Et tu, Ohio?

BY JON LAMBERSON

This year on election day, I somehow got roped into organizing a trip for about a dozen bright eyed and bushy tailed HLS Democrats to Philadelphia, PA. The Dems had contingents headed to just about every swing state, but somehow the Philadelphia trip seemed particularly exciting. The city was fervently Democratic. There were signs on every lamppost and crowds of Kerry supporters waving on every corner. We marveled at the fact that there were several groups of Democratic poll-watchers at every polling location. We laughed at a group of scantily clad women in the back of a truck waving “My Cherry for Kerry” signs. We grew excited by reports from HLS students in swing states that Kerry had a substantial lead in exit polling. Perhaps we really were going to see the Kerry (or more properly, anti-Bush) landslide that all the Dems secretly hoped would materialize.

Instead, the following day we drove 6 hours back to Cambridge in a silence interrupted only by outbursts of frustration. Despite all of our efforts, we had lost to a man who will undoubtedly go down as the worst president in modern American history (move over Nixon; so long Reagan). We also lost Senate seats to Republican candidates who supported such mainstream issues as a national sales tax (a.k.a. the regressive income tax) and the death penalty for “abortionists.” Though claims of voter fraud linger, most Democrats have accepted the reality of this devastating defeat. By now I’m sure the pundits have said it all, but I thought I’d offer a few thoughts as a concerned law student.

First, Democrats need to take a hard look at how we will respond to “activist judges” in the future. I must note that I am no fan of this label. I support arguments that, as a coordinate branch of government, judges have an important role to play in securing fundamental rights. But in deciding what rights are fundamental, judges are making inherently political decisions. Soon, a conservative-filled judiciary will be “activist” in a direction that most liberals find frightening. I believe it’s time we stop relying on appointed judges to enforce rights, and start working with people on the ground to build our support.

In Constitutional Law, we were taught that the judiciary has traditionally been a branch that lags behind the country in recognizing new rights. I would argue this is true because, from the very founding of our country, Americans haven’t liked being told what to do. (Example: I don’t like it when the President tells me my tax money must go towards school vouchers.) It should come as little surprise to Democrats that conservatives react with similar ire when a court tells them what to do, especially given that courts are by design the least politically accountable branch. Even after Brown v. Board, the Supreme Court was hesitant for many years to actually enforce its desegregation decrees. It took images of civil rights martyrs forcefully presenting their cases all across the country, and being severely persecuted for their beliefs, to change the national consciousness. Today, all across the “red states” there are voters who have never met anyone who is openly gay. It will be nearly impossible to change these voters’ minds while the only image they have of a gay American comes from the exaggerations of popular culture. The courts have had their chance, but right now we need to build our grass roots if we ever want to recognize our progressive ideals.

A second observation I’d make is that the Democrats can’t win an election if they continue to cede large swaths of the country to the Republicans. Whether or not we as a party support the electoral college, the reality is that it isn’t going to disappear any time soon. This will always give smaller, rural states a disproportionate voice over the more populous states. The truth may be that a New Englander isn’t the best person to run in a national race (I say this as a decidedly Midwestern observer). We need to recognize the reasons why liberalism is so unpopular right now with rural voters, and find new faces to present our views in each state.

With all of this soul searching on the part of Democrats, though, I close by saying that I wish my Republican friends would take a look at the direction of their own party. Gone are the days of fiscal conservatism, libertarianism, and federalism, the fundamental reasons why so many of you joined the party. The Republicans have instead nailed themselves to a cross of social conservatism. The lack of dissent among HLS Republicans is frightening given that not even members of the Federalist Society want to spend significant time in any of the “red” states. Most will be traveling to New York, Massachusetts, and California, not Montana, Wyoming, or Mississippi. Yet these are the states that the GOP relies on to dictate the direction of our country. I’d note that faith is a wonderful American trait, but blind faith, in either religion or politics, is historically dangerous.

It is difficult to find optimism in the direction of our country right now, but I am still optimistic that we can turn our disappointment into a sharper focus to take back this country. If we don’t, George W. Bush may become the most moderate face in the Republican party.

Jon Lamberson is a 3L.

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