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July 15, 2004 | 11:23 PM ET

Guest blogging for Glenn Reynolds this week is Cass Sunstein, University of Chicago law professor and author of "" and "The Second Bill of Rights: FDR's Unfinished Revolution."

The Democrats' New Star
The Democratic Party has a brand-new star.  Barack Obama, odds-on favorite to be elected Senator from Illinois, was recently asked to deliver the keynote address at the Democratic Convention -- a stunning tribute to the brightest young light on the political horizon.

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American politics has never known anyone like Obama.  Think Jack Kennedy, but taller, thinner, even smarter, even better-educated, and African-American.  Son of a white woman from Kansas and a black father from Kenya, Obama graduated from Columbia University and Harvard Law School, where he was president of the Harvard Law Review.  He has been a state legislator for many years; for most of those years, he's also taught at the University of Chicago Law School, where he's hugely liked and admired by conservatives and liberals alike.  (Disclaimer: The University of Chicago is my home institution, and I've known Obama as a colleague for a number of years.)  In the Senate, members refer to their colleagues, with exaggerated reverence, as "constitutional scholars."  Obama really is a constitutional scholar, with academic credentials, on that subject, beyond those of anyone now in the Senate.

Running an upbeat and substantive campaign, Obama catapulted to national attention with his stunning victory in the Democratic primary, obtaining 53% of the vote in a strong seven-person field.  The key to his success?  Lacking connections with the local political machine, he connected directly with Illinois voters.  According to former congressman, federal judge and White House Counsel Abner Mikva, "Barack is the most unique political talent I've run into in more than fifty years."

Obama is a genuinely independent thinker; you can't pigeonhole him.  Like many Republican leaders, he's centrally concerned about economic growth.  He knows the importance of free enterprise, and he has the courage to speak bluntly to union members about the benefits of free trade.  Like the most sophisticated Democrats, he seeks ways of providing jobs and opportunities without busting the federal budget.  Far from demonizing his political opponents, he compromises with them and is willing to learn from them.  He's also someone of unquestioned integrity and good will.

At a recent meeting at the White House, Jan Schakowsky, an Illinois congresswoman, wore an "Obama" button.  President Bush was visibly startled.  Schakowshy reports, "I knew what he was thinking.  So I reassured him it was Obama, with a 'b.'"  President Bush replied, "Well, I don't know him," to which Schakowsky responded, "You will."  Soon the rest of America will know him too.

July 14, 2004 | 11:43 PM ET

Guest blogging for Glenn Reynolds this week is Cass Sunstein, University of Chicago law professor and author of "" and "The Second Bill of Rights: FDR's Unfinished Revolution."

Are Judges Political? The 2004 Election and Federal Judges
If you listen to many political activists, the future of the federal courts will turn on the 2004 election.  In a crucial sense, they're right.  The numbers prove it.

Many people (including the present blogger) have been studying the votes of federal court of appeals judges.  In the most important areas, we find big differences between Republican appointees and Democratic appointees.  The votes are public, and can be found in volumes of federal judicial opinions; but it takes a lot of painstaking work, including a ton of counting, to compile them.

Consider recent judicial votes in the most controversial areas of law, including campaign finance, environmental protection, abortion, capital punishment, affirmative action, and sex discrimination.  In a sample of almost 15,000 judicial votes, Republican-appointed judges gave liberal votes 38% of the time, while Democratic appointees gave liberal votes 51% of the time. (We count votes as "liberal" if they fit with the stereotypes, eg, against a capital punishment sentence, in favor of a regulation protecting the environment, in favor of an affirmative action program or a campaign finance law.)  The difference of 13% is extremely significant.

In some areas, the difference is far more pronounced.  Democratic appointees voted to uphold affirmative action programs 53% of the time, whereas Republican appointees voted to uphold them just 29% of the time - a massive difference of 24%.  In the areas of campaign finance, sex discrimination, and environmental protection, the difference between Republican and Democratic appointees is also unusually large. 

But there are some major surprises.  Would you guess that Democratic-appointed judges are more sympathetic to criminal defendants and more likely to rule in their favor?  If so, you're wrong.  On criminal appeals, Democratic appointees and Republican appointees vote alike.  Would you guess that Republican-appointed judges are especially protective of property owners?  Guess again.  They're not.

What happens when federal judges sit together on a three-judge panel consisting only of Republican appointees - or only of Democratic appointees?  The answer: The ideological difference gets amplified!  Republican appointees become far more conservative when they sit with fellow Republican appointees; Democratic appointees show the same pattern.  On an all-Democratic panel, Democratic judges vote in favor of affirmative action programs 85% of the time - on an all-Republican panel, Republican judges vote for affirmative action programs just 37% of the time.  If you're a disabled person bringing suit under the Americans with Disabilities Act, you've got a small chance before three Republican-appointed judges - and a much bigger chance before three Democratic-appointed judges.

Don't go overboard with these findings.  Judges aren't narrowly political; the law matters.  Republican appointees often vote in favor of affirmative action programs, environmental regulation, and those complaining of sex discrimination (remember: 38% liberal votes overall ).  Democratic appointees often cast their vote in conservative directions (49% conservative votes overall).

But the differences are real and significant.  It's a simple fact that Bush appointees would vote quite differently from Kerry appointees.  If you have any doubt, take a look at the numbers.

July 13, 2004 | 11:57 PM ET

Guest blogging for Glenn Reynolds this week is Cass Sunstein, University of Chicago law professor and author of "" and "The Second Bill of Rights: FDR's Unfinished Revolution."

Groupthink and the CIA

In 1972, political scientist Irving Janis published his extraordinary book on "groupthink."  Janis argued that much of the time, groups blunder because their members conform to social pressures and fail to give a realistic appraisal of the facts.  Janis was especially concerned about the mistakes made by "cohesive" groups.  Within government and elsewhere, cohesive groups value conformity and fail to take advantage of what group members actually know.
Groupthink lies at the heart of the recent report of the Senate Select Committee on Intelligence.  The report contends that in its analysis of Iraq, the Central Intelligence Agency was victimized by groupthink.  Most disturbingly, leaders of the CIA failed to "encourage analysts to challenge their assumptions" and did not "fully consider alternative arguments."  Some analysts "lost their objectivity."  For this reason, the CIA failed to take full advantage of the information that its employees had.  The result?  A badly distorted message to the nation.

Why does groupthink occur?  There are two reasons.  The first and most insidious involves peer pressure.  Employees of the CIA, or any other organization, are likely to keep quiet if they believe that their leaders, or their fellow employees, want to pursue a certain course of action.  Too much of the time, people silence themselves in order to avoid the disapproval, or worse, that comes from rejecting an official orthodoxy.  As a result, groups don't get the information that they need.

The second reason for groupthink is that much of what we know comes from the beliefs of other people, especially those we trust.  Is global warming a serious problem?  Was there a connection between Al Qaeda and Saddam Hussein?  Does the earth really go around the sun?  On these questions, almost all of us lack direct knowledge, and so we rely on what others think.  It follows that if most people at the CIA think that Iraq has renewed its nuclear weapons program, other CIA employees will probably be reluctant to disagree with them.  Groupthink is the consequence.

Senator Pat Roberts, Chairman of the Select Committee, said that "most if not all" of the CIA's problems "stem from a broken culture and poor management."  In his view, that "broken culture" was characterized by groupthink and by a failure to do enough to encourage independent judgments and to elicit dissenting opinions.  Writing decades ago, Irving Janis argued that the same failure has produced many mistakes by American presidents, Republicans and Democrats alike.  It may not be unfair to worry that "broken cultures," valuing conformity over independent analysis, can be found in numerous places in modern government, not excluding the White House itself.

July 13, 2004 | 12:05 AM ET

Guest blogging for Glenn Reynolds this week is Cass Sunstein, University of Chicago law professor and author of "" and "The Second Bill of Rights: FDR's Unfinished Revolution."

On Political Polarization

Why do so many liberals seem to hate conservatives, and why do so many conservatives seem to despise liberals?

Here's a clue: When like-minded people speak mostly to one another, they go to extremes.  If members of a group think that President Bush is good, they're likely, after talking together, to think that President Bush is great.  And if people in a discussion group think that the Iraq war has gone badly, they'll probably end up thinking that it has gone disastrously.

Consider an actual experiment from France.  Those who distrust the United States, and are suspicious of its intentions with respect to foreign aid, actually end up far more distrustful and suspicious after speaking to one another.

My own studies show that the same process occurs among federal judges too. Sitting only with other Republican appointees, Republican-appointed judges are extremely conservative - much more so than when sitting with at least one Democratic appointee.  Nor are Democratic-appointed judges immune from this effect.  Sitting on a court together, Democratic appointees show much more liberal voting patterns than when sitting with at least one Republican appointee.

I'm speaking here of what social scientists call group polarization - the tendency of like-minded people to get more extreme.  America's own political divisions are often a product of group polarization.  Many of us sort ourselves into echo chambers in the form of communities of like-minded people.

Unfortunately, group polarization creates major problems.  People can end up thinking of their fellow citizens as real enemies, rather than as simply having a different point of view.  And even worse, both individuals and groups are likely to make big blunders if they don't contain dissenters.  Corporations, investor clubs, and politicians do a lot better if they seek out views very different from their own.

There's a major lesson here.  In politics and in daily life, most of us should probably listen a little less to those who share our inclinations, and a lot more to those who don't.

July 12, 2004 | 1:05 PM ET

Guest blogging for Glenn Reynolds this week is Cass Sunstein, University of Chicago law professor and author of "" and "The Second Bill of Rights: FDR's Unfinished Revolution."

John  Edwards - Heir of Franklin Delano Roosevelt

With his energy, charm, and infectious optimism, John Edwards has been drawing comparison to John F. Kennedy.  But if we look at what he's been saying, we'll see that Edwards is actually recovering the legacy of Franklin Delano Roosevelt, the  leader of the Great Generation and the most important president of the twentieth century.

Edwards has gotten a lot of attention for his "two Americas" speech.  Over and over again, Edwards has emphasized that "there are two Americas, not one: One America that does the work, another America that reaps the reward.  One America that pays the taxes, another America that gets the tax breaks.  One America that will do anything to leave its children a better life, another America that never has to do a thing because its children are already set for life."  Edwards frequently  emphasizes the problem of poverty, arguing that government should ensure opportunities for all.

Edwards' themes draw heavily on the great speeches of Franklin Delano Roosevelt.  It was Roosevelt, after all, who stressed the importance of "freedom from want," which he linked to "freedom from fear."  In his Second Inaugural Address in 1937, Roosevelt  proclaimed, "In this nation I see tens of millions of its citizens - a substantial part of its whole population - who at this very moment are denied the greater part of what the very lowest standards of today call the necessities of life."  He added,  "I see millions denied education, recreation, and the opportunity to better their lot and the lot of their children . . . I see one-third of a nation ill-housed, ill-clad, ill-nourished."  And he insisted, "It is not in despair that I paint you that picture.  I paint it in hope - because the Nation, seeing and understanding the injustice of it, proposes to paint it out."

Roosevelt's whole presidency was premised on the idea of "security," by which he meant not merely freedom from  external threats, but against human vulnerability in all its forms. His plea for security culminated in his dramatic proposal for a Second Bill of Rights, including the rights to education, to freedom from unfair competition, to a decent home, to adequate medical care, to social security, to adequate food and clothing and recreation.

By emphasizing "One America," John Edwards is carrying forward Roosevelt's theme.  The unanswered question is whether that theme can prove as popular now as it did seventy years ago.

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