Until O'Connor retired there was not a better argument against the significance of "swing votes" than the US Supreme Court. During all of O'Connor's time on the bench, the court was evenly divided in terms of philosophy. Thanks to a relatively long lived crop of judges from her appointment in 1981 until her retirement less than two years ago, the court was made up of two conservative justices, two liberal justices and four "moderate" justices of whom two leaned conservative and two leaned liberal, and Justice O'Connor.

The media, in their perverse habit of calling anyone who disagrees with Rawl's A Theory of Justice a "reactionary", labeled O'Connor a conservative justice, at least they did until near the end of her career. Finally, after an unprecedented series of left-leaning decisions, even the press could not maintain the fiction that the Supreme Court was made up of seven "arch-conservatives" and two lonely "moderates", and so they began to refer to O'Connor as the swing vote. And for once they were right. O'Connor is a perfect example of the swing vote, and so she also makes a perfect example of just what is wrong with depending on the swing vote to settle questions.

Swing votes only really matter when the electorate is evenly divided, as it was on the Supreme Court for the past two decades, or in the general electorate after the Reagan era ended. When one side or the other has a large enough majority, we stop hearing about swing votes. But once we are facing such a divided electorate, then the swing vote becomes all we hear about, and the press starts to elevate the  swing voters, be they Justice O'Connor or the mythical "independent voter", to the heights of wisdom.

But does the swing voter deserve such praise?

Think about Justice O'Connor. What defined her voting pattern? What made her the swing voter on the Supreme Court?

The press will tell you it is that she considered each case and decided with ideological motivation. They pretend that the inconsistent rulings handed down by O'Connor show, not a lack of principle, but instead a brilliance which is unwilling to be tied down by any "ideology".

However, let us think about this. Int he past the theory was that the law was driven by principles, that it was based upon a consistent philosophy of law. Under that approach, a justice should produce nothing but consistent rulings. To rule based on "pragmatism", to rule "without ideology", shows not a brilliance and a freedom form "ideology", but rather a lack of a vision of what the law should be. In other words, O'Connor's rulings prove that one of the top jurists of our nation lacked any coherent principles by which she judged cases before her.

Of course, with today's "precedent above all" enshrining of pragmatism, the idea that the law is driven by principles has fallen out of favor and writers like Blackstone seem quaint rather than relevant. And I suppose O'Connor with her expiration dated rulings was the embodiment of that modern philosophy. Still, I have to wonder, was it really a good idea to leave our legal system in the hands of a "swing voter"  who lacks even the most basic of principles and instead judges each case based upon whim, or, at best, based upon the precedents she chooses to accept*.

And that doesn't just apply to supreme court justices. I also worry about elections which are decided by swing voters.

Think back to the 1980's and the Reagan or Bush victories. Those, honestly, were the last two elections which showed a clear mandate for a president. (Despite claims for Obama, more on that below.) Clinton, Bush, they were elected by a combination of swing voters and third party spoilers who drained off the opposition's swing votes. Obama too, was really decided by a combination of swing voters, Republican discontent and unprecedented turnout among certain Democrat constituencies. It was more decisive than Bush or Clinton's victories, but it is hard to call it a decisive victory.

And why does this bother me?

Well, it does and it doesn't. In general I find it a troubling trend, but, on the other hand, the most recent election gives me reason for some hope.

So, why does it bother me? Well, as with O'Connor's lack of principle, swing voters are in general those voters who lack a unified political philosophy. There may be a few who hold a consistent philosophy, yet feel out of place in either party, but in general they are not going to vote for either major party candidate in any case, so most swing voters are those people who hold "middle of the road" views, who sometimes think Republican and sometimes think Democrat. In other words,t eh people who think compromise legislation is a good idea, who want big government, just not too big, who want a little regulation, a little freedom and so on. And yet recently these have been the people who decide elections.

And we can see the results. As I wrote before, Clinton and Bush were the logical outcome of trying to appeal to these center voters, bland candidates who were almost as disliked by their own party as by the opposition. Clinton consistently stepped back from the left-leaning promises he made, afraid to stray too far from the center after the 1994 revolution. Similarly, Bush found he lacked the congressional support he needed for plans such as social security reform, and so, outside of defense, he ended up trying to rule from the center with compromise legislation such as No Child Left Behind and prescription drug coverage.

And that is what worries me. With the swing voters still the decisive voice in modern elections, what will future races bring? Will we see more and more bland centrist candidates? Will we see more and more candidates who can be distinguished only by the letter after their name?

The last election gives me hope that the trend may be ending. True, the Democrats played true to form, running a liberal who spoke as a centrist, at least when he adopted any concrete position. However, on the right, I think the Republican nominee showed the limits of that policy. Granted, McCain also suffered from the press' tendency to blame the Bush administration for the financial problems we experienced, as well as the general malaise the press has created about the deployment of troops in the middle east, but McCain also lost because he went too far in his centrist appeal. While Obama managed, through his cleverly non-committal campaign, to avoid losing his left-wing base, McCain took the Bush campaign as a template and tried to play to the center at the expense of his right-leaning base. And he lost.

Which gives me some hope. Not a lot, but some. Yes, Obama did prove that the swing votes are still the deciding factor in modern politics, but McCain did prove that you still need to pay attention tot he base. So hopefully the Republican candidates in future elections will take this lesson to heart. Yes, there is a need to play to the center, at least somewhat, but you cannot do so at the expense of the party which nominated you.

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* One other problem of our "precedent over principle" beliefs is that there is simply no way to guess how an appellate court will rule. Since there are almost always oddball cases which go against the bulk of case law, a judge who wants to break with precedent can always find some support. And so rulings become, more often than not, not an imposition of the accumulated wisdom of decades, but a judge picking and choosing precedent to support his own bias. Of course, with our present fondness for judicial activism, it is easy to see why the courts decided to elevate precedent above principle. Breaking with a disagreeable precedent is much easier than breaking an established principle.

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POSTSCRIPT

I have written before that I don't think our "polarization" is unique. And it isn't. Throughout history the nation has had strong factionalism. What is unusual is how long we have maintained the same division without much movement. Of course, with relatively little legal immigration and a fairly low birth rate, there are few factors which would cause movement between the parties. And, so long as we put forward bland, centrist candidates, there is little reason for anyone to change loyalties. So, until something arises which breaks this deadlock, I expect that this mostly even division will persist for quite some time.