What a Democratic Victory Will Likely Mean

Assuming a big Democratic win today, where will that leave the country?

First, Democrats will add dominance of the executive branch of the federal government to their control of the legislative branch, the press, the universities, and Hollywood and the arts.

The only major areas of split control are state governments, the federal judiciary, and big business, with Democrats having the upper hand in most states and Republicans having the upper hand in part of the judiciary, the US Supreme Court. (Although most of the military are Republicans, the control of the military is effectively in the hands of the executive branch.) Big business is relatively non-partisan (or equally partisan).

Second, 2009 is likely to mark the high water mark of Democratic control of federal and state governments over the next 4 to 8 years. As a paper that Steve Calabresi and I wrote for the Yale Law Journal shows, the President is a lightning rod for whatever goes wrong, leading to the pendulum usually swinging back toward the party who doesn’t hold the White House. This occurs in state legislatures and governorships, as well as in Congress.

Remember, in 2000 Bill Clinton was accused of having destroyed the Democratic Party in Congress and the states when the decline in Democratic control was only what usually happened. Today, George Bush is accused having destroyed the Republican Party in Congress and the states. In Bush’s case, the charge is probably more justified than in Clinton's case, but a large Republican decline would have been expected in any event.

Third, an increase in the size of the federal judiciary is likely. Increases in the number of federal judges tend to occur in situations of one-party control, which we will have for at least the next two years. Thus, we can expect the federal judiciary to become substantially more Democratic for four reasons: (1) the ordinary power of a President to nominate politically compatible judges; (2) the last Senate’s blocking of large numbers of nominees for existing vacancies; (3) a Senate that is nearly filibuster-proof; and (4) an increase in federal judgeships.

Fourth, having a community organizer as President will likely lead to big changes. But precisely which ones we will have to wait to see. For example, though Barack Obama has indicated his intent to impose national service programs on children and co-opt private charities with public-private joint ventures and federal monitoring of charitable organizations, it is unclear how much of that agenda he will be able to achieve.