Essentially Contested America

This week, news circulated suggesting that President Barack Obama sent emissaries to attempt to convinced New York Governor David Paterson to exit the 2010 New York gubernatorial race.   I have heard some argue that the president’s attempt is anti-democratic and that the voters of New York should decide who their governor will be.  Of course, all would agree that New Yorkers should elect their governor.  However, given that the president is the de facto head of the Democratic Party, he has an obligation to do what he can to ensure that the person New Yorkers elect is a Democrat and that the person running at the top of the ticket is as strong as possible.  The stakes for the Democratic Party in the 2010 New York election are large.  A weak candidate may weaken turnout and affect down-ticket races.  Given that Sen. Gillibrand is crucial to count to 60 Democrats in the Senate, a strong gubernatorial candidate is important for reasons important to the national Democratic Party and its agenda.  As important is the redistricting that will occur in the wake of the 2010 Census.  The map that a Republican governor would endorse is likely to be far different than the one a Democratic governor would endorse.  Congressional seats may be in the balance.  If these are the concerns that drove Pres. Obama to encourage Paterson (and those who would have challenged Sen. Gillibrand) out of the New York primaries, his actions may be perfectly understandable and somewhat necessary as the head of the party.  Of course, the president may be wrong about the parade of horribles that could follow a Gov. Paterson primary run (and possible win) but that is a very different question than whether he should have gotten involved at all.

Interestingly enough, this week has seen the release of the Iraqi journalist who threw a shoe at President Bush on his trip to Iraq last year as well as the continued discussion of the Rep. Joe Wilson (R-S.C.) “You lie” lie thrown at President Obama during his address to Congress last week.  Interestingly, the two incidents and their aftermath are instructive.  The shoe-throwing journalist tried to make a point with respect to President Bush’s policy in Iraq and the resulting carnage that resulted.  His conduct was inappropriate, but one can understand that he felt compelled to do something after witnessing the carnage that he had witnessed in his own country.   His disrespect for President Bush, based on President Bush’s policies and their effect, was clear.  Nonetheless, he was, of course, arrested and sent to jail.  Rep. Wilson tossed his lie at President Obama not after witnessing carnage and not after seeing the effects of President Obama’s plans.  He tossed his lie at his president at an inappropriate place at an inappropriate time on an issue about which Wilson was inappropriately confused.  He showed disrespect to President Obama and the office of the President not based on what the president has done and not based on the substance of what the president said as the statement that precipitated the insult was true.  Rather, Wilson showed supreme disrespect for President Obama because he did not like what the president said and, I fear, because of who the president is.  The political price for Rep. Wilson’s actions as measured by the regard in which the public and his fellow legislators hold him should be significant.  However, almost certainly, the price will be a pittance.

It’s been quite a week. I watched folks marching in the Labor Day parade carrying “Health Care Now” signs, and heard an enthusiastic crowd member call out, “Health care yesterday!” I talked to my friend whose husband lost his job about her difficult decision about whether or not to take her son to the doctor for an ear infection since it would cost over $100. I think of my friend who was just diagnosed with cancer. Thank goodness she has health insurance – I can’t bear to think of her having to forego treatment, as so many have who can’t afford it and lack the insurance to pay for it. I think of my friend with the severely disabled daughter who can’t move because after years, she finally got her daughter on state supported health care. I think, maybe relief is finally here for her and the 46 million uninsured in this country.

Yesterday, President Obama said that health care reform is not just an economic issue, it’s a moral issue. I agree. Why do the people who suffer bad luck such as loss of job or severe illness then have the further bad luck of not being able to afford health care? It’s just not fair, and it’s not in this way in any other advanced industrialized nation. Health Care (Reform) Now? I sure hope that it will be here soon.

President Obama gave a wonderfully supportive and challenging message to schoolchildren yesterday.  That there was ever a debate over whether students should see the speech in school is silly and tells us quite a bit about the divides in this country.  However, the debate regarding whether the speech should have been shown on the first day of school – some schools did not return to classes until yesterday – is more interesting.  Some, including many in Henrico County, Virginia, where I live, argued that the first day of school is too hectic to be interrupted with a message of support from the President of the United States.  If the argument is serious, rather than an attempt to avoid dealing with the merits of the speech, it is troubling.  Teachers, parents and children are required to expend a significant amount of effort before the first day of school ostensibly to make sure that everyone will be ready to learn on the first day of school.   Though the first day of school is always hectic, so are late-opening snow days and many other days.  The task for schools was to get schoolchildren together for 15-20 minutes to watch a message of encouragement from our First Role Model.  If that is a monumental or impossible task for school officials, I shudder to think what would happen if a real emergency occurred on the first day of school.   Similarly, I am surprised that school administrators would readily admit their logistical limitations to parents given that some school districts – such as Henrico County’s next door neighbor, the City of Richmond – did not find the presentation of the speech terribly onerous, with some schools even hosting dignitaries who encouraged students in the same vein as President Obama.

As I have said before on this blog, the Virginia governor’s race will not be a referendum on President Barack Obama.  The latest flap in that race suggests as much.  A few days ago, the Washington Post published a story on Republican candidate Bob McDonnell’s master’s thesis written in 1989.  The thesis is worth a read.  It reads like a Republican playbook from the end of the Reagan era.  McDonnell concedes as much.  Its attack on Democratic policy is full-throated.  Its critique of women outside of the home and homosexuals everywhere is not kind.  The ideas expressed in the thesis are not necessarily kooky, they are just very conservative.  The thesis was not written by a callow 24-year-old.   It was written by a 35-year-old man who would begin elected public service just a few years later.  Virginia Democrats have argued that McDonnell has followed his thesis  through his 14 years in the Virginia legislature followed by his 3 years as attorney general.   They claim that his work reflects rather than repudiates his thesis.  Not surprisingly, McDonnell claims otherwise.

The race will be fought over the next 60 days or so over issues that are peculiar to Virginia.  Virginia politics is not just local, it is special.  Regardless of whether McDonnell wins or his Democratic opponent Creigh Deeds wins, the outcome of the Virginia governor’s race is unlikely to hinge on any general feeling regarding President Obama and his policies.

President Obama will get the health care reform he wants.  If you want to know what it will look like, look at the principles he laid out at the start of the process.  We have seen this show before and I suspect I know how it will end.  The typical plot has four parts.  In Act 1, Obama sets out a principle.  In Act 2, critics attack him and his principle while supporters fret about whether he is doing the right thing.  In Act 3, when it appears as though the plan is about to fail, Obama gets to work and miraculous (or mundane) things occur.  The people rise up and demand that Obama’s principles win out or Democratic lawmakers decide that Obama’s plan is worth fighting for or Obama wades into the fight directly.  In Act 4, Obama wins and the result looks remarkably like what he proposed from the start.

We saw this in the campaign – he wanted to win some Southern states (unthinkable) and a broad mandate and did.  We saw this on the stimulus bill – he wanted $775 B and got $767 B.  We saw this on Sotomayor – she was the top candidate from the start and remained so even after we were treated to a quasi-public display of him interviewing other people.   All President Obama needs is time for Act 3 to play out as he wants, with supporters of his principles standing up and showing that they are willing to fight.  Act 3 is happening now.   When Obama put public option on the table or chopping block, that was him getting to work.  He made it clear that it is time for supporters to stand up and be counted.  I suspect that they will demand a public option and many of the other suggestions found in President Obama’s original list of principles.  President Obama will return to his list of principles and may push them directly.  At that time Republicans will begin to claim that President Obama is going to ram his health care reform down their throats.  It is also the time when President Obama will put the Republicans, and maybe some Blue Dogs, in a corner and ask them if they really want to kill health care reform when the people have demanded it.  The safe Republicans may take an ideological stand, but the Blue Dogs will be reminded that many of their constituents could use a bit of health care reform.  Either we get Act 4 and the president takes a bow or we get midterm elections dominated by health care reform.

In the wake of the failure to put together a plan to help Chrysler avoid bankruptcy, the recriminations have been flying.  President Obama has suggested that the hedge funds that own senior Chrysler debt killed the deal with greed.  He suggested that they should have taken the deal offered by the government that would have paid them approximately 30 cents on the dollar.  Instead, he suggested, they were looking for a government bailout.  After President Obama’s statements, Clifford Asness of AQR Capital, a hedge fund not involved in the Chrysler deal, responded with an open opinion letter arguing that President Obama had bullied and scapegoated hedge funds.  He argued that a hedge fund’s obligation to its shareholders is to get the largest return possible and that the hedge funds involved in the Chrysler deal had every right to try to recover more than 30 cents on the dollar through an uncertain bankruptcy process that might yield a greater return.  In addition, he claimed that Obama’s suggestion that hedge funds were looking for a government bailout was “the big lie writ large.”

The reasonableness of President Obama’s position depends in part on the likelihood that the hedge funds would recover more than 30 cents on the dollar through a bankruptcy.  If Obama is correct and there is almost no likelihood that the hedge funds will recover what they would have gotten from the government’s deal, Obama has a point.  His assumption is that the only way the hedge funds would get a larger return would be if Chrysler were bailed out by the government.  That is the bailout the hedge funds supposedly were looking for, rather than a direct bailout that Asness claimed.  On the other hand, if the hedge funds might recover through bankruptcy more than the government plan would have provided, the hedge funds would be within their rights and might even be obligated to push Chrysler through bankruptcy.

However, there is another issue that both sides may have avoided or ignored.  The issue is the long-term implication of rejiggering the capital structures of struggling companies as a way to save them.  Asness ignores the possibility that the behavior of the hedge funds has less to do with making money from the Chrysler deal itself and has more to do with suggesting that senior debt holders must be treated better than junior debt holders and unsecured creditors.  That is, if it becomes clear that senior debt holders will drive a company into bankruptcy to make a point rather than take a better deal that provides a similar recovery for those whose position is subordinate to the senior debt holders, the next offer in a Chrysler-like situation may yield a much sweeter deal than the one President Obama offered with respect to Chrysler.  If the hedge funds believe that the long-term strategy will yield more money for their shareholders, the strategy is reasonable.  However, it may be fraught with peril because it suggests both that the hedge funds left some of their shareholders’ money on the table and that they did so knowing that driving a large American company into bankruptcy was going to result.  That would suggest that some of President Obama’s complaints that the hedge funds were not working in the immediate interests of their shareholders or the country are legitimate. If that is conceded, the hedge funds will likely lose the public relations battle.

The discussion regarding what to do with the writers of the infamous torture memoranda continues to heat up.  With President Obama arguably switching his position with respect to whether those responsible for the torture policy and the legal memoranda behind it will be allowed to be prosecuted, the controversy will not end quickly.  This is just fine with a criminal law professor like me because it allows the public the opportunity to think about an issue that criminal law professors think about often, but that the public and the press rarely do:  prosecutorial discretion.

The decision to prosecute or not prosecute with respect to those who wrote the torture memoranda begins with two related questions.  The first revolves around whether criminal liability flows from the writing of the memoranda.  Criminal liability of some type must flow from the behavior before the issue of prosecutorial discretion arises.  The second question revolves around what the nature of the memo writers’ actions were.  At base, regardless of the technical statutory violations that could flow from the memo writing, the key question is whether the prosecutor will be seeking criminal charges essentially for the memo writers giving stunningly bad or ethically challenged or even morally bankrupt legal advice or for the memo writers being more generally complicit in encouraging torture to occur.   A decision to decline to prosecute what is merely horrible legal advice that can be interpreted to be a statutory violation is quite different than a decision to decline to prosecute clear complicity in torture that takes the form of providing legal advice that counsels and provides cover for torture.

Assuming that writing the memos constitutes a legal violation, prosecutors will, at a minimum, consider the following questions.  One, was the legal advice in the memos the extent of the memo writers’ involvement in the torture or was it merely the manifestation of their active participation in seeking to allow torture?  Two, were the memos merely the equivalent of providing transparent cover for what the Bush Administration was going to do anyway rather than the actual genesis or basis for allowing torture?  Three, would punishing the memo writers lead to better legal advice in the future for the President and other governmental actors?  Four, is punishment necessary?  The Obama Administration has a long way to go toward deciding whether it needs to or how to exercise prosecutorial discretion.  However, it should be clear that the exercise of discretion – assuming laws were broken – will be a blended legal-political decision rather than a pure legal decision.  In that vein, President Obama, rather than Attorney General Holder, arguably should make the final decision regarding prosecution.

The novelist, Zadie Smith, has a beautiful piece in the New York Review of Books on the multiple voices of biracial individuals.  Indeed, once articulated we can discern multiple voices in everyone or at least those courageous enough to listen to their own multiple and diverse narratives. Here she describes a metaphorical place, Dream City, where multiple selves prevail, her own as well as President Barack Hussein Obama’s.

It is a place of many voices, where the unified singular self is an illusion. Naturally, Obama was born there. So was I. When your personal multiplicity is printed on your face, in an almost too obviously thematic manner, in your DNA, in your hair and in the neither this nor that beige of your skin—well, anyone can see you come from Dream City. In Dream City everything is doubled, everything is various. You have no choice but to cross borders and speak in tongues. That’s how you get from your mother to your father, from talking to one set of folks who think you’re not black enough to another who figure you insufficiently white. It’s the kind of town where the wise man says “I” cautiously, because “I” feels like too straight and singular a phoneme to represent the true multiplicity of his experience. Instead, citizens of Dream City prefer to use the collective pronoun “we.”

Dream City is liberating. It removes the enormous pressure of singularity and society’s penchant for unity in one’s personality and character. Smith presents the issue in the context of biracial individuals, but she is completely aware how this issue of multiplicity and singularity is a universal feature of civilization. For those interested in the philosophy of the self and the so-called “social construction  of the self” this article is a treat.

A constitutionally troubling concept seems to be gaining currency with those in the government and in the media.  It is that it takes 60 votes to pass a piece of legislation in the Senate.  Of course, the relevant parties understand that only 51 votes are required for the actual passage of legislation.  Indeed, many have noted that one of the vice president’s few delineated tasks is to break ties in the Senate.  Fifty votes plus the VP’s are sufficient to pass any legislation.  It is not that those who claim the 60-vote threshold do not know their Constitution.  It is that they are using verbal shorthand when they should be using verbal longhand.  Sixty votes are necessary to end debate and move to a vote in the Senate.  However, the decision to end debate and the substantive decision on the question at issue are very different.  As folks who have sat through meetings run by Robert’s Rules of Order realize, voting to call the question and end debate is quite different than voting for a motion, even though calling the question is necessary to get a vote.  Voting to end debate makes sense when all productive debate is finished.  Certainly, if the ability to end debate allows the majority to decline to listen to the minority, the use of a filibuster to stop legislation to make the majority listen is sensible.  Indeed, the filibuster has been used to allow a minority to stand on (often misguided) principle and stop a vote.  However, it is unclear that the filibuster has ever been used so promiscuously that people were willing to equate the ability to overcome a filibuster with the ability to pass legislation.  Under the rules of the Senate, a minority of sufficient size can use the filibuster to stop any piece of legislation with which it disagrees.  However, one would expect politics to extract a cost from that minority for doing so.

The dark side of bipartisanship arises when the majority does not extract a cost from the minority for its improper actions.  In this case, President Obama has declined to play politics with the issue of the Republican intransigence.  Certainly, he has mentioned that some in Congress have only been willing to stand in the way of the stimulus bill rather than provide their own solutions.  However, he has not called out the Senate Republicans in particular for being obstructionist.  The Senate Republicans did not filibuster the bill, but they threatened to do so sufficiently that the Democratic majority decided that it had to get 60 votes.  Indeed, the issue appears to be what bill will be sufficient to keep the 61 votes that the stimulus package has so far.  That is simply unacceptable.  Rather than capitulate to the notion that 60 votes are necessary to pass legislation in the Senate, the Democrats and President Obama might consider internalizing the notion that all that is necessary for Senate passage is 51 votes plus the will to drag the minority through the ringer until the public forces the minority to allow a vote.  Otherwise, the verbal shorthand will become practical longhand.