Compare And Contrast Republican And Democratic Parties Essay Persuasive Essay Supporting Gay Marriage

For valuable research assistance, we are grateful to Cristina Alvarez, Joseph Catalanotto, Cortney Creswick, Sam Ferenc, Scott Ferron, Zachary Freund, Gabe Levine, Joe Margolies, Aaron Roper, and Claudia Wack. Trump is the first President since Abraham Lincoln to take office with a Supreme Court vacancy that arose when the presidency was controlled by a different political party. Not included in this accounting, because there was no actual vacancy on the Court, are the events following Chief Justice Earl Warren’s announcement in June 1968 that he intended to retire upon confirmation of his successor.

Outgoing President Lyndon Johnson nominated Associate Justice Abe Fortas to be the next Chief Justice.

Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left.

The practice of consti­tutional hardball, this Essay argues, has followed a similar—and causally related—trajectory.

This partisan gap is in some ways analogous to the phenomenon of “asymmetric polarization” that social scientists have documented. As the fili­buster of Justice Gorsuch demonstrates, we are at a liminal moment in political time, in which Democratic Party leaders are showing a new appetite for playing constitutional hardball in response to President Trump.

See Nolan Mc Carty, What We Know and Don’t Know About Our Polarized Politics, Wash. 8, 2014), Rz K [ perma.cc/3N3B-JKB2] (“The evidence points to a major partisan asymmetry in polar­ization. Will they close the hardball gap with their Republican coun­terparts in the months and years ahead? The answer to such questions may be clouded temporarily by the pol­itical and constitutional turmoil wrought by the Trump Administration, which has put some unusual cross-pressures on con­gressional Republicans.

And Fortas had minor ethics problems that became public in the months leading up to the cloture vote (his more serious ethics problems emerged later). After Nixon was elected, he chose Warren Burger to fill the seat, and Chief Justice Warren honored his stated intention to resign.

Still, the use of a filibuster to stop a Supreme Court nomination was, at the time, unprecedented; observers specu­lated that the motives of the key Republican Senator leading the charge against Fortas “were, at least, mixed, and that he really intended to save the nominations for GOP Presidential candidate Richard M. Thomas Ferraro, Republican Would Back Garland for Supreme Court, Reuters (May 6, 2010), USTRE6456QY20100506 [ (quoting Republican Senator Orrin Hatch describing Judge Garland as “a consensus nominee” who would be confirmed with bipartisan sup­port, “[n]o question” (internal quotation marks omitted)).

they will not keep pace with Republicans—and this partisan difference will continue to be a pivotal feature of American constitutional government. 1103, 1108 (2012) [hereinafter Tushnet, 1937 Redux] (describing constitutional hardball as “the develop­ment of practices that violate previously well-understood and accepted ways in which mem­bers of political parties who disagreed on matters of policy conducted their debates—and fights—over policy development”). But that only heightens the sense of foul play insofar as it insulates acts of hardball from judicial review.

Asymmetric constitutional hardball grows out of historically conditioned differences between the parties’ electoral coalitions, mediating insti­tutions, views of government, and views of the Constitution itself.

The “restorationist” constitutional narratives and interpretive theories pro­moted by Republican politicians and lawyers, the Essay suggests, serve to legitimate the party’s use of constitutional hardball.

This might seem like a reckless prediction to make at a moment when so much is in flux. Although Tushnet allows for the possibility of judicial constitutional hardball, his account focuses on legislative and executive actors, and the most straightforward cases of hardball often occur in legislatures.

But this Essay will document a number of longer-term dynamics that seem poised to perpetuate the divide. Legislative bodies teem with rules and norms, not expressly required by constitution or statute, that govern the interactions among political blocs within the institution.

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