Tag: Dahlia Lithwick

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Barack Obama Law Politics The Bush Legacy The Opinionsphere

How the Supreme Court Nomination Process Rewards the Type of People Who Defer to Presidential Authority

[digg-reddit-me]David Brooks did a great job today of describing the type of individual our current Supreme Court confirmation process tends to reward (to paraphrase):

A person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess, and who therefore we are forced to construct arguments based on speculation because they have been too careful to let their actual positions leak out.

Brooks locates this type of individual — as is his wont (see for eg. bobos) — in a general sociological group:

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

Brooks sees this as a flaw in his evaluation of Elena Kagan:

Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook). There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly…

But I was struck by the similarity of David Brooks’s evaluation of Elena Kagan now and Dahlia Lithwick’s evaluation of John Roberts when he was nominated:

I knew guys like [John Roberts] in college and at law school; we all knew guys like him. These were the guys who were certain, by age 19, that they couldn’t smoke pot, or date trampy girls, or throw up off the top of the school clock tower because it would impair their confirmation chances. They would have done all these things, but for the possibility of being carved out of the history books for it…

My sense that Roberts has been preparing for next month’s confirmation hearings his whole life was shored up by a glance at the new memos released by the Library of Congress yesterday. As early as 1985, Roberts was fretting about how federal government records disclosed to Congress before confirmation hearings could tank a nomination.

Roberts was widely seen to have been very “careful” and “cautious” throughout his life — intellectually and otherwise. Yet David Brooks had a different reaction to Roberts nomination:

Roberts nomination, how do I love thee? Let me count the ways.

Less important than this minor bit of hypocrisy (which Bill Scher for the Huffington Post mines for all it’s worth) — or perhaps partisan blindness — on the part of David Brooks (and haven’t we all been there?) — is the substance of his critique. Brooks never quite connects the dots — but seems on the verge of making a profound point.

There seems to be a connection between the personality type of Kagan and Roberts — the type of cautious, establishment-minded personality rewarded by our current nomination process — and the tendency of this type of person to defer to the highest authority figure in the American psyche, the President of the United States. In Roberts and Alito, we have 2 of Brooks’s Organization Kids who also happen to be 2 of the most pro-presidentialist Supreme Court justices in history. Though Kagan’s views on this aren’t clear — as she has made some comments indicating an expansive view of executive power only in the context of discussing the views of others — we do know that she felt the Bush administration went too far, unlike Roberts and Alito.

Though I would have preferred a justice more wary of executive power, for me personally, this concern is not enough to give me reason to oppose Kagan’s nomination and appointment. I do want to know more about Kagan’s views on this — to see whether and to what degree she conforms to Glenn Greenwald’s fears (which are, as it should go without saying regarding Greenwald, hyperbolic). Lawrence Lessig has pushed back convincingly against Greenwald on this issue — and of course, Greenwald responded by going ad hominem.

Both Greenwald’s and Brook’s critique ignores the structural element to this pick as neither addresses the degree to which our current confirmation process tends to reward cautious people whose public views are somewhat ambiguous but who are close enough to those in the executive branch that the President nominating them trusts them. The type of person who would meet these criteria would not tend to be the strongest supporters of the Court as a check on executive power. Even aside from the generational category of “Organization Kids,” this would tend to place people deferential to presidential authority into the Supreme Court.

—–

Also interesting: Ezra Klein posits a better analogue than John Roberts to understand the Kagan pick is Barack Obama himself:

When Obama announced Kagan’s nomination, he praised “her temperament, her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.” This sentence echoes countless assessments of Obama himself.

Obama is cool. He makes a show of processing the other side’s viewpoint. He’s more interested in the fruits of consensus than the clarification of conflict. In fact, just as Kagan is praised for giving conservative scholars a hearing at Harvard’s Law School, Obama was praised for giving conservative scholars a hearing on the Harvard Law Review. “The things that frustrate people about Obama will frustrate people about Kagan,” says one prominent Democrat who’s worked with both of them.

[Image by the Harvard Law Review licensed under Creative Commons.]

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Barack Obama Criticism Economics Foreign Policy Health care National Security Politics The Bush Legacy The Opinionsphere The Web and Technology

Must-Reads During This Week: Perfect Storm for Health Reform, Making Controversy, Cyberwar, Limiting Government, Liz Cheney’s Al Qaeda Connection, George Will, and the Coffee Party

In lieu of a substantial post today (as I’m having trouble getting back into the blog-writing habit), here’s a few links to worthwhile articles.

1. Perfect Storm. Marc Ambinder of The Atlantic explains that a “Perfect Storm Nearly Killed Health Reform; Another Storm May Save It.” However, what Ambinder describes as the “perfect storm” that might save health reform seems to be more properly called Obama’s willingness to wait out bad news cycles.

2. Controversy. Ezra Klein opines usefully on “how to make something controversial“:

The media is giving blanket coverage to this “controversial” procedure being used by the Democrats. But using reconciliation for a few fixes and tweaks isn’t controversial historically, and it’s not controversial procedurally. It’s only controversial because Republicans are saying it is. Which is good enough, as it turns out. In our political system, if Democrats and Republicans are yelling at each other over something, then for the media, that is, by definition, controversy.

3. Cyberwar? Ryan Singel of Wired‘s Threat Level reported some of the back-and-forth among the U.S. intelligence community, explaining why Republicans want to undermine and destroy the internet for national security as well as for commercial reasons. The Obama administration’s web security chief maintains in an interview with Threat Level that, “There is no cyberwar.”

4. Limiting government. Jacob Weisberg of Slate always seems to be looking for the zeitgeist. His piece this week is on how Obama can embrace the vision of limited government.  While all the pieces are there, he doesn’t quite make the connection I want to make: that government is absolutely needed even as it must be limited and its power checked. A post on this line has been percolating in my mind for some time, and now that Weisberg has written his piece, I feel its just about time for me to write mine.

5. Liz Cheney, Al Qaeda Sympathizer? Dahlia Lithwick slams Liz Cheney for her recent ad calling the Justice Department the “Department of Jihad” and labeling some attorneys there the “Al-Qaeda 7”:

Given that the Bill of Rights pretty much evaporates once you’ve been deemed a jihadi lover of Bin Laden, you might think Liz Cheney would be super-careful tossing around such words They have very serious legal implications…Having worked for years to ensure that the word jihadist is legally synonymous with guilty, Cheney cannot be allowed to use it casually to describe anyone she simply doesn’t like.

6. George Will: More Partisan Than Independent? Ezra Klein catches George Will out in a rather telling fit of procedural outrage over the Democrats’ use of reconciliation in the Senate. Plus, Klein uses this nifty chart to illustrate that dramatic change that George Will doesn’t happen to comment upon:

7. Coffee Party. I’m intrigued by this idea, though I don’t know how workable it is.

[Image taken by me over the weekend.]

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Barack Obama Criticism Law Politics The Opinionsphere

Conservative Empathy

Doug Kendall and Dahlia Lithwick take on the conservative attacks on empathy by pointing out the hypocrisy of the position:

Every time Justice Antonin Scalia writes a habeas opinion that begins with the depiction of a gruesome murder, he is evincing empathy toward the victim. When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white “victims” of affirmative action. It’s a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. And smart advocates on either side, knowing that, seek out “sympathetic plaintiffs” for litigation precisely because they are attempting to appeal to some part of the court’s lizard brain; the part that does more than mechanically apply the law to the case.

I think that’s about right.

Categories
Barack Obama Law Political Philosophy Politics The Opinionsphere

Replacing Souter

There’s a few different schools of thought on how Obama should go about replacing Justice David Souter. Dahlia Lithwick – a few months ago – called on Obama to make his next appointment “a hero, a bomb-throwing, passionate, visionary, liberal Scalia.” Others are just calling for Obama to place someone liberal enough to counter-balance the extreme conservatives appointed by Bush. Conservatives and right-wingers are calling on Obama to appoint someone “moderate” – though given the political circumstances, it is almost guaranteed that they will not accept any appointment, no matter how “moderate.” All of this is based on a rather direct analysis of the Supreme Court – presuming that decisions are and will be made based on political viewpoints. 

I’m not trying to say that we should accept Justice Roberts’s oft-cited analysis of the judge as umpire – just calling the law as he sees it. I thought Obama made an excellent point back in July 2007 when he critiqued this view:

 When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. You know, he’s good to his dog. He’s so well qualified.”

I said, well look, that’s absolutely true and … in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Ed Whelan over at the Corner is trying to make a big deal out of what he’s calling Obama’s lie – which is that judicial philosophy is unimportant. He cites the above quote as proof Obama thinks judicial philosophy is unimportant – but he doesn’t seem to have read it closely, as you can clearly see Obama say:

[I]t’s those five percent of the cases that really count.

The person Whelan really should be attacking – if he believes judicial philosophy is unimportant – is Justice Roberts who sought to minimize the role of politics in his decisions (at least in his pre- and post-appointment rhetoric.)

But what I’m interested most in is a justice who can move the other members of the Court – either through personality or their compelling understanding of the law. One historical type that has moved the Court would be a politician – such as Sandra Day O’Connor or Earl Warren – whose personality drew other justices to accept some of their decisions, and gradually shaped the Court over time. This is why I think it’s a bad idea to appoint a liberal version of Justice Scalia – whose personality actually hurt his politics. Jennifer Granholm is a good possibility on this front. As would Hillary Clinton or Al Gore if they were only younger.

In the alternative, Obama could appoint an ideologically interesting thinker – who is liberal, but nevertheless, thinks outside of the box. The two people that come to mind on this score are Cass Sunstein and Lawrence Lessig. Lessig is probably too young yet – and Sunstein has not only encountered surprising resistance to his appointment to an obscure position, but he probably would like an opportunity to take a crack at enhancing that position and testing his theories on libertarian paternalism. 

Finally, I like Harold Koh for the post – even though it is unlikely he fits into any of the above two categories. He’s national security thinker with a great resume. I don’t know his record on most issues – but I’ve heard him speak on national security law – my main interest – and he has strong, nuanced positions, viewing our national security apparatus as a whole system rather than as a series of isolated issues. He would be a strong voice in reigning in an executive branch that has barely pulled back in terms of it’s assertions of power in the national security arena.

Categories
Law National Security The Bush Legacy The War on Terrorism

Congressman Pete King Wants Club Med Investigated For Human Rights Violations Just Like Guantanamo

[digg-reddit-me]He must have had a bad experience with Club Med. 

Military.com reports that:

Rep. Peter King, R-N.Y., who led a group of congressmen to Guantanamo, told the New York Post the facility was like a Club Med for terrorists.

Club Med? The most reasonable explanation is that Congressman Pete King (my congressman and likely 2010 Republican Senate candidate) was treated very badly at this resort chain, and I’ve contacted Club Med inquiring about this. If Pete King is saying that Club Med is like Guantanamo, he is apparently alleging that they have treated their guests similar to how the prisoners at Guantanamo were treated. So, what types of things happen at Club Med, according to Pete King? Here’s a few examples:

Captives at Guantánamo Bay were chained hand and foot in a fetal position to the floor for 18 hours or more, urinating and defecating on themselves, an FBI report has revealed.

The Guardian.

Spc. Sean D. Baker, 38, was assaulted in January 2003 [at Guantanamo Bay] after he volunteered to wear an orange jumpsuit and portray an uncooperative detainee. Baker said the MPs, who were told that he was an unruly detainee who had assaulted an American sergeant, inflicted a beating that resulted in a traumatic brain injury…

[Pentagon] officials conceded that he was treated for injuries suffered when a five-man MP “internal reaction force” choked him, slammed his head several times against a concrete floor and sprayed him with pepper gas…

As he was being choked and beaten, Baker said, he screamed a code word, “red,” and shouted: “I’m a U.S. soldier! I’m a U.S. soldier!” He said the beating continued until the jumpsuit was yanked down during the struggle, revealing his military uniform.

The Los Angeles Times.

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a “life-threatening condition.”

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions…

Bob Woodward in the Washington Post.

The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion “tantamount to torture” on prisoners at Guantánamo Bay, Cuba.

The New York Times.

Then there’s the fact that Khadr claims to have confessed under torture. Videos of him weeping during an interrogation surfaced last year and served only to remind the world that he was a teenager confined at Guantanamo among “the worst of the worst.” Khadr was allegedly shackled in stress positions until he urinated on himself, then covered with pine solvent and used as a “human mop” to clean his own urine. He was beaten, nearly suffocated, beset by attack dogs, and threatened with rape. In May 2008, the Supreme Court of Canada ruled in Canada v. Khadr that the detention of Khadr at Guantanamo Bay “constituted a clear violation of fundamental human rights protected by international law…” We need to start to make amends for the fact that children in our custody were tortured.

Dahlia Lithwick in Slate.

Mohammed al-Qahtani, detainee No. 063, was forced to wear a bra. He had a thong placed on his head. He was massaged by a female interrogator who straddled him like a lap dancer. He was told that his mother and sisters were whores. He was told that other detainees knew he was gay. He was forced to dance with a male interrogator. He was strip-searched in front of women. He was led on a leash and forced to perform dog tricks. He was doused with water. He was prevented from praying. He was forced to watch as an interrogator squatted over his Koran.

That much is known. These details were among the findings of the U.S. Army’s investigation of al-Qahtani’s aggressive interrogation at Guantanamo Bay, Cuba…

[Later h]e was interrogated for 18 to 20 hours per day [using coercive rather than sexually humiliating methods, including waterboarding, stress positions, sleep deprivation, and extreme temperatures], for 48 of the next 54 days, according to an Army investigative report. On Dec. 7, 2002, he had to be revived at the detainee hospital when his heart rate fell to 35 beats per minute, according to a log of the interrogation published by Time magazine. Then the interrogation continued.

FBI agents at Guantanamo joined the opposition. A Nov. 27 FBI “legal analysis,” since reported by Newsweek, labeled several parts of the plan as “coercive interrogation techniques which are not permitted by the U.S. Constitution.” It also warned that several of the proposed tactics could constitute torture, depending on how a judge viewed the intent of the interrogator.

MSNBC.

Clearly, if Club Med is anything like Guantanamo is, it should be investigated for torture, prisoner abuse, child abuse, and various violations of international treaties. I’m awaiting a response from Morgan E. Painvin, Club Med’s listed press contact, as to whether Pete King has any substantiation for his apparent allegations of torture and human rights abuses at Club Med.

An alternate and plausible explanation would be that Pete King has been involved in sadomasochism for too long and that it has warped his sense of pleasure and pain. Of course, it’s brave of a suburban politician to admit such a fetish. So I must commend him for his honesty if this is his way of coming out.

I’m not sure I can think of any other reasonable explanations for this statement by Congressman King without calling him delusional, a liar, incredibly ignorant, or a propagandist.

[Photo licensed under Creative Commons courtesy of Ed your don.]

Categories
Barack Obama Law Politics The Bush Legacy The Opinionsphere

The Games Obama Plays

[digg-reddit-me]Thesis: Obama is a systematic thinker – and given some of his clearly expressed views on the presidency – he may be setting up a situation where the other branches of government will be able to definitively limit the powers of the presidency. This is preferable to the president voluntarily renouncing powers – as it places the responsibility for checking the executive branch on the system rather than on the chief executive himself.

The Rest: In his inaugural address, Barack Obama seemed to clearly repudiate the Bush administration’s lawless approach to the War on Terror with this oft-quoted line:

As for our common defense, we reject as false the choice between our safety and our ideals.

In this, and in many other instances, Obama made clear that he would restore the Rule of Law – and that he considered himself, as president, to be subject to the law. This may seem to be a fundamental and basic understanding for any chief executive in a liberal democracy, but for the last eight years, the Bush administration advanced arguments and pursued policies as if it were not subject to the law.

Every time the Supreme Court ruled against the Bush administration, Congress passed a law to restrain the executive branch in some way,some quasi-independent parts of the executive branch opposed him –  it was always uncertain what Bush would do – whether he would simply ignore the attempts to check his power; whether he would declare the checks unconstitutional and then ignore them; whether he would secretly ignore them and prosecute anyone who informed authorities that he was breaking the law; or whether he would attempt to force Congress to pass a legislative justification for his actions. In fact, Bush at one time of another did all three of these. Obama has made clear that he not only respects the Rule of Law but considers checks and balances on the presidency to be part of the democratic process set out by the Constitution. Obama is mindful of the chief executive’s role is in this system – and that, as Gregory Craig, White House Counsel explained:

[Obama] is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.

Combine this statement with Obama’s decisions regarding rendition, the state secrets privilege, and investigating abuses of the Bush administration – and many civil libertarians and critical observers of the Bush administration from Glenn Greenwald to Andrew Sullivan to Charlie Savage are preparing to be disappointed.

Let’s take a step back for a moment and postulate that Obama holds these three relatively uncontroversial and related positions that he has articulated on numerous occasions:

  1. He believes the president is subject to the law and is committed to upholding the Rule of Law.
  2. He believes that correct processes should be followed and that, “Each branch of government is balanced by powers in the other two coequal branches.”
  3. At the same time, he has little desire to use his political capital and energy prosecuting Bush administration officials.

Obama articulated these three sentiments in a response to a question by Sam Stein of the Huffington Post at his February 9, 2009 press conference:

My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I’m more interested in looking forward than I am in looking backwards.

Dahlia Lithwick, another chronicler and critic of the Bush administration’s legal abuses, interpreted Obama’s statements and actions this way:

…by keeping the worst of the Bush administration’s secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that “nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I’m more interested in looking forward than I am in looking backwards.” The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.

But to me, this sounds like an invitation to push him to do what is right – as FDR said to numerous audiences who came to ask him to pay attention to their issue (and here I paraphrase):

I agree with you, I want to do it, now make me do it

Supporting this, aside from Obama’s many statements on these matters, are the public opinions of many of those he appointed to key positions in the Justice Department, including the attorney general:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning. [my emhpasis]

Here is where the speculation really starts though – and only time will determine if these guesses are correct. Obama, as president, does not believe it is his role to give up executive power. For one, by doing so, he is antagonizing certain elements of the executive branch that he needs to bring to his side – in the state secrets case, for example, the CIA.

Secondly, by voluntarily renouncing a power, he is in some sense affirming the inherence of this power. Bush believed he had the power to say an entire subject matter was a state secret and thus have an entire lawsuit revoked; if Obama claimed he didn’t have this power, and the Courts then ruled he didn’t, the Court would not be “checking” the president so much as deferring to the new president’s view of his own powers. However, if Obama maintains he has this power – and the Court rules that he does not – it does provide a check. If Congress passes a law restraining the president’s use of this power, it will again provide a check. Each of these scenarios provides a firmer check on presidential power than does Obama’s giving up of these powers. It places the responsibility for checking executive powers not on the President, but within the system, where it should be.

Third, Obama has a number of crises to deal with right now and realizes that there are significant elements who feel strongly about these balance-of-powers issues. What he wants then – is for those groups that are passionate about these issues to prepare the public and to force him to act on them. This way, he can preserve his political capital – and by merely responding to issues forced upon him can avoid charges of looking like he is merely out for retribution.

If this is Obama’s thinking, then we can expect him to not oppose efforts to reign in his powers too strongly – and to accept those limits once they have been legitimated by the Courts or the Congress. If this isn’t Obama’s thinking, we can still attempt to force him to act but the outcome will be less certain.

Categories
Barack Obama Law Liberalism Politics

The Last Thing We Need Is A Liberal Scalia

Dahlia Lithwick, who I rarely fail to mention, is one of my favorite writers, had a piece a few days ago on what she wants. In a Supreme Court justice that is. And I lightly paraphrase:

Wonky liberal lawyer seeking a hero, a bomb-throwing, passionate, visionary, liberal Scalia for a seat on the Supreme Court!

One of the main facts revealed in all those recent scholarship of the Rehnquist (O’Connor) court, though, was that Scalia’s brash personality and insulting style actually pushed the moderates to the left – or drove them to be less susceptible to being wooed to Scalia’s side in an argument. Though the Court has indisputably moved far to the right since Scalia entered it, seven of the past nine Supreme Court justices have been appointed by Republican presidents. The two appointed by Clinton were moderates chosen to be confirmed by a Republican Congress. Yet, the Court has only moved slowly towards conservative positions. There are many explanations of this, but for anyone who considers the social dynamics of the Court to be significant – and from her article Dahlia seems to be one who does – then Scalia’s antagonistic approach to O’Connor’s sloppy reasoning and Kennedy’s pomposity certainly must be one factor. A brash, bomb-throwing liberal then is exactly what the Court doesn’t need. 

What I think it does need is a libertarian-minded liberal who can forge an alliance with Scalia on certain issues – and perhaps Thomas as well. Both Alito and Roberts seem to be enamored of executive power – and perhaps that was why it was they who were chosen. I consider them lost causes. But Scalia and Thomas are conservatives of an older school – one which a contemporary liberal – such as Lawrence Lessig or even Cass Sunstein – has much in common with.

I think Dahlia would be happy with that though – a Lessig, a Sunstein, and a Lawrence Tribe. Perhaps a Harold Koh and an Elena Kagan. Instead of a bomb-thrower, I think Dahlia just wants a liberal with a vision instead of an incrementalist. On that, I agree.

Categories
Humor Law Politics The Opinionsphere

Dripping With Contempt

Dahlia Lithwick observing Justice Scalia at oral arguments on Iqbal v. Ashcroft:

Scalia then points out that the ability of the attorney general and FBI director to do their jobs should not be dependent on the discretion of a district court judge. He pronounces district court judge the way you or I might say serial wife-beater.

There’s a reason she’s my favorite writer on legal issues.

Categories
Barack Obama The Opinionsphere The Web and Technology

In Defense of Indiscretion

Or, In Defense of Fondling Cardboard Cut-Outs

[digg-reddit-me]Dahlia Lithwick, writing in Slate about the character of John Roberts as he was being vetted for the Supreme Court in 2006:

I knew guys like [John Roberts] in college and at law school; we all knew guys like him. These were the guys who were certain, by age 19, that they couldn’t smoke pot, or date trampy girls, or throw up off the top of the school clock tower because it would impair their confirmation chances. They would have done all these things, but for the possibility of being carved out of the history books for it.

An acquaintance of mine from college has been in the news recently. No – I’m not talking about this profile in Newsweek (which was reddit-famous), this one from The New York Times, or this piece in Time magazine. I’m talking about the headline on The Drudge Report linking to this piece in the Washington Post. I ignored that piece when it first came up, hoping the story would die. It’s certainly not news in any meaningful sense. But it does turn out to be “news” in the sense that matters most these days: It provides a hook for people to fake righteous outrage over.

Jon Favreau, a speechwriter for Barack Obama now slated to move to the White House as chief speechwriter for Obama, had a picture taken of him at a party. I include the picture to keep matters in perspective – for without it, an observer would probably imagine something quite shocking.

(The Wikipedia entry’s description of the photo, Favreau “performing a suggestive gesture to a cardboard cut-out of Hillary Clinton.” With that description, I would have pictured something else entirely!)

The offending picture was posted on Facebook by a friend of Favreau’s for some two hours before it was taken down. Now it’s in the Washington Post and the New York Times and analysts on CNN are making profound noises about it. According to The New Agenda, a supposedly feminist group, Favreau should be fired. Campbell Brown of CNN, the individual whose brilliant first name inevitably leads her to disappoint viewers expecting profundity (“Free Sarah Palin!”) decided her counterintuitive response would be to attack Senator Clinton’s lack of outrage over the degradation of womankind that this photo represents:

Really, Sen. Clinton? Boy, have you changed your tune. You really think this photo is OK?

Put another woman in that photo, just an average woman who supported you during the campaign. Have it be her image being degraded by a colleague of hers. Would you be OK with that?

Yes – Campbell Brown is outraged over Hillary Clinton’s shrugging-off of an unfortunate photo while the economy is melting down and two wars are raging. Clearly, Hillary’s priorities are out of order – not Brown’s. Walter Cronkite must be ashamed to call himself a newsman these days.

There is a sensibility that infects mainstream coverage of any material that is tawdry and cheap – a kind of Hayes Code for today’s newsroom that makes every sexual scandal or embarrassing photograph into a morality tale. Without that cover, it’s hard to justify the right to show scandalous photographs repeatedly and talk in graphic details about the sex lives of politicians. (Remember the New York Post‘s scolding headline about the Miley Cyrus photograph, the scandalous photograph that they then enlarged on their front page to scold her about?) The goal of these morality tales is to pull readers or viewers in with titillating details while simultaneously and self-righteously denouncing the behavior.

What’s worse though than the faux-outrage and real outrage over such petty scandals is the type of public servant it encourages. We can’t all live as Dahlia Lithwick imagines John Roberts has. To view a scandal with good humor is one thing – to view it with the knowledge that we are all human, are all imperfect, all make mistakes – with the knowledge that if a perfect inquisitor came to judge us by our own standards, each of us would be found wanting. None of us are pure – and often those most obsessed with purity turn out to have their own demons. (See Haggard, Ted.) Our current political and media environment penalizes anyone who has lived and left any evidence to show for it. And we wonder how we’ve gotten in so much trouble.

At the same time, the self-appointed inquisitors have often been found wanting themselves. From preachers to journalists to politicians to news anchors to judges to each one of us – all of us, having lived, have done things we regret. Whether our regrets are dragged into the light of day and made into a media spectacle is largely a matter of happenstance. If you live in the public eye, then having the media pore over the worst moments of your life is a risk you take.

But we don’t really want to limit our politicians and public servants to those who have never done anything to have offended anyone in their lives.

Thankfully, Barack Obama has not taken this approach. If he wanted to avoid scandal and hypocritical tsk-tsk-ing, he would not have named Hillary Clinton Secretary of State with her long history. Lawrence Summers, as necessary as his brilliance may be to saving our economy, would have been eliminated because of controversial remarks he made some years ago. Eric Holder, despite his almost spotless record, would have been eliminated for that one spot – his minor role in the Marc Rich pardon. Joe Biden’s runaway mouth has led him to offend many constituencies.

Barack Obama campaigned saying he would change Washington and politics as usual. It seems his first order of business is to ignore the hypocrites of the media (and media-parasites like The New Agenda). With Hillary Clinton downplaying the incident and Obama having a history of ignoring this type of media scandal, I hope and trust that Jon Favreau’s job is safe.

But that’s not the point. It should never have been called into question over an incident like this. If the media wants to report on some lewd scandal, they can at least do their audience the favor of avoiding the hypocritical moral posturing and just revel in the tawdriness of it. It would at least be honest.

***

By the way, The New Agenda managed to insinuate that my college inculcated “less-than-respectful attitudes toward women”:

Ironically, other famous alumni of Jon Favreau’s alma mater, the College of the Holy Cross, are Clarence Thomas and Chris Matthews, also noted for their less-than-respectful attitudes toward women.

Apparently, the writer of this piece for The New Agenda never quite understood the meaning of the word “ironically.” That’s what a second-rate education will get you – a lack of knowledge of basic English vocabulary and a deficient sense of humor.

To complain about The New Agenda’s misuse of the word, “ironically,” you can email:

Or preferably, email each address to make sure someone gets it.

(It’s harder to get in touch with Campbell Brown – but you can comment to CNN here.)

Continue reading “In Defense of Indiscretion”
Categories
Election 2008 Obama Politics The Clintons

The Last Plausible Woman Candidate

With the primary winding down and many top Hillary Clinton supporters blaming her loss on sexism, the press has turned its collective attention to what Clinton’s campaign will mean for future female candidates. A number of editorial writers – sympathetic to Clinton – have posited that Clinton’s loss has shown that a woman candidate cannot succeed given our media environment. Dahlia Lithwick of Slate uses her usual incisive analysis to shred this line of argument:

They argue that Clinton had a legitimate shot at the presidency only because she represented a once-in-a-lifetime lightening strike of marriage, fame, and experience that is not only unique to her but that will die with her failed nomination. Silva quotes commentators who have argued that “only Clinton, a former first lady in an administration that presided over eight prosperous years and a second-term senator who has established her own credentials, could have achieved the successes she has this year.” Zernike’s experts echo this: “Mrs. Clinton had such an unusual combination of experience and name recognition that she might actually raise the bar for women.” Under this theory, Clinton was never really a strong woman candidate; she was just the lucky one who’d married a future president.

By advancing the argument that no woman will ever win the presidency without the advantages of a Hillary Clinton because only those advantages account for her success, we do more to disrespect her enormous talents than all of the oily misogynists on Fox News. All across the country, in the most unlikely ways and places, Hillary Clinton kicked ass as a woman. Why take that away from her now?

In an amusing coincidence the argument being put forward by Clinton supporters now is based on the same premise that I used as my number four point in my call on Hillary Clinton to withdraw from the race back in January. Kate Stone, among others, called this point “classically sexist“:

According to the writer her success would be based on who she married and what she put up with and how conniving she is. In other words, she is a viper. And it has everything to do with her gender when the writer flatly states that if she wins IT IS A LESSON IN HOW WOMEN GAIN POWER. ((I don’t think Clinton is a viper; and I have never called her conniving, so Kate’s summary of my position is a bit off.))

Now, Clinton’s supporters are saying that her loss proves that our country is too sexist to elect a woman president – and basing this view on how exceptionally positioned Clinton was due to who she married, what she put up with, etcetera.

Continue reading “The Last Plausible Woman Candidate”