currently vexing the modern GOP.

Perhaps the best retrospective of Souter’s time on the court that I’ve read over the past few days is provided by the New Republic’s Gordon Silverstein. Combating the conventional wisdom, Silverstein argues that Souter has been the quintessential “judicial conservative”. He writes:

Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.

The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.

What Souter’s case illustrates more broadly, it seems, is the debate about what “conservatism” really means. This is a debate, I’d note that has been raging for the last few years on Andrew Sullivan’s blog and to which he has devoted an entire book. It is also a debate that has been necessitated by the evolution of the modern GOP. The Souter nomination is just one small chapter in this story. As traditionally understood (and defined by Sullivan among others), conservatism’s central tenet is a skepticism about the ability of man (especially via government action or the power of the state) to change or re-order the world. For these writers “conservatism” and “doubt” are analogous. Thus, conservatives have a respect for the status quo, tradition, and that which has served society well over the long term. This strain of conservatism doesn’t argue that society and culture don’t or shouldn’t change, but rather that such change should be allowed to take its natural course rather than through state led engineering. Attempts to legislate change are not only likely to fail but will also endanger our liberties and freedoms. Thus, when faced with the choice of acting and non-acting (despite the severity of the problem at hand), a conservative will in almost all cases choose non-action as the best course.

With Souter’s retirement, I’ve gone back and found many of the profiles written about him upon his nomination for the court in 1990. In addition to providing some interesting nuggets of irony—i.e. words of praise from David Keene and words of criticism from Planned Parenthood—these stories repeatedly used a term to describe Souter’s personality and judicial temperament--cautious. The Souter of 1990 was someone uncomfortable with attempts, including by the court, to disrupt the status-quo. A Newsweek piece at the time noted that “His record suggests that he sees the judiciary as an institution with limited powers.” In retrospect, then, we shouldn’t be surprised by his opinions in Planned Parenthood vs. Casey or Bush vs. Gore. In both, it can be argued that he took the conservative position—not using the court to overturn longstanding precedent or interfere with the normal workings of other institutions of government. In both cases, as well, Souter drew further ire from those on the Right.

In reflecting upon this, I went back and re-read some of former Senator Warren Rudman’s memoirs, “Combat.” Rudman has been one of Souter’s closest friends since Souter served under Rudman in the New Hampshire Attorney General’s office back in the late 1960’s. Rudman had long advocated the elevation of Souter to the high court and was aided in this effort by the fact that former NH Governor John Sununu served as White House Chief of Staff in 1990. When Souter’s nomination was announced, Rudman made it his personal mission to shepherd the nomination through the Senate. When we examine Rudman’s career and ideology we see someone who epitomized this “cautious conservatism.” In the last chapter, he writes:

If someone had told me in the 1960s that one day I would serve in a Republican Party that opposed abortion rights—which the Supreme Court had endorsed—advocated prayer in the schools, and talked about government inspired “family values,” I would have thought he was crazy.

To me the essence of conservatism is just the opposite: government should not intrude in anything as personal as the decision to have a child, it should not be championing prayer or religion, and family values should come from families and religious institutions, not from politically inspired, Washington based moralists. (p. 243)

Rudman left the Senate just as the conflict between this version of conservatism and “movement” conservatism came into stark focus. With George H.W. Bush’s intra-party challenge from Pat Buchanan in 1992 (and also recall the 1988 success of Pat Robertson), followed by the ascendancy of Newt Gingrich and a heavily southern-tinged GOP congressional majority in 1996, a pragmatic, “cautious” conservatism espoused by people like Rudman, Howard Baker, Bill Cohen, John Chafee, and John Danforth was cast aside. In its place was a more confrontational, activist, and ideological version. This metamorphosis reached its apotheosis during the Bush 43 presidency. Whether it be Terry Schiavo, the War in Iraq, or funding for faith based initiatives, the policies of the Bush Administration, though branded as “conservative,” were premised on activism, not the status quo. “Caution” is not a word one would use to define the past eight years. Electorally, one region of the country has responded most negatively to this governing philosophy—the northeast. I don’t think it’s accidental that this is the part of the country that produced David Souter (and Rudman).


To get a sense of how the GOP has suffered in the northeast, consider the following. Of the 33 Senate and Governor’s seats in the Northeast, Democrats currently hold 27 (including Senators Sanders and Lieberman). In 2008 every one of these states voted for Barack Obama as well. Looking back over the past three decades we see how much the Republicans’ fortunes have declined in this region. Even in 1976, in the aftermath of the brutal Watergate election for the GOP, Republicans held twice as many statewide seats in the Northeast as they do now. What’s happened is that the traditional “Yankee” or northeastern Republican has become virtually extinct, a point highlighted by one of the few remaining of this species, Olympia Snowe, in an op-ed to the New York Times last week. Yankee Republicans are quite different in outlook than the modern day “movement conservative.” Writing about the northeast, Kevin Phillips argued that it has been this region more than any other that has been the bastion and defender of the “establishment.” While the “establishment” or “old order” is “conservative,” it is not conservative in the “movement” sense. Rather, this conservatism is temperamental, privileging the status quo over attempts to re-order or re-make society. When Phillips penned The Emerging Republican Majority, the northeast had become the most “liberal” part of the country because at that time, “liberalism” was indeed the status quo: “ As America moved into a new political era in 1968, the Northeast once again assumed its position…as the national stronghold of the old order, which this time was an institutionalized liberalism.”

What this all shows, I think, is that while its dangerous to equate a judge’s philosophy and decisions with an underlying political ideology, its equally dangerous to assume that terms like “conservative” have a single meaning. Rather, as I think the Souter example shows, this term means different things to different people, at different times, and perhaps in different places. Whereas it certainly makes no difference to Justice Souter how more politically minded conservatives and Republicans untangle these conflicting definitions, for the GOP it seems imperative if they want to recover their footing and become, as Texas Senator John Cornyn said last week, a “national party” once again.

Regionalism in American Electoral History: Revisiting Kevin Phillips and Hypothesizing About November

In thinking about the competition between the campaigns for the “swing states” necessary to put either over the top in November, I got to wondering about how these states fit into the broader sweep of American political history. The underlying belief that guides what we do on this site is that the past matters. Elections do not occur in isolation from our history. Rather, what we observe today has been shaped by the series of demographic, economic, social, and cultural shifts that have preceded us. Thus, we need to be appreciative of the “evolutionary” nature of our politics. While there is certainly much that is unique about this election (thus making predicting the outcome very dangerous)—most notably the presence of the first African American on the top of either party’s ticket—we can perhaps look backwards for some sense of whether our expectations or assumptions are realistic.

One classic exposition of the “evolutionary” nature of American politics is Kevin Phillips’ “The Emerging Republican Majority.” In it, Phillips described the degree to which the shifts observed in the mid to late 1960’s were shaped by a series of demographic, economic, and cultural changes in various parts of the country. The result of these shifts was a series of Republican presidential victories, beginning with Nixon and continuing, perhaps, to this day. Another aspect of Phillips’ analysis is the regional nature of these changes. For Phillips, different parts of the country evolved in different ways, thus producing differing types of politics. Within these regions we tend to see very similar types of voting, with changes and shifts taking place at roughly the same time and lasting roughly the same period of time. The region that most clearly stands out—and for which Phillips received quite a bit of acclaim for identifying—is the south. Now a solid part of the Republican coalition, the dramatic shift in the south’s voting took place in the mid ‘60’s. While Barry Goldwater was trounced in the 1964 election, his support in the south laid the foundation (despite the third party effort of Wallace in ’68 and the regional appeal of Carter in ’76) for the new coalition that would begin with Nixon, mature under Reagan, and perhaps reach its high point under George W. Bush.

Recently, Judis and Teixeira have argued that this Republican majority is ready to be replaced by a durable and lasting Democratic ascendancy. Modeling their analysis along the lines of Phillips’ they suggest that recent demographic, economic, and educational shifts have set in motion the emergence of a new regional coalition. The debate about how and when this will finally transpire has been hotly debated this year among those on the left as they strategize about how to produce an Obama victory. While some have argued that the south is not as Republican as it once was and could, given high levels of black turnout, potentially provide Obama some electoral votes, others such as Thomas Schaller have suggested that the west is where Democrats have their best opportunities.

With all of this in mind, I thought I’d revisit these arguments with a particular focus on the regional dimension of voting. If we look at presidential elections over the past century, we find some pretty interesting dynamics that might help us understand what will or will not transpire just a few weeks from now.

To get a visual sense of what I’m talking about, I produced the very simple chart above. In it, I’ve broken the country down into the regions first described by Phillips. Next I coded how each of these regions’ states voted in each election from 1896 to the present. States in blue voted Democrat; red voted Republican; green voted for a third party candidate. What we see, I think, are a few things. First would seem to be a tremendous amount of stability in the voting patterns of states and regions. Once states and regions vote to support a particular party, they tend to do so over a long period of time. The obvious examples here are the solidly Democratic south up until the 1960’s, the solidly Republican mountain and plains states for much of the past half century, and the recently Democratic north east. A second thing I’d note is that some voting shifts are very short lived. These may be brought about events, the regional appeal of one candidate, or poor candidate performance. The shift that many states made to the Democrats and Carter in 1976 can surely be tied to a Watergate backlash and his southern regional appeal. Likewise, the Johnson landslide in 1964 brought many traditionally Republican states into the Democratic column at a time when they might normally not be—also no doubt aided by the perceived extremism of Goldwater. Thus, stability seems to be the norm as fluctuations are soon corrected. A third thing I’d point out is that when broader and regional shifts take place, you see most of the states in that region moving at the same time. Here, notice the northeast’s movement to the Democrats and perhaps most dramatically, the formation of FDR’s majorities beginning in 1932.

For the Obama campaign especially, there is a tremendous interest in winning previously Republican states. That’s the only way they can get to 270 electoral votes. Thus, I looked at how many states tended to change hands in each election year. In 2004 we saw the fewest states change hands, 3, that we saw over the entire course of this examination (3 also switched in 1908) with New Hampshire becoming Democratic while Iowa and New Mexico became Republican. On average, 14 states changed hands over the course of these 28 elections. Not surprisingly, the biggest landslides saw the most states switch, with almost all going in the same direction. In 1932, 34 states became Democratic putting in place the New Deal majority. The 1964 and 1968 elections also saw great flux: in 1964 30 states switched (25 became Democratic, 5 Republican); 1968 served to correct much of the LBJ landslide as 36 states switched (31 became Republican; 5 voted for Wallace). This election also served to cement Phillips’ “Republican majority” as the 5 Wallace states became Republican in the ’72 Nixon re-election. Finally what we see is that when states do change in a given election year, one party tends to reap almost all of the gains, often across several regions. In 13 of the 28 elections, one party made all of the gains. Only in 1924, 1952, and 2004 when you only had 4, 2, and 3 states change hands respectively was there anything approaching parity in the parties’ ability to both make gains. Change tends to be unidirectional.

Another thing to ask, again given Obama’s goals, is what happens in those elections in which the presidency changes from one party to the other. Do those elections come about because the new party in power converted a lot of states or did they win much more narrowly, because only a few states switched? In those 10 elections in which one party took the presidency over from the other, 23 states on average changed hands!!! In the discussion of this year’s electoral map, no one that I’ve heard has made any attempt to argue that this many states are “in play.” The current set of Republican states being targeted by Obama includes Virginia, Colorado, New Mexico, Nevada, Iowa, Florida, Missouri, North Carolina, Ohio, and perhaps Indiana and Georgia. That’s 11 states. Thus, if Obama were to have a perfect storm of factors come together and give him all of the states he could possibly dream of, he’d still perform well below the average of what we’ve seen in party changing elections. Also worth noting is that these 11 states come from 6 of the 8 regions. What Phillips found was that regions don’t all change at the same time or in the same direction, so we might look at this list of states as wildly optimistic, given the historical evidence. Also, we see that when one state in a region changes, others also do. Shouldn’t we, then, be expanding the list? More important than the number of states, obviously, is the electoral vote count. Here, assuming Obama were to win all of the states John Kerry won, adding these 10 states would give him 390 electoral votes—a huge landslide. Should this year produce an Obama victory, one would have to think it will probably not look like the other elections in which party control switched, either in magnitude or geographic scope.

What I haven’t looked at in this analysis, and what is obviously of great importance, is the margin of victory that we saw in these states, especially in times of change. Some previous posts have looked at this and I’ll certainly spend some more time on this fundamental question as we go along in the next few weeks. If we’re trying to identify opportunities for future change, the degree to which things are changing will need to be gauged. This would, it seem, bring us back to the beginning of this discussion—we need to be aware of the “evolutionary” changes taking place.

Returning South--Alabama

As I mentioned in my posting on Mississippi a few days ago, I decided to go back to V.O. Key’s Southern Politics to see how much, or little, has changed since the time of his writing in the late 1940’s. While the politics of the deep south has certainly changed, what I found interesting was the lack of change we’ve seen in some of the underlying demographics of the region. Focusing on the African-American population, we saw that those parts of the state that had heavy concentrations of blacks in the 1940’s have similar concentrations today. When Mississippi voted last week, the Delta region especially gave Obama huge margins.

With that in mind I thought I’d take a broader look at the region and revisit a few of the earlier primaries. I’ll start with Alabama, which voted on February 5th. Like in Mississippi, Obama won statewide garnering 56% to Clinton’s 42%.

I’ve reproduced above two maps. First is a regional map of the south that comes from Kevin Phillip’s masterful “The Emerging Republican Majority.” In this map we see the distribution of the African American population throughout the south at the time of his writing in 1968. I’m going to be referring to this map in several posts over the next little while. Second is an earlier map of Alabama from Key’s "Southern Politics". What we see in Alabama is, like Mississippi, a geographic concentration of African Americans. Here we have a band of counties running across the state from east to west. This area was commonly referred to as the “Black Belt” in regard to quality of the soil rather than the majority of its inhabitants.

In describing the nineteenth to mid-twentieth century politics of the state, Key argued that a dynamic similar to that in Mississippi was consistent. Namely, wealthier white planters tended to square off against lower income whites from the upstate and downstate areas for control of the state government. Key writes:

“The split between the black belt and the remainder of the state…suggests that the backbone of southern conservatism may be found in those areas with high concentrations of Negro population. For decades the Alabama black belt has been a stronghold of conservative agricultural strength which has frequently allied itself with the business interests of the state. The presence of a large proportion of Negroes in the population alone may induce a degree of conservatism. To maintain its status the ruling group must oppose any political program that tends to elevate or excite the masses, black or white…

If the black counties are the backbone of southern conservatism, a partial explanation for the recurrent progressive outbursts in Alabama politics rests in the fact that over considerable areas of the state the population includes comparatively small proportions of Negroes.”

The resulting politics, Key found, was subject to ebbs and flows of power between the black belt and the remaining parts of the state. While the black belt trended conservative, the outlying counties were subject to fits of populism and economic radicalism. Because there was no developed two party system, Key found, politics was highly driven by personal factions.

So, looking at last month’s primary, what do we see? I’ve reproduced the primary results in the map at left (courtesy of uselectionatlas.org). The Obama counties are in green; Clinton’s in red. Like with Mississippi, we see a virtual reproduction of the earlier demographic picture of the state. The Black Belt is alive and well and still has heavy African American concentrations of voters, the vast majority of whom went with Obama. In the outlying areas, north and south, we see Clinton’s strength. Sixty years since Key’s writing we see how little has changed.