Mark Schmitt

Where Have the Politician-Judges Gone?

I was reading David Garrow's review of Linda Greenhouse's book about Justice Blackmun, which quotes his awe at walking into the "Conference" of the Justices for the first time, "and there was Hugo Black, William O. Douglas, William J. Brennan Jr., John Marshall Harlan -- and I said to myself, 'What am I doing here?'" (Garrow thinks that was a good question.)

That quote, though, reminded me of something that I've been wondering about with regard to recent Supreme Court nominations: why is the pool so narrow? Every name on the totally speculative lists that are floating around for the next vacancy has basicially the same pedigree: currently sitting as a judge on a circuit court (perhaps there's a district judge or state Supreme Court judge in there somewhere, I'm not sure), previously a law professor or -- as in the case of John Roberts -- a practicing lawyer with law firm and Justice Department experience.

The justices that so awed Blackmun were all basically political actors rather than legal scholars: Black had been a Senator, Douglas a prominent New Dealer who at one point entertained presidential aspirations and was FDR's second choice for vice president in 1944, Harlan a high-profile prosecutor who had been a judge for less than a year. Surprisingly, it is Brennan, who has the reputation of being among the most politically skillful justices, who had the most conventional background as a judge, but nonetheless made his career in the crucible of New Jersey Democratic politics.

Among other justices of this era, Earl Warren had been elected governor of California, and Abe Fortas was another New Dealer, albeit one whose tragedy on the court was that he remained a little too political.

There are obviously downsides to having Justices, or too many justices at once, who think in political terms, without the rigor of constitutional jurisprudence. It was Douglas, after all, who is responsible for the "penumbras and emanations" theory of the right to privacy in the Griswold case, which is a shaky foundation for the subsequent decisions that depend on its precedent. But there's also something to be said for leavening the cold analysis of legal scholarship with the sense of reality, compromise, and incrementalism of someone who has lived in the political world, even if not an elected official. Sometimes that might make the Court less timid, in other cases it might make the Court hesitant about stepping out too far ahead of the political consensus.

Not to take anything away from Justices Breyer and Ginsburg, but I can't help but think that the Court would be different in some significant way if one of those seats was occupied by Mario Cuomo, Bruce Babbitt, or George Mitchell, all potential Clinton nominees. (The Cuomo story, I think, is some sort of garbled signals between the White House and Cuomo over whether he would accept -- typical Cuomo. Babbitt was going to face opposition from Western senators for his tenure as Secretary of the Interior, and Mitchell -- I don't know the story there.) I have a feeling that Babbitt or Mitchell might have been a little more forceful and effective in challenging the Court's intervention in politics in Bush v. Gore.

In particular, where the law professor/judge is rigidly dogmatic, I'd much prefer a politician, even a politician of similarly conservative views, because they have some experience of testing their views against the realities of life and others of different opinions.

Two Senators have been mentioned -- probably mentioned themselves -- as potential nominees, but they are not exactly of the Mitchell/Babbitt/Cuomo caliber on the other side, to say the least.

I don't mean to get into a thing about names, just to suggest that the pool of nominees, both for Bush and for the Democrat who will succeed him, should be broader than just current circuit court judges and law professors.

The Strange Logic of Bradley A. Smith

The big issue in the increasingly ugly argument over the Federal Election Commission's proposed rulemaking on internet communications now seems to be the reach of the "media exemption" for blogs and other online forums. While there are some complicated side issues, such as how to treat blogs that incorporate for liability reasons, the basic debate has been between the view of the Online Coalition, joined by most of the other blogger-commentors, which is that the media exemption from regulation should be broadly presumed available to anyone engaged in media-like activities, which include commentary and analysis of events, even with a viewpoint; and on the other hand, the comments of reform groups and the Insitute for Politics, Democracy and the Internet(IPDI), which worry that too loose a reading of the media exemption spread too broadly will lead to aggressive and costly partisan activity hiding under the cloak of the internet.

I endorsed the Online Coalition comments, abandoning a plan to submit my own. They are reasonable, legally sound, well-written, persuasive, as I noted here. I understand the IPDI concerns, and find the venom directed at IPDI to be disgraceful. Still, I disagree with the IPDI conclusion that the media exemption is a privilege, and that bloggers cannot expect to claim that privilege for their media activity while also engaging in low-level partisan advocacy. I think there has to be a presumption that a site or person is exempt as media at the moment it starts engaging in commentary.

To be clearer -- and neither set of comments specifically address the point in this way -- the media exemption should not be something that a blogger or independent commentor earns over time, but should be a presumption that you start with, and then there should be bright-line, easily understood conditions under which you might lose the exemption, after which your advocacy might fall under regulation as political activities. That might include being fully controlled by a campaign or using the blog largely to raise money for a campaign.

Really, blogs aren't all that unique in the media world. There are older forms of media that also have low barriers to entry and no particular professional structure to regulate them: You can start a weekly newspaper in a small town for very little money, and under existing law it will be presumed to carry the media exemption, even if its editorials are scathingly partisan, its reporting dubious, and all its staff partisan hacks. You can create a syndicated column that combines commentary with strong condemnations or endorsements of candidates, which might get picked up by some papers. And there's no legal barrier to being a campaign contributor, a fundraiser, an advocate, or an adviser to a candidate at the same time. Failing to disclose some of these things might be considered unethical, but it is not the FEC's business to police every interaction between a newspaper, a columnist, or a blogger, and their readers.

Anyway, that's not even my main point. I just wanted to establish that the core choice the FEC has before it is between these two visions of the relationship between media and political advocacy.

Now along comes Bradley A. Smith, a member of that agency and recently its chair, with another one of his interviews with the lobbyist-owned TechCentral Station. If you recall, it was a similar interview in which Smith started the whole "government is going to ban blogs" scare a few months ago.

Smith makes a good argument here for the Online Coalition position. But notice the tone (all the italics are mine):

When we think about who is going to be exempt under the press exemption, I think almost everybody would agree that the big corporations are going to be exempt under press exemption. That is to say that the Washington Post website, well, that's probably exempt. What about Slate, which at one time was owned by Microsoft? Well that's going to be exempt. Why? Because Slate kind of looks and it feels like a newspaper. It comes off the web rather than delivered by paper to my door, but it just has that look and feel and has that kind of sense to it. And then people are going to say, what about maybe a blog such as that run by Glenn Reynolds of InstaPundit or something like that? Well maybe that gets the exemption. But after that it's less clear.

Therefore we are saying if you are a big powerful corporation, we are going to give you a press exemption for your Internet activity, at least if you are a press operation. And as we work down the line we are not going to give you that exemption. As a result you are going to be stifling the activity of the most grassroots, casual type of political action, rather than that of the big press corporation.

It's particularly odd that we would do this in an era in which most of the mainstream press is owned by large corporations.

So we are going to say to those folks, well, if you had the power to own a press outlet you are okay and your website is probably going to be okay as well because you are a newspaper or a radio station or what have you. But we're going to say to the pajama-clad blogger in his basement that he doesn't get the press exemption? It seems to me that's exactly the person who we want to be encouraging to be more involved in politics, the person who should get the exemption there.

I basically agree with his underlying point. It is a sound argument for one side of the choice before the commission. But why does he insist on presenting it as what the FEC "is going to" do? He is a senior member  of that commission! It's his choice to make. And in most recent decisions, Smith has been in a majority.

So, the FEC is not "going to do" anything like this if Smith and his like-minded colleagues prevail. Why does Smith want to make it sound otherwise? He wants to argue that the FEC is forced by the law to make this awful choice, and thus continue to stir up hostility to the underlying law itself. But it is clear from the Online Coalition recommendations, and even from Smith's own answer to the question, "What is the lightest approach the FEC can take?" ("We need to make clear that bloggers are press, these are periodicals and people update them regularly; that the first amendment does not only apply to people who are members of the National Press Club") that the commission is not in any way forced to grant the exemption only to big corporations.

It's a strange mental game that some of these libertarian conservatives can play, sort of a version of Keats's "negative capability": They can be in charge of a government agency, have working control over its decisions, and yet still convince themselves that it is somehow monstrous, oppressive, and external.

UPDATE: Comes word late yesterday (as noted by "fnook" below) that Commissioner Smith has announce his resignation from the FEC, to return to teaching at some law school that I'm tempted to be snotty about never having heard of, but I'll resist that temptation. I'm sure it's a very fine diploma mi, er, I mean instititution of legal scholarship.

Score another hit for the blogosphere! Powerline got Dan Rather, and the power of my impeccable logic brought down Brad Smith! Yes!

Or, I suppose it's possible that he'd already decided to quit, and that explains his sort of third-person reference to the FEC. I guess that's possible. In which case, never mind.

Parents and Culture

[This was meant to go on tpmcafe.com, but the interface there has me completely defeated, so I'm putting it here and I'll figure out how to copy it over later.]

I've avoided jumping in to any previous flare-ups of the question, "Should Democrats talk more about violent video games, sex on TV, etc.?" But the way that Garance Franke-Ruta framed the question this week in her inter-office argument made me think I might have a few small points to add.

First, her starting point, which is that Democrats have to be particularly concerned about the drop off in support from married women with children is unarguably correct. Part of the reason this is a particular concern is that the distance between being a young unmarried woman -- and voting Democratic -- and being a married woman with children is not a lot of years. We're not talking about something inherent in these individuals, but a change in their priorities or perceptions over a relatively short period of time. That's the kind of thing a political party has to be able to do something about. (Unlike young white men, who are Republican when they're single and stay Republican.)

I remember once hearing the insufferably cutesy-poo Republican pollster Kellyanne Fitzpatrick opine that women became Republicans when they acquired the "three M's: Marriage, Mortgage and Munchkins." Please don't let that be true! There's no reason for it to be true.

But that means addressing what those parents are concerned about, and sure, the "coarsening of the culture" and the sense of a loss of control over the influences on our kids is a big one. I'm largely what Garance calls an "adolescent libertarian" on cultural matters, but I ran back pretty fast yesterday when I heard my 4-year-old, who I'd left playing some sort of Flash game on the Disney web site, say, "Dad, I clicked something and I think I got somewhere I'm not supposed to be." (It turned out to be some sort of Bounty design-your-own-paper-towel site, which is harmless as long as she doesn't click "purchase.")

A few points to make about this issue:

First, this is one of those issues about which the only reasonable reaction is an ambivalent one, and it's fair to assume that many of those who say they're concerned about culture in this way have a similarly ambivalent or complex reaction. That is, they want some greater sense of control on the influences on their children, but they suspect that any legal solution will either be ineffective or will have negative consequences. Likewise with any technological solution, like the V-chip or internet parental controls. That doesn't lessen the concern, though, and parents want to feel that politicians understand that concern.

Second, be careful about assuming that this is an area where there's a lot of opportunity for left-right alliances. I noticed this in the mid-1990s, when Bill Bradley started talking about some of these issues: you can quickly find yourself in bed with people who seem to be talking about the same thing, but whose real gripe is with the positive portrayal of gay people, single parents and sexually active single people in the media. I remember once being asked by another Senator's office whether Bradley would endorse a study of sex and violence in the media. They sent over the study, two-thirds of which consisted of a second-by-second analysis of every moment on the now quaint Melrose Place when Matt, the gay character, had mentioned going on a date with a man, had referred to a man as "hot," etc., e.g., "9:47: A man is seen leaving Matt's apartment in the morning as they exchange a knowing glance." As far as I'm concerned the impulse that leads to that "study" is as disturbing as anything else in our culture, perhaps more.

Third, avoid "policy literalism." Just because people in polls say, "I'm concerned about sex and violence in the media," doesn't mean that the only response is to propose a law that would somehow limit sex and violence in the media. Remember that typically the next sentence out of a parent's mouth is something like, "I can't be with him 24 hours a day." The part of the concern that government can do something about is that parents' don't feel they have enough time to understand all the external influences on their kids and help them deal with them. So a well-constructed way of talking about the time pressures of the modern economy is fully responsive to the concern about values. Karen will have more to say about this, I expect.

Fourth, there may be an opportunity here for a broader shift in the debate about the market and government. This was the argument that my friend David Callahan made in the New Republic in January: that going after Hollywood was "a golden opportunity to please [Democrats'] base and swing voters at the same time--to complain about market capitalism run amok, about the public interest subverted, and about moral decline." The argument would be that, "when financial self-interest is touted as one of society's greatest virtues, as it has been lately, individuals will behave badly," and that includes Enron and other examples of the breakdown in corporate ethics, but it also includes selling lowest-common-denominator culture to kids, only because it makes money.

In short, there's no question about whether to address these concerns. How to address them is another matter.

This Just In: Judge Is Nuts!

According to the New York Times of Thursday, June 8, 2005, there's a judge on the Court of Appeals for the DC Circuit who holds some very strange views. Apparently this judge believes that every time the legislature, by democratic processes, regulates business, it  is comparable to "slavery" or "segregation."

How did such a judge get confirmed? Maybe it was a long time ago. Maybe the Senate didn't have enough information. I sure wish the Times would tell us...

Reframe This!

You may remember the pathetic moment in the 1992 presidential campaign when George H. W. Bush read aloud his stage direction: "Message: I care."

Today I was sent a speech by California Treasurer, and likely gubernatorial candidate, Phil Angelides, on the occasion of World Environment Day. (A holiday that's new to me, but seems worthy.) In the course of explaining that while Arnold Schwarzenegger has seven Hummers, one of which he might convert to hydrogen power, he -- Angelides -- has one Toyota Prius, he declares,

So I?m going to do it the way every good politician does: By reframing the issue. I am here to tell you today that we are not going to save the planet by converting one Hummer at a time.

When Democratic politicians, even in California, are so immersed in this Lakoff stuff that they announce, "Okay, now I'm going to reframe the issue," I think we can all agree that the medicine has been applied, and it's time to move on.

Clever Rhetorical Tricks

Here's a classic example of one of the great innovations in rhetorical technique perfected by the modern right. It involves taking some nutty thing that someone tangentially related to the Democratic Party or vaguely on the left of the political spectrum said (Michael Moore and Ward Churchill are good candidates, but if need be, you can find some obscure adjunct professor and make him a celebrity to serve this purpose), and then making that nutty thing stand in for other things that you don't want to talk about.

Apparently a few people have begun using the word "impeachment" in relation to Bush. Not a new phenomenon; Congressman John Conyers introduced articles of impeachment several years ago. It's not going to happen. A congressional minority can't move articles of impeachment. Further, as "KagroX" pointed out on The Next Hurrah recently, Bush is "impeachment-proof" because the public was exhausted and repulsed by the spectacle of the Clinton administration, which made it seem a tawdry and partisan tactic. (Which corresponds to my pet theory about why Reagan was the "Teflon President" -- having effectively rejected three presidents in a row -- Nixon, Ford, Carter, and four if you want to count LBJ -- the public had no appetitite to do so again.

Anyway, it seems that Ralph Nader joined this call for impeachment a few days ago. I won't link to his article, which appeared in the Boston Globe, for the simple reasaon that if RALPH NADER wants to lecture anyone that Bush is a criminal president, he's got some major apologizing to do first. (A handwritten personal apology to everyone who voted for him or Gore might get him about halfway there, and then we'll negotiate.) Nader's argument, however, is that the Downing Street memo revealing that Bush intended to go to war in Iraq regardless of compliance with UN resolutions and in plain violation of international law, is sufficient grounds for impeachment. (Which I think it is, of course, and so is the fraud on the costs of the Medicare bill, the deception on Iraq WMD, the misuse of federal funds for self-promotion, and a few other things. But who cares what I think? Go persuade Mr. Sensenbrenner. )

And then a few days ago, John Kerry told an editorial board the following:

"When I go back (to Washington) on Monday, I am going to raise the issue," he said of the [Downing Street] memo, which has not been disputed by either the British or American governments. "I think it's a stunning, unbelievably simple and understandable statement of the truth and a profoundly important document that raises stunning issues here at home. And it's amazing to me the way it escaped major media discussion.

So, over on redstate.org (still the best conservative site), Kerry's call for discussion of the memo gets turned into the idea that Kerry has joined the "moonbat" call for Bush's impeachment. Kerry didn't mention impeachment at all. All he mentioned was a memo that someone else (Nader, and possibly others) had mentioned in the context of impeachment.

But now any mention of the memo makes you automatically a nut calling for impeachment. And instead of discussing the memo, we'll argue about impeachment.

Very clever. But there's a limit to these tricks, and I think it's been reached.

Don't Believe Everything You Read In the Blogs

I recently finished reading Seth Mnookin's Hard
News: The Scandals at the New York Times and Their Meaning for the Media blah blah. It's a good read, and its assessments of Howell Raines, Gerald Boyd and Arthur Sulzberger, Jr., seem just about right, even if without larger "Meaning." So I read the saga of the Times's "public editor" Daniel Okrent's grim parting jab at Paul Krugman as a kind of coda to that story, since Okrent's appointment was the most visible attempt to admit to and remedy the Times' problems.

In his last column, you'll recall, with the title "13 Things I Meant to Write About, But Didn't," Okrent said, "Op-Ed columnist Paul Krugman has the disturbing habit of shaping, slicing and selectively citing numbers in a fashion that pleases his acolytes but leaves him open to substantive assaults."

Obviously a serious charge, without evidence. Krugman and Okrent have now had a back-and-forth exchange, which you can read here, or with annotations by economist Brad deLong, here.

This is mostly pretty arcane stuff, with Okrent accusing Krugman of manipulating numbers of discouraged unemployed workers because he failed to adjust them based on a 1995 research paper, etc. Trust me, Krugman wins every point.

As to why he didn't raise any of these issues with Krugman before, Okrent says that he dealt with him on another issue, and basically Krugman was such a pain in the ass that "it wasn't worth it." What a bizarre admission: The whole job of the ombudsman or public editor or whatever the Times wants to call it is to be independent and invulnerable. He's got a one-year contract that can't be renewed; no editor or columnist can touch him. If he thinks a columnist is misusing data, his job is to say so.

Imagine, by analogy, a CBS executive saying that he wanted to say something about the National Guard documents, but Dan Rather had yelled at him over something else, so he decided not to.

Part of this story, I suspect, is in the still-awkward relationship between traditional media and the free-for-all world of blogs. Okrent didn't take on Krugman out of his own ideological bias, but got played, in this case apparently by National Review Online blogger Donald Luskin, unforgettably dubbed "The Stupidest Man Alive" by DeLong, who claims an e-mail exchange with Okrent totalling 40,000 words. Okrent claims no economic expertise, so his knowing citations to "the Polivka-Miller study" presumably come not from immersing himself in the methodological literature regarding BLS data, but from someone else, e.g. TSMA.

What Okrent doesn't seem to understand is that he's hearing only one side of a debate with two sides. He seems to assume that where there's smoke -- e.g. Luskin's obsession with discrediting Krugman, which goes back to "proving" Krugman's incompetence on the grounds that he predicted continued inflation, in 1982 -- there must be fire.

But the amazing thing is that Krugman is the most accountable columnist alive, with David Brooks perhaps second. Everything he writes is ripped apart within seconds, and litigated to death, and almost every time he comes out ahead. (Take, for example, Krugman's citation of Dean Baker's challenge on Social Security, which was to find a likely economic scenario under which the Trust Fund does as poorly as Bush predicts, while simultaneously stocks do as well as predicted for private accounts.) The problem is that you have to read in several places to follow the debate about any given Krugman column. But if he makes a serious mistake, he'll be called on it within minutes.

Krugman and Brooks are subject to this kind of public accountability because they mostly work with publicly available information. William Safire deserves sharp criticism -- which he didn't get from Okrent -- for repeating the thoroughly disproven assertion that Mohammed Atta met with an Iraqi agent in Prague, but no blogger is in a position to challenge a columnist's assertion about what sources told him. Another Times' columnist who seems to escape scrutiny altogether is Bob Herbert, who's at least as liberal as Krugman. I don't know why that is.

FEC and Bloggers

One of the things I intended to do this week was to write some comments to submit to the Federal Election Commission on the proposed rulemaking on internet communications. I thought I had some original points to make, regarding the ways in which good use of the internet, such as to reduce the transaction costs of small-donor fundraising, can support the goals of campaign finance regulation and thus should not be seen as merely a "loophole." I was also going to suggest that the FEC try to draw a distinction between uses of the internet that resemble broadcast advertising -- short bursts of imformation directed at passive voters, or those who are not seeking political information -- and those uses that involve active participants seeking out information.

But I was having a little trouble fitting those broad comments to the specific questions raised in the Notice of Proposed Rulemaking, and I have not had enough time to work on it. So I think I'll pass, keep what I've written and turn it into an article, and simply endorse the comments of The Online Coalition, available here. This is a very thorough analysis of the issues, respectful of the questions that are literally in the FEC's purview and those that are not; it's readable, responsible and well supported by the factual record. It makes a couple of the points I wanted to make, particularly that "[most] Internet communications are self-selected and non-invasive."

I assume that members of the Coalition have differing views of the underlying campaign finance regulation and the Bipartisan Campaign Reform Act that these regulations are responding to. I hope so -- I support the law and believe the FEC should make it work. Breaking the direct connection between elected officials and big dollar fundraising, and getting corporate and union money out of the parties were worthwhile activities. The next steps, building on that base, are to make it easier to run for office and encourage small donors -- two things that the internet can help with, but only public financing can really achieve.

It is quite an achievement that the coalition has produced recommendations that opponents as well as supporters of the underlying law can agree on. It's gratifying to see that this whole issue moved to smoothly from the manipulated panic of "The FEC is going to ban blogging" just a few months ago to this very constructive, forward-looking response.

Hoover and Deep Throat

A very small observation about the revelation that Deep Throat was Mark Felt:

I hate entrenched, unaccountable power. And there's probably never been anyone in the U.S. political system whose power was so deeply entrenched, so unaccountable, and for so long, as J. Edgar Hoover's FBI. And Felt was very much a part of Hoover's system, one that was intended to transcend the coming and going of presidents. It's clear from Bob Woodward's account this morning that Felt's driving motivation was anger that Nixon's aspiration to use the FBI for political purposes (the Huston plan) challenged Hoover's authority more severely than any president before Nixon had done, and Nixon's decision to pass over Felt and other Hoover loyalists to place an outsider in charge after Hoover's death poured fuel on that fire.

Nothing about Felt's possible motives changes history's judgment: He helped Americans learn the truth about a deeply corrupt presidency. But it does illustrate a sad paradox: Often the only force that can counter entrenched, corrupt power is another entrenched power. As an example, consider that it is Senator Robert Byrd -- certainly the most entrenched figure in modern politics, though never half as powerful as Hoover and not evil -- who has been the most vigorous and effective opponent of Bush's claims to expand the power of the executive.

UPDATE:  I hadn't seen all the Felt-bashing going on before I wrote this, and I think in that context, it's too easily misunderstood as joining in the criticism of his motives, which I don't mean to do. Whether he acted purely out of a belief that the Nixon gang were "Nazis," or out of a sense that the FBI's political independence was threatened (a nice phrase, but there is a thin line between the Bureau's legitimate claim to be independent, as in free from manipulation, and its actual independence under Hoover, which meant being controlled by the whims and manipulations of Hoover alone), even if he acted solely out of personal pique at not being chosen to succeed Hoover, really doesn't matter. He was able to convey the information he did to Woodward because of his own position of independent power. It's not a very profound point, just a small irony of the situation.