The Southern Strategy Lives

The semester is over at Wofford. Though I was on leave from my normal teaching duties, I did supervise the independent work of three students, one of whom (Jennifer Coggins) wrote an excellent honors thesis on Richard Nixon, the southern strategy, and school desegregation. For her, of course, Nixon was fairly distant history. For me, Nixon is memory. I always tell my students that Nixon is the first president I really remember and that the adult version of me is no more taken with him than the child version was, so they should take my mixture of memory and history with an appropriate grain of salt.

Last week brought a jarring reminder of the relevance of scholarly work like this thesis. In short (and I'm simplifying a 50 page argument), in the 1968 campaign, Nixon employed what has been called the "southern strategy" and the rhetoric used in the election had real consequences for Nixon administration policy regarding school integration.

The "southern strategy" was the attempt to exploit politically LBJ's full embrace of civil rights in the Civil Rights Act of 1964 and Voting Rights Act of 1965. The thinking was that disaffected Democrats (especially, but not exclusively, from the south--think Archie Bunker) could be convinced to vote Republican by the used of racially coded rhetoric that would signal sympathy with their opposition to the civil rights movement.

South Carolina Sen. Strom Thurmond with
Richard Nixon during the 1968 campaign.

The trick, however, was to do so without being too obvious about it, since that ran the risk of alienating independents and Republicans who supported civil rights. So Nixon used phrases such as "law and order" which had no inherent racial meaning, but had become racially charged due to the rioting after Martin Luther King's assassination in April 1968 and the rise of militant groups like the Black Panthers.

Choosing the right words, therefore, could send different messages to different audiences: opponents of civil rights could see a rebuke to the movement, while others could see a non-racial appeal for social stability in a tumultuous time.

Last Thursday, the New York Times ran a story about a proposed ad campaign, funded by a conservative billionaire named Joe Ricketts, to use Rev. Jeremiah Wright to try to discredit President Obama. Using Rev. Wright would not necessarily raise comparisons to Nixon's southern strategy. In fact, nothing in the Times article did for me. But the Times helpfully included a link to the entire proposed ad campaign document.

Title page of the memo by "Strategic Perceptions"

Being a historian, I welcomed the chance to read the primary source. Not surprisingly, the authors were aware of the potential racially charged nature of the proposed ad. To pre-empt any such charges, they proposed getting "an extremely literate, conservative African American in our spokesman group," as well as using focus groups to test how the ad came across. The focus group would help identify what might seem racist to viewers.

Again, nothing too overtly suggesting the southern strategy. In fact, for a moment, I thought that the idea was to insure that there was truly nothing racist about the ad. Then came the explanation that the focus group would help them in "making fine-tuning adjustments in wording and visuals to increase the impact, while lessening any elements that could reasonably be deemed 'racist.'"

"Lessening." In that one word, we see the essence of the southern strategy.

The paragraph begins with the assumption that the "instant response liberals give to any attack is to deem the attack as racist." But those are not the people the ad's authors care about. The perception that they are trying to influence is not that of knee-jerk, partisan liberals. The focus group is there to tell them what could reasonably be deemed racist.

They take as a given that the focus group may well think parts of the ad "could reasonably be deemed 'racist.'" And in response they would tweak the ad to lessen those elements.

Not "eliminate," but lessen.

As it was with the southern strategy, the concern is perception. The challenge is to use a racially charged attack and try to make it not look racist to people who will be offended by its racism. So you identify and lessen the racist elements. But you don't eliminate them, because that would defeat the purpose. You are also speaking to another audience, and they need to be able to perceive what will motivate them.

Four years ago, Rick Perlstein wrote a book called Nixonland, that argues that Nixon shaped the political world we now live in. That is probably an overstatement. But when it comes to the southern strategy, some people are clearly still living in Nixonland.

Let's Play "Name That Candidate!"

The following passage comes from a major address by the nominee for president of a major political party:

Whatever progress has been made we all accept.... there are certain principles that are accepted by substantially all of the American people. They cannot be treated as partisan principles. They are national policies. For instance, the policy of providing the farmer with a fair share of the national income is a national policy.... We say to you workers that the right of collective bargaining by labor's own free choice is not a partisan right. It is a national policy. The principle of setting a floor under wages is likewise an established principle. That floor should be raised as rapidly as our increasing prosperity permits... It is national policy to set a limit to the hours of labor. Whenever those hours are exceeded, overtime must be paid at the rate of time and a half. Social Security is a national policy. And so are old age pensions. Nobody has a patent on them. It is national policy to care for the unemployed.... It is national policy to care for the aged, the sick, the physically handicapped, the blind, and others who need our help.

I admit, this isn't an easy one. He did not go on to become president, so he's less well-known. So how about this question instead: which political party does he belong to, the Democratic or Republican?

Answer: The Republican Party.

This is from Wendell Willkie's final speech of the 1940 campaign, given over the radio, originating from a campaign rally in Madison Square Garden in New York City.

I came across this speech doing some research, and was somewhat dumbfounded when I read it. Even allowing for the real possibility that Willkie's support for all of these "national policies" might have been more rhetorical than real (after all, Paul Ryan today has the chutzpah to claim that his plan to end Medicare is really meant to "save" it), this is remarkable.

My first thought was the rather obvious one: can anyone imagine the Republican nominee in 2012 full-throatedly supporting all of these policies that were enthusiastically embraced by the Republican nominee 72 years ago in 1940?

To be fair, Willkie also said things that could easily have come from Romney's mouth in this campaign: "We believe ... that in order to protect [these benefits] and to extend them it is necessary to have a government that is financially sound."

In fact, Willkie's defense policy statement is almost exactly the same as Romney's: "All of us believe in the need for a powerful national defense. But our administration ... would have it so powerful that no aggressor would ever dare or seek to strike."

Romney has repeatedly said in this campaign: "I will insist on a military so powerful no one would ever think of challenging it."

Those similarities notwithstanding, it is remarkable to see how different the rhetoric is.

Willkie supported collective bargaining, while Romney has praised Gov. Walker's and Gov. Kasich's efforts to limit collective bargaining in Wisconsin and Ohio.

Willkie supported not only the concept of a minimum wage, but anticipated increasing it, while Romney is against an increase and in the past has proposed at most indexing it to inflation (which would have the effect of never increasing it in fact). Some Republicans (e.g., Ron Paul and Tea Party leader and former congressman Dick Armey) even favor abolishing it.

Willkie talks about caring for the unemployed, while Romney has opposed extending unemployment benefits and has even said he'd like to see "reform of our unemployment system, to allow people to have a personal account which they're able to draw from as opposed to having endless unemployment benefits." In other words, he would privatize it and end any government responsibility for the unemployed.

Willkie says it is "national policy" to care for the sick, but Romney would repeal the Affordable Care Act and has proposed no national policy to advance the cause of providing health insurance for the uninsured.

Willkie supported Social Security and old age pensions, while Romney would increase the eligibility age for both Social Security and Medicare.

The unavoidable conclusion is how far to the right the Republican Party (and, to some extent, the Democratic Party) has moved over the last 70 years, with most of that rightward movement having taken place in the last twenty years.

It has become commonplace to note that Ronald Reagan, the nominee in 1980, and Richard Nixon, the nominee in 1968, would be too liberal for today's Republican  Party. Turns out, Wendell Willkie in 1940 would be, too.

Justice Scalia is a Political Hack

Ever since Antonin Scalia was appointed to the Supreme Court by Ronald Reagan in 1986, he has been widely lauded as the great thinker on the Court. "Certainly, no one denies his immense legal brilliance and intellectual abilities," one biographical sketch says, reflecting a fairly commonly accepted opinion--even on the left. In the past, I've even accepted it myself.

But I've grown increasingly skeptical of Scalia's "legal brilliance" over the years, and reports I read about the recent health care and immigration cases argued before the Court made me doubt it more than ever. Knowing that isolated quotations can be misleading, however, I decided to read the immigration case oral arguments in their entirety to see Scalia at work.

I was prepared for Scalia to be hostile to the administration's position, so I wasn't surprised when Scalia had little to say while Paul Clement made the case in favor of the Arizona law. What took me aback was how overtly political he was in his questioning. I expected that his hostility to the administration's position would be constitutionally based. I was wrong.

During the oral arguments, Scalia went out of his way to object not to the administration's constitutional argument, but to federal policy on immigration. Note how Scalia frames the issue in this exchange with Clement:

JUSTICE SCALIA: You’ll concede that the – that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing?
MR. CLEMENT: No, I don’t accept that, Justice Scalia, but –
JUSTICE SCALIA: That’s all the statute – and you call up the Federal Government, and the Federal — yes, he’s an illegal immigrant, but that’s okay with us.

Recall that the nature of federal enforcement policy is not the issue before the Court. But it seems fairly obvious that it is the object of Scalia's hostility. Scalia refers to people "that the Federal Government has no interest in removing" with the mocking tone that has made him famous. Regardless of what Scalia thinks of federal enforcement policy, it is absolutely irrelevant to the constitutionality of Arizona's law.

Scalia's point here is decidedly not constitutional. It is overtly political. He is effectively saying:  "I don't like how the federal government deals with immigration, so Arizona should be allowed to act differently, because I like their get-tough approach." That's a political argument, not a constitutional one.

Scalia's subsequent questioning showed that his disdain for federal policy blinded him to arguments that the point here is federal jurisdiction over immigration, not specific policy choices.

Later, during the federal government's presentation, Scalia became (not surprisingly) more argumentative. He even turned the administration's case on its head, and argued that states have the right to control their borders. He had hinted at this earlier in an exchange with Clement:

JUSTICE SCALIA: And the State has no power to close its borders to people who have no right to be there?

That, at least, was in the form of a question. But Scalia took it further in his questioning of Solicitor General Donald Verrilli, who presented the federal government's case:

JUSTICE SCALIA: The Constitution recognizes that there is such a thing as State borders and the States can police their borders.

What Scalia seems to be suggesting here is that states are the fundamental sovereign entity, a point which he later made even more explicit:

JUSTICE SCALIA: But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Think about that. If Scalia is right, and states have the right to defend their borders, would Arizona also be constitutionally authorized to check the IDs of every person entering the state from other states and detaining anyone whose papers were not in order? It would seem so. After all, mere days earlier Scalia had himself argued, with apparent seriousness, that without a "limiting principle" the federal government's argument for the individual mandate in health care would also allow it to force everyone to buy broccoli.

How can anyone known for his "legal brilliance" could even suggest a state power so absurd and obviously unconstitutional? When he's more concerned with politics and ideology than the Constitution, that's how.

But the worst example of Scalia's political posturing came when Verrilli tried in vain to explain to Scalia the difference between bank robbing and immigration. Scalia, sounding rather proud of himself, presented Verilli with the following analogy:

JUSTICE SCALIA: Anyway, what — what’s wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is.
GENERAL VERRILLI: I think it could, but I think that’s quite –
JUSTICE SCALIA: But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it’s just an amateur bank robber, you know, we’re — we’re going to let it go. And the state’s interfering with our — with our whole scheme here because it’s prosecuting all these bank robbers.

Once again, Scalia's point is blatantly political--he doesn't like the selective enforcement policy of the federal government, it's an absurd "scheme" that no reasonable person could support.

Verrilli tried to explain to Scalia that immigration was different than bank robbing:

GENERAL VERRILLI: In addition, we have very significant issues on the border with Mexico. And in fact, they are the very issues that Arizona is complaining about in that –
JUSTICE SCALIA: So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?
GENERAL VERRILLI: No, Your Honor, but what it does — no, Your Honor, I’m not saying that –
JUSTICE SCALIA: Sounded like what you were saying.
GENERAL VERRILLI: No, but what I am saying is that this points up why the Framers made this power an exclusive national power. It’s because the entire country feels the effects of a decision — conduct by an individual State. And that’s why the power needs to be exercised at the national level and not the State level.

As a matter of historical practice, Verrilli is undeniably right. How foreign nationals are treated in this country is inextricably intertwined with foreign policy. (For example, San Francisco's decision to force Japanese children into segregated schools in 1906 caused Theodore Roosevelt serious diplomatic headaches).  That makes the idea of allowing states to interject themselves into immigration constitutionally problematic to say the least. You would expect a Supreme Court justice to take that issue seriously. Scalia didn't.

Scalia's undisguised contempt for the idea that the United States should care what another nation thinks is remarkable. As repellant as I find the knee-jerk xenophobia that Scalia gave voice to, as a citizen he's entitled to that simple-minded view. He is not, however, entitled to introduce it as relevant to the constitutionality of the Arizona immigration law.

Whether or not the federal government chooses to take the views of the Mexican government into consideration has no bearing whatsoever on its constitutional power to make such judgments. That's a policy decision, one made by the elected representatives of the people. As a justice, Scalia has no business judging the wisdom of federal policy--none. His only concern in this case should be whether making those policy choices--whatever those choices are--is the federal government's exclusive purview.

But Scalia clearly was unconcerned with Verrilli's constitutional argument--the only one that is supposed to matter before the Court. He made a series of political points to support the decision he had unquestionably already reached. A truly brilliant legal scholar would at least make a show of couching his political views in constitutional language. Scalia doesn't even bother anymore. And that makes this alleged intellect of the Court little more than a political hack.