Tying One's Hands

Senator Roland Burris (D-Ill.) appeared on C-SPAN's "Washington Journal" on October 21. Though many of his Democratic colleagues seem determined not to acknowledge his existence, Burris announced unequivocally on the program that he will not vote for health care reform legislation in the Senate unless it contains a government-run insurance option, and he refused to rule out the possibility that he might join a filibuster to preclude a final vote if the bill doesn't contain the public option. Burris wisely left himself room for flexibility on the most important issue--that of parliamentary procedure--but effectively declared that his intention on October 21 only to vote "yea" on a bill containing the public option must govern his actions henceforth. In the event that a fundamental change of circumstances would seem to counsel prudence rather than dogmatism, if he is not to go back on his word, Burris must eschew future invitations to weigh the interests of his constituents and country against his own interest in appearing to maintain a semblance of public trustworthiness.

Far more alarming (and consequential) for liberals is Senator Lieberman's (I-VT.) disclosure on FOX yesterday that "if the public option plan is there, as a matter of conscience, I will not allow this bill to come to a final vote." Aside from the terrific presumptuousness and arrogance which must have motivated the statement--Lieberman assumes not only that he alone has the power to prevent the upper house of our national legislature from voting on the most critical domestic issue of our time, but that he should have that power!--he, too, has fettered his future actions to the contents of an unscripted remark he may or may not come to regret. Lieberman may now be inclined to support a filibuster of the "trigger" plan or a bill that allows individual states to opt out of a government-run insurance system, but his colleagues have demonstrated surprising levels of creativity in their desperation to get something passed, so it's certainly not unthinkable that Lieberman may come to realize the unwisdom of having rigidly cast his lot with a position that might properly be viewed in an entirely different light as conditions change and arguments evolve.

But the award for imprudently premature obstinacy clearly goes to the 41 pro-choice House Democrats who signed a letter addressed to Speaker Pelosi vowing to oppose any final health care bill that contains any functional manifestation of the Stupak (anti-abortion) amendment. As reported on Greg Sargent's blog, those 41 Democrats affirmed without qualification that "[w]e will not vote for a conference report that contains language that restricts women's right to choose any further than current law." Because several signatories voted "aye" in Saturday night's historic, Stupak-laden 220-215 vote, unless the amendment is stripped from the final bill, or unless a sufficient number of these legislators renege on their promises, comprehensive health care reform in America will fail. By publicly avowing their unwillingness to compromise on an issue so trivial in comparison to the totality of what health care reform represents and what it would mean for millions of Americans, these 41 Democrats have allowed the perfect to become the enemy of the good, and they have jeopardized the likelihood of an outcome they would otherwise deem indispensable to the health (no pun intended) of our republic.

Affluence and Political Power

Nearly one week ago, New York City Mayor Michael Bloomberg defeated his Democratic opponent, Bill Thompson, thereby earning a third term as mayor (Bloomberg spent much of October, 2008 campaigning for an amendment to New York City's term limits law in order to allow himself to run one last time). Bloomberg won reelection in 2005 by a 20-percent margin, and polling in the weeks and days leading up to the election seemed to indicate that he would cruise to victory in a similar fashion.

Yet Bloomberg won only a slim majority of all votes cast, garnering 51% to Thompson's 46%. Such a close outcome would ordinarily suggest near parity in name recognition and campaign resources, yet, as the New York Times has reported, "[t]he billionaire mayor had poured $90 million of his own fortune into the race, a sum without equal in the history of municipal politics that gave him a 14-to-1 advantage in campaign spending." In the campaign's final months, Hizzoner spent $15,000 an hour on the bid to retain his office. The $90 million of his personal fortune spent over the course of the campaign on advertising and promotion, divided by the number of votes he received on Election Day (556,946), amounts to a cool $161.59 per vote. While his opponent struggled to raise money, Bloomberg blanketed the airwaves and phone lines; exit polls revealed that many voters received as many as six automated telephone calls from the mayor's campaign.

The fact that approximately one million New York City voters participated on November 3rd in a population of over eight million likely suggests that voter turnout was depressed in proportion to popular disaffection with the perceived monetization of the city's electoral politics. On their face, these diminishing returns seem to undermine the argument that the Bloomberg-Thompson contest demonstrates an immediate need to extend campaign finance reform to certain municipalities or at least strengthen existing regulations to cap permissible expenditures of a candidate's personal wealth--after all, Bloomberg's spending spree likely backfired, so won't wealthy political aspirants heed the lessons of the mayor's unexpectedly small margin of victory? But the circumstances of this particular race will not so neatly apply to future mayoral contests elsewhere. If allowed to dip illimitably into their personal coffers, prosperous unknowns may effectively purchase elections when minimal name recognition forestalls most adverse consequences of Bloombergian profligacy. In any case, the mayor's domineering tactics were a not-so-subtle insult to democracy, and if statutes can be amended to accommodate his indispensable uniqueness, surely the mayor's example has served to illustrate the need for limitations on the use of personal wealth in municipal political campaigns.

The Scope of Politicians' Personal Privacy

Levi Johnston emerged onto the national scene in September of 2008 as he accompanied his then-future in-laws onto a stage in Minneapolis at the Republican National Convention. While I find it absurd that certain individuals have effectively come to wield a great deal of political power not on their own merits but by their associations or good fortune (see Wurzelbacher, Samuel), I accept that reality as inevitable in the age of tabloids and talk shows. I wholeheartedly disapprove, however, of Johnston's utter lack of discretion in intermittently disclosing to magazines and talk show hosts of his own choosing an abundance of sensitive information relating to the private life and domestic behavior of the popular Republic politician, Sarah Palin.

Johnston spent extended periods of time at the Palin household in Wasilla, Alaska during his courtship of Bristol Palin. Throughout this time Sarah Palin served as Governor of Alaska and, if we are to believe Johnston, in the privacy of her own home comported herself rather selfishly and with little regard for the potential consequences of her words and actions (were they ever to be revealed). Among other revelations, Johnston has divulged that Governor Palin allowed her daughter to sleep in the same room as Johnston, insisted on concealing Bristol's pregnancy and adopting her child, openly fought with her husband Todd and spoke seriously about divorce in the presence of their children, rarely slept with her husband, expressed a desire to resign and undertake more lucrative pursuits, and referred to her youngest son Trig as her "retarded baby."

I would never have voted for Governor Palin even if Johnston had chosen to remain silent about what he witnessed, but his disclosures raise serious questions about the extent to which basic human trust and propriety should govern the manner in which two individuals speak of one another when all bonds of affection have dissolved, especially when serious breaches of faith might ruin a person's reputation or career. The Palin-Johnston feud also adds complexity to the ongoing debate about whether politicians should be held accountable for discrepancies, regardless of the manner in which such information is obtained, between their public positions and their private actions.

By her own admission, Governor Palin's time in office was particularly stressful. She clearly regarded her home as her sanctum and went about her non-working hours as if her domestic choices and conversations would have no long-term political implications. While my baser instincts imbue me with a sense of lurid fascination at Palin's apparent hypocrisy, none of us are entitled to sensitive information as to the state of the Palins' marriage beyond details of their own admission. Liberals might consider whether the President of the United States should any more have to adopt certain behavioral and emotional affectations in his own home to ensure that Sasha and Malia's friends don't overhear any accidental utterances than should Governor Palin in her own domicile.

While the pursuit of personal satisfaction likely motivated Johnston's candor tour, I would wager that a majority of Palin's political opponents disagree with my position and are instead delighted that apparent inconsistencies between Palin's outward convictions and private conduct have been exposed despite Johnston's questionable revelatory methods. While I don't doubt that some of Johnston's accusations, if true, may seriously undermine the moral force of some of Palin's past and future political assertions, I counsel those who would prefer knowledge of Palin's private mistakes to the subsistence of her domestic privacy to imagine what it must feel like to have intelligence of their most embarrassing household improprieties communicated publicly through a perfidious informant.

Cameras in the Supreme Court

Senator Arlen Specter (D-Pa.) opined on the floor of the Senate yesterday that the Supreme Court justices, whose qualified collective opposition to the notion of allowing live broadcasts of the high Court's oral arguments has supposedly precluded the practice from taking hold, have consistently undermined their own rationale for such a lack of transparency. After all, Chief Justice Roberts and Justice Stevens have appeared on ABC's "Primetime," Justice Ginsburg on "CBS News," Justice Breyer on "Fox News Sunday," and Justices Thomas and Scalia on "60 Minutes"; all nine members of the Roberts Court recently participated in lengthy interviews for C-SPAN's Supreme Court Week. "We cannot accept the justices' plea for anonymity," Senator Specter concluded, "when they so regularly appear before the camera."

If such is Specter's argument, I cannot accept his intellectual honesty. Having presided over the nomination hearings of two prospective Supreme Court justices as chair of the Senate Judiciary Committee, the Senator knows perfectly well that the justices' conservatism on the issue does not stem from an inexplicable desire to roam the streets undetected. They are concerned that the practice of allowing cameras in the Supreme Court at the oral argument stage might change their interpersonal dynamics by providing a cause to suspect one another's motives, highlight a process largely unrepresentative of how the Court decides cases, and accelerate the politicization of its day-to-day business.

There is certainly a strong case to be made for the introduction of cameras into the Supreme Court. Justice Souter, the proposal's most steadfast opponent--he famously declared in front of a House Appropriations subcommittee that "the day you see a camera come into our courtroom, it's going to roll over my dead body"--has now retired from the Court, and his successor seems not to have minded the fact that many oral arguments were televised on her 2nd Circuit Court of Appeals. The new Supreme Court of the United Kingdom was conceived so as to approximate the American separation-of-powers model, yet it has permitted cameras from the outset. Ours is the most vibrant democracy on Earth, and voters have every right to be informed of the proceedings at the highest levels of government in order to make wise decisions at the polls. Televising the Court's oral arguments would serve a tremendously educative function, enlightening citizens as to the art of American jurisprudence in general and the professional craft and intellectual demands of judging on our highest appellate court in particular. No one seriously contends that every waking minute of our elected officials' lives should be televised for their constituents, but C-SPAN provides gavel-to-gavel coverage of the House, Senate, and various committee sessions. Similarly, though it is surely in our national interest to preserve the confidentiality of most deliberations in the Situation Room, the president understands that most actions performed and words spoken in his public capacity are fair game for YouTube and the evening news.

But there are also several compelling arguments against allowing cameras into the Court, and it is these that proponents of the change must address. Justice Kennedy said on February 14, 2007 before Senator Specter's Judiciary Committee that the Court's present collegiality "is a dynamic that works. Please don't introduce into the dynamic that I have with my colleagues the insidious temptation to think that one of my colleagues is trying to get a soundbite for the television." Justice Kennedy's remarks also raise a separation-of-powers issue: Congress, of course, was the driving force in the decision to televise its proceedings; it would hardly have complied with an executive order or judicial dictum to the effect that Congress must broadcast its happenings before a sufficient quantum of legislators consented to such an outcome. Why, then, should another branch of government presume to decide conclusively matters within the institutional province of another and about which the justices themselves are most intimately knowledgable?

Another consideration is that television of the oral argument process would allow viewers insight into the least insightful phase of the process by which the Supreme Court ultimately renders its decision on a case. Far more important are written briefs, the justices' private Conference meetings, one-on-one conversations, communication between law clerks, and the actual opinion-drafting process. Given scholarly studies that the Supreme Court rarely shows blatant disregard for prevailing public opinion as to the proper outcome of a case, lawyers arguing before a high Court with cameras might succumb to the temptation to politicize the legal minutiae in question and facilitate the exertion of external, extralegal pressure on jurists whose life terms were provided largely to insulate them from public opinion. Furthermore, written transcripts and audio files of the Court's oral arguments are released online only days (and, in some cases, hours) after the arguments have taken place. Citizens who would like to acquire a level of familiarity with the Supreme Court's public business may do so already; subjecting oral arguments to the ideological filter of cable news would likely effect, at the very least, a moderate lessening of the Court's prestige, and that prestige is the Court's only weapon in ensuring that its decisions are ultimately respected and complied with. Lastly, the Supreme Court is the most visible symbol of the American judicial process, and it would become even more so were cameras to be introduced; arguments against installing cameras in every federal and trial court in the land might then become insurmountable. But there is an obvious interest in shielding witnesses and jurors from the scrutiny and ostracism of a hostile community.

This debate is healthy and unlikely to end anytime soon, yet regardless of the outcome, I hope it is resolved after a rigorous evaluation of the merits of each position and not the disingenuous fabrication and obliteration of straw men.