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')Conservative Republicans, with plenty of help from Democrats, have been hard at work since 1980 undoing not only the New Deal itself, but the social and economic structure that gave birth to it. The primary electoral muscle of the Democratic coalition came from unions, and union power was largely broken by the long recession under Reagan and the beginning of the de-industrialization of America, as well as by the movement of numerous industries into the un-unionized South. (Those same industries have now moved further south, out of the United States altogether.) Reagan also put a huge dent into the progressive taxation system that had funded the federal government since the Depression, cutting high bracket income taxes while raising the lower-bracket payroll taxes (and putting the proceeds into general revenues, as I pointed out here back in 2005.) Deregulation of S & Ls was followed under Bill Clinton (who restored some fiscal responsibility but did nothing else to fight the ongoing trend) by the repeal of Glass-Steagall and the resultant creation of huge investment banks fueled by depositors' money and credit cards.
All this made money more and more important in politics, far more important than either Republican or Democratic ideology. That is why, since the 1960s, no Democratic President has been able to put through a serious liberal reform. Democrats (at least in bluer states) talk a good game at election time, and sometimes put through legislation that looks like change, but a closer reading always reveals the work of lobbyists at play. When Bill Clinton threatened actually to reverse the decline of the government's role during his first year in office with health care reform, Boomer Republicans (led by Bill Kristol and Newt Gingrich) announced that he could not possibly be allowed to succeed and organized all-out opposition, aided by corporate allies. The same thing has happened during the last year. The increasing role of money has two related consequences: it not only insures corporate influence, but discredits the whole process. It was extremely difficult even for a lifelong Democrat like myself to swallow the compromises necessary to get the health care bill through the Senate. The Medicaid concession to the state of Nebraska was a national disgrace, as was the failure to repeal the anti-trust exemption for the health care industry. (How can anyone believe that exchanges will increase competition when the anti-trust laws do not apply?) I'm not surprised that Massachusetts voters were not impressed.
Now the Republicans have had to cope with one big problem: their policies are bad for America and bad for the American people. They have increased the gap between rich and poor and stripped working people of fundamental protections. Health care is becoming less and less affordable. Millions have fallen to predatory lending. Worst of all, economic de-regulation has brought back the frequent, devastating boom-bust cycles of the late nineteenth century. All this has led to periodic Republican setbacks at the polls, most notably in 2006 and 2008. (We must keep in mind that we are not fighting today over ideological or aesthetic preferences about the distribution of income in America: we are learning again that allowing rich people to keep too much money simply does not work for anyone but them.) They managed to moderate their effects, however, by packing the least democratic part of our system, the courts.
As James MacGregor Burns made clear in Packing the Cout, which I reviewed here some months ago, judicial activism was not an invention of the Warren Court, but has played a huge role in our history since the beginning of the Republic. The Warren Court, which almost for the first time deployed its power on behalf of minority rights, was exceptional only because it favored the Left. During the Progressive Era and New Deal the courts had thrown out literally dozens of regulatory measures, concluding, for instance, that state minimum wage laws were unconstitutional. And on no issue have Republican activists been more single-minded than bending the judiciary to their needs. They have worked at all levels, organizing the Federalist Society, for instance, to recruit young candidates.
Until 2000, countervailing factors ensured that even Republican Presidents would veer from ideological orthodoxy in their appointments occasionally, as Ronald Reagan did to appoint the first female justice and George H. W. Bush did to pick the estimable David Souter. But those days are over. During the last twenty years, Republican appointments have been far more ideologically committed and considerably younger and healthier than Democratic ones. Three of the four Boomers on the Court are now Republicans, and Sonia Sotomayor, the Democratic choice, is a diabetic. This strategy first paid a gigantic dividend in the legal coup d'etat of 2000, when a 5-4 Republican majority disclaimed any interest in determining the actual wishes of Florida voters and gave the Presidency to George W. Bush. (Al Gore's ineptitude was also largely to blame, since he never even tried to insist on the full statewide recount which later studies showed would have given him the election.)