The dust has settled, and the Dems have a not-insignificant majority in the House and a 1-vote margin in the Senate. The President, of course, is still a Republican. Also, the Dems picked up some governorships (including in my state of Ohio) and some state legislative houses.
So, I was wondering how folks thought this would change the law in the areas in which they teach. Given this divided government, there are probably many areas in which not much will change. For example, I doubt this will change NLRA labor law.
But interesting things are happening in one corner of my area of labor/employment law: minimum wage hikes. Incoming speaker Pelosi has said that a hike in the federal minimum wage will be one of her first priorities. Also, proposals to increase state minimum wage rates passed in all six states that had such proposals on the ballot. Here in Ohio, the proposal included a provision that will index the minimum wage to inflation. That intrigues me. I’ve always been puzzled by the fact that in the U.S., minimum wages (at the federal and usually at the state and local level) aren’t pegged to anything – indeed, the rate seems kind of random. Notably, most other countries have some sort of formula to determine the minimum wage. We’ll see how that works out here.
Also, to the extent immigration law overlaps with employment law/policy, I’m sure we’ll be seeing bills and proposals, although I’m entirely unsure of how that will turn out.
I’m also interested in the how other folks think these elections will affect the areas of law in which they teach. Ideas/predictions?
Posted by JosephSlater on November 11, 2006 at 02:34 PM
» Blawg Review # 83 from Election Law Election Law is pleased to host Blawg Review # 83. As with last week’s Blawg Review by Ed Still at Votelaw, this Review focuses on election law, in an effort to law blog the vote. Before getting to this week’s… [Read More]
Tracked on Nov 13, 2006 1:47:30 AM
» Blawg Review # 83 from Election Law Election Law is pleased to host Blawg Review # 83. As with last week’s Blawg Review by Ed Still at Votelaw, this Review focuses on election law, in an effort to law blog the vote. Before getting to this week’s… [Read More]
Tracked on Nov 13, 2006 9:33:46 AM
Comments
Like I just commented on your blog: The only way for a Republican to win Ohio is to softpedal free trade. Or refocus Ohioans’ attentions on something else. That’s a tough order.
You’ve correctly identified Ohio as the biggest political shocker/road block to Republicans taking back the Presidency. Because the political shift there is due to free trade, I don’t see how you win it back.
As far as the Senate, I don’t see how you count Montana or Iowa unless the incumbents decide not to run again. I’ll give you Lousiana (she’s a cancer anyway), but South Dakota is questionable (Johnson is popular) and then you’ve got Republicans up in Maine, Minnesota, New Hampshire, New Mexico, and Oregon, to name only the most likely targets. A lot can change in two years, but Republicans will have to fight losing more seats, much less make gains.
Democrats could screw up their mandate. Otherwise, Republicans don’t have much of a chance in these admittedly biased eyes.
Posted by: Bart Motes | Nov 13, 2006 5:42:26 PM
Bart, I agree on the Hamdi thing. I’ve not sought to hide my skepticism of the argument offered by conservatives who otherwise urge a strict construction of the Constitution who now seem to be urging a breathtakingly broad construction of Article II. That seems totally inconsistent to me; I agree with Scalia’s argument that the text should be read neither strictly nor latitudinally, but reasonably, to contain all it fairly contains – but that method must be applied consistently across the Constitution, not selectively. So I think you’d be pretty unhappy with someone like me on the Supreme Court, but you’d be a lot happier to have me there than you would to have Gonzales, Yoo, or even Luttig. 🙂
We shall have to see r.e. 2008. You’re right that there are slim pickings for the Senate (on the most optimistic possible assessment, Montana, Iowa, South Dakota and Louisiana would seem to be conceivably in play), and as regards the Presidency, I’ve already argued that a convincing case for how they’ll win back Ohio is the threshold question for any GOP nomination contender who expects to be taken seriously. I suppose a lot of it will have to do with what the Dems now do with the House, particularly vis-a-vis immigration and Iraq.
Posted by: Simon | Nov 13, 2006 4:43:46 PM
Simon,
I think we’ll have to agree to disagree on the GOP holding the White House and taking back the Senate. (I think historical trends are against the former and the seats that will be up make the latter unlikely.) However, in the field of comity, let me say that I would much prefer a Luttig to a Gonzalez, that is to say, a more doctrinare conservative with the intellectual gumption to be willing to stand up to the administration like Scalia did on Hamdi. Torture memo Gonzalez doesn’t thrill me regardless of whether he will be a squishy O’Connor on Roe. So there you go, that’s your argument for Luttig or Luttig-like. He’ll be raring to go after another lucrative (read boring) year at Boeing.
Posted by: Bart Motes | Nov 13, 2006 2:11:46 PM
Bart, I suspect that we would find several areas where we can agree, particularly when we’re just talking descriptively rather than normatively. 🙂
I actually had Consuelo Callahan in mind when typing that, rather than Gonzales, but I would readily agree that the new math in the Senate would give Bush cover to nominate Gonzales, something the base would have gone berzerk over with a more substantial majority. I suppose the question would then become whether a coalition of conservatives who don’t want to give the liberal bloc another vote, “proceduralists” (or whatever you want to call people like me who don’t think results-oriented conservatives are much better than results-oriented liberals), and liberals fuming over executive power and the torture memo would take down the nomination.
Lastly, on the assumption that the GOP keeps the White House and takes back the Senate in 2008, I can’t say that I will be excessively disappointed if Bush doesn’t get another SCOTUS nomination. To be sure, if we nominate McCain, I fear for the future of First Amendment law, but truthfully, I’m less interested in that than are some, and in any event, I think Scalia, Thomas plus the liberals is more than an adequate bulwark in the free speech arena.
It’s been clear for some time that Bush is unlikely to deliberately appoint the kind of Justice that I want on the bench, he was just always more likely to do so accidentally, or on the advice of his staff. Roberts and Alito are great picks, but if Bush really thinks that they are the fulfilment of his “in the mold of Scalia and Thomas” promise, it begs the question of what on Earth the President understands that mold to be. Still, if he gets another try and nominates Sykes or Cantero, I’ll be happy enough with that.
Posted by: Simon | Nov 13, 2006 12:46:17 PM
It’s always a special weird pleasure when Simon agrees with me. I was surprised, however, Simon, to see you question Attorney General Gonzalez’s masculinity. As a Miamian, let me assure you that that is a no-no.
Of course, let’s not forget that Presidents from Texas mired in unpopular wars don’t always get to replace justices on the Supreme Court.
Posted by: Bart Motes | Nov 13, 2006 11:54:40 AM
Scott: with only 51 Dems, some of them pretty conservative, another Alito would have more of a chance than Bork ’87But with all due respect to Justice Alito, I’m not sure he should be the benchmark. I was thrilled with the Alito nomination, and (perhaps jointly with Kozinski), he was my first choice to succeed O’Connor, rather than Roberts (I have since come around to the view that while Roberts would not have been my first choice to replace O’Connor, he shows every sign of being a superb choice to replace Rehnquist); thus, while I have every confidence in Alito, Zedner notwithstanding, in my view, Scalia and Bork should remain the benchmarks. A Roberts or an Alito are compromises. If you make Alito the benchmark, and compromise from there, there’s no way to frame that other than as a retreat.
Posted by: Simon | Nov 13, 2006 11:36:37 AM
andy: Nobody is suggesting the Dems will vote against any nominees to the right of Lawrence Tribe; give that straw man a rest. Rather, the Dems could aspire to the following: (1) a repeat of 1987, when by opposing Bork they got Kennedy, a more moderate conservative; (2) a repeat of the late 90s, when Republicans held up many of Clinton’s more libeal nominees by not letting them out of the judiciary cmte.
Bush surely will get to appoint more judges, and Whelan is right that with only 51 Dems, some of them pretty conservative, another Alito would have more of a chance than Bork ’87 (who faced a more solidly Dem Senate). But the Dems’ ability to say no to certain nominees surely has gone up substantially given their control of Judiciary.
Posted by: Scott Moss | Nov 13, 2006 10:41:28 AM
I’m afraid to say I basically agree with Bart on this one (on the Senate/judges issue, that is – there is more to be said about his other comment, but this isn’t the place). I thought Ed Whelan’s argument as to why the loss of the Senate doesn’t mean a sea-change in who can be confirmed was singularly unpersuasive. All bets are off, though, if there is a Supreme Court vacancy. That is too high-profile a situation for the Dems to sweep under the carpet, and of course, in any of the more likely retirement scenarios, time is not on their side. But I would still maintain that, as Bart says, the Dems will have a substantial advantage in the air war, by virtue of control of the calender, and I think that it’s clear that we are more likely to see a Kennedy-type than a Thomas-type nominee, if they want to have any prayer of passing. There are all sorts of suggestions in the base that Bush should nominate a really good nominee, and when that nomination fails, nominate another really good nominee, just refuse to back down, but frankly, I have serious doubts that a man who tried to run away from a fight with a Democratic minority has the spine for a fight with a Democratic majority. [cynicism]Expect a female hispanic stealth nominee who expresses sympathy for broad executive power.[/cynicism]
Posted by: Simon | Nov 13, 2006 8:59:42 AM
“If the Dems think that Nov. 7 means that the public wants Larry Tribe on the court, they are in for a harsh surprise.”
The public doesn’t know or care who Larry Tribe is and they won’t care or likely even know if there are no new judicial appointees for two years. Part of the benefit of controlling Congress is controlling the news cycle. If you think that anyone in the general public cares whether members of the Federalist Society get a fair shake in committee while Democrats are trying to solve Republican created problems, you’re in for, well, a harsh surprise.
“Though the electorate clearly expressed dissatisfaction with the republican congress, it sure as heck was not over Bush’s judicial nominees– it was over Iraq, corruption/bribery, and pedophilia.”
Correct. And the moment for summoning outrage over blocking judicial nominees is over. Democrats control the agenda and as the commenter above notes, the agenda will be stem cell (the Democrats’ gay marriage–alpha issue that Republicans can’t deal with without alienating their base), Iraq, health care, and economic justice. And a quiet pause on judicial nominees for our lame duck president.
I’m also amused to see the “Dems won with conservatives” meme repeated here. Untrue (see Krugman today), but since the DSCC’s approach of softpedaling social issues while highlighting economic justice seems to have worked so well, carry on, carry on.
Posted by: Bart Motes | Nov 13, 2006 7:38:59 AM
If the Dems refuse to confirm all of Bush’s conservative nominees, they may find themselves facing the same ill fate that Republicans suffered last week.
Though the electorate clearly expressed dissatisfaction with the republican congress, it sure as heck was not over Bush’s judicial nominees– it was over Iraq, corruption/bribery, and pedophilia. If the Dems think that Nov. 7 means that the public wants Larry Tribe on the court, they are in for a harsh surprise.
Posted by: andy | Nov 12, 2006 2:11:21 AM
As to the effect on judicial nominations: we’ll have to wait to see whom the Dems put on Senate Judiciary. Traditionally, the Dems avoid putting their few really conservative members on judiciary (e.g., Zell Miller wanted on Judiciary in the early 2000s, but Daschle said no), but now there are only 51 Dems and a number of them are pretty conservative (Tester, Webb, and a bunch of the existing southerners) — the sort who might not block the next Alito in committee. Reid may be forced to put at least one conservative Dem on Judiciary, and if so, it would embolden Bush to know that there may be at least one Dem who’d support letting a very conservative nominee get out of committee. Maybe someone who’s more of a congressional junkie than I am already knows who’s likely to be on judiciary, but if not, I suppose we’ll see in a few weeks.
Posted by: Scott Moss | Nov 11, 2006 10:54:34 PM
It really depends on whether or not the Democrats still consider themselves locked in a bidding war with the Republicans over who can enact the most punitive criminal measures (a la Clinton and both the PLRA and the AEDPA). Given that I expect the Democratic Party will be spending its chits on dealing with the war in Iraq, raising the minimum wage, “securing the borders,” and expanding stem cell research (that is, if there is a correlation between what party leaders say and what party leaders do), I expect little change on the crim front. But maybe I’m just being a curmudgeon.
Posted by: Deborah Ahrens | Nov 11, 2006 9:23:24 PM
My principal concern is that it’s clear that beyond legislative enactments, the change of hands in the Senate radically alters the calculus of who can be nominated to vacancies on the bench, which of course has the potential to drastically alter the future direction of the law. Not to put too fine a point on it, but we were one vote away from fixing some of the mistakes that have been made across a broad swath of law, starting with Roe and its progeny, and there is now little or no hope for that fifth vote. That’s been the most distressing aspect of the elections for me.
Posted by: Simon | Nov 11, 2006 7:37:02 PM