Need for Istook Amendment

[Mark Graber]

When we read Mansbridge, WHY WE LOST THE ERA, I have my class do an
exercise.  Version 1, ERA passes, but Reagan Republicans gain the
long term electoral support necessary to pack the federal judiciary.
Version 2, ERA fails, but Dukasis Democrats gain the long term
support necessary to pack the federal judiciary.  In both cases, I
ask them how some garden variety gender issues come out.

I have a similar reaction when I read much of the Istook Amendment.
I rather think the amendment could pass, but that Stevens would not
have to move an inch.  Similarly, it could fail and as a result of
election returns and appointments, everything Istook wants he could
get from the federal judiciary.

This raises a question related to the need for the amendment.
Suppose the amendment passes, and during the next four years, Stevens
and Rehnquist retire, replaced by Breyer/Ginsburg clones.  What
judicial doctrines are likely to change.

Mark A. Graber
mgraber at bss2.umd.edu