Wednesday, December 2, 2009

The speech

I study presidential rhetoric. This means I often have to justify my existence by explaining why presidential rhetoric matters, not infrequently framed in the question "is anyone listening?"

My favorite conservative Gen X New York Times columnist, Ross Douthat, challenged the significance of presidential rhetoric by suggesting that what Obama said about the next steps in Afghanistan is less important than the military strategy in the reason.

I've had to answer to tough critiques of presidential rhetoric, but that's just not a fair standard. Of course military strategy will ultimately determine the course of events in Afghanistan. But presidential rhetoric may play a crucial role in determining the context of that strategy, by virtue of its capacity to influence politics and public opinion.

Strategy is important, but resources are important as well. Those resources are controlled by Congress. Congressional Democrats are increasingly skeptical of devoting resources to the war, some for ideological reasons, but many also for political reasons. Public opinion on these military involvements seems to have soured, as people realize once again that wars are expensive and horrifying.

Wars are expensive and horrifying. And yet we began two of them under the Bush administration, in part because of the way that administration framed potential conflicts and linked them to salient issues, ideas and ways of looking at the world. Both wars initially enjoyed widespread bipartisan support. But the increasing complexity and apparent duplicity of the Iraq war eroded public trust in the logic of both conflicts - in the logic of a large-scale military response to the 9-11 attacks, particularly as the memory of those attacks faded and their salience, for many people, was replaced by concerns about the economy.

To keep costly and horrifying military involvements politically viable, someone needs to remind us that the consequences of non-involvement could be even more costly, and more horrifying. The president is well-poised to do this, and to offer fresh and sound logic to justify deeper involvement. At worst, this is manipulation. At best, it can be a call to civic engagement and sacrifice for national security. Under any circumstances, it is irresponsible to underestimate the need for rhetorical leadership when the tide of popular politics can influence the course and outcome of war.

Up next: so did the speech achieve this goal?

Tuesday, November 3, 2009

Insurgents!

Conservative activists, victorious (so far) in New York's 23rd, seek to challenge moderate Republicans across the country for competitive seats. This isn't the first time a party has had an ugly struggle over its purpose and meaning. The difference is that the features of the current system force these debates into the public light, whereas they used to happen behind closed doors (smoke-filled rooms and all that). From the party's perspective, having these ideological squabbles out in the open is a bit like the party equivalent of wearing your dirty underwear on the outside of your clothes - is the liberation worth the embarrassment? Plus, it's a little gross for everyone else. Conservative insurgency robs the Republican Party of its main advantage as the out-party: its message. It might be a little more small-d democratic to let the "people" determine the direction of the party, but the purpose of political parties is not to provide an inclusive organizational structure, it's to provide the electorate with meaningful choices at the ballot box.
Although it might look like a grassroots victory in the short term, the fact that the Republican Party seems to be publicly imploding instead of behind-the-scenes brokering is actually bad for American democracy.

Wednesday, July 22, 2009

The last entry suggested that the real question behind the HL Gates story is how to integrate the context and procedure. While I can't pretend to answer that question for law enforcement officials, the question itself is related to the complicated role of race in our legal norms.

Nowhere was this more apparent than in the development of the Ricci (New Haven firefighters) case, and in the subsequent reaction to the case and to its treatment by the U.S. Court of Appeals.

At issue in the Ricci case was a true matter of interpretation. What does it mean for a test to have disparate impacts on members of a minority group? When does that remedy go too far and violate the guarantee of equal protection?

Sotomayor's role in the case is mostly a perfect and irrelevant storm - she and her fellow judges followed precedent and deferred to the judgment of New Haven's elected officials. I am more disappointed in seeming lack of interest in the underlying interpretive questions than in the outcome, although I personally agree with the SCOTUS decision.

But what if the conservative nightmare scenario had proven true? What if the case had reached the high court, Sotomayor had been a member of the high court, and she had thought about her own identity when considering the meaning of such loaded, crucial, and conflictual ideas as disparate impacts and equal protection?

I don't know what would have happened. What bothers me about the discourse of last week's hearings was the repeated implication that there is a clear right answer to legal questions, and then there is the answer driven by particularistic and wrong-headed identity politics, by passion, by preference, by emotion. There are two problems here.

The first is that there is not one right answer when dealing with matters of legal interpretation. Constitutional law boils down to concept and application. What are disparate impacts? What is equal protection? Originalism is one way of answer these interpretive questions. The "living constitution" approach of justices like Souter and Breyer is another. Neither school of thought implies fixed meaning, it just posits different sources of authority for interpretation. Republicans on the Senate Judiciary Committee proved their anti-intellectualism by suggesting that legal cases had clear correct answers, and that interpretation and -gasp- judgment have no place in the legal world. One might ask, why not simply design Scantron machines to make legal decisions, then?

The second concern is more pernicious and brings us back to the matter of race as part of our relevant political context. Clearly, we are all supposed to pretend that this doesn't matter, that we don't see race or take it into account, and yet it remains a major part of public discourse and is an unmistakable part of American political history. Instead of acknowledge this, it seems that some politicians and commentators have opted to layer racial perspective onto the idea that there can be only one correct answer. That correct answer must be "neutral" and thus not driven by identity in a minority group, by the perspective of women, the disabled, or any other underrepresented group. The "neutral" perspective is defined as being free of any of this other baggage. Particularistic perspectives can sometimes bring be very negative and unproductive baggage. The problem is the implicit equation of white and male with "neutral."

Why not just admit that law is a matter of intellect, debate and interpretation? Why not then admit that people bring their own perspectives to the table in the process of interpretation, particularly when navigating the legally ambiguous and historically fraught topic of race? It seems that otherwise, the burden of proof of "neutrality" falls mostly to members of minority groups, with the white perspective implicitly seen as "neutral." And that seems to me to be a clear example of disparate impact.

A new meaning for the word professorial

The Henry Louis Gates story has me steamed. But not for the reason you might think.

I wasn't there, so I can't weight in on whether Gates was rude or uncooperative or the police were abusive or what might have happened. And I'm not a black man, so I can't pretend to have had that experience.

I am a young, female professor, so it irritates me to hear the word "professorial" thrown around to describe Gates. This term seems to connote older, male, and "distinguished" looking. I confess that, particularly in my summer wardrobe, I couldn't look less distinguished. But I have a PhD. and hold the title of assistant professor, and spend many of my waking hours working on research. I teach several classes each semester, all of them specialized. I think that's pretty professorial.

But on a less personal note, the stereotype displacement has gone even further. CNN's Soledad O'Brien (whose depth has never impressed me very much) kept saying "this man in a polo shirt and slacks!" The tone of the debate is not about how to properly incorporate social and contextual cues that we, as people, all use to assess a situation with the responsibility of police officers and other state actors to coolly apply the law to all citizens equally. There's a real question there to be asked, but instead, the commentary on this decision has essentially shifted race to age and class. Pundits are basically saying "we know what kind of person gets arrested, and this wasn't it."

So much for equal protection. What might a wise Latina have done?

Slightly outdated social issues commentary

Regarding Mark Sanford and social conservatism - The underlying logic of the anti-gay marriage position leaves an important question open: what, then, are gay people supposed to do? Would the social conservative have them live in committed relationships, but without social or legal sanction (some religious institutions do recognize these unions, which is the irony cherry on the idiocy sundae of this entire debate)? This hardly seems like a consistent position. The best logical answer I can discern is that, according to social conservatives, people with a gay orientation should seek remedy and work toward the goal of a heterosexual life style; to live as they think God intended.

Mark Sanford's tearful confession a few weeks ago illustrates the human side of this very messy equation. I would like to note that I am not seeking to equate loving and exclusive gay relationships with the choice to have an extra-marital affair. Rather, Sanford's predicament and response demonstrates the incredibly powerful role of love, and, yes, sexuality, in people's lives.

A consistent worldview isn't too much to ask of an ideological movement that seeks to curb others' civil rights, and to imply instructions about how others should live their lives. If social conservatives want to try and impose their model of society on tolerant Americans of all faith traditions, on secular Americans, and on LGBT Americans, they should provide some better models of how to deny one's most basic emotional needs.

Monday, July 6, 2009

Bootstraps and the Beauty Queen

Despite the occasional gloat that the collapse of the economy signals the end of culture war politics, at least for awhile, the culture war has been prominently on display in the past few weeks. Culture war politics are often framed in terms of moral issues, but they are just as much about identity politics. Overemphasis on identity politics in the Democratic Party constituted a key source of support for the conservative side of the emergent culture war, starting in the 1960s. In later iterations, culture war politics are not limited to the identity issues linked to gender, sexuality, race, and ethnicity. Religious and class identity inform the "other" side of the culture war coin.

As Ross Douthat points out in the NYTimes, attacks on Sarah Palin during the 2008 campaign, and in light of her recent decision to resign as Governor of Alaska, have a distinct class tone. On this point, I agree with Douthat (with whom I agree on matters of analysis not infrequently). I can't really disagree, as I've engaged in such commentary myself.
I part company with commentators who take up the argument that Palin was unfairly attacked for daring to be an average American who sought the presidency. To be fair, Douthat gives blame where blame is due: "With her missteps, scandals, dreadful interviews and self-pitying monologues, she’s botched an essential democratic role — the ordinary citizen who takes on the elites, the up-by-your-bootstraps role embodied by politicians from Andrew Jackson down to Harry Truman."

This is true, but it misses the essential point about those leaders, as well as boot-strappers Nixon and Clinton. Ordinary Americans can aspire to great things, but you must accomplish something. In addition to Jackson and Truman, neither George Washington nor Dwight Eisenhower were known for piercing intellect. But both were highly accomplished generals. Truman, who at any rate ascended to the presidency accidentally, had a strong anti-corruption record. The bootstraps are missing in Palin's scenario. She took advantage of political opportunities and became governor- a clever move to be sure- but failed to turn that into any kind of real accomplishment for anyone other than herself. In a world in which it is increasingly useful to be able to name foreign leaders and match concepts (maverickiness) with actions (just cite McCain-Feingold, dammit, the example was right in front of your sculpted little face!), someone who does not possess Ivy League credentials or innate sharpness must be able to boast real capacity to produce results for other people. It's not enough to scramble up a ladder of empty rhetoric and problematic opponents. Credentials are not meaningless. There are many ways to demonstrate merit, but Sarah Palin remains utterly unconvincing. This isn't a product of a botched campaign or a elite conspiracy. It's her. Her biography, resume, and record. Not everyone can be president - it's not about class, it's about skill and achievement.

Up next: what the Mark Sanford scandal really tells us about the gay marriage debate; commentary on the Ricci decision.

Tuesday, May 19, 2009

Represent!

Representation, rule of law, constraint of power, popular sovereignty. Of these (and other) values that underlie a democracy, representation was possibly the lowest priority at the American founding. Representation of people as Southerners, Protestants, people of German descent, etc. bore a nasty resemblance to the factionalism that the founders, witnesses to the fresh wounds of 18th century England, preferred to avoid. Representation of the states as states (i.e. the Senate and the Electoral College) came essentially as concessions to induce Southern and smaller states to sign on. Congress was designed to represent people geographically, but checks on the legislature were built into the design of the presidency, an office never intended to be representative in any way. As the legal culture of the United States developed, the power of Congress also came to be checked by the Supreme Court.

Despite the scorn shown to representation by the design of our institutions, the idea of representing people - particularly as members of groups with distinct experiences - gained in popularity in American politics, and in recent decades emphasis on diversity in governmental appointments has become a commonplace expectation.

Can it be fair, given the role of the Supreme Court to interpret law and resolve disputes about the meaning and application of the Constitution, for Pres. Obama to emphasize demographic characteristics in his selection of a nominee? Can I really have just written a sentence that long?

Yes, and yes.

There will no doubt be a great deal of attention to the question of judicial philosophy in the coming months. The crucial matter for determination is whether any nominee to the Court considers Constitutional questions in terms of original intent and meaning (per Justice Scalia) of the Constitution, or with contemporary consequences of a particular interpretation. This is an important question, an interesting question, and, perhaps regrettably, a politically loaded question. However, because one approach emphasizes policy effects in the decision-making and the other approach does not, this debate obscures the fact that however justices arrive at their decisions, the product of their philosophical ruminations will always have policy consequences. Whether justices consider politics, whether they consider policy, whether they contemplate consequences, their decisions have political impact. The Court is a political actor no matter what kinds of ideas its occupants have about the relationship between law and politics.

This is what gets us back to representation. It is more important that the Court show some kind of descriptive representation because it will interact with the elected branches and be involved in the kinds of policies that affect citizens lives. But unlike Congress or even the president, the lifetime appointment of justices means that there is no other mechanism of representation. The Court can strike down the actions of the elected branches, and (because of that) indirectly influence them. But justices are subjected to no election and no later accountability processes. This allows for balance between democracy and rule of law, which sometimes coincide, but occasionally conflict. The assurance of female, Latino, African-American, LGBT, etc. voices on the Court may constitute the main connection with the citizens affected by its decisions. All mechanisms of representation are imperfect, descriptive representation particularly so. It reduces people to groups and relies on arbitrary decisions about which groups are relevant. But we accept a mixture of imperfect approaches in order to enjoy a government that balances among different and conflicting values essential to democracy.

Wednesday, May 13, 2009

Richard II

Dick Cheney has gone public in his post-vice presidential role, most notably suggesting that the new president's policies are making the country less safe, and taking a position on the internal divisions currently eating away at the Republican Party. Cheney suggested a preference for the ideas espoused by Rush Limbaugh over those of Gen. Colin Powell, whose Republican cred was irreparably damaged (according to Cheney) during the campaign season. Fair enough, or at least until you consider Joe Lieberman's status in the Senate after running despite *losing his party's nomination* in the primary and then campaigning for the Republican candidate in the aforementioned 2008 campaign. The take-home message: American political parties are meaningful until they are politically inconvenient. Unless you're Colin Powell and trying to express a sentiment about the good of the nation, seemingly uninterested in elective office.

But I'm not writing about Powell today, even though he is a vastly more appealing figure than Cheney. I'm writing about Cheney. I'm not writing about him to lambaste him for his stated preference for an extremist windbag over an accomplished statesman. Lots of people, including the Washington Post's Eugene Robinson, have already done that. I'm writing about Cheney because I think he will run for president (at least for the Republican nomination) in 2012.

Cheney's life as the wizard behind the curtain didn't begin with his vice-presidency. He has served in the cabinet and as chief of staff. His executive branch experience is unimpeachable, even if that is the only thing about him that fits that description. What is interesting is not Cheney's choice to express opinions, but the manner in which he is going about it.

Unlike even notable spotlight-moth Bill Clinton, Cheney's statements are drawing a lot of attention to himself. They are clearly publicity driven and political. Although Cheney's words emphasize the national interest, this is no bid for the role of elder statesman (an art perfected by Jimmy Carter, but emulated to degree, by other former Presidents including George H.W. Bush). And this is clearly not the party-building circuit, making phone calls or appearances in order to loosen the wallets of the moneyed Republican faithful (a presumably rewarding Venn diagram if ever there were one).

Cheney is attempting to build his own political base in order to make a bid for the top of the ticket in 2012. I'm not saying this will be successful, even at the primary level. But I predict he will throw his hat into the ring. Cheney will be 69 (ETA: 71 - sorry- jra)then, but politics has yet to reliably prove to be unwelcoming to old white men. No one thought Cheney was a serious contender for VP in 2000 either- he was supposed to be heading up the search committee. Furthermore, Article II hardly prohibits those closely connected to a discredited administration from seeking the highest office to finish the job. After all, the Democrats narrowly escaped a repeat performance of the Clintons. Four years after Jimmy Carter left office in a cloud of malaise after losing to a divorced actor elected by the religious right, his vice-president Walter Mondale secured the Democratic nomination. Vice-presidents, in particular, have a way of translating second-banana status, however deserved, into something more.

Wednesday, April 29, 2009

Assymetrical Polarization: The Future of American Political Parties?

I've long railed against the idea of party "systems," particularly in the U.S. case. Parties operate according to their own internal logics, which includes a competitive calculation, of course, but are largely driven by internal power structures and ideas. This is readily evident in Sen. Arlen Specter's decision to caucus with the Democrats, and in the reaction to it, particularly by those on the right who praise this as a kind of ideological self-purge.

Beginning with the nascent ideational factions of Federalist and Jeffersonian in the early Republic, American political parties have exhibited a dual impulse to ideologically purify and to encompass the entire essence of American identity. Louis Hartz wrote in the 1950s about the inability of a society built on Lockean ideas to tolerate conflict on the fundamentals of politics. The manifestation he denounced was McCarthyism. In a less disturbing but no less anti-democratic form, we see this concept born out in the development of asymmetrical polarization.

In other words, the Republican Party has staked out a claim to a particular, narrow set of governing ideas, leaving the Democratic Party as a programmatic and ideologically varied catch-all party. The choice facing Americans in 2010 will not be expanded government services vs. lower taxes, the right to privacy vs. religious morals, or internationalist foreign policy vs. unilateralism. The choice will be between a catch-all party that leads by piecemeal and patronage and a largely demographically homogeneous party indistinguishable from an angry little ideological movement. The Democrats, as the party in power, should show leadership by building a real coalition, not just a circus of interests and viewpoints who all happened to end up under the same tent. True leadership - not shown thus far by President Obama, Speaker Pelosi, or Senate Majority Leader Reid - would forge a coalition based on a set of shared goals. Participants in the coalition need not be ideological twins or neglect their own identities, but they would benefit from belonging to a party that stood for something. A big tent makes for good rhetoric, but the people standing under it need to know why they should stay there.

Sunday, March 29, 2009

Try again, George Will

George Will sometimes makes good arguments. This would be a good argument, except for its glaring flaws.
Will contends that the reason the recent economic stimulus package makes people feel uneasy is that it violates the non-delegation doctrine by providing regulatory latitude to the executive branch. Once again, old George Sixpack has his finger on the pulse of America. What are people talking about in beauty parlors and local taverns across the land? Unemployment? Crime? American Idol? Nope, it is the Constitutional doctrine of non-delegation that is buzzing uneasily on the lips of the average American.

Would that it were so, George. Would that it were so.

Those of us who are familiar with the Constitutional doctrine of non-delegation, and with Constitutional doctrines more generally, should be choking on our lattes. First of all, Constitutional doctrines are merely ideas of Constitutional thought, not universally agreed-upon interpretations or principles. That's why we have a Supreme Court, and if the decisions from their last session were any indicator, they have some doctrinal disputes. The idea that states could reject laws they didn't like, or nullification, was once a Constitutional doctrine which some leading politicians, especially in the South, supported. Furthermore, the non-delegation doctrine really had its heyday prior to Progressivism, the New Deal, and the development of the administrative state. The FDA, making new rules? Delegation! The FCC, making new rules outlawing Janet Jackson's boob? Delegation! OSHA? Delegation! The FEC? Delegation!
Will quotes the Supreme Court, That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."

If Will were my student, I'd fail him- he doesn't cite at all. That quotation is from Field v. Clark, a ruling from 1892. Non-delegation had its day in the sun in Schechter Poulty Corp. v. US, in 1935, invalidating a key piece of New Deal legislation and incurring the wrath of FDR. This case is mostly famous for prompting a sea change in Supreme Court interpretation of both non-delegation and the commerce clause, two developments necessary for the emergence of the modern administrative state.

The Supreme Court will be the ultimate arbiters of this question (if the bill is challenged in Court, as New Deal legislation routinely was). It is far from obvious what they might say. Contemporary decisions do take the separation of powers seriously, as evidenced in the Court's rejection of the "legislative veto" (1983), and the line-item veto (1998). But this Court also seems generally respectful of precedent. Adopting a pre-New Deal approach to executive branch regulation would be out of step with that.

Nineteenth century approaches to the federal government were vastly different, and Will would be well-served to consult Supreme Court decisions that reflect contemporary standards. It's not as if the Court lacks for verbosity in explaining its decisions.

Let's hope next week he's not quoting Roger Taney...