Tag Archives: judges

DISTINGUISHING

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I have to believe Frank Rich knows better than this:

Even leaving aside the Giuliani record in New York (where his judicial appointees were mostly Democrats), the more Democratic Senate likely to emerge after 2008 is a poor bet to confirm a Scalia or Alito even should a Republican president nominate one. No matter how you slice it, the Giuliani positions on abortion, gay rights and gun control remain indistinguishable from Hillary Clinton’s.

Look, I like to gloat as much as the next guy, but let’s not do it at the expense of reality. And Rudy Giuliani has indeed gotten more traction than many (myself included) thought he ever could, despite James Dobson et al’s significant discomfort with him. But he’s not a pro-choice candidate (he’s not a pro-gay rights or pro-gun control candidate either). He believes abortion is immoral, and he’s made it clear to anyone who’s paying attention that he’ll appoint judges who will make abortion illegal. The intermediate question of whether he has nice things to say about laws banning abortion is a detail (he’s also reversing himself on laws that make it more difficult for women to access the right to choose). While the Senate on a good day can hold back particularly crazy nominees, the only people who come their way for confirmation are the ones the president sends over. And in case you haven’t noticed, drafting strategies on how to overturn Roe isn’t enough to deny you confirmation votes from Democrats.

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SAM BROWNBACK, CALL YOUR PUBLICIST

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I’m not much one for “Great Man” theories of our political history – that is, I think most of the writing on twists and turns in American political history overstates the importance of the sensibilities and psychology of individual politicians and understates social movements, cultural trends, demographic shifts, and so forth – but I’ll readily acknowledge that when it comes to, say, the Republican presidential primary for 2008, there are only so many apparent contenders. And an act of hubris or poor strategery that pulls one out of contention can seriously shift the playing field for everybody else.

That’s why Democrats may come to reconsider their glee over George Allen’s “macaca” muck-up of two months ago if it turns out to have indeed taken Allen out of serious contention for the GOP presidential nomination. Because not long ago, George Allen was well-placed to bear the mantle of “Un-McCain,” a charismatic candidate with the right combination of sterling conservative credentials and cultural compatability (however affected) to excite folks from the GOP base, particularly Christian conservatives, either nonplussed or turned off by a McCain candidacy. The evidence of racial animus on his part could have been just enough to let him take the primary but not the general election.

Now, not so much.

And just as Hillary Clinton’s best chance of taking her party’s nomination is the scenario in which a single charismatic, consenus “Un-Hillary” never quite materializes, for the GOP nod to go to McCain, whose otherwise right-wing record is marred by opposition to global warming, hard money, and torture, and by some carefully chosen symbolic snubs to the base, is the absence of a single viable “Un-McCain.”

Maybe what’s most striking in all this is the lack of a strong McCain alternative to gather in all the GOP activists under one placard. First it was supposed to be Bill Frist. Then he got outplayed by the “Gang of 14” over judicial nominations. And his impressive conversion on the road to Iowa into a religious right zealot was undercut by his betrayal on stem cells.

Rick Santorum, one of the most telegenic elected Republicans out there, from one of the states the party is trying hardest to bring back into its column, is now on track to get kicked out of office by Keystone State voters.

Mike Huckabee has so far failed to make a name for himself for more than losing weight – except with the Club for Growth and the economic right-wingers in its orbit, who hate his guts more than most non-McCain GOPers’.

Mitt Romney, though he pulled off an impressive ground game in the SRLC straw poll six months ago, is still going to have a hard time as the Mormon Governor of Massachusetts exciting the base enough to avert a marriage of convenience to McCain.

Newt Gingrich, like Gary Hart in the lead-up to ’04, seems to have underestimated the staying power of his scandals and overestimated the yearning of the American people for a wonk.

Rudy Giuliani believes in the right to choose.

So it’s not clear who is left to stop the steady flow of strategists, fund-raisers, and activists to John McCain, who is by far the most popular advocate of right-wing politics in the United States. After Macacagate, McCain has at least a passable shot at benefiting from the kind of dynamic that played a key role in elevating Bill Clinton in ’92: the absence of a primary candidate beloved by the party’s base.

And while McCain is beatable, he has the benefit of years of praise not only from starstruck journalists but from short-sighted Democrats who’ve boosted his claims to speak for the center of America.

Meanwhile, you’ve gotta wonder what’s going through the head of Sam Brownback, as staunch a social conservative as you’ll find in the Senate, with no bruising re-election fight in sight, no awkward position in the Republican leadership, and no scandal-ridden press clippings to buck.

GO TO THE PRINCIPLES, OFFICE?

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A few days ago, Matt Yglesias made the point that all the talk about how principled Joe Lieberman’s hawkish votes have been should make us think less of principled votes qua principled votes rather than more of Joe Lieberman. Ben Adler, echoing Matt’s point that how elected officials vote should concern us more than why they do, questioned why Matt sees people who call for censorship in order to get votes as any less blameworthy than the ones who call for censorship on principle.

The right, incidentally, deploys both the “Don’t worry, he doesn’t believe it” and “But those are his principles” arguments to great effect to shield its politicians from criticism, depending on which one fits best at the time. The best contemporary examples come to mind around gay rights. Every time a current or historical anecdote emerges about George W. Bush being personally other than hostile towards someone he knows is gay, Bush apologists seize on the story as proof that imputing intolerance to the man just because he pushes policies that make gay folks second-class citizens is the real intolerance. Meanwhile, when Republican judicial nominees are questioned about their records on protecting the rights of gay folks, conservatives pillory the questioners for trying to punish their principles – and being “anti-Catholic” to boot.

Matt responded to Ben that the politicians who hold bad positions on principle are more likely to push them forward in political discourse rather than simply voting for them. Call me cynical (and I’m younger than either of them), but while it’s probably the case all things being equal that politicians devote more energy to the positions closest to their hearts, all things tend not to be equal, and there are a fair number of examples out there of politicians taking stances that seem to have more to do with their sense of political reality than their sense of ethical imperative and then do whatever they can to highlight those issues and those positions.

But testing that hypothesis would require devoting more energy to divining the secret motivations of our elected officials, which only reinforces the narrative of political change as personal psychodrama rather than clash of collective actors. It reinforces the “Great (Elected) Man” theory of history to which too many progressives fall prey, in which progress comes from getting the right visionary leader into office and then keeping him there. Speculating about what Bill Clinton really thought of throwing moms in vocational training off of welfare or denying full faith and credit to same-sex couples makes for good copy and good conversation. But we’re both better equipped and more responsible to consider whether he was right to make those moves, and under what structural circumstances they might not have been as appealing.

Of course when elected officials do the right thing I’d rather think that they believe in it too (if a politician also, say, calls for an end to poverty in hopes of getting elected President, then that sure beats executing a mentally disabled man in order to get elected President). But I’ll choose which Senators to vote for based on how they’ll vote, how they’ll shift which issues capture political discourse and what the margins of that discourse are, and how they’ll affect the partisan breakdown of the body. That said, Lieberman’s people know what they’re doing with their appeal to “principle”: Voters tend to prefer candidates they perceive as acting from principle (Paul Waldman has a great discussion of this in his aptly titled book Being Right Is Not Enough). Hence the quarter of 2004 Bush voters in Wisconsin who also voted for Russ Feingold. Those amongst our elected officials with left opinions that dare not speak their names would do well to keep that in mind.

SIX POPULISMS

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TPMCafe’s guest stint by Thomas Frank (One Market Under God, by the way, is a masterpiece) has stirred a spirited debate about the place of populism in a progressive future. Populism is a word which has rightly come up fairly frequently in more- and less-enlightened discussions of the left’s future, but too often it seems like folks are talking past each other. Here are six of the somewhat but not entirely related themes I think are in play in the way different people discuss populism:

Progressive Economics: In broad strokes, the economic policy proposals that get labeled as populist are the ones least popular with the Washington Post editorial board and the “Washington Consensus” crowd: fair trade or no trade; downward economic redistribution; unionization. Opposition to immigration often gets grouped in here as well as part of the same package, though for obvious reasons I’d rather apply the populist label to the push for equal labor rights for immigrants.

Direct Democracy: The other set of policy proposals which usually get the populist labels are the ones which bring political decisions under more direct control of the American public. This includes taking decisions away from judges and handing them over to legislatures and taking them away from legislatures and handing them over to public referenda.

Trust in crowds: Populism is also used to describe a posture – whether held by politicians or activists – of trust in the mass public and distrust in elites. Usually, trust in the public is justified by an appeal to the wisdom of common people in identifying their own problems and synthesizing their own solutions. And distrust in elites is justified on the grounds of their inability to understand those insights or, more often, their narrow interests.

Democratic Legitimacy: Populism also describes a particular kind of appeal made by elected or unelected political leaders. Candidates for office, especially, tend to get the populist label for seizing democratic legitimacy for themselves – that is, for framing themselves as the bearers and protectors of the people’s will. The corollary to the candidate as representative of the masses is the candidate as enemy of the elites, whose hostility is easily explained by their opposition to the popular policies and popular mandate.

Prejudice: Populism is also a frequently-invoked label to describe all manner of ugly prejudice, be it directed against Blacks, Jews, homosexuals, or immigrants. In this conception, populism is the cry of some self-defined majority against unwelcome interlopers. This meaning of populism – which gives elites a lot of credit – is never far when someone’s looking to discredit one of the others.

Economic Focus: Maybe the simplest sense in which the word populism is used is to refer to a focus on economic issues (rather than a particular stance on them), to the exclusion of others.

That makes two kinds of policy approaches, two rhetorical/ philosophical postures, a question of focus, and a very bad thing (generally thrown into the mix by pundits like Joe Klein to make everything associated with the word sound ugly). Each of them, though, has a way of showing up implicitly in discussions about what is or should be populist.

What does it mean, for example, to ask whether Bill Clinton was a populist President? He often gets described that way, in large part because he ran on the economy (“It’s the Economy, Stupid”), and because his challenge to Bush benefited significantly from a sense that Clinton represented the concerns of the American people with which the President had fallen out of touch (and supermarket ray-guns). Others associate Clinton with the decline of populism in the Democratic party, and of the party in the country, pointing to his conservative stance on issues like NAFTA and the technocratic underpinnings of the “Reinventing Government” concept. I’m not going to say they’re both right (I’d say Clinton campaigned as a populist, but he didn’t govern as much of one). I will say that on those terms, it’s no surprise that those conversations don’t get farther than they do.

Thoughts?

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FAIR questions the factuality of John Stossel’s hatchet job against John Edwards on 20/20 last week, and the justice of giving him the space to fulminate from the right each week without any counter-balance from the right:

How much of the increase in C-sections is due to medical judgment, rather than fear of lawsuits? Stossel doesn’t address the question. Dr. Luis Sanchez-Ramos, an obstetrics professor at the University of Florida, noted in the British Medical Journal (2/12/94) that “in Brazil and Mexico, where malpractice is not a problem, the caesarean section rate is still high.” Sanchez-Ramos suggested that profit may be another motive driving C-sections, pointing out that rates are higher in for-profit hospitals and with patients who have good health insurance.

But Stossel focused on lawsuits as the core problem: “So are women today suffering more pain, even risking their lives on unnecessary surgery, partly because lawyers like John Edwards scared doctors?” It’s a complex question, depending among other issues on how much of the surgery is actually “unnecessary.” But Stossel’s answer just assumes that trial lawyers are the villains: “Well, maybe all Edwards’ cases were good ones, but the fearful atmosphere that lawsuits create has far-reaching consequences.” That we should see malpractice suits as making doctors “fearful” rather than “careful” is something that the ABC journalist asserts rather than explains.

Of course, political candidates are fair game for criticism. But given Stossel’s politics, it’s unlikely that he will be doing a similar attack on George W. Bush or Dick Cheney this campaign season– certainly not one that fits in with their opponents’ talking points so well. (When Edwards was picked by Kerry, the Republican National Committee’s website headlined its response, “Who Is John Edwards? A Disingenuous, Unaccomplished Liberal And Friend To Personal Injury Trial Lawyers.”) When ABC’s parent company Disney refused to allow its Miramax subsidiary to distribute Michael Moore’s film “Fahrenheit 9/11,” company CEO Michael Eisner offered this rationale (5/5/04): “We just didn’t want to be in the middle of a politically oriented film during an election year.” So why does ABC air one-sided political commentary during an election year?

When I watched part of Stossel’s commentary on TV, I thought to myself “Maybe we should let both sides bring medical experts to argue their case to the jury. Except – we already do.” Conservatives are always claiming that their opposition to judicial decisions which limit the power of their constituencies is based in an abiding faith in democracy and a distrust of unelected judges. But in the same breath they argue for tort reform in order to protect those same constituencies from regulation by juries. And they gleefully marshall technocratic arguments to suggest that a sampling of “the people” shouldn’t be trusted to decide such cases. They’re stuck making that argument because for all the talk about Americans hating lawyers and malpractice suits, it isn’t trial lawyers who decide cases and determine damages. It’s a (not fully representative) sampling of the American people. So conservatives’ concern isn’t about democracy. It’s about power.