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Andrew Hacker has an interesting piece in the August 18 New York Review of Books, explaining why Barack Obama's chances for reelection are much better than recent poll results would suggest:

The 2012 electorate will differ from 2010’s in a crucial respect: it will contain nearly 50 million additional voters. Some will be new, but most of them will be people who supported Obama in 2008. Compared with the 2010 House electorate, they will be younger, more ethnically diverse, with fewer identifying themselves as conservatives, and a higher proportion will be women. Most of them would not have voted for the Republicans who now make up John Boehner’s House.

Hacker, by the way, discusses a number of recent political books in the article, including one on the 2010 election edited by Larry Sabato. That volume includes a chapter on Kentucky's junior Senator, Rand Paul, written by my colleague Laurie Rhodebeck.

Hacker credits Sabato with pointing out that election outcomes are "determined by the people who show up" to vote. In midterm elections, about 40% of voters turn out to vote, while presidential elections draw substantially more voters -- about 55 to 60% of the electorate in the past quarter century.

This column in yesterday's Guardian succinctly summarizes the importance of this difference:

...the sweeping Republican gains in Congress in the midterm elections of 2010 were on the usual 40% turnout; Obama was elected in 2008 on a 61% turnout. Yet it is the Republicans who think they have a mandate from the American people.

Perhaps, in hindsight, Democrats should have tried harder to convince non-voters that the 2010 midterms were a referendum on Obama that required their attention. Republicans certainly made that case to the likely voters -- who are older, more affluent, less diverse, and more likely to vote in midterm elections. Instead, Democrats often ran away from their successes (health care reform, the stimulus) and distanced themselves from the President.

In any event, despite the poor economic numbers, it would appear that President Obama stands a pretty good chance of reelection -- so long as his 2008 voters actually show up to the polls.


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Discrimination and the Court

Just to be clear, the widely quoted and allegedly "racist" remark from Judge Sonia Sotomayor is from a section of a speech specifically concerning decisions in "race and sex discrimination cases." This is the relevant section from the speech -- with the part you've likely heard marked in red:

...our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

A bit earlier in the talk, Sotomayor accepted "the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought."


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