Sunday, 21 December 2003

Anger and the Democrats

Steven Taylor’s latest PoliColumn in the Birmingham News attempts to explain the undercurrent of anger in the Democratic Party. In particular, he notes one factor that many have overlooked: the impotence associated with losing control after decades of dominance, particularly in Congress.

The fourth reason for Democrats’ anger, and perhaps the most abstract—but in many ways the most significant—is their deep abiding frustration that the Democratic Party as a whole is experiencing in its role as the minority. Since the 1994 midterm election, the Democratic Party has not controlled the House of Representatives, and only briefly controlled the Senate (and then only because of the defection from the Republican Party of Jim Jeffords of Vermont).

For a party that convincingly, and often by dramatic margins, controlled the House for four decades, and indeed for 29 of 36 Congresses since the New Deal era (1933) and the Senate for all but eight years of that same period, this lack of control is a devastating fact to which I would argue they have not yet adjusted.

To reiterate: Prior to 1994, the last time the Democrats lost control of the whole Congress was in 1953, and that loss of power lasted a mere two years. Given that many members of Congress were in Congress during the era of Democratic domination, it is hard to forget those halcyon days of power.

Of course, anger has been a driving force in American politics since, well, the Mayflower landed, occasional “eras of good feeling” notwithstanding. To the extent there’s more anger in the political ether these days, it probably reflects the relative parity of the parties more than any clear change in tone.

One other point Steven raises in passing is that Democrats “considered [Bush] something of a dim bulb.” This point should not be minimized. Few things are more frustrating than being outsmarted by someone you regard as mentally inferior—and when it’s been happening for three years on a near-daily basis, it’s got to chafe mightily.* Yet there is no sign that Democrats have given up on the “dim bulb” theory—which must make every defeat seem even more frustrating.

Oopsie at Time

Nothing like scooping yourself. D’oh!

The Commissar visits Middle-Earth

The Commissar has a masterful political analysis of The Return of the King. Laugh-out-loud line:

Did enjoy Robert Fisk’s review, “After movie let out, I fell in with a bunch of Orcs, and they beat me up. And I don’t blame them; I would have beaten myself up, too.”


George Carlin wouldn't approve

The Rove-berry™

Matt Stinson identifies the source of Howard Dean’s foot-in-mouth syndrome.

Principals, Agents, and Gitmo

Will Baude is less impressed than usual with my thoughts on the relative value of legalistic and attitudinal approaches to the law and, by extension, on the whole Guantanamo Bay thing.

First, to clarify, I was making an empirical rather than a normative argument. The nature of the Supreme Court is mixed—when there is a clear, controlling precedent that was ignored by a lower court, the behavior of the Court is usually to reverse and remand the decision without scheduling an oral argument (sometimes known as the “Ninth Circuit Smackdown” manoeuver), and when the lower-court decision was legally correct and consistent with precedent, the Court doesn’t grant certiorari. However, when the Court does grant cert—admittedly something it only does in a small minority of cases—the decisions are much more likely to be based on attitudinal considerations, or what normal people call “politics.” That’s the nature of the beast: work hard enough, and you can find a precedent for anything, or find a reason why Case X is distinct from the precedent that decided Case Y. If we’re going to analyze the Court’s decision-making, it should be viewed through this prism. This is one area—and perhaps the only area—where I think a number of political scientists understand more about the judiciary than lawyers do.

One normative issue, then, is how judges on lower courts should behave. The U.S. judiciary is designed as a principal-agent system: there’s a Supreme Court, and inferior courts. The Supremes decide what The Law is, the inferior courts implement The Law, and the Supremes make sure The Law is implemented correctly. Due to workload, however, the Supremes don’t function as a pure principal—some decisions escape their notice, and sometimes the system is gamed to ensure they don’t actually function as the principal (for example, see Piscataway v. Taxman, where a case was deliberately removed from the system to avoid intervention by the principal). Because of this, politicians want to fill the lower courts with mini-Scalias and Reinhardts, rather than wishy-washy O‘Connors,which politicizes the lower courts to no end. Is this a good thing? Probably not. As much as is possible, the law ought to be based on regular, institutionalized procedures—based on laws passed by the legislature, common law, and precedent. However, at the pinnacle of the system, I’m not sure it can be.

However, the larger normative question in this particular case is whether or not Reinhardt (more properly, the 9th Circuit) is right to intervene. On balance, I’d have to say intervention is right. The cost to the administration to justify its action before the judiciary is minimal compared to the potential cost to human liberty if the judiciary defers to executive judgment. At some level, it’s the Carolene question: nobody to the political right of Dennis Kuchinich is going to stick up for the people at Gitmo. At another level, it’s a question of separation of powers—the executive is essentially asserting the right to do whatever it wants without effective oversight from either Congress or the judiciary, including inventing its own secret judicial system out of whole cloth. Surely this ought to be troublesome, particularly to lawyers like Glenn Reynolds and Eugene Volokh, but their collective response seems to be “eh, it’s just Reinhardt” and micro-analysis of how, since we did the same thing with Germans in 1944, or because the sovereign status of Gitmo is subject to some obscure treaty provision, this is all just peachy.

Now, at some level I could care less about the people at Gitmo. I realize to some extent the foreign bleating about them would just be bleating about some other topic if we’d given them an all-expenses paid vacation at Club Med. As a diplomatic matter, I realize that we’re probably carrying water for the Australians and Brits with their detainees (god knows Tony Blair doesn’t want the headache of dealing with the British collaborators with the Taliban). The rest of the detainees are probably much better off at Gitmo than they would be in the hands of the Afghan, Saudi or Pakistani authorities—which is probably what I’d have done with them. That still doesn’t mean that I have to like it—or approve of the administration’s handling of the issue.