There is a lot of buzz on social media today, some of it very angry, blaming Ralph Nader’s 2000 presidential candidacy for the composition of today’s Supreme Court that is responsible for letting Texas’ clearly unconstitutional anti-abortion law go into effect.1 It is kind of breathtaking that in a two-party duopoly anyone would blame any third-party candidate for having that kind of impact two decades after the fact. There have been two Democratic presidents and several Democratic Congressional majorities in those 21 years. In fact, after serving over 14 years on the Court, then in her 70s, and having already survived a bout of cancer, Justice Ruth Bader Ginsburg declined to step down and let President Barack Obama (D) appoint a successor when he had 60 votes in the Senate to do so (which was needed in those days to avoid a filibuster). There is plenty of blame to go around, but the biggest problem is assuming counterfactuals would have been facts. It’s not that any particular counterfactual is not true, it simply cannot be proven one way or the other. Believing historical events would have played out differently – and to one’s satisfaction – if political decisions were made differently in the past is more akin to religious belief than historical or political analysis.
In the 2000 presidential election, Vice President Al Gore (D) lost Tennessee (his home state), Arkansas (Clinton’s home state), West Virginia (until then a reliable Democratic state in presidential politics), and New Hampshire (since then a reliable Democratic state in presidential politics). The race was so close that the outcome depended on the result in Florida, which was also very close, and the counting was taking some time. Gore needed Florida’s electoral votes to win. So did the Republican candidate, Texas Gov. George W. Bush. The difference is that if Gore had won any one of the four above-mentioned states, even tiny New Hampshire with its four electoral votes, he would have been president. Florida was very close, with Bush winning by a margin of 537 votes.
So why does anyone blame Nader for today’s Supreme Court? The reasoning goes like this. Nader received 97,488 votes in Florida in 2000. That’s a lot more than 537, so much so that it stands to reason that if Nader did not run Gore would have received most of Nader’s votes and won the election. With Gore being president in 2000 instead of Bush, different judicial appointments would have been made and today’s Court would be more liberal.
That reasoning might seem obvious on the face of it, but it really is more like an economist saying “let’s assume we have a can opener” when asked how to open a can without access to a can opener, as the joke goes. Here are just a few of the problems with this reasoning.
First, campaigns matter. A two-candidate race in 2000 would have been a different campaign, and perhaps even had different tickets running. For instance, many Nader supporters (and allegedly Nader himself) have said that if Gore had chosen a progressive, or just a typical liberal, instead of reactionary Connecticut Sen. Joe Lieberman (D, then I, then D, then R) as his vice-presidential nominee that they would have supported the Gore ticket. Lieberman nearly became and reportedly would have accepted the Republican vice-presidential nomination in 2008 and then was instrumental in killing the public option from the bill that became the Affordable Care Act. He proved himself to be no liberal, let alone progressive, as much afterwards as he did prior to the 2000 campaign.
The national Democratic Party under President Bill Clinton (D) and his allies in the Democratic Leadership Council (DLC) put enormous amounts of pressure on party activists and voters to accept their choices – even bullying one 1996 DNC delegate who I know personally from abstaining to vote at the convention for Clinton in protest of his “welfare reform” bill. The party leaders demanded unanimity in support of Clinton. The Democratic establishment attacked Sen. Bill Bradley (NJ) while he campaigned against Gore for the nomination, in my opinion harder than they did Bush during the general election campaign. There was every reason to believe that come 2008, these same party leaders were going to insist everyone support Lieberman for president without question. Would that have happened? Who knows? That’s a counterfactual too, but plenty of progressives were worried about it.
Gore’s choice of Lieberman likely ensured Nader would continue his campaign and that millions of disaffected progressives would support it. So, for Nader to have either not run or for his campaign to have been ineffective, Gore would have had to have chosen a different running mate. But that brings us to another problem in this counterfactual, the 2000 campaign was not a three-person race in Florida.
In 2000, there were ten presidential candidates on the Florida ballot. At least three of them were Left candidates, or at least were the kind that would appeal to progressive voters. One was Nader, running as the nominee of the Green Party. The other two were Monica Moorhead, the nominee of the Workers World Party, and David McReynolds, the nominee of the Socialist Party. Sure, these two candidates had little impact nationally but remember that the election was razor thin close in Florida. Just 537 votes separated Gore and Bush. Nader got 97,488. But Moorhead got 1,804 and McReynolds got 622. Surely their voters would have gone for Gore had neither been on the ballot, right? Maybe. Maybe not. Maybe if just a few of the several hundred thousand Democrats who voted for Bush in Florida had voted for their own party’s nominee Gore would have won. It’s odd that Nader’s critics never blame them (or Gore for not appealing to them).
Folks who blame Nader might argue that Moorhead and McReynolds voters would never support Gore while most of Nader voters would have. Well, the first part of that argument is more convincing than the second. Exit polling in the race found that without Nader in the race, Bush would have beaten Gore 49-47 percent in Florida. Again, this is a counterfactual – even if it comes from actual voters, they do not know for sure how they would have behaved if a different campaign had occurred, and different choices were available to them. However, one cannot claim that without Nader in the race his votes would have been distributed in such a way to guarantee Gore’s victory without explaining way this bit of evidence – which, with the caveat I gave above, is actual data and refutes the argument about Nader’s voters.
It’s important to note that while the Green Party in the US is generally a Left political party, Nader was no Leftist. While certainly a liberal in many ways, Nader had a long and notable career of being an advocate of consumer protection and good government, two things that plenty of Republican-leaning voters in the 1990s supported. Nader’s candidacy as the Green Party nominee was a marriage of convenience. Nader had run in 1996 as an independent, but only garnered about one percent of the national vote. The Greens needed a high profile candidate to run for president because election laws in most states gave party status (and thus electoral privileges) to parties who could show running a statewide candidate with five or more percent of the vote in a previous election. Nader never joined the Green Party and famously said he didn’t even know what was in its platform. To be sure, nominating Nader turned some progressives off to supporting the Green Party. Enough to offset Nader’s vote total? Almost certainly not. Progressives who supported the Green Party understood the tactical advantage of having a well-known standard bearer for the party’s future prospects. When you consider this, the idea that Nader’s vote in Florida would have been more or less evenly split between Gore and Bush makes more sense.
If anyone really wants to blame Nader for Gore’s loss, they should look to New Hampshire, not Florida. It is much more likely that Gore would have won New Hampshire without Nader on the ballot than Florida. Studies of the results in Florida find that, despite what many people still think, Bush probably won Florida. In New Hampshire, Nader received over 22,000 votes. This is slightly more than Bush’s margin of victory despite the Supreme Court stopping the recount. If Gore had won New Hampshire’s four electoral votes, Florida would not have mattered. However, since we have already seen from Florida that Nader voters were almost equally split between having Gore and Bush for a second choice this could have been the case in New Hampshire too.
Now, in returning to the original argument that if Nader had not run we would today have a liberal Supreme Court we have to understand that this requires a number of other counterfactuals to have taken place. For instance, Gore would have had to have won reelection in 2004. There was no vacancy on the Court during Bush’s first term. There were two vacancies during Bush’s second term, including the Chief Justice. If Gore had lost reelection to a Republican, it is possible this Republican president would have served for two terms from 2005-2013 giving him (let’s face it, it would have been a “him”) two additional Court vacancies to fill. These four vacancies were due to the death or retirement of William Rehnquist, Sandra Day O’Connor, David Souter, and John Paul Stevens. The deaths probably would have happened when they did anyway, but who knows how the retirements would have played out. I hope you are starting to see the problem with seriously treating counterfactuals in politics.
What happened in the past cannot be changed. Arguing about it is unproductive, especially since everyone is wrong about what would have happened. Almost certainly, things would have turned out very differently than anyone now imagines if history was unchanged until 2000 and then Nader simply chosen not to run, although it is still possible that a Bush/Cheney ticket would nonetheless have won that year. But we will never – and can never – know. However, to Andray Domise’s point in the tweet at the head of this post, we can use to past to learn about what went wrong and work to fix it. The voter suppression tactics in Florida during the 2000 election were a test run for what we see today coming out of Texas, Arizona, and Georgia.
In returning to the issue that has motivated today’s debate today, we have to understand that we have the Supreme Court we have whether we think it could have been different or not. And there are dozens, perhaps hundreds, of potential points of divergence in the past two decades that could have made the Court more liberal or even more conservative. The important question now is what Democrats are going to do about it. We have a Court today that has a majority of right-wing justices appointed by two presidents who lost the popular vote (although Bush’s appointments came after 2004 when he did win the popular vote). Early this morning this Court has signaled its intention to overrule Roe v. Wade, which a majority of Americans support. Democrats control the White House and both houses of Congress. They can fix the Supreme Court if they want. All it takes is legislation and the will to end the filibuster. The Democratic Party is entirely in control of what happens next.
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PROGRAM NOTE: Part III of the California Recall series should be ready on Friday, but I may hold off until next week because there has been new polling and may be more. Part III is largely about the recall law itself and what changes could be made to it, so it is less urgent to get out before the election is over than are Parts I and II. Check out the Margin of Error Blog Facebook page for commentary on the polling in the meantime.
Roe v. Wade is still the law of the land and allowing private actors to sue persons which have suffered no injury – in the absence of a parallel government enforcement mechanism – contradicts decades of standing case law, including cases the Supreme Court has issued in the past year.