Begging The Question

National Review’s Jay Nordlinger asks, “Should one party, and only one party, impose a new regime of health care on the country — even if that party has the votes, however narrowly? This would be a tremendously big change. Something like a consensus may be appropriate.” I guess it depends on what he means by “consensus.”

First of all, there are (effectively) sixty Democratic Senators. That’s about what FDR had in his first term, and not a lot less than what LBJ had in his full term, and no one really questions the notion that there was a consensus for the New Deal or the Great Society (or at least Medicare). Some 36 states have at least one Democratic Senator, and they tend to be the more populous states. If folks in California don’t like being represented by a bunch of Democrats, they’re free to vote with their feet and move to Texas, right? Matt Yglesias harps on this kind of thing a lot: given that every state has an equal vote in the Senate, the small states are over-represented. The same is even true in the House, since every state gets at least one vote there, although the disparity isn’t quite as great.

My point here is that there is a 60-40 split in the Senate, and a 257-178 (or about 60-40) split in the House, and even those large majorities are somewhat skewed by the way the state delegations are parceled. If 60-40 isn’t a consensus, where is the threshold?

Four tangents.

First, I realize that the health care reform bills under consideration probably won’t get sixty votes. I’m not saying there is or is not a consensus for a specific proposal; I’m only wondering how one would define it.

Second, I also realize that one party could win a lot of 51-49 elections and wind up with 60% of the seats. I have three responses to this. One, see above regarding the skewed and undemocratic state delegation divisions. Someone like Nate Silver probably has the numbers on this, but I wouldn’t be surprised if the Democrats got close to 60% of the votes in 2008. That would mitigate, to a degree, any unfairness in several 51-49 victories translating to a 60-40 legislative edge. Two, see above regarding voting with one’s feet. If that many elections are that close, a few people moving could swing things back. Three, not all sixty Democrats are identical. The type of candidate who squeaks out a 51-49 win is going to vote against the party leaders some of the time, and will in turn pull the party towards the middle. This is what we’re seeing with the Blue Dogs. So, even in a situation where a bunch of 51-49 wins leads to a 60-40 party division in the legislature, the majority party is going to end up governing much more like a 55-45 or so party. All in all, the concern that an array of close elections flukily turned into a phony supermajority is, I think, overblown.

Third, we need to remember the difference between a consensus and a mandate. Even if having the presidency and 60% of the legislature in one party’s hands doesn’t constitute a consensus, it could very well constitute a mandate if those people ran and were elected on a platform, like a platform to reform health care. And it’s not as if John McCain ran on an “anti-health care” platform, either. Is it safe to say that voters who care strongly about health care reform voted for Democrats by decent majorities? Why isn’t that the consensus that matters?

Fourth, what other “tremendously big change[s]” would require consensus, in Nordlinger’s opinion? Going to war? Legalizing gay marriage? I’m genuinely curious. (Of course, for Nordlinger and the NR crowd, the whole idea is to have the bar set very high — “standing athwart history yelling stop” and all that.) I’m not opposed to the general idea that society and democracy are better served when there is a consensus for major developments, and it saves us the trouble of constant back-and-forths when the political winds blow. But I don’t think it should be a requirement or even a moral imperative. We do, after all, have a system of majority rule. Sometimes you’re in the 51, sometimes you’re in the 49. The good news is that it’s not as hard to flip that quotient; it’s much harder to turn the tide against a full-blown consensus. One who demands consensus votes should be careful what one wishes for — if you demand a consensus and lose, you’ve lost the battle and the war.

Sorry to be silent for a while, gang. I’m catching up on some long-pending questions from my All-Request post from a few weeks ago.

1. PG asks, “What, if any, are good reasons for a government attorney not to include all non-frivolous arguments on his client (the government)’s behalf?” Well, ideally, if justice (or the constitution) is better served by not raising them. I think the opportunities for that are myriad, but too varied to speculate on here. (To give one, the Solicitor General’s position in Dickerson, abandoning the position that section 3501 overruled Miranda. I think reasonable minds could differ on whether that was proper; certainly, the arguments in favor of 3501 weren’t frivolous.) But I also think simple efficiency is a good one, too. For example, you might be able to split hairs on whether precedent covers a given situation, but the easier thing to do is to assume it away or even concede it and argue good faith or harmlessness or some other error-saving doctrine. Plus, usually the government is responding to the defendant’s arguments, so the government’s brief really only needs to answer the arguments the defendant has raised, as opposed to any non-frivolous argument for affirmance.

2. PG also asks, “[W]here do you think Sotomayor would have come down in this mess?” The case she links to is Polar Tankers, Inc., v. City of Valdez, Alaska. You’d almost have to pay me to bone up on this one. Basically, the city passed a local tax applying to ships using its harbor. The Supreme Court struck down the tax in a terribly fractured set of opinions. Most of the Justices relied on the little-litigated Tonnage Clause of the Constitution, which restricts local duties on access to harbors. Honestly, without knowing much of anything about this case, I’d have to suspect that a Justice Sotomayor would be a pragmatist and join the Tonnage Clause decision, without going out of her way to reach the Commerce Clause issues. I haven’t seen any real indication that Judge Sotomayor is eager to stake out constitutional positions she hopes the Court will visit in years to come, the way Justice Thomas enjoys.

3. Sebastian asks, “If you started your own brewery/winery, what would you name it? What would be the name of your signature drink?” Hm. I dunno. Something with a legal hook, I guess, like Bar Exam Brewery or Amendment XXI Vineyards. Signature drink? How about a beer called Drunk In Public? And for the lite version, you could plead down to Disorderly Conduct.

4. Sebastian also asks a wonderful question: “Without naming the channel you watch the most, describe who that network thinks you are based solely on the commercials. For instance, are you an energy drinking, mountain hiking, person who is in need of a great many razors? Or perhaps you are an AARP member with a Life-Alert bracelet, poor denture cream and are in desperate need of a Hover-round?” Come to think of it, I do see a lot of razor commercials. I guess they’re recession-proof. But given that it’s the summer and virtually everything is in hiatus, pretty much the only tv I watch these days is “Conan O’Brien” and “Magnum, p.i.” reruns. “Conan” I watch on my dvr, so I end up fast-forwarding through a lot of fast food commercials and ads for whatever movie the guest is promoting. “Magnum” shows on one of those channels where every commercial is for, yes, the Life-Alert and the Hover-round, peppered liberally with those “You can’t be turned down!” insurance spots and lawyer ads for various class action lawsuits. So, apparently, the networks see me as a junk food-eating fatass who needs the wide seat at the movie theater, gets by on my disability check, and will only dance to the Wilford Brimley Diabetes Remix. For the record, only part of that is accurate.

It must have been fun to live in the 1930s, when everyone had a brand-new car, no matter their occupation or social station. At least, that’s what you would be led to believe watching period films, like The Untouchables or, apparently, the new Public Enemies. I realize these old cars are antiques now, but some period movies seem to make a fetish of verisimilitude, yet depict every vehicle as gleaming and in pristine condition. Look, this isn’t like Carl Carlson on that “Simpsons” episode asking, “How come oldies stations are always playing the same song? How bout some NEW oldies, geniuses!” Cars made back then are actually old now. Dig one out of a junkyard and park it somewhere in the movie. Other than “O Brother, Where Art Thou, I’m having a hard time coming up with a movie that had period jalopies. I guess they don’t give out Oscars for finding junkers.