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Hillary Clinton has told the Pittsburgh Tribune-Review that she would have left her church if her pastor had made divisive comments like those of Barack Obama's minister, the Rev. Jeremiah Wright. "He would not have been my pastor," sniffed La Clinton. "You don't choose your family, but you choose what church you want to attend."
The obvious reply is that you also choose which ministers receive the honor of an invitation to a White House prayer breakfast addressed by the president of the United States. Well, OK, maybe you don't, but the Clintons did, back in 1998, when Bill Clinton was seeking political absolution for his affair with a White House intern. As the Obama campaign is all too happy to point out, Wright was invited to that breakfast.
But I hope this riposte doesn't obscure a larger question. What the hell is Clinton doing meeting with reporters and editors of the Pittsburgh Tribune-Review? The Tribune-Review is a money-losing fringe publication published by Richard Mellon Scaife, a bilious and wealthy crank who spent the 1990s manufacturing vile innuendo about the Clintons. If the "vast, right-wing conspiracy" on which first lady Hillary Clinton famously blamed her troubles can be said to exist, its chairman and chief executive officer was Scaife. Scaife gave the American Spectator $2.3 million to dig up dirt on Bill Clinton, and he used the Tribune-Review to spread, among other things, the reprehensible allegation that Hillary Clinton killed Vince Foster, a clinically depressed deputy White House counsel who committed suicide in 1993. Scaife was quoted more than once calling Foster's death "the Rosetta stone to the Clinton administration," adding in an interview with George magazine, "Once you solve that one mystery, you'll know everything that's going on or went on—I think there's been a massive coverup. … Listen, [Bill Clinton] can order people done away with at his will. He's got the entire federal government behind him. … God, there must be 60 people who have died mysteriously."
"Hate speech [is] unacceptable in any setting," Hillary Clinton today told the Tribune-Review. We turn now to this excerpt from a 1981 Columbia Journalism Review profile of Scaife by Karen Rothmyer, in which the reporter describes a conversation with the distinguished publisher and philanthropist:
"Mr. Scaife, could you explain why you give so much money to the New Right?"
"You fucking Communist cunt, get out of here."
Well. The rest of the five-minute interview was conducted at a rapid trot down Park Street, during which Scaife tried to hail a taxi. Scaife volunteered two statements of opinion regarding his questioner's personal appearance—he said she was ugly and that her teeth were "terrible"—and also the comment that she was engaged in "hatchet journalism." His questioner thanked Scaife for his time. "Don't look behind you," Scaife offered by way of a goodbye.
Not quite sure what this remark meant, the reporter suggested that if someone were approaching it was probably her mother, whom she had arranged to meet nearby. "She's ugly, too," Scaife said, and strode off.
For whatever reason, Scaife decided last summer to extend the hand of friendship to Bill Clinton, whose post-presidency he professes to admire. Perhaps Scaife was looking to burnish his image with the judge then presiding over his extremely nasty divorce. Maybe he wanted to get even with the former Mrs. Scaife, who apparently prefers Obama. (She gave Obama's campaign $2,300 in February.) Bill Clinton overcame whatever scruples he might harbor to raise money for his foundation. Hillary Clinton is now doing the same in the interest of her candidacy. She is free, of course, to associate with whomever she pleases. But she is not free, while paddling the sewers with Scaife, to judge Obama publicly for belonging to Wright's church. Compared with Scaife, Wright is St. Francis of Assisi. The only possible reason why any Pennsylvanian might judge Wright more harshly than Scaife is that Scaife is white and Wright is black. That must be obvious even to Hillary as she cozies up to this repulsive billionaire.
Timothy Noah is a senior writer at Slate.
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Bloggers are taking Hillary Clinton to task over her meeting with Richard Mellon Scaife and debating John McCain's speech on Iraq.
What vast right-wing conspiracy? On the heels of having to apologize for overstating the danger she faced on a vist to Bosnia, Democratic candidate Hillary Clinton is fighting off another scandal: She has met with arch-conservative Richard Mellon Scaife—who gave $2.3 million to a conservative magazine to dig up dirt on Bill Clinton in the 1990s—and gave an interview to his paper, the Pittsburgh Tribune-Review. Bloggers quickly jumped on the hypocrisy in Clinton's latest move.
Byron York at the National Review's Corner has the photographic evidence: "We've heard reports of a rapprochement between Scaife and the Clintons of late, and the Pennsylvania primary is fast approaching, but this is still a pretty striking picture." Talking Points Memo's Josh Marshall points out the irony of such a meeting: "This alone has to amount to some sort cosmic encounter like something out of a Wagner opera. Remember, this is the guy who spent millions of dollars puffing up wingnut fantasies about Hillary's having Vince Foster whacked and lots of other curdled and ugly nonsense. Scaife was the nerve center of the Vast Right Wing Conspiracy."
Michael J. Stickings at the Reaction believes it shows that Clinton is willing to sink to any level to win the nomination: "I understand that she needs to win Pennsylvania, and I understand that things are looking bleak, but sitting down with Scaife and engaging in a mutual assault on Obama—she was using him, he was using her, all for the common purpose of tearing down Obama—was simply disgusting." Liberal John Aravosis at AMERICAblog reiterates just how low the Clintons have stooped: "You've heard of Paula Jones, Vince Foster's 'murder' (as the far-right calls it), Troopergate, and Whitewater? Mellon Scaife is responsible for it all. And now Hillary is getting all cozy with him over an editorial board meeting at his wacky far-right paper (but it's okay to fire whats-his-name at MSNBC, he was mean to Chelsea). Anything to destroy Obama."
Blogger David Corn agrees: "Clinton might be willing to put aside her grudge against the American Spectator and Scaife because doing so helps her politically. But in the 1990s this band of Clinton-haters were out to ruin not merely her and her hubby but the entire progressive agenda. (They always believed the Clintons to be far more left than Bill and Hillary actually were.) But now, for Hillary Clinton, they're good enough to use against Obama."
At Unfogged, the significance of the meeting is that it represents a collaboration between two entrenched political elites: "It confirms the impression that for a lot of the 'elite' class in Washington, they're playing what is to them merely a game of power and status, the real costs of which are borne by the people they're playing it 'for,' the audience, which is us."
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The Long Defeat
By DAVID BROOKS
Hillary Clinton may not realize it yet, but she’s just endured one of the worst weeks of her campaign.
First, Barack Obama weathered the Rev. Jeremiah Wright affair without serious damage to his nomination prospects. Obama still holds a tiny lead among Democrats nationally in the Gallup tracking poll, just as he did before this whole affair blew up.
Second, Obama’s lawyers successfully prevented re-votes in Florida and Michigan. That means it would be virtually impossible for Clinton to take a lead in either elected delegates or total primary votes.
Third, as Noam Scheiber of The New Republic has reported, most superdelegates have accepted Nancy Pelosi’s judgment that the winner of the elected delegates should get the nomination. Instead of lining up behind Clinton, they’re drifting away. Her lead among them has shrunk by about 60 in the past month, according to Avi Zenilman of Politico.com.
In short, Hillary Clinton’s presidential prospects continue to dim. The door is closing. Night is coming. The end, however, is not near.
Last week, an important Clinton adviser told Jim VandeHei and Mike Allen (also of Politico) that Clinton had no more than a 10 percent chance of getting the nomination. Now, she’s probably down to a 5 percent chance.
Five percent.
Let’s take a look at what she’s going to put her party through for the sake of that 5 percent chance: The Democratic Party is probably going to have to endure another three months of daily sniping. For another three months, we’ll have the Carvilles likening the Obamaites to Judas and former generals accusing Clintonites of McCarthyism. For three months, we’ll have the daily round of résumé padding and sulfurous conference calls. We’ll have campaign aides blurting “blue dress” and only-because-he’s-black references as they let slip their private contempt.
For three more months (maybe more!) the campaign will proceed along in its Verdun-like pattern. There will be a steady rifle fire of character assassination from the underlings, interrupted by the occasional firestorm of artillery when the contest touches upon race, gender or patriotism. The policy debates between the two have been long exhausted, so the only way to get the public really engaged is by poking some raw national wound.
For the sake of that 5 percent, this will be the sourest spring. About a fifth of Clinton and Obama supporters now say they wouldn’t vote for the other candidate in the general election. Meanwhile, on the other side, voters get an unobstructed view of the Republican nominee. John McCain’s approval ratings have soared 11 points. He is now viewed positively by 67 percent of Americans. A month ago, McCain was losing to Obama among independents by double digits in a general election matchup. Now McCain has a lead among this group.
For three more months, Clinton is likely to hurt Obama even more against McCain, without hurting him against herself. And all this is happening so she can preserve that 5 percent chance.
When you step back and think about it, she is amazing. She possesses the audacity of hopelessness.
Why does she go on like this? Does Clinton privately believe that Obama is so incompetent that only she can deliver the policies they both support? Is she simply selfish, and willing to put her party through agony for the sake of her slender chance? Are leading Democrats so narcissistic that they would create bitter stagnation even if they were granted one-party rule?
The better answer is that Clinton’s long rear-guard action is the logical extension of her relentlessly political life.
For nearly 20 years, she has been encased in the apparatus of political celebrity. Look at her schedule as first lady and ever since. Think of the thousands of staged events, the tens of thousands of times she has pretended to be delighted to see someone she doesn’t know, the hundreds of thousands times she has recited empty clichés and exhortatory banalities, the millions of photos she has posed for in which she is supposed to appear empathetic or tough, the billions of politically opportune half-truths that have bounced around her head.
No wonder the Clinton campaign feels impersonal. It’s like a machine for the production of politics. It plows ahead from event to event following its own iron logic. The only question is whether Clinton herself can step outside the apparatus long enough to turn it off and withdraw voluntarily or whether she will force the rest of her party to intervene and jam the gears.
If she does the former, she would surprise everybody with a display of self-sacrifice. Her campaign would cruise along at a lower register until North Carolina, then use that as an occasion to withdraw. If she does not, she would soldier on doggedly, taking down as many allies as necessary.
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Hillary or Nobody?
By MAUREEN DOWD
WASHINGTON
While the cool cat’s away, the Hillary mice will play.
As Barack Obama was floating in the pool with his daughters the last few days in St. Thomas, some Clinton disciples were floating the idea of St. Hillary as his vice president.
She can’t win without him, said one Hillary adviser, and he can’t win without her.
They’re stuck with each other.
It’s one of my favorite movie formulas, driving the dynamics in such classics as “A Few Good Men,” “The Big Easy” and “Guys and Dolls”: Charming, glib guy spars and quarrels with no-nonsense, driven girl, until they team up in the last reel. He spices up her life, and she stiffens his spine. And soon they hear the pitter-patter of little superdelegate feet, who are thrilled not to be pulled in two directions anymore.
And everybody’s happy. Or are they?
A couple of weeks ago, when Hill and Bill mentioned the possibility of a joint ticket, it was an attempt to undermine Obama and urge voters and superdelegates to put Hillary on top; the implication was that this was the only way Democrats could have both their stars, and besides, it was her turn. The precocious boy wonder had plenty of time.
But with the math not in her favor, her options running out, Bill Richardson running out and her filigreed narrative of dodging bullets in Bosnia and securing peace in Northern Ireland unraveling, could Hillary actually think the vice presidency is the best she’ll do?
One Hillary pal said she wouldn’t want to go back to a Senate full of lawmakers who’d abandoned her for Obama. And even if she could get to be majority leader, would it be much fun working with Nancy Pelosi, whose distaste for the Clintons has led her to subtly maneuver for Obama?
Maybe The Terminator is thinking: if she could just get her pump in the door. Dick Cheney, after all, was able to run the White House and the world from the vice president’s residence, calling every shot while serving under a less experienced and younger president. And Observatory Circle is just up the street from where Hillary now lives.
But, aside from Barack and Michelle Obama’s certain resistance, would it fly? Many Hillary voters are hardening against Obama, and more and more Obama fans are getting turned off by the idea of dragging down the Obama brand with Clinton dysfunction.
“No drama, vote Obama” placards and T-shirts are popping up at Obama rallies, and one of his military advisers dubbed him “No Shock Barack.”
It’s hard to imagine that after spending her whole life playing second-fiddle to a superstar pol, Hillary wants to do it again. She’s been vice president.
Could the veep talk be a red herring? A ploy designed to distract attention from the Clintons’ real endgame?
Even some Clinton loyalists are wondering aloud if the win-at-all-costs strategy of Hillary and Bill — which continued Tuesday when Hillary tried to drag Rev. Wright back into the spotlight — is designed to rough up Obama so badly and leave the party so riven that Obama will lose in November to John McCain.
If McCain only served one term, Hillary would have one last shot. On Election Day in 2012, she’d be 65.
Why else would Hillary suggest that McCain would be a better commander in chief than Obama, and why else would Bill imply that Obama was less patriotic — and attended by more static — than McCain?
Why else would Phil Singer, a Hillary spokesman, say in a conference call with reporters on Tuesday that Obama was trying to disenfranchise the voters of Florida and Michigan. “When it comes to voting, Senator Obama has turned the audacity of hope into the audacity of nope,” he said, adding, “There’s a basic reality here, which is we could have avoided the entire George W. Bush presidency if we had counted votes in Florida.” So is Singer making the case that Obama is as anti-democratic as W. was when he snatched Florida from Al Gore?
Some top Democrats are increasingly worried that the Clintons’ divide-and-conquer strategy is nihilistic: Hillary or no democrat.
(Or, as one Democrat described it to ABC’s Jake Tapper: Hillary is going for “the Tonya Harding option” — if she can’t get the gold, kneecap her rival.)
After all, the Clintons think of themselves as The Democratic Party. When Bill and Dick Morris triangulated during the first term, it was what was best for Bill, not the party. In 1996, when Bill turned the White House into Motel 1600 for fund-raisers, it was more about his re-election than the re-elections of his fellow Democrats in Congress; in 2000, the White House focused its energies more on Hillary’s Senate win than Al Gore’s presidential run.
And even Clinton supporters know that Bill does not want to be replaced as the first black president, especially by a black president with enough magic to possibly eclipse him in the history books.
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Imagined Snipers, Real Challenges
Roger Cohen
Here’s some news for Hillary Clinton: the Bosnian war was over in 1996.
Those of us, like myself, who first went to Bosnia at the start of the war in 1992 and then, in 1994 and 1995, endured President Bill Clinton’s circumlocutions as we sat in an encircled Sarajevo watching pregnant women getting blown away by shelling from Serbian gunners, know that.
We know that as President Clinton mumbled about “enmities that go back 500 years, some would say almost a thousand years,” Bosnia burned. We know what that talk of intractable grievances dating back to 995 was meant to communicate: no western intervention could achieve anything in the Balkan pit.
Only after the mass murder of Bosnian Muslims at Srebrenica, three years after the initial Serbian genocide of 1992 against that population (and one year after a genocide on his watch in Rwanda), did the gelatinous Clinton develop some backbone. NATO bombed, Richard Holbrooke did his brilliant work at Dayton in November 1995, and the guns fell silent in Bosnia.
So, yes, the war was well and truly over when Hillary Clinton arrived in the northeastern Bosnian town of Tuzla on March 25, 1996. It was over, although she recently recalled “landing under sniper fire.” It was over when “we just ran with our heads down to get into the vehicles to get to our base.”
Oh, please. Researching a book, I also visited that base in 1996 to talk to Maj. Gen. William Nash, then the commander of U.S. troops in Bosnia. If you’d lived the war, the base was a small miracle of American order and security.
Hillary Clinton’s transference is intriguing: Suffering Sarajevans ran from snipers during the war her husband let fester. Invented danger, supposed to showcase bravery, may instead betray guilt.
But I’m not going to psychoanalyze the Clintons. I don’t have the space to plumb such unquenchable ambition. Few do. Anyway, she now says she “misspoke” about Tuzla. End of story, you might say. But I’d say it’s the beginning of another, more important one.
Clinton made up Bosnian sniper fire in an attempt to show that she’s tougher than Barack Obama; that she’s a hardened, seasoned, putative commander in chief ready to respond to crisis when the “red phone” of her fear-mongering ad rings.
John McCain’s own recent “misspeaking” about Iran, placing (Sunni) Al Qaeda in (Shiite) Iran, also smacked of muscle-flexing: he wanted to signal toughness to the mullahs in Tehran, where Obama has suggested he’d seek dialogue.
But what the United States, and those that look to it, need now is not more braggadocio from the White House. We’ve had a seven-year dose. That’s enough.
What’s needed, rather, is some new, creative thinking about a changed world in which authoritarianism is enjoying a renaissance and America and its allies need to work together to spread peace, prosperity, freedom, equity, security and, yes, democracy.
American hard power has not worked. The Iraq invasion was bungled. European soft power is insufficient.
As Constanze Stelzenmuller of the German Marshall Fund notes in an important recent essay called “Transatlantic Power Failures,” a “European Union with 27 member states and a total of 1.8 million men and women under arms” is incapable of pacifying little Kosovo (“one-quarter the size of Switzerland”) on its own.
The transatlantic bond of cold war years is gone forever. The alliance is going to be looser, more pragmatic. But it has to find “the right mix of idealism and realism,” and new cohesion, if one-pipeline Russia and one-party, Tibet-tormenting China are not to prosper with authoritarianism-for-export.
Foreign policy debate in this election campaign has been paltry. I’d like to hear something about GWOT – the “Global War on Terror” – the heart of U.S. national security strategy. It amounts to war without end because “terror” is a tactic and tactics don’t surrender. GWOT should be abandoned: it’s externally divisive and internally treacherous. Al Qaeda can be beaten sans GWOT.
I’d like some discussion of what NATO might do to help spread the Iraqi burden and ease a gradual extrication of most U.S. troops from Iraq.
On issues that cross borders – terrorism, financial market volatility, global warming – and on Iran, Israel-Palestine, Afghanistan, Pakistan and Iraq – three things are essential: a new moral authority in the White House, the capacity for original strategic thought, and a 21st-century understanding of the border-jumping networks that have knit humanity into new relationships.
Obama, in his speech on race, did important things. He confronted reality, thought big, probed division, sketched convergence. He took Americans and many people beyond U.S. shores to a different mental place. Imagine that capacity applied to GWOT, Iran, Russia, China and Israel-Palestine.
If you don’t like the sound of that, there’s always seasoned swagger of the sort that runs from imaginary snipers.
Wednesday, March 26
Thursday, March 20
Beyond America’s Original Sin
By ROGER COHEN
There are things you come to believe and things you carry in your blood. In my case, having spent part of my childhood in apartheid South Africa, I bear my measure of shame.
As a child, experience is wordless but no less powerful for that. How vast, how shimmering, was Muizenberg beach, near Cape Town, with all that glistening white skin spread across the golden sand!
The scrawny blacks were elsewhere, swimming off the rocks in a filthy harbor, and I watched from my grandfather’s house and I wondered.
Once, a black nanny took me out across the road to a parapet above a rail track beside that harbor. “You wouldn’t want me to drop you,” she said.
The fear I felt lingered. I returned recently to measure how far I would have fallen. In memory, the abyss plunged 100 feet. Reality revealed a drop of 10. That discrepancy measures a child’s panic.
A “For Sale” sign was up on what had been the family house. I inquired if I might visit and received a surly rebuff. But not before I glimpsed the mountain behind where my father hiked and where I feared the snakes among the thorn bushes.
Fear, shadowy as the sharks beyond the nets at Muizenberg, was never quite absent from our sunlit African sojourns. My own was formed of disorientation: I was not quite of the system because my parents had emigrated from Johannesburg to London. So, on return visits, I wandered into blacks-only public toilet or sat on a blacks-only bench.
Blacks only — and I was white. Apartheid entered my consciousness as a kind of self-humiliation. The black women who bathed me as an infant touched my skin, but their world was untouchable.
Only later did a cruel system come into focus. I see white men, gin and tonics on their breath, red meat on their plates, beneath the jacarandas of Johannesburg, sneering at the impossibility of desiring a black woman.
A racial divide, once lived, dwells in the deepest parts of the psyche. This is what was captured by Barack Obama’s pitch-perfect speech on race. Slavery was indeed America’s “original sin.” Of course, “the brutal legacy of slavery and Jim Crow” lives on in forms of African-American humiliation and anger that smolder in ways incommunicable to whites.
Segregation placed American blacks in the U.S. equivalent of that filthy African harbor.
It takes bravery, and perhaps an unusual black-white vantage point, to navigate these places where hurt is profound, incomprehension the rule, just as it takes courage to say, as Obama did, that black “anger is real; it is powerful; and to simply wish it away, to condemn it without understanding its roots, only serves to widen the chasm of misunderstanding that exists between the races.”
Progress, since the Civil Rights Movement, or since apartheid, has assuaged the wounds of race but not closed them. To carry my part of shame is also to carry a clue to the vortexes of rancor for which Obama has uncovered words.
I understand the rage of his former pastor, the Rev. Jeremiah Wright, however abhorrent its expression at times. I admire Obama for saying: “I can no more disown him than I can disown the black community.”
Honesty feels heady right now. For seven years, we have lived with the arid, us-against-them formulas of Bush’s menial mind, with the result that the nuanced exploration of America’s hardest subject is almost giddying. Can it be that a human being, like Wright, or like Obama’s grandmother, is actually inhabited by ambiguities? Can an inquiring mind actually explore the half-shades of truth?
Yes. It. Can.
The unimaginable South African transition that Nelson Mandela made possible is a reminder that leadership matters. Words matter. The clamoring now in the United States for a presidency that uplifts rather than demeans is a reflection of the intellectual desert of the Bush years.
Hillary Clinton said in January that: “You campaign in poetry, but you govern in prose.” Wrong. America’s had its fill of the prosaic.
The unthinkable can come to pass. When I was a teenager, my relatives advised me to enjoy the swimming pools of Johannesburg because “next year they will be red with blood.”
But the inevitable bloodbath never came. Mandela walked out of prison and sought reconciliation, not revenge. Later Mandela would say: “It always seems impossible until it’s done.”
Like countless others, I came to America because possibility is broader here than in Europe’s narrower confines. Perhaps it’s my African “original sin,” but when Obama says he “will never forget that in no other country on earth is my story even possible,” I feel fear slipping away, like a shadow receding before the still riveting idea that “out of many we are truly one.”
There are things you come to believe and things you carry in your blood. In my case, having spent part of my childhood in apartheid South Africa, I bear my measure of shame.
As a child, experience is wordless but no less powerful for that. How vast, how shimmering, was Muizenberg beach, near Cape Town, with all that glistening white skin spread across the golden sand!
The scrawny blacks were elsewhere, swimming off the rocks in a filthy harbor, and I watched from my grandfather’s house and I wondered.
Once, a black nanny took me out across the road to a parapet above a rail track beside that harbor. “You wouldn’t want me to drop you,” she said.
The fear I felt lingered. I returned recently to measure how far I would have fallen. In memory, the abyss plunged 100 feet. Reality revealed a drop of 10. That discrepancy measures a child’s panic.
A “For Sale” sign was up on what had been the family house. I inquired if I might visit and received a surly rebuff. But not before I glimpsed the mountain behind where my father hiked and where I feared the snakes among the thorn bushes.
Fear, shadowy as the sharks beyond the nets at Muizenberg, was never quite absent from our sunlit African sojourns. My own was formed of disorientation: I was not quite of the system because my parents had emigrated from Johannesburg to London. So, on return visits, I wandered into blacks-only public toilet or sat on a blacks-only bench.
Blacks only — and I was white. Apartheid entered my consciousness as a kind of self-humiliation. The black women who bathed me as an infant touched my skin, but their world was untouchable.
Only later did a cruel system come into focus. I see white men, gin and tonics on their breath, red meat on their plates, beneath the jacarandas of Johannesburg, sneering at the impossibility of desiring a black woman.
A racial divide, once lived, dwells in the deepest parts of the psyche. This is what was captured by Barack Obama’s pitch-perfect speech on race. Slavery was indeed America’s “original sin.” Of course, “the brutal legacy of slavery and Jim Crow” lives on in forms of African-American humiliation and anger that smolder in ways incommunicable to whites.
Segregation placed American blacks in the U.S. equivalent of that filthy African harbor.
It takes bravery, and perhaps an unusual black-white vantage point, to navigate these places where hurt is profound, incomprehension the rule, just as it takes courage to say, as Obama did, that black “anger is real; it is powerful; and to simply wish it away, to condemn it without understanding its roots, only serves to widen the chasm of misunderstanding that exists between the races.”
Progress, since the Civil Rights Movement, or since apartheid, has assuaged the wounds of race but not closed them. To carry my part of shame is also to carry a clue to the vortexes of rancor for which Obama has uncovered words.
I understand the rage of his former pastor, the Rev. Jeremiah Wright, however abhorrent its expression at times. I admire Obama for saying: “I can no more disown him than I can disown the black community.”
Honesty feels heady right now. For seven years, we have lived with the arid, us-against-them formulas of Bush’s menial mind, with the result that the nuanced exploration of America’s hardest subject is almost giddying. Can it be that a human being, like Wright, or like Obama’s grandmother, is actually inhabited by ambiguities? Can an inquiring mind actually explore the half-shades of truth?
Yes. It. Can.
The unimaginable South African transition that Nelson Mandela made possible is a reminder that leadership matters. Words matter. The clamoring now in the United States for a presidency that uplifts rather than demeans is a reflection of the intellectual desert of the Bush years.
Hillary Clinton said in January that: “You campaign in poetry, but you govern in prose.” Wrong. America’s had its fill of the prosaic.
The unthinkable can come to pass. When I was a teenager, my relatives advised me to enjoy the swimming pools of Johannesburg because “next year they will be red with blood.”
But the inevitable bloodbath never came. Mandela walked out of prison and sought reconciliation, not revenge. Later Mandela would say: “It always seems impossible until it’s done.”
Like countless others, I came to America because possibility is broader here than in Europe’s narrower confines. Perhaps it’s my African “original sin,” but when Obama says he “will never forget that in no other country on earth is my story even possible,” I feel fear slipping away, like a shadow receding before the still riveting idea that “out of many we are truly one.”
Wednesday, March 19
Obama's faith in the reasoning abilities of the American public
Glen Glenwald @ Salon.com
I haven't written about the Obama speech yet (video here) because I spent much of the day reading the instantaneous reactions of virtually everyone else, and because the issues raised by the speech are complex and my views about it are somewhat ambiguous. Personally, I found the speech riveting, provocative, insightful, thoughtful and courageous -- courageous because it eschewed almost completely all cliches, pandering and condescension, the first time I can recall a political figure of any significance doing so when addressing a controversial matter.
There were numerous manipulative tactics which the average cynical political strategist would have urged him to employ, and none of those were found in his speech. It was as candid and sophisticated a discussion of the complexities of race in America as any individual could possibly manage in a 45-minute speech, particularly one delivered in the middle of a heated presidential campaign and a shrill political controversy. Then again, I found the whole Wright "controversy" manufactured and relatively petty from the start, and worse, the by-product of a glaring double standard, so the speech obviously wasn't aimed at people who had the beliefs about this whole matter that I had.
The speech will be adored by Obama fans, the political and media elite, and high-information, politically engaged voters other than those firmly entrenched on the Right. But politically speaking, that isn't the target audience either. Barbara O'Brien describes perfectly the real question with regard to the speech's political impact:
I think the question about the speech, articulated by Rachel Maddow on David Gregory’s new MSNBC program, is whether white America will step up and receive the speech in the same spirit in which it was given. Obama's speech was challenging. He assumed that his audience could hear his words and and think about them. He assumed people could get beyond simple narratives, sound bytes, and jerking knees.
Steve M. reluctantly makes the case as to why the speech won't work despite (or, more accurately, because of) its high-minded, steadfast refusal to pander:
The premises [the speech] lays out require you to be an adult, and I'm not convinced that most Americans are adults, at least when looking for a candidate to support. . . .
This isn't what Americans like to hear in political speeches. They like to hear: Good people = us (America, our party). Bad people = them (communists, terrorists, criminals, drug dealers, our ideological opposites, the other party, or some group we identify in code rather than explicitly).
That wasn't the tone of this speech. I hope I'm wrong, but Obama may pay a price for not giving people what they like to hear.
The entire premise of Barack Obama's candidacy is built upon the opposite assumption -- that Americans are not only able, but eager, to participate in a more elevated and reasoned political discourse, one that moves beyond the boisterous, screeching, simple-minded, ugly, vapid attack-based distractions and patronizing manipulation -- the Drudgian Freak Show -- that has dominated our political debates for the last two decades at least.
Nobody actually knows which of these views are right because there hasn't been a serious national campaign in a very long time that has attempted to elevate itself above the Drudgian muck by relying (not entirely, but mostly) upon reasoned discourse and substantive discussions -- at least not with the potency that Obama generates. Will George Bush's ranch hats and Willie Horton's scary face and Al Gore's earth tones and John Kerry's windsurfing tights inevitably overwhelm sober, substantive discussions of the fundamental political crises plaguing the country? Obama's insistence that Americans are hungry for that sort of elevated debate and are able to engage it -- and his willingness to stake his campaign on his being right about that -- has been, in my view, one of the most admirable aspects of his candidacy.
But in Obama's faith in the average American voter lies one of the greatest weaknesses of his campaign. His faith in the ability and willingness of Americans to rise above manipulative political tactics seems drastically to understate both the efficacy of such tactics and the deafening amplification they receive from our establishment press. Even Americans who authentically believe that they want a "new, better politics" may be swayed by the same old Drudgian sewerage because it is powerful and ubiquitous.
Petty, personality-based demonization works, and the belief that it won't work any longer in the absence of a major war against it may be more a by-product of faith and desire than reality. Obama's calm reason and rational (though inspiring) discourse are matched against very visceral images and psychologically gripping strategies. As Pam Spaulding said in commenting on the Jeremiah Wright videos:
That said, people have to acknowledge part of the reason for the discomfort lies in Wright's delivery of the message. It's so black, isn't it? It sounds militant to tender ears outside the traditional black church. . . .
I want to turn the discussion back to race, because I think this episode with Rev. Wright exposed the whole "scary black revolution" primal fear here. . . .
When I heard Wright, I heard a delivery not unlike the unhinged gay-bashing Rev. Willie Wilson . . . . The delivery sounds so angry, so harsh to many. You get the feeling, based on the reaction out there, that people are afraid Barack Obama by association, is some sort of Trojan Horse of Black Anger waiting to be unleashed, prepared to exact revenge on white society by pulling their wool over their eyes by appearing friendly, "articulate" and non-threatening. In other words -- not that [Wright] kind of black guy.
In 1988, those deep-seated, lurking fears were stirred up perfectly by Lee Atwater and Roger Ailes in order to defeat the Willie-Horton-loving Michael Dukakis. The entire Obama campaign is predicated on the belief that it is no longer 1988. As David Axelrod put it when asked if there was debate within the Obama campaign about whether he should give this speech:
It wasn't even a discussion. He was going to do it. I know this sounds perhaps corny, but he actually believes in the fairness and good sense of the American people, and the importance of this issue. His candidacy is predicated on the fact that we can talk to each other in an honest and forthright way on this and other issues.
The New Republic's Michael Crowley, with one of the better discussions of the Obama speech, similarly reported:
The information era being what it is, I was already debating my thesis via email with an Obama aide as I wrote this reaction. He warned me against assuming that Reagan Democrats are defined by the same racial prejudices that defined them in the 1980s, back when crime and welfare were primary political issues, when one Willie Horton could turn an election. He may be right. I hope he is. Unfortunately, I fear that America hasn't come nearly as far as he hopes. But it is the answer to that question that will determine the fate of Barack Obama.
I think that's a perfect summation of the overarching question, one that nobody is really able to answer. The truly distinctive and "change"-oriented aspect of Obama's campaign lies not in any new or exotic policy positions -- his views on the Middle East, for instance, are often as conventional as it gets. What is distinctive is the far more consequential assumption that Americans want and are able to engage an elevated and more noble type of politics than the depressingly familiar garbage spewed from the Rush Limbaugh Show, The Drudge Report, Fox News, the cable news media stars, and all of their cooperating media and political appendages. We'll know soon enough if Obama is right.
I haven't written about the Obama speech yet (video here) because I spent much of the day reading the instantaneous reactions of virtually everyone else, and because the issues raised by the speech are complex and my views about it are somewhat ambiguous. Personally, I found the speech riveting, provocative, insightful, thoughtful and courageous -- courageous because it eschewed almost completely all cliches, pandering and condescension, the first time I can recall a political figure of any significance doing so when addressing a controversial matter.
There were numerous manipulative tactics which the average cynical political strategist would have urged him to employ, and none of those were found in his speech. It was as candid and sophisticated a discussion of the complexities of race in America as any individual could possibly manage in a 45-minute speech, particularly one delivered in the middle of a heated presidential campaign and a shrill political controversy. Then again, I found the whole Wright "controversy" manufactured and relatively petty from the start, and worse, the by-product of a glaring double standard, so the speech obviously wasn't aimed at people who had the beliefs about this whole matter that I had.
The speech will be adored by Obama fans, the political and media elite, and high-information, politically engaged voters other than those firmly entrenched on the Right. But politically speaking, that isn't the target audience either. Barbara O'Brien describes perfectly the real question with regard to the speech's political impact:
I think the question about the speech, articulated by Rachel Maddow on David Gregory’s new MSNBC program, is whether white America will step up and receive the speech in the same spirit in which it was given. Obama's speech was challenging. He assumed that his audience could hear his words and and think about them. He assumed people could get beyond simple narratives, sound bytes, and jerking knees.
Steve M. reluctantly makes the case as to why the speech won't work despite (or, more accurately, because of) its high-minded, steadfast refusal to pander:
The premises [the speech] lays out require you to be an adult, and I'm not convinced that most Americans are adults, at least when looking for a candidate to support. . . .
This isn't what Americans like to hear in political speeches. They like to hear: Good people = us (America, our party). Bad people = them (communists, terrorists, criminals, drug dealers, our ideological opposites, the other party, or some group we identify in code rather than explicitly).
That wasn't the tone of this speech. I hope I'm wrong, but Obama may pay a price for not giving people what they like to hear.
The entire premise of Barack Obama's candidacy is built upon the opposite assumption -- that Americans are not only able, but eager, to participate in a more elevated and reasoned political discourse, one that moves beyond the boisterous, screeching, simple-minded, ugly, vapid attack-based distractions and patronizing manipulation -- the Drudgian Freak Show -- that has dominated our political debates for the last two decades at least.
Nobody actually knows which of these views are right because there hasn't been a serious national campaign in a very long time that has attempted to elevate itself above the Drudgian muck by relying (not entirely, but mostly) upon reasoned discourse and substantive discussions -- at least not with the potency that Obama generates. Will George Bush's ranch hats and Willie Horton's scary face and Al Gore's earth tones and John Kerry's windsurfing tights inevitably overwhelm sober, substantive discussions of the fundamental political crises plaguing the country? Obama's insistence that Americans are hungry for that sort of elevated debate and are able to engage it -- and his willingness to stake his campaign on his being right about that -- has been, in my view, one of the most admirable aspects of his candidacy.
But in Obama's faith in the average American voter lies one of the greatest weaknesses of his campaign. His faith in the ability and willingness of Americans to rise above manipulative political tactics seems drastically to understate both the efficacy of such tactics and the deafening amplification they receive from our establishment press. Even Americans who authentically believe that they want a "new, better politics" may be swayed by the same old Drudgian sewerage because it is powerful and ubiquitous.
Petty, personality-based demonization works, and the belief that it won't work any longer in the absence of a major war against it may be more a by-product of faith and desire than reality. Obama's calm reason and rational (though inspiring) discourse are matched against very visceral images and psychologically gripping strategies. As Pam Spaulding said in commenting on the Jeremiah Wright videos:
That said, people have to acknowledge part of the reason for the discomfort lies in Wright's delivery of the message. It's so black, isn't it? It sounds militant to tender ears outside the traditional black church. . . .
I want to turn the discussion back to race, because I think this episode with Rev. Wright exposed the whole "scary black revolution" primal fear here. . . .
When I heard Wright, I heard a delivery not unlike the unhinged gay-bashing Rev. Willie Wilson . . . . The delivery sounds so angry, so harsh to many. You get the feeling, based on the reaction out there, that people are afraid Barack Obama by association, is some sort of Trojan Horse of Black Anger waiting to be unleashed, prepared to exact revenge on white society by pulling their wool over their eyes by appearing friendly, "articulate" and non-threatening. In other words -- not that [Wright] kind of black guy.
In 1988, those deep-seated, lurking fears were stirred up perfectly by Lee Atwater and Roger Ailes in order to defeat the Willie-Horton-loving Michael Dukakis. The entire Obama campaign is predicated on the belief that it is no longer 1988. As David Axelrod put it when asked if there was debate within the Obama campaign about whether he should give this speech:
It wasn't even a discussion. He was going to do it. I know this sounds perhaps corny, but he actually believes in the fairness and good sense of the American people, and the importance of this issue. His candidacy is predicated on the fact that we can talk to each other in an honest and forthright way on this and other issues.
The New Republic's Michael Crowley, with one of the better discussions of the Obama speech, similarly reported:
The information era being what it is, I was already debating my thesis via email with an Obama aide as I wrote this reaction. He warned me against assuming that Reagan Democrats are defined by the same racial prejudices that defined them in the 1980s, back when crime and welfare were primary political issues, when one Willie Horton could turn an election. He may be right. I hope he is. Unfortunately, I fear that America hasn't come nearly as far as he hopes. But it is the answer to that question that will determine the fate of Barack Obama.
I think that's a perfect summation of the overarching question, one that nobody is really able to answer. The truly distinctive and "change"-oriented aspect of Obama's campaign lies not in any new or exotic policy positions -- his views on the Middle East, for instance, are often as conventional as it gets. What is distinctive is the far more consequential assumption that Americans want and are able to engage an elevated and more noble type of politics than the depressingly familiar garbage spewed from the Rush Limbaugh Show, The Drudge Report, Fox News, the cable news media stars, and all of their cooperating media and political appendages. We'll know soon enough if Obama is right.
Sunday, March 16
Geraldine Ferraro and Why there's no Racism in America
There is peculiar bit of jujitsu that white public figures have employed recently whenever they're called to account for saying something stupid about black people. When the hard questions start flying, said figure deflects them by claiming that any critical interrogation is tantamount to calling them a racist, which they most assuredly are not. Last year, Bill O'Reilly took a jaunt up to Harlem's famed Sylvia's and returned with the news that blacks had learned the basics of table manners and developed opposable thumbs. When Media Matters attacked O'Reilly for his voluminous ignorance, he angrily accused his critics of distorting "a positive discussion on race and accusing me of racism."
As Don Imus was being drummed off the air, journalists and Washington oligarchs assembled to assure us all of Imus' decency, pointing to his good deeds on behalf of children with cancer and claiming that despite his penchant for caricaturing black people, he surely was no racist. Michael Richards marred his career by laying into a couple of hecklers with a textbook deluge of hate speech, but what disturbed him most was the fact that someone out there may have inferred that he was, you know, racist. "I'm not a racist," Richards told David Letterman. "That's what's so insane."
It gives me no joy to report that Geraldine Ferraro has now applied to join the ranks of the obviously nonracist. I was 8 when she ran for vice president and vaguely aware that a party that would promote a woman for an executive office might be a party that would one day give a kid like me a fair shake. Thus I've retched while watching Ferraro beeline to any television studio that would have her, flaunting her rainbow bona fides, and claiming that she's being attacked "because she's white" and demonized as a racist.
"The sad thing is that my comments have been taken so out of context," Ferraro told Diane Sawyer, "and been spun by the Obama campaign as racist."
When the New York Times reached Ferraro at home, having resigned from the Clinton campaign, she doubled down: "If you point to something that deals with race, you're immediately a racist?" When asked whether she was sorry, she responded, "I am sorry that there are people who think I am a racist."
The racist card is textbook strawmanship. As opposed to having to address whether her comments were, as Obama said, "wrongheaded" and "absurd," Ferraro gets to debate something that only she can truly judge—the contents of her heart.
It's a clever and unassailable move: How would you actually prove that Ferraro is definitively a racist? Furthermore, it appeals to our national distaste for whiners. It's irrelevant that the Obama campaign never called Ferraro a racist. It's also irrelevant that Ferraro said the same thing of Jesse Jackson in 1988. And it's especially irrelevant that Ferraro apparently believes that Obama's Ivy League education, his experience as an elected official, and his time of service on the South Side of Chicago pale in comparison with the leg-up he's been given as a black male in America. By positioning herself as a victim of political correctness run amok, Ferraro stakes out the high ground of truth telling.
Ferraro may be the most strident, but she's far from the first to join the rogue's gallery of public figures who have made patently foolish claims about black people, then ducked beneath the shield of nonracism.
Fellow "not a racist" Ron Paul was busted last year when it was found that newsletters bearing his name were filled with hateful invectives directed at blacks. When the news broke, Paul swore that he was no racist and that the writings said nothing about his own beliefs. No matter that the newsletters were titled Ron Paul's Freedom Report, the Ron Paul Political Report, and the Ron Paul Survival Report.
James Watson not only claimed that blacks had lower IQs than whites but scoffed at any notion of intellectual parity because "people who have to deal with black employees find this not to be true." It's true that Watson caught his share of criticism, but in its wake came a parade of defenders insisting that Watson was not a racist but a dogged, persecuted speaker of truth.
Implicit to the racist card is the idea that no racists actually live among us. After reality TV star Duane "Dog" Chapman was taped by one of his sons dropping n-bombs, a more loyal son insisted, "My dad is not a racist man. If he was he would have no hair. He'd have swastikas on his body and he would go around talking about Hitler. That's what a racist is to me."
The idea that America has lots of racism but few actual racists is not a new one. Philip Dray titled his seminal history of lynching At the Hands of Persons Unknown because most "investigations" of lynchings in the South turned up no actual lynchers. Both David Duke and George Wallace insisted that they weren't racists. That's because in the popular vocabulary, the racist is not so much an actual person but a monster, an outcast thug who leads the lynch mob and keeps Mein Kampf in his back pocket.
The bar for racism has been raised so high that one need be a card-carrying member of the Nazi Party to qualify. Had John McCain said that Hillary Clinton was only competitive in the presidential race because she was a woman, there'd be no dispute over whether the comment was sexist. And yet when the equivalent is said about a black person, it's not only not racist, but any criticism of the statement is interpreted as an act of character assassination. "If anybody is going to apologize," Ferraro told MSNBC, "they should apologize to me for calling me a racist."
In some measure, the narrowing of racism is an unfortunate relic of the civil rights movement, when activists got mileage out of dehumanizing racists and portraying them as ultra-violent Southern troglodytes. Whites may have been horrified by the fire hoses and police dogs turned on children, but they could rest easy knowing that neither they nor anyone they'd ever met would do such a thing. But most racism—indeed, the worst racism—is quaint and banal. There's nothing sensationalistic about redlining or job discrimination. No archival newsreel can capture what it means to be viewed as a person who, minus the beneficence of well-meaning whites, simply can't compete.
All of this leaves me wondering, Who does a guy have to lynch around here to get called a racist? If twice claiming that a presidential candidate is only in the race because he's black doesn't make you racist; if shouting, "He's a nigger! He's a nigger" from stage doesn't make you racist; if calling an accomplished black woman "the cleaning lady" doesn't make you a racist, what does?
What is clear, however, is that black people are buckling under the weight of all this nonracism, and I'm sure, if he could, the junior senator from Illinois would gladly return all of the "favors" he's gotten for being a black man named Barack Hussein Obama.
Ta-Nehisi Coates is the author of the forthcoming memoir The Beautiful Struggle. He blogs at www.ta-nehisi.com.
As Don Imus was being drummed off the air, journalists and Washington oligarchs assembled to assure us all of Imus' decency, pointing to his good deeds on behalf of children with cancer and claiming that despite his penchant for caricaturing black people, he surely was no racist. Michael Richards marred his career by laying into a couple of hecklers with a textbook deluge of hate speech, but what disturbed him most was the fact that someone out there may have inferred that he was, you know, racist. "I'm not a racist," Richards told David Letterman. "That's what's so insane."
It gives me no joy to report that Geraldine Ferraro has now applied to join the ranks of the obviously nonracist. I was 8 when she ran for vice president and vaguely aware that a party that would promote a woman for an executive office might be a party that would one day give a kid like me a fair shake. Thus I've retched while watching Ferraro beeline to any television studio that would have her, flaunting her rainbow bona fides, and claiming that she's being attacked "because she's white" and demonized as a racist.
"The sad thing is that my comments have been taken so out of context," Ferraro told Diane Sawyer, "and been spun by the Obama campaign as racist."
When the New York Times reached Ferraro at home, having resigned from the Clinton campaign, she doubled down: "If you point to something that deals with race, you're immediately a racist?" When asked whether she was sorry, she responded, "I am sorry that there are people who think I am a racist."
The racist card is textbook strawmanship. As opposed to having to address whether her comments were, as Obama said, "wrongheaded" and "absurd," Ferraro gets to debate something that only she can truly judge—the contents of her heart.
It's a clever and unassailable move: How would you actually prove that Ferraro is definitively a racist? Furthermore, it appeals to our national distaste for whiners. It's irrelevant that the Obama campaign never called Ferraro a racist. It's also irrelevant that Ferraro said the same thing of Jesse Jackson in 1988. And it's especially irrelevant that Ferraro apparently believes that Obama's Ivy League education, his experience as an elected official, and his time of service on the South Side of Chicago pale in comparison with the leg-up he's been given as a black male in America. By positioning herself as a victim of political correctness run amok, Ferraro stakes out the high ground of truth telling.
Ferraro may be the most strident, but she's far from the first to join the rogue's gallery of public figures who have made patently foolish claims about black people, then ducked beneath the shield of nonracism.
Fellow "not a racist" Ron Paul was busted last year when it was found that newsletters bearing his name were filled with hateful invectives directed at blacks. When the news broke, Paul swore that he was no racist and that the writings said nothing about his own beliefs. No matter that the newsletters were titled Ron Paul's Freedom Report, the Ron Paul Political Report, and the Ron Paul Survival Report.
James Watson not only claimed that blacks had lower IQs than whites but scoffed at any notion of intellectual parity because "people who have to deal with black employees find this not to be true." It's true that Watson caught his share of criticism, but in its wake came a parade of defenders insisting that Watson was not a racist but a dogged, persecuted speaker of truth.
Implicit to the racist card is the idea that no racists actually live among us. After reality TV star Duane "Dog" Chapman was taped by one of his sons dropping n-bombs, a more loyal son insisted, "My dad is not a racist man. If he was he would have no hair. He'd have swastikas on his body and he would go around talking about Hitler. That's what a racist is to me."
The idea that America has lots of racism but few actual racists is not a new one. Philip Dray titled his seminal history of lynching At the Hands of Persons Unknown because most "investigations" of lynchings in the South turned up no actual lynchers. Both David Duke and George Wallace insisted that they weren't racists. That's because in the popular vocabulary, the racist is not so much an actual person but a monster, an outcast thug who leads the lynch mob and keeps Mein Kampf in his back pocket.
The bar for racism has been raised so high that one need be a card-carrying member of the Nazi Party to qualify. Had John McCain said that Hillary Clinton was only competitive in the presidential race because she was a woman, there'd be no dispute over whether the comment was sexist. And yet when the equivalent is said about a black person, it's not only not racist, but any criticism of the statement is interpreted as an act of character assassination. "If anybody is going to apologize," Ferraro told MSNBC, "they should apologize to me for calling me a racist."
In some measure, the narrowing of racism is an unfortunate relic of the civil rights movement, when activists got mileage out of dehumanizing racists and portraying them as ultra-violent Southern troglodytes. Whites may have been horrified by the fire hoses and police dogs turned on children, but they could rest easy knowing that neither they nor anyone they'd ever met would do such a thing. But most racism—indeed, the worst racism—is quaint and banal. There's nothing sensationalistic about redlining or job discrimination. No archival newsreel can capture what it means to be viewed as a person who, minus the beneficence of well-meaning whites, simply can't compete.
All of this leaves me wondering, Who does a guy have to lynch around here to get called a racist? If twice claiming that a presidential candidate is only in the race because he's black doesn't make you racist; if shouting, "He's a nigger! He's a nigger" from stage doesn't make you racist; if calling an accomplished black woman "the cleaning lady" doesn't make you a racist, what does?
What is clear, however, is that black people are buckling under the weight of all this nonracism, and I'm sure, if he could, the junior senator from Illinois would gladly return all of the "favors" he's gotten for being a black man named Barack Hussein Obama.
Ta-Nehisi Coates is the author of the forthcoming memoir The Beautiful Struggle. He blogs at www.ta-nehisi.com.
Saturday, March 15
Supreme Court Inc.
The New York Times
March 16, 2008
Supreme Court Inc.
By JEFFREY ROSEN
I.
The headquarters of the U.S. Chamber of Commerce, located across from Lafayette Park in Washington, is a limestone structure that looks almost as majestic as the Supreme Court. The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert. Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural. The Supreme Court term that ended last June was, by all measures, exceptionally good for American business. The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history. The current term, which ends this summer, has also been shaping up nicely for business interests.
I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs. Conrad, an appealing, soft-spoken woman, lives with her family on a horse farm in Maryland, where she rides with a fox-chasing club called the Howard County-Iron Bridge Hounds. Her office, playfully adorned by action figures of women like Xena the Warrior Princess and Hillary Rodham Clinton, has one of the most impressive views in Washington. “You can see the White House through the trees,” she said as we peered through a window overlooking the park. “In the old days, you could actually see people bathing in the fountain. Homeless people.”
Conrad was in an understandably cheerful mood. Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”
Examples like these point to an ideological sea change on the Supreme Court. A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”
Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.
Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.
What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.
This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans? Only history will ultimately make this clear. One thing, however, is certain already: the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture.
II.
The origins of the business community’s campaign to transform the Supreme Court can be traced back precisely to Aug. 23, 1971. That was the day when Lewis F. Powell Jr., a corporate lawyer in Richmond, Va., wrote a memo to his friend Eugene B. Snydor, then the head of the education committee of the U.S. Chamber of Commerce. In the memo, Powell expressed his concern that the American economic system was “under broad attack.” He identified several aggressors: the New Left, the liberal media, rebellious students on college campuses and, most important, Ralph Nader. Earlier that year, Nader founded Public Citizen to advocate for consumer rights, bring antitrust actions when the Justice Department did not and sue federal agencies when they failed to adopt health and safety regulations.
Powell claimed that this attack on the economic system was “quite new in the history of America.” Ever since 1937, when President Franklin D. Roosevelt threatened to pack a conservative Supreme Court with more progressive justices, the court had largely deferred to federal and state economic regulations. And by the ’60s, the Supreme Court under Chief Justice Earl Warren had embraced a form of economic populism, often favoring the interests of small business over big business, even at the expense of consumers. But what Powell saw in the work of Nader and others was altogether more extreme: a radical campaign that was “broadly based and consistently pursued.”
To counter the growing influence of public-interest litigation groups like Public Citizen, Powell urged the Chamber of Commerce to begin a multifront lobbying campaign on behalf of business interests, including hiring top business lawyers to bring cases before the Supreme Court. “The judiciary,” Powell predicted, “may be the most important instrument for social, economic and political change.” Two months after he wrote the memo, Powell was appointed by Richard Nixon to the Supreme Court. And six years later, in 1977, after steadily expanding its lobbying efforts, the chamber established the National Chamber Litigation Center to file cases and briefs on behalf of business interests in federal and state courts.
Today, the Chamber of Commerce is an imposing lobbying force. To fulfill its mission of serving “the unified interests of American business,” it collects membership dues from more than three million businesses and related organizations; last year, according to the Center for Responsive Politics, the chamber spent more than $21 million lobbying the White House, Congress and regulatory agencies on legal matters. But its battle against the forces of Naderism got off to a slow start. In 1983, when Robin Conrad arrived at the chamber, the Supreme Court was handing Nader and his allies significant victories. That year, for example, the court held that President Reagan’s secretary of transportation, Andrew L. Lewis Jr., acted capriciously when he repealed a regulation, inspired by Nader’s advocacy, that required automakers to install passive restraints like air bags. In 1986, the chamber supported a challenge to the Environmental Protection Agency’s aerial surveillance of a Dow Chemical plant. The chamber’s side lost, 5-4.
But eventually, things began to change. The chamber started winning cases in part by refining its strategy. With Conrad’s help, the chamber’s Supreme Court litigation program began to offer practice moot-court arguments for lawyers scheduled to argue important cases. The chamber also began hiring the most-respected Democratic and Republican Supreme Court advocates to persuade the court to hear more business cases. Although many of the businesses that belong to the Chamber of Commerce have their own in-house lawyers, they would have the chamber file “friend of the court” briefs on their behalf. The chamber would decide which of the many cases brought to its attention were in the long-term strategic interest of American business and then hire the leading business lawyers to write supporting briefs or argue the case.
Until the mid-’80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court. But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin. Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies. Lee’s success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices. The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.
At times, the strategic calculations can be quite personal. Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, Conrad told me, having well-known former clerks involved in submitting a brief can be especially important. “When Justice O’Connor was on the bench and we knew her vote was very important, we had a case where the opposition had her favorite clerk on the brief, so we retained her next-favorite clerk,” she said with a laugh. “We won.”
In our conversation, Conrad was especially enthusiastic about Maureen Mahoney, a former clerk for Chief Justice Rehnquist and one of the top Supreme Court litigators who coordinate strategy with the chamber. When Mahoney agreed in 2005 to represent an appeal by the disgraced accounting firm Arthur Andersen, which was convicted in 2002 of obstructing justice by shredding documents related to the audit of Enron, few people thought the Supreme Court would take the case. “The climate was very anti-Enron,” Mahoney told me, “and it was viewed as a doomed petition.”
Mahoney rehearsed her Supreme Court argument in a moot court sponsored by the chamber. (“She was absolutely dazzling,” Conrad recalls.) On April 27, 2005, Mahoney stood calmly before the justices and delivered one of the best oral arguments I’ve ever seen at the Supreme Court. She argued that because Arthur Andersen’s accountants had followed a standard document-destruction procedure before receiving the government’s subpoena, they couldn’t be guilty of a crime; they weren’t aware what they were doing was criminal. The Supreme Court unanimously agreed and reversed the conviction, 9-0.
The Arthur Andersen case is a good example of how significantly the Supreme Court has changed its attitude about cases involving securities fraud — and business cases more generally — from the Warren to the Roberts era. In a case in 1964, the court ruled that aggrieved investors and consumers could file private lawsuits to enforce the securities laws, even in cases in which Congress hadn’t explicitly created a right to sue. In the mid-1990s, however, Congress substantially cut back on these citizen suits, and the court today has shown little patience for them. Mahoney says she sees her victory in the Arthur Andersen case as significant because it applied the same principle in criminal cases involving corporate wrongdoing that the court had already been recognizing in civil cases: namely, “refusing to create greater damage remedies or criminal penalties than Congress has explicitly specified.” She describes the case as “a very important win for business.”
This term, the Supreme Court has continued to cut back on consumer suits. In a ruling in January, the court refused to allow a shareholder suit against the suppliers to Charter Communications, one of the country’s largest cable companies. The suppliers were alleged to have “aided and abetted” Charter’s efforts to inflate its earnings, but the court held that Charter’s investors had to show that they had relied on the deceptive acts committed by the suppliers before the suit could proceed. A week later, the court invoked the same principle when it refused to hear an appeal in a case related to Enron, in which investors are trying to recover $40 billion from Wall Street banks that they claim aided and abetted Enron’s fraud. As a result, the shareholder suit against the banks may be dead.
III.
In addition to litigating cases before the court, the Chamber of Commerce also lobbies Congress and the White House in an effort to change the composition of the court itself. (Unlike many other government officials, the justices themselves are not, of course, subject to direct corporate lobbying.) The chamber’s efforts in this area were inspired by Robert Bork’s thwarted nomination to the court in 1987. Business groups were enthusiastic about Bork — not because of his conservative social views but because of his skepticism of vigorous antitrust enforcement. “In reaction to the Bork nomination, it struck us that we didn’t even have a process in place to be a player,” Conrad said.
So the chamber set up a formal process for endorsing candidates after their nominations. The process was designed to be bipartisan; and the chamber has encouraged Democratic as well as Republican presidents to appoint justices. Nominees are evaluated solely through the prism of their views about business. “We’re very surgical in our analysis,” Conrad said.
After the election of Bill Clinton, for example, the chamber endorsed Ruth Bader Ginsburg, who in addition to her pioneering achievements as the head of the women’s rights project at the A.C.L.U. had specialized, as a law professor, in the procedural rules in complex civil cases and was comfortable with the finer points of business litigation. The chamber was especially enthusiastic about Clinton’s second nominee, Stephen Breyer, who made his name building a bipartisan consensus for airline deregulation as a special counsel on the judiciary committee; and who, as a Harvard Law professor, advocated an influential and moderate view on antitrust enforcement.
During Breyer’s confirmation hearings his sharpest critic was Ralph Nader, who testified that his pro-business rulings were “extraordinarily one-sided.” Another critic, Senator Howard Metzenbaum of Ohio, said that the fact that the chamber was the first organization to endorse Breyer indicated that “large corporations are very pleased with this nomination” and “the fact that Ralph Nader is opposed to it indicated that the average American has a reason to have some concern.” The chamber’s imprimatur helped reassure Republicans about Breyer, and he was confirmed with a vote of 87 to 9. “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,” Conrad told me. “Justice Breyer came close to that.”
The Breyer and Ginsburg nominations also came at a time when liberal as well as conservative judges and academics were gravitating in increasing numbers to an economic approach to the law, originally developed at the University of Chicago. The law-and-economics movement sought to evaluate the efficiency of legal rules based on their costs and benefits for society as a whole. Although originally conservative in its orientation, the movement also attracted prominent moderate and liberal scholars and judges like Breyer, who before his nomination wrote two books on regulation, arguing that government health-and-safety spending is distorted by sensational media reports of disasters that affect relatively few citizens.
Since joining the Supreme Court, Breyer has also been an intellectual leader in antitrust and patent disputes, which often pit business against business, rather than business against consumers. In those cases, many liberal scholars sympathetic to economic analysis have applauded the court for favoring competition rather than existing competitors, innovation rather than particular innovators. “The court deserves credit for trying to rationalize a totally irrational patent system, benefiting smaller new competitors rather than existing big ones,” says Lawrence Lessig, an intellectual-property scholar at Stanford.
Clinton’s nominations of Ginsburg and Breyer may have been welcomed by the chamber, but with the election of George W. Bush, the chamber faced a dilemma. Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives. In some business cases, these two strands of conservatism diverged, leading the most staunch states-rights conservatives on the court, Antonin Scalia and Clarence Thomas, to rule against business interests. Scalia and Thomas were reluctant to second-guess large punitive-damage verdicts by state juries, for example, or to hold that federally regulated cigarette manufacturers could not be sued in state court. As a result, under Conrad’s leadership, the chamber began a vigorous campaign to urge the Bush administration to appoint pro-business conservatives.
When it came time to replace Chief Justice William Rehnquist and Justice Sandra Day O’Connor, the candidate most enthusiastically supported by states-rights conservatives, Judge Michael Luttig, had a record on the Court of Appeals for the Fourth Circuit that some corporate interests feared might make him unpredictable in business cases. (“One of my constant refrains is that being conservative doesn’t necessarily mean being pro-business,” Conrad told me.) The chamber and other business groups enthusiastically supported John Roberts, who had been hired by the chamber to write briefs in two Supreme Court cases in 2001 and 2002. At the time of Roberts’s nomination, Thomas Goldstein, a prominent Supreme Court litigator, described him as “the go-to lawyer for the business community,” adding “of all the candidates, he is the one they knew best.” When Roberts was nominated, business groups lobbied senators as part of the campaign for his confirmation.
The business community was also enthusiastic about Samuel Alito, whose 15-year record as an appellate judge showed a consistent skepticism of claims against large corporations. Ted Frank of the American Enterprise Institute predicted at the time of the nomination that if Alito replaced O’Connor, he and Roberts would bring about a rise in business cases before the Supreme Court. Frank’s prediction was soon vindicated.
“There wasn’t a great deal of interest in classic business cases in the last few years of the Rehnquist Court,” Carter Phillips, a partner at Sidley Austin and a leading Supreme Court business advocate, told me. In 2004, Judge Richard Posner, a founder of the law-and-economics movement, argued that the Rehnquist Court’s emphasis on headline-grabbing constitutional cases had politicized it, and called on the court to hear more business cases. The Roberts court has unambiguously answered the call. As Phillips told me, Roberts “is more interested in those issues and understands them better than his predecessor did.”
IV.
Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent.
Faced with these daunting numbers, the progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”
To gauge the degree of the frustration, I recently paid a visit to Ralph Nader, a few weeks before he announced his most recent campaign for president of the United States. It was a surprise to find that his office, the Center for Study of Responsive Law, shares an address in a grand building with the Carnegie Institution for Science. But the office itself, reassuringly, is buried on the ground floor, where Nader received me at a conference table surrounded by file cabinets stuffed with faded back issues of Mother Jones and The Nation.
Nader was uncontrite about his 2000 run against Al Gore — which is often credited with helping George W. Bush win the presidency — and he insisted that because Clinton appointed justices like Breyer, Gore would have done the same. “Breyer hasn’t been worse than I feared, because I had real concern when he was nominated,” Nader told me. He conceded that, like Breyer, Democratic justices appointed by President John Kerry would presumably have been better on civil rights and liberties than John Roberts and Samuel Alito. Nevertheless, he disparaged Breyer as a “deregulation quasi-ideologue” who was able to weave a “tapestry of illusion” in his arguments by dealing in abstractions.
The main casualty of the 2000 run, Nader said, is that he is no longer collaborating with America’s trial lawyers. They would ordinarily be his natural allies in representing consumer interests, but they donated heavily to Gore’s campaign. After 2000, the trial lawyers “have been vitriolic,” Nader explained. He blames them for not using their money to help counteract the influence of the Chamber of Commerce and other business groups before the federal courts. In part as a result of their stinginess, he said, his colleagues at Public Citizen are underfinanced and worn down. “There were some lawyers who left Public Citizen because they got tired of losing,” he said. “Everyone is desperately trying to hold on to whatever issues are left, and then they become demoralized and discouraged.”
Thirty years after the Chamber of Commerce founded its litigation center to counteract his influence, Nader all but conceded defeat in the battle for the Supreme Court. With the decline of economic populism in Congress, the weakening of trade unions and the rise of globalization, the political climate, he lamented, was passing him by. “I recall a comment by Eugene Debs,” Nader said, looking at me intensely. “He said: The American people live in a country where they can have almost anything they want. And my regret is that it seems that they don’t want much of anything at all.”
Nader chuckled quietly and shook his head. “I say ditto.”
V.
If there is an anti-Nader — a crusading lawyer passionately devoted to the pro-business cause — it is Theodore Olson. One of the most influential Supreme Court advocates and a former solicitor general under President George W. Bush, Olson is best known for his winning argument before the Supreme Court in Bush v. Gore in 2000. But Olson has devoted most of his energies in private practice to changing the legal and political climate for American business. According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.
Punitive damages — money awarded by civil juries on top of any awarded for actual harm that victims have suffered — are designed to penalize especially egregious acts of corporate misconduct resulting from malice or greed, and to deter similar wrongdoing in the future. In the 19th century, courts generally demanded a clear assignment of fault in cases where victims sued for injuries caused by malfunctioning products. It was hard for plaintiffs to recover in personal-injury cases unless the corporation was obviously at fault. But in the 20th century, in liability cases involving a rapidly expanding class of potentially dangerous products like cars, drugs and medical devices, courts increasingly applied a standard of “strict liability,” which held that manufacturers should pay whether or not they were directly at fault.
The animating idea was that manufacturers were in the best position to prevent accidents by improving their products with better design and testing. They and their insurance companies (rather than society as a whole) would shoulder the costs of accidents, thus giving them an incentive to make their products safer. Encouraged by Ralph Nader’s book, “Unsafe at Any Speed,” published in 1965, courts began to see car accidents as predictable events that better car design could have prevented. In 1968, for example, a federal court held that car manufacturers could be sued for failing to make cars safe enough for drivers to survive crashes, even if the driver was at fault for the crash.
A series of well-publicized awards in the 1980s and ’90s culminated in the largest punitive damage award in American history the $5 billion levied against Exxon after the Exxon Valdez oil spill in 1989. This was hardly typical: the median punitive award actually fell to $50,000 in 2001 from $63,000 in 1992. Nevertheless, critics like Olson claimed that multimillion-dollar punitive-damage verdicts were threatening the health of the economy. They resolved to fight back on several fronts. In his first Supreme Court argument, in 1986, Olson set out the broad contours of his argument: for most of English and American history, private litigants were entitled to be compensated for whatever damages they suffered, including pain and suffering, but any public wrongs like the failure of American business to make cars safer by adopting air bags should be addressed by legislation or regulation, not by the courts.
Olson decided that his clients deserved not just a lawyer who could argue a case but a lawyer who could change the political culture. “You had to attack it in a broad-scale way in the legislatures, in the arena of public opinion and in the courts,” he told me recently. “I felt the business community had to approach this in a holistic way.” He set out, in lectures and op-ed pieces, to publicize especially egregious examples. The poster child for punitive-damage abuse, widely derided in TV and radio ads paid for by the business community, was a New Mexico grandmother who, in 1994, was awarded $2.7 million in punitive damages when she scalded herself with hot McDonald’s coffee. Consumer advocates countered that she had originally asked for $20,000 for medical expenses, which McDonald’s refused to pay, and the award appeared to have the effect of persuading McDonald’s to serve its coffee at a safer temperature. Nonetheless, the campaign to vilify plaintiffs’ lawyers has been effective enough that the American Association of Trial Lawyers recently changed its name to the fuzzier American Association for Justice.
The business community made other inroads against punitive damages. Corporations financed campaigns against pro-punitive-damage state judges who had been elected with the assistance of large contributions from plaintiffs’ lawyers. The business community also helped persuade more than 30 states to either impose caps on punitive-damage awards or direct substantial portions of the awards to be paid into special state funds. In 1996, it helped persuade the Republican Congress, led by Newt Gingrich, to pass legislation that would cap punitive-damage awards in product-liability cases in every state court in the country. But in 1996, President Clinton, with what must have been perverse pleasure, vetoed the bill on the grounds that it violated principles of federalism and states rights to which conservatives claimed to be devoted.
Thwarted by Clinton, and unable to persuade Congress to override the veto, opponents of punitive damages turned their attention back to the Supreme Court, looking for a victory they were unable to win in the political arena. Here, they were remarkably successful. As late as 1991, the court had refused to impose limits on a large punitive-damage award. But in a case in 1996, the court held for the first time that punitive-damage awards had to be proportional to the actual damage incurred by the plaintiff. The case involved a man who said he was deceived by BMW when it sold him a supposedly “new” car that was, in fact, used and had received a $300 touch-up job. The court, in a 5-4 opinion, overturned a $2 million punitive-damage award as “grossly excessive.” In 2003, the court clarified what it meant: a single-digit ratio between punitive damages and compensatory damages was likely to be acceptable.
Last year, the business community watched with anticipation as Roberts and Alito revealed their views about punitive damages. The case involved the estate of a heavy smoker who sued Philip Morris for deceitfully distributing a “poisonous and addictive substance.” A jury had awarded the estate $821,000 in compensatory damages and $79.5 million in punitive damages — a ratio of about 100 to 1. In a 5-4 opinion written by Breyer, the court held that it was unconstitutional for a jury to use punitive damages to punish a company for its conduct toward similarly affected individuals who are not party to the lawsuit.
This spring, the court will decide the Exxon Valdez punitive-damage case, which many consider the culmination of the business community’s decades-long campaign against punitive damages. In 1989, the Exxon Valdez tanker, whose captain had a history of alcoholism, ran into a reef and punctured the hull; 11 million gallons of oil leaked onto the coastline of Prince William Sound. A jury handed down a $5 billion punitive-damage award.
After the verdict, Exxon began providing money for academic research to support its claim that the award for damages was excessive. It financed some of the country’s most prominent scholars on both sides of the political spectrum, including the Nobel laureate Daniel Kahneman and Cass Sunstein, a law professor at the University of Chicago. (Sunstein says he accepted only travel grants, not research support, from Exxon; and Kahneman stresses that the financing had no influence on the substance of his work.) In a 2002 book, “Punitive Damages: How Juries Decide,” Sunstein studied hundreds of mock-jury deliberations and concluded that jurors are unpredictable and often irrational in punitive-damage cases. Jury deliberations, he found, increase the unpredictability, as well as the dollar amount of the final awards. Sunstein concluded that a system of civil fines determined by experts, rather than punitive damages determined by juries, might be more sensible. When Exxon appealed the $5 billion verdict in 2006, it was reduced by an appellate court to $2.5 billion. The reduced verdict is once again being challenged as excessive.
Walter Dellinger, the lawyer now arguing Exxon’s case before the Supreme Court, is no Republican activist. Like Sunstein, he is one of the most respected Democratic constitutional scholars, as well as a former acting solicitor general for President Clinton. Last month, in his argument before the court, Dellinger argued that because Exxon has already paid $3.4 billion in fines, cleanup costs and compensation connected with the Exxon Valdez spill, and because it didn’t act out of malice or greed in failing to monitor the alcoholic captain, additional punitive damages would serve no “public purpose.”
During the argument, Breyer noted that the $2.5 billion punitive damage award represents a less than 10-to-1 ratio between punitive damages and compensatory damages, which is in the single-digit range that the Supreme Court has considered acceptable in the past. But Breyer also seemed concerned at other points that punitive-damage awards have not been routine in maritime cases like this one, and that the award might create “a new world for the shipping industry.” Alito, who owns Exxon Mobil stock, did not participate, and because a tie would affirm the $2.5 billion punitive-damage award, the plaintiffs who are opposing Exxon need only four votes to prevail. But whether Dellinger gets five votes, a significant triumph is already behind him: he persuaded the court to take the case in the first place.
VI.
Ted Olson and the Chamber of Commerce aren’t only trying to persuade the Supreme Court to cut back on large punitive-damage awards; they’re also arguing that consumers injured by dangerous or defective medical devices and drugs in some cases shouldn’t be able to file product-liability suits at all. Because there is no national product-liability law that allows federal suits for personal injuries, consumers who are injured by, say, defective heart valves or artificial hips have to sue in state courts under state tort law. By asking the Supreme Court to prevent injured consumers from suing in state court, the business community, supported by the Bush administration, is trying to ensure that these consumers often have no legal remedy for their injuries. And the Supreme Court has been increasingly sympathetic to the business community’s arguments.
In a Supreme Court case Olson argued in December, he stood before the justices and argued that the manufacturers of defective medical devices — like heart valves, breast implants and defibrillators — should be immune from personal-liability suits because the federal Food and Drug Administration had approved the devices before they were marketed and the manufacturers had complied with all federal requirements. The case involved Charles Riegel, who had an angioplasty in 1996 during which the catheter used to dilate his coronary artery burst. Riegel, who needed advanced life support and emergency bypass surgery, eventually sued the manufacturer of the catheter, Medtronic. The company is colloquially referred to in the business community as “the pre-emption company” because of its practice of arguing that the Food and Drug Administration’s “premarket approval” of its products pre-empts product-liability suits in state courts.
The lawyer representing Riegel’s estate before the Supreme Court, Allison Zieve of Public Citizen, countered that Congress never intended to ban state product-liability suits when Senator Edward Kennedy sponsored a bill regulating medical devices in 1976. (Kennedy himself filed a brief in the case noting that he indeed intended no such thing.) “Lawyers think this is a close issue, but any time I talk to a nonlawyer about it, they’re shocked,” Zieve told me after the argument. “People think: of course, if somebody makes a defective product you can sue.”
It’s one thing to argue that the federal government’s “premarket approval” of food, drugs and medical devices should pre-empt clearly inconsistent state laws and regulations. After all, if states imposed safety requirements that conflicted with the federal standard, the resulting regulatory confusion would make a national (and global) market impossible. But Olson’s claim that federal regulation of medical devices and drugs should also pre-empt product-liability suits under state tort law is one of the more creative and far-reaching legal arguments of the business groups that litigate before the Supreme Court.
This type of argument arose out of the tobacco litigation of the 1980s and ’90s, which culminated in a $206 billion settlement paid by the top tobacco companies to a consortium of 46 state attorneys general in exchange for dropping tort suits against the companies. The tobacco litigation began modestly: in 1983, Rose Cipollone, a New Jersey woman dying of lung cancer, sued several of the country’s largest tobacco companies for their failure to give adequate warnings about the dangers of smoking. After spending tens of millions of dollars fighting the verdict, the companies decided to take their defense to the next level. They argued that because the federal government required cigarette companies to have warning labels, tobacco companies couldn’t be subject to tort suits in state courts. Jury verdicts, they argued, are no less a form of regulation than laws explicitly adopted by state legislatures.
In a decision in 1992, the Supreme Court endorsed part of the companies’ argument. The decision unleashed a torrent of similar “pre-emption” claims by the manufacturers of dangerous drugs, defective medical devices and cars without air bags. And after the election of President Bush in 2000, the business community’s crusade was aggressively supported by the White House. At the same time that the White House was scaling back on federal health-and-safety enforcement, it insisted that consumers should not be able to sue federally regulated industries in state court. Bush appointed as the general counsel of the Food and Drug Administration a former drug- and tobacco-company lawyer named Daniel Troy. With Troy’s support, the F.D.A. reversed its position, held for 25 years, and argued for the first time that its premarket approval of medical devices should prevent injured consumers from bringing product-liability suits in state court.
After her Supreme Court argument in the Medtronic case, Zieve told me she wasn’t sure what to expect. Until the arrival of Chief Justice Roberts, groups like Public Citizen had found that they had a better chance of winning pre-emption cases before the Supreme Court than in the lower courts. But during the first two years of the Roberts Court, the justices had decided two pre-emption cases in favor of the corporate defendants.
The trend has continued. On Feb. 21, the Supreme Court handed Zieve a crushing defeat: an 8-1 opinion immunizing the makers of defective medical devices from product-liability suits. The lone dissent was written by Ruth Bader Ginsburg, who objected that Congress could not have intended such a “radical curtailment” of state personal-injury suits when it regulated medical devices in 1976. Ginsburg, who is devoted to liberal judicial restraint, has consistently opposed efforts to second-guess punitive-damage awards or expand federal pre-emption. I called Zieve soon after the Supreme Court issued its opinion, and she sounded shocked. “It’s really unfathomable to me,” she said. “I wasn’t sure that this was a business-friendly court, but now I’m finding it harder not to view it that way.” Zieve said that, as a result of the decision, “I think the industry will keep unsafe devices on the market longer and be slower to improve products.”
In the eyes of advocates like Zieve and Public Citizen, the public is now caught in a Catch-22: at the very moment that agencies like the F.D.A. are being strongly reproved by critics — including the agency’s own internal science board — for being unwilling or unable to protect public health, the court is making it harder for people to receive compensation for the injuries that result. On rare occasions, the Roberts Court has held that the Bush administration’s deregulatory efforts circumvent the will of Congress — like the 5-4 decision last year holding that the Environmental Protection Agency acted capriciously when it adopted a rule that said it had no legal authority to regulate greenhouse gases. But by and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve told me. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”
VII.
The Supreme Court is unlikely to reconsider its pro-business outlook anytime soon. Nevertheless, there are several currents in American political life that run counter to the court, even if they may not be strong enough, or suitably directed, to reverse it. There are, for example, economic populists in both political parties — John Edwards Democrats and Mike Huckabee Republicans, to cite just two types — who express concern about growing economic inequality and corporate corruption, and blame unchecked corporate power for America’s escalating economic problems. These populists tend to be from the working and middle classes rather than the professional classes, and their numbers may be growing. In recent Pew surveys, 65 percent of Americans agreed that corporations make excessive profits — the highest number in 20 years. Moreover, about half the country now asserts that America is divided on economic lines into two groups — the “haves” and “have nots” — up from only 26 percent two decades ago. And the number of Americans who view themselves as “have nots” has doubled to 34 percent today from 17 percent in 1988. Responding to pressures from this demographic, a Democratic Congress — bolstered by states-rights conservatives — might well try to pass legislation to counteract the court’s recent decisions barring product-liability suits for defective medical devices.
What about the executive branch? It seems unlikely that John McCain, if he were elected president, would push back against the court: he has already pledged to appoint “judges of the character and quality of Justices Roberts and Alito,” rather than justices more devoted to states rights, like Scalia and Thomas. As for Barack Obama and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. But despite their rhetoric, it is not clear that either candidate would actually appoint justices any more populist than Bill Clinton’s nominees. “I would be stunned to find an anti-business appointee from either of them,” Cass Sunstein, who is a constitutional adviser to Obama, told me. “There’s not a strong interest on the part of Obama or Clinton in demonizing business, and you wouldn’t expect to see that in their Supreme Court nominees.”
Still, the possibility does exist. If the economy continues to decline and blue-collar voters end up being crucial in the election, a Democratic president might appoint an economic populist to the Supreme Court as a kind of payback. Earlier this month, on the campaign trail in Ohio, Obama mentioned Earl Warren, who served as governor of California before becoming chief justice, as a model of the kind of justice he hoped to appoint. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said. He praised Warren for understanding that segregation was wrong because of the stigma it attached to blacks, rather than because of the precise nature of its sociological impact. Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. (By contrast, the Roberts court is composed of nine former judges.)
Whatever happens in November, Robin Conrad says the Chamber of Commerce is prepared to lobby as hard as ever for the appointment of pro-business justices. “If we do have a Democrat president, and that president has opportunities to nominate to the court,” she said in our meeting as I glanced at her Hillary Clinton action figure, “we want to be able to express ourselves and work with that president.” Regardless of how many justices retire in the next presidential term, Conrad is confident that, having helped to transform the Supreme Court in less than 30 years, she and her colleagues can assure American business of a sympathetic hearing for decades to come.
When I told Conrad that Ralph Nader told me that lawyers were leaving Public Citizen because they were tired of losing, she achieved a look of earnest concern. “I hope if they feel they’ve lost,” she said, “they lost for a good reason — not because they’ve been overpowered or muscled by the big, bad business community, but they’ve lost because reason won.”
Conrad looked at me squarely, and then added, “I guess if Ralph Nader wants to say we did him in” — she paused to weigh her words — “so be it.”
Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author, most recently, of “The Supreme Court: The Personalities and Rivalries That Defined America.”
March 16, 2008
Supreme Court Inc.
By JEFFREY ROSEN
I.
The headquarters of the U.S. Chamber of Commerce, located across from Lafayette Park in Washington, is a limestone structure that looks almost as majestic as the Supreme Court. The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert. Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural. The Supreme Court term that ended last June was, by all measures, exceptionally good for American business. The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history. The current term, which ends this summer, has also been shaping up nicely for business interests.
I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs. Conrad, an appealing, soft-spoken woman, lives with her family on a horse farm in Maryland, where she rides with a fox-chasing club called the Howard County-Iron Bridge Hounds. Her office, playfully adorned by action figures of women like Xena the Warrior Princess and Hillary Rodham Clinton, has one of the most impressive views in Washington. “You can see the White House through the trees,” she said as we peered through a window overlooking the park. “In the old days, you could actually see people bathing in the fountain. Homeless people.”
Conrad was in an understandably cheerful mood. Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”
Examples like these point to an ideological sea change on the Supreme Court. A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”
Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.
Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.
What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.
This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans? Only history will ultimately make this clear. One thing, however, is certain already: the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture.
II.
The origins of the business community’s campaign to transform the Supreme Court can be traced back precisely to Aug. 23, 1971. That was the day when Lewis F. Powell Jr., a corporate lawyer in Richmond, Va., wrote a memo to his friend Eugene B. Snydor, then the head of the education committee of the U.S. Chamber of Commerce. In the memo, Powell expressed his concern that the American economic system was “under broad attack.” He identified several aggressors: the New Left, the liberal media, rebellious students on college campuses and, most important, Ralph Nader. Earlier that year, Nader founded Public Citizen to advocate for consumer rights, bring antitrust actions when the Justice Department did not and sue federal agencies when they failed to adopt health and safety regulations.
Powell claimed that this attack on the economic system was “quite new in the history of America.” Ever since 1937, when President Franklin D. Roosevelt threatened to pack a conservative Supreme Court with more progressive justices, the court had largely deferred to federal and state economic regulations. And by the ’60s, the Supreme Court under Chief Justice Earl Warren had embraced a form of economic populism, often favoring the interests of small business over big business, even at the expense of consumers. But what Powell saw in the work of Nader and others was altogether more extreme: a radical campaign that was “broadly based and consistently pursued.”
To counter the growing influence of public-interest litigation groups like Public Citizen, Powell urged the Chamber of Commerce to begin a multifront lobbying campaign on behalf of business interests, including hiring top business lawyers to bring cases before the Supreme Court. “The judiciary,” Powell predicted, “may be the most important instrument for social, economic and political change.” Two months after he wrote the memo, Powell was appointed by Richard Nixon to the Supreme Court. And six years later, in 1977, after steadily expanding its lobbying efforts, the chamber established the National Chamber Litigation Center to file cases and briefs on behalf of business interests in federal and state courts.
Today, the Chamber of Commerce is an imposing lobbying force. To fulfill its mission of serving “the unified interests of American business,” it collects membership dues from more than three million businesses and related organizations; last year, according to the Center for Responsive Politics, the chamber spent more than $21 million lobbying the White House, Congress and regulatory agencies on legal matters. But its battle against the forces of Naderism got off to a slow start. In 1983, when Robin Conrad arrived at the chamber, the Supreme Court was handing Nader and his allies significant victories. That year, for example, the court held that President Reagan’s secretary of transportation, Andrew L. Lewis Jr., acted capriciously when he repealed a regulation, inspired by Nader’s advocacy, that required automakers to install passive restraints like air bags. In 1986, the chamber supported a challenge to the Environmental Protection Agency’s aerial surveillance of a Dow Chemical plant. The chamber’s side lost, 5-4.
But eventually, things began to change. The chamber started winning cases in part by refining its strategy. With Conrad’s help, the chamber’s Supreme Court litigation program began to offer practice moot-court arguments for lawyers scheduled to argue important cases. The chamber also began hiring the most-respected Democratic and Republican Supreme Court advocates to persuade the court to hear more business cases. Although many of the businesses that belong to the Chamber of Commerce have their own in-house lawyers, they would have the chamber file “friend of the court” briefs on their behalf. The chamber would decide which of the many cases brought to its attention were in the long-term strategic interest of American business and then hire the leading business lawyers to write supporting briefs or argue the case.
Until the mid-’80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court. But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin. Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies. Lee’s success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices. The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.
At times, the strategic calculations can be quite personal. Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, Conrad told me, having well-known former clerks involved in submitting a brief can be especially important. “When Justice O’Connor was on the bench and we knew her vote was very important, we had a case where the opposition had her favorite clerk on the brief, so we retained her next-favorite clerk,” she said with a laugh. “We won.”
In our conversation, Conrad was especially enthusiastic about Maureen Mahoney, a former clerk for Chief Justice Rehnquist and one of the top Supreme Court litigators who coordinate strategy with the chamber. When Mahoney agreed in 2005 to represent an appeal by the disgraced accounting firm Arthur Andersen, which was convicted in 2002 of obstructing justice by shredding documents related to the audit of Enron, few people thought the Supreme Court would take the case. “The climate was very anti-Enron,” Mahoney told me, “and it was viewed as a doomed petition.”
Mahoney rehearsed her Supreme Court argument in a moot court sponsored by the chamber. (“She was absolutely dazzling,” Conrad recalls.) On April 27, 2005, Mahoney stood calmly before the justices and delivered one of the best oral arguments I’ve ever seen at the Supreme Court. She argued that because Arthur Andersen’s accountants had followed a standard document-destruction procedure before receiving the government’s subpoena, they couldn’t be guilty of a crime; they weren’t aware what they were doing was criminal. The Supreme Court unanimously agreed and reversed the conviction, 9-0.
The Arthur Andersen case is a good example of how significantly the Supreme Court has changed its attitude about cases involving securities fraud — and business cases more generally — from the Warren to the Roberts era. In a case in 1964, the court ruled that aggrieved investors and consumers could file private lawsuits to enforce the securities laws, even in cases in which Congress hadn’t explicitly created a right to sue. In the mid-1990s, however, Congress substantially cut back on these citizen suits, and the court today has shown little patience for them. Mahoney says she sees her victory in the Arthur Andersen case as significant because it applied the same principle in criminal cases involving corporate wrongdoing that the court had already been recognizing in civil cases: namely, “refusing to create greater damage remedies or criminal penalties than Congress has explicitly specified.” She describes the case as “a very important win for business.”
This term, the Supreme Court has continued to cut back on consumer suits. In a ruling in January, the court refused to allow a shareholder suit against the suppliers to Charter Communications, one of the country’s largest cable companies. The suppliers were alleged to have “aided and abetted” Charter’s efforts to inflate its earnings, but the court held that Charter’s investors had to show that they had relied on the deceptive acts committed by the suppliers before the suit could proceed. A week later, the court invoked the same principle when it refused to hear an appeal in a case related to Enron, in which investors are trying to recover $40 billion from Wall Street banks that they claim aided and abetted Enron’s fraud. As a result, the shareholder suit against the banks may be dead.
III.
In addition to litigating cases before the court, the Chamber of Commerce also lobbies Congress and the White House in an effort to change the composition of the court itself. (Unlike many other government officials, the justices themselves are not, of course, subject to direct corporate lobbying.) The chamber’s efforts in this area were inspired by Robert Bork’s thwarted nomination to the court in 1987. Business groups were enthusiastic about Bork — not because of his conservative social views but because of his skepticism of vigorous antitrust enforcement. “In reaction to the Bork nomination, it struck us that we didn’t even have a process in place to be a player,” Conrad said.
So the chamber set up a formal process for endorsing candidates after their nominations. The process was designed to be bipartisan; and the chamber has encouraged Democratic as well as Republican presidents to appoint justices. Nominees are evaluated solely through the prism of their views about business. “We’re very surgical in our analysis,” Conrad said.
After the election of Bill Clinton, for example, the chamber endorsed Ruth Bader Ginsburg, who in addition to her pioneering achievements as the head of the women’s rights project at the A.C.L.U. had specialized, as a law professor, in the procedural rules in complex civil cases and was comfortable with the finer points of business litigation. The chamber was especially enthusiastic about Clinton’s second nominee, Stephen Breyer, who made his name building a bipartisan consensus for airline deregulation as a special counsel on the judiciary committee; and who, as a Harvard Law professor, advocated an influential and moderate view on antitrust enforcement.
During Breyer’s confirmation hearings his sharpest critic was Ralph Nader, who testified that his pro-business rulings were “extraordinarily one-sided.” Another critic, Senator Howard Metzenbaum of Ohio, said that the fact that the chamber was the first organization to endorse Breyer indicated that “large corporations are very pleased with this nomination” and “the fact that Ralph Nader is opposed to it indicated that the average American has a reason to have some concern.” The chamber’s imprimatur helped reassure Republicans about Breyer, and he was confirmed with a vote of 87 to 9. “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,” Conrad told me. “Justice Breyer came close to that.”
The Breyer and Ginsburg nominations also came at a time when liberal as well as conservative judges and academics were gravitating in increasing numbers to an economic approach to the law, originally developed at the University of Chicago. The law-and-economics movement sought to evaluate the efficiency of legal rules based on their costs and benefits for society as a whole. Although originally conservative in its orientation, the movement also attracted prominent moderate and liberal scholars and judges like Breyer, who before his nomination wrote two books on regulation, arguing that government health-and-safety spending is distorted by sensational media reports of disasters that affect relatively few citizens.
Since joining the Supreme Court, Breyer has also been an intellectual leader in antitrust and patent disputes, which often pit business against business, rather than business against consumers. In those cases, many liberal scholars sympathetic to economic analysis have applauded the court for favoring competition rather than existing competitors, innovation rather than particular innovators. “The court deserves credit for trying to rationalize a totally irrational patent system, benefiting smaller new competitors rather than existing big ones,” says Lawrence Lessig, an intellectual-property scholar at Stanford.
Clinton’s nominations of Ginsburg and Breyer may have been welcomed by the chamber, but with the election of George W. Bush, the chamber faced a dilemma. Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives. In some business cases, these two strands of conservatism diverged, leading the most staunch states-rights conservatives on the court, Antonin Scalia and Clarence Thomas, to rule against business interests. Scalia and Thomas were reluctant to second-guess large punitive-damage verdicts by state juries, for example, or to hold that federally regulated cigarette manufacturers could not be sued in state court. As a result, under Conrad’s leadership, the chamber began a vigorous campaign to urge the Bush administration to appoint pro-business conservatives.
When it came time to replace Chief Justice William Rehnquist and Justice Sandra Day O’Connor, the candidate most enthusiastically supported by states-rights conservatives, Judge Michael Luttig, had a record on the Court of Appeals for the Fourth Circuit that some corporate interests feared might make him unpredictable in business cases. (“One of my constant refrains is that being conservative doesn’t necessarily mean being pro-business,” Conrad told me.) The chamber and other business groups enthusiastically supported John Roberts, who had been hired by the chamber to write briefs in two Supreme Court cases in 2001 and 2002. At the time of Roberts’s nomination, Thomas Goldstein, a prominent Supreme Court litigator, described him as “the go-to lawyer for the business community,” adding “of all the candidates, he is the one they knew best.” When Roberts was nominated, business groups lobbied senators as part of the campaign for his confirmation.
The business community was also enthusiastic about Samuel Alito, whose 15-year record as an appellate judge showed a consistent skepticism of claims against large corporations. Ted Frank of the American Enterprise Institute predicted at the time of the nomination that if Alito replaced O’Connor, he and Roberts would bring about a rise in business cases before the Supreme Court. Frank’s prediction was soon vindicated.
“There wasn’t a great deal of interest in classic business cases in the last few years of the Rehnquist Court,” Carter Phillips, a partner at Sidley Austin and a leading Supreme Court business advocate, told me. In 2004, Judge Richard Posner, a founder of the law-and-economics movement, argued that the Rehnquist Court’s emphasis on headline-grabbing constitutional cases had politicized it, and called on the court to hear more business cases. The Roberts court has unambiguously answered the call. As Phillips told me, Roberts “is more interested in those issues and understands them better than his predecessor did.”
IV.
Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent.
Faced with these daunting numbers, the progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”
To gauge the degree of the frustration, I recently paid a visit to Ralph Nader, a few weeks before he announced his most recent campaign for president of the United States. It was a surprise to find that his office, the Center for Study of Responsive Law, shares an address in a grand building with the Carnegie Institution for Science. But the office itself, reassuringly, is buried on the ground floor, where Nader received me at a conference table surrounded by file cabinets stuffed with faded back issues of Mother Jones and The Nation.
Nader was uncontrite about his 2000 run against Al Gore — which is often credited with helping George W. Bush win the presidency — and he insisted that because Clinton appointed justices like Breyer, Gore would have done the same. “Breyer hasn’t been worse than I feared, because I had real concern when he was nominated,” Nader told me. He conceded that, like Breyer, Democratic justices appointed by President John Kerry would presumably have been better on civil rights and liberties than John Roberts and Samuel Alito. Nevertheless, he disparaged Breyer as a “deregulation quasi-ideologue” who was able to weave a “tapestry of illusion” in his arguments by dealing in abstractions.
The main casualty of the 2000 run, Nader said, is that he is no longer collaborating with America’s trial lawyers. They would ordinarily be his natural allies in representing consumer interests, but they donated heavily to Gore’s campaign. After 2000, the trial lawyers “have been vitriolic,” Nader explained. He blames them for not using their money to help counteract the influence of the Chamber of Commerce and other business groups before the federal courts. In part as a result of their stinginess, he said, his colleagues at Public Citizen are underfinanced and worn down. “There were some lawyers who left Public Citizen because they got tired of losing,” he said. “Everyone is desperately trying to hold on to whatever issues are left, and then they become demoralized and discouraged.”
Thirty years after the Chamber of Commerce founded its litigation center to counteract his influence, Nader all but conceded defeat in the battle for the Supreme Court. With the decline of economic populism in Congress, the weakening of trade unions and the rise of globalization, the political climate, he lamented, was passing him by. “I recall a comment by Eugene Debs,” Nader said, looking at me intensely. “He said: The American people live in a country where they can have almost anything they want. And my regret is that it seems that they don’t want much of anything at all.”
Nader chuckled quietly and shook his head. “I say ditto.”
V.
If there is an anti-Nader — a crusading lawyer passionately devoted to the pro-business cause — it is Theodore Olson. One of the most influential Supreme Court advocates and a former solicitor general under President George W. Bush, Olson is best known for his winning argument before the Supreme Court in Bush v. Gore in 2000. But Olson has devoted most of his energies in private practice to changing the legal and political climate for American business. According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.
Punitive damages — money awarded by civil juries on top of any awarded for actual harm that victims have suffered — are designed to penalize especially egregious acts of corporate misconduct resulting from malice or greed, and to deter similar wrongdoing in the future. In the 19th century, courts generally demanded a clear assignment of fault in cases where victims sued for injuries caused by malfunctioning products. It was hard for plaintiffs to recover in personal-injury cases unless the corporation was obviously at fault. But in the 20th century, in liability cases involving a rapidly expanding class of potentially dangerous products like cars, drugs and medical devices, courts increasingly applied a standard of “strict liability,” which held that manufacturers should pay whether or not they were directly at fault.
The animating idea was that manufacturers were in the best position to prevent accidents by improving their products with better design and testing. They and their insurance companies (rather than society as a whole) would shoulder the costs of accidents, thus giving them an incentive to make their products safer. Encouraged by Ralph Nader’s book, “Unsafe at Any Speed,” published in 1965, courts began to see car accidents as predictable events that better car design could have prevented. In 1968, for example, a federal court held that car manufacturers could be sued for failing to make cars safe enough for drivers to survive crashes, even if the driver was at fault for the crash.
A series of well-publicized awards in the 1980s and ’90s culminated in the largest punitive damage award in American history the $5 billion levied against Exxon after the Exxon Valdez oil spill in 1989. This was hardly typical: the median punitive award actually fell to $50,000 in 2001 from $63,000 in 1992. Nevertheless, critics like Olson claimed that multimillion-dollar punitive-damage verdicts were threatening the health of the economy. They resolved to fight back on several fronts. In his first Supreme Court argument, in 1986, Olson set out the broad contours of his argument: for most of English and American history, private litigants were entitled to be compensated for whatever damages they suffered, including pain and suffering, but any public wrongs like the failure of American business to make cars safer by adopting air bags should be addressed by legislation or regulation, not by the courts.
Olson decided that his clients deserved not just a lawyer who could argue a case but a lawyer who could change the political culture. “You had to attack it in a broad-scale way in the legislatures, in the arena of public opinion and in the courts,” he told me recently. “I felt the business community had to approach this in a holistic way.” He set out, in lectures and op-ed pieces, to publicize especially egregious examples. The poster child for punitive-damage abuse, widely derided in TV and radio ads paid for by the business community, was a New Mexico grandmother who, in 1994, was awarded $2.7 million in punitive damages when she scalded herself with hot McDonald’s coffee. Consumer advocates countered that she had originally asked for $20,000 for medical expenses, which McDonald’s refused to pay, and the award appeared to have the effect of persuading McDonald’s to serve its coffee at a safer temperature. Nonetheless, the campaign to vilify plaintiffs’ lawyers has been effective enough that the American Association of Trial Lawyers recently changed its name to the fuzzier American Association for Justice.
The business community made other inroads against punitive damages. Corporations financed campaigns against pro-punitive-damage state judges who had been elected with the assistance of large contributions from plaintiffs’ lawyers. The business community also helped persuade more than 30 states to either impose caps on punitive-damage awards or direct substantial portions of the awards to be paid into special state funds. In 1996, it helped persuade the Republican Congress, led by Newt Gingrich, to pass legislation that would cap punitive-damage awards in product-liability cases in every state court in the country. But in 1996, President Clinton, with what must have been perverse pleasure, vetoed the bill on the grounds that it violated principles of federalism and states rights to which conservatives claimed to be devoted.
Thwarted by Clinton, and unable to persuade Congress to override the veto, opponents of punitive damages turned their attention back to the Supreme Court, looking for a victory they were unable to win in the political arena. Here, they were remarkably successful. As late as 1991, the court had refused to impose limits on a large punitive-damage award. But in a case in 1996, the court held for the first time that punitive-damage awards had to be proportional to the actual damage incurred by the plaintiff. The case involved a man who said he was deceived by BMW when it sold him a supposedly “new” car that was, in fact, used and had received a $300 touch-up job. The court, in a 5-4 opinion, overturned a $2 million punitive-damage award as “grossly excessive.” In 2003, the court clarified what it meant: a single-digit ratio between punitive damages and compensatory damages was likely to be acceptable.
Last year, the business community watched with anticipation as Roberts and Alito revealed their views about punitive damages. The case involved the estate of a heavy smoker who sued Philip Morris for deceitfully distributing a “poisonous and addictive substance.” A jury had awarded the estate $821,000 in compensatory damages and $79.5 million in punitive damages — a ratio of about 100 to 1. In a 5-4 opinion written by Breyer, the court held that it was unconstitutional for a jury to use punitive damages to punish a company for its conduct toward similarly affected individuals who are not party to the lawsuit.
This spring, the court will decide the Exxon Valdez punitive-damage case, which many consider the culmination of the business community’s decades-long campaign against punitive damages. In 1989, the Exxon Valdez tanker, whose captain had a history of alcoholism, ran into a reef and punctured the hull; 11 million gallons of oil leaked onto the coastline of Prince William Sound. A jury handed down a $5 billion punitive-damage award.
After the verdict, Exxon began providing money for academic research to support its claim that the award for damages was excessive. It financed some of the country’s most prominent scholars on both sides of the political spectrum, including the Nobel laureate Daniel Kahneman and Cass Sunstein, a law professor at the University of Chicago. (Sunstein says he accepted only travel grants, not research support, from Exxon; and Kahneman stresses that the financing had no influence on the substance of his work.) In a 2002 book, “Punitive Damages: How Juries Decide,” Sunstein studied hundreds of mock-jury deliberations and concluded that jurors are unpredictable and often irrational in punitive-damage cases. Jury deliberations, he found, increase the unpredictability, as well as the dollar amount of the final awards. Sunstein concluded that a system of civil fines determined by experts, rather than punitive damages determined by juries, might be more sensible. When Exxon appealed the $5 billion verdict in 2006, it was reduced by an appellate court to $2.5 billion. The reduced verdict is once again being challenged as excessive.
Walter Dellinger, the lawyer now arguing Exxon’s case before the Supreme Court, is no Republican activist. Like Sunstein, he is one of the most respected Democratic constitutional scholars, as well as a former acting solicitor general for President Clinton. Last month, in his argument before the court, Dellinger argued that because Exxon has already paid $3.4 billion in fines, cleanup costs and compensation connected with the Exxon Valdez spill, and because it didn’t act out of malice or greed in failing to monitor the alcoholic captain, additional punitive damages would serve no “public purpose.”
During the argument, Breyer noted that the $2.5 billion punitive damage award represents a less than 10-to-1 ratio between punitive damages and compensatory damages, which is in the single-digit range that the Supreme Court has considered acceptable in the past. But Breyer also seemed concerned at other points that punitive-damage awards have not been routine in maritime cases like this one, and that the award might create “a new world for the shipping industry.” Alito, who owns Exxon Mobil stock, did not participate, and because a tie would affirm the $2.5 billion punitive-damage award, the plaintiffs who are opposing Exxon need only four votes to prevail. But whether Dellinger gets five votes, a significant triumph is already behind him: he persuaded the court to take the case in the first place.
VI.
Ted Olson and the Chamber of Commerce aren’t only trying to persuade the Supreme Court to cut back on large punitive-damage awards; they’re also arguing that consumers injured by dangerous or defective medical devices and drugs in some cases shouldn’t be able to file product-liability suits at all. Because there is no national product-liability law that allows federal suits for personal injuries, consumers who are injured by, say, defective heart valves or artificial hips have to sue in state courts under state tort law. By asking the Supreme Court to prevent injured consumers from suing in state court, the business community, supported by the Bush administration, is trying to ensure that these consumers often have no legal remedy for their injuries. And the Supreme Court has been increasingly sympathetic to the business community’s arguments.
In a Supreme Court case Olson argued in December, he stood before the justices and argued that the manufacturers of defective medical devices — like heart valves, breast implants and defibrillators — should be immune from personal-liability suits because the federal Food and Drug Administration had approved the devices before they were marketed and the manufacturers had complied with all federal requirements. The case involved Charles Riegel, who had an angioplasty in 1996 during which the catheter used to dilate his coronary artery burst. Riegel, who needed advanced life support and emergency bypass surgery, eventually sued the manufacturer of the catheter, Medtronic. The company is colloquially referred to in the business community as “the pre-emption company” because of its practice of arguing that the Food and Drug Administration’s “premarket approval” of its products pre-empts product-liability suits in state courts.
The lawyer representing Riegel’s estate before the Supreme Court, Allison Zieve of Public Citizen, countered that Congress never intended to ban state product-liability suits when Senator Edward Kennedy sponsored a bill regulating medical devices in 1976. (Kennedy himself filed a brief in the case noting that he indeed intended no such thing.) “Lawyers think this is a close issue, but any time I talk to a nonlawyer about it, they’re shocked,” Zieve told me after the argument. “People think: of course, if somebody makes a defective product you can sue.”
It’s one thing to argue that the federal government’s “premarket approval” of food, drugs and medical devices should pre-empt clearly inconsistent state laws and regulations. After all, if states imposed safety requirements that conflicted with the federal standard, the resulting regulatory confusion would make a national (and global) market impossible. But Olson’s claim that federal regulation of medical devices and drugs should also pre-empt product-liability suits under state tort law is one of the more creative and far-reaching legal arguments of the business groups that litigate before the Supreme Court.
This type of argument arose out of the tobacco litigation of the 1980s and ’90s, which culminated in a $206 billion settlement paid by the top tobacco companies to a consortium of 46 state attorneys general in exchange for dropping tort suits against the companies. The tobacco litigation began modestly: in 1983, Rose Cipollone, a New Jersey woman dying of lung cancer, sued several of the country’s largest tobacco companies for their failure to give adequate warnings about the dangers of smoking. After spending tens of millions of dollars fighting the verdict, the companies decided to take their defense to the next level. They argued that because the federal government required cigarette companies to have warning labels, tobacco companies couldn’t be subject to tort suits in state courts. Jury verdicts, they argued, are no less a form of regulation than laws explicitly adopted by state legislatures.
In a decision in 1992, the Supreme Court endorsed part of the companies’ argument. The decision unleashed a torrent of similar “pre-emption” claims by the manufacturers of dangerous drugs, defective medical devices and cars without air bags. And after the election of President Bush in 2000, the business community’s crusade was aggressively supported by the White House. At the same time that the White House was scaling back on federal health-and-safety enforcement, it insisted that consumers should not be able to sue federally regulated industries in state court. Bush appointed as the general counsel of the Food and Drug Administration a former drug- and tobacco-company lawyer named Daniel Troy. With Troy’s support, the F.D.A. reversed its position, held for 25 years, and argued for the first time that its premarket approval of medical devices should prevent injured consumers from bringing product-liability suits in state court.
After her Supreme Court argument in the Medtronic case, Zieve told me she wasn’t sure what to expect. Until the arrival of Chief Justice Roberts, groups like Public Citizen had found that they had a better chance of winning pre-emption cases before the Supreme Court than in the lower courts. But during the first two years of the Roberts Court, the justices had decided two pre-emption cases in favor of the corporate defendants.
The trend has continued. On Feb. 21, the Supreme Court handed Zieve a crushing defeat: an 8-1 opinion immunizing the makers of defective medical devices from product-liability suits. The lone dissent was written by Ruth Bader Ginsburg, who objected that Congress could not have intended such a “radical curtailment” of state personal-injury suits when it regulated medical devices in 1976. Ginsburg, who is devoted to liberal judicial restraint, has consistently opposed efforts to second-guess punitive-damage awards or expand federal pre-emption. I called Zieve soon after the Supreme Court issued its opinion, and she sounded shocked. “It’s really unfathomable to me,” she said. “I wasn’t sure that this was a business-friendly court, but now I’m finding it harder not to view it that way.” Zieve said that, as a result of the decision, “I think the industry will keep unsafe devices on the market longer and be slower to improve products.”
In the eyes of advocates like Zieve and Public Citizen, the public is now caught in a Catch-22: at the very moment that agencies like the F.D.A. are being strongly reproved by critics — including the agency’s own internal science board — for being unwilling or unable to protect public health, the court is making it harder for people to receive compensation for the injuries that result. On rare occasions, the Roberts Court has held that the Bush administration’s deregulatory efforts circumvent the will of Congress — like the 5-4 decision last year holding that the Environmental Protection Agency acted capriciously when it adopted a rule that said it had no legal authority to regulate greenhouse gases. But by and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve told me. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”
VII.
The Supreme Court is unlikely to reconsider its pro-business outlook anytime soon. Nevertheless, there are several currents in American political life that run counter to the court, even if they may not be strong enough, or suitably directed, to reverse it. There are, for example, economic populists in both political parties — John Edwards Democrats and Mike Huckabee Republicans, to cite just two types — who express concern about growing economic inequality and corporate corruption, and blame unchecked corporate power for America’s escalating economic problems. These populists tend to be from the working and middle classes rather than the professional classes, and their numbers may be growing. In recent Pew surveys, 65 percent of Americans agreed that corporations make excessive profits — the highest number in 20 years. Moreover, about half the country now asserts that America is divided on economic lines into two groups — the “haves” and “have nots” — up from only 26 percent two decades ago. And the number of Americans who view themselves as “have nots” has doubled to 34 percent today from 17 percent in 1988. Responding to pressures from this demographic, a Democratic Congress — bolstered by states-rights conservatives — might well try to pass legislation to counteract the court’s recent decisions barring product-liability suits for defective medical devices.
What about the executive branch? It seems unlikely that John McCain, if he were elected president, would push back against the court: he has already pledged to appoint “judges of the character and quality of Justices Roberts and Alito,” rather than justices more devoted to states rights, like Scalia and Thomas. As for Barack Obama and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. But despite their rhetoric, it is not clear that either candidate would actually appoint justices any more populist than Bill Clinton’s nominees. “I would be stunned to find an anti-business appointee from either of them,” Cass Sunstein, who is a constitutional adviser to Obama, told me. “There’s not a strong interest on the part of Obama or Clinton in demonizing business, and you wouldn’t expect to see that in their Supreme Court nominees.”
Still, the possibility does exist. If the economy continues to decline and blue-collar voters end up being crucial in the election, a Democratic president might appoint an economic populist to the Supreme Court as a kind of payback. Earlier this month, on the campaign trail in Ohio, Obama mentioned Earl Warren, who served as governor of California before becoming chief justice, as a model of the kind of justice he hoped to appoint. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said. He praised Warren for understanding that segregation was wrong because of the stigma it attached to blacks, rather than because of the precise nature of its sociological impact. Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. (By contrast, the Roberts court is composed of nine former judges.)
Whatever happens in November, Robin Conrad says the Chamber of Commerce is prepared to lobby as hard as ever for the appointment of pro-business justices. “If we do have a Democrat president, and that president has opportunities to nominate to the court,” she said in our meeting as I glanced at her Hillary Clinton action figure, “we want to be able to express ourselves and work with that president.” Regardless of how many justices retire in the next presidential term, Conrad is confident that, having helped to transform the Supreme Court in less than 30 years, she and her colleagues can assure American business of a sympathetic hearing for decades to come.
When I told Conrad that Ralph Nader told me that lawyers were leaving Public Citizen because they were tired of losing, she achieved a look of earnest concern. “I hope if they feel they’ve lost,” she said, “they lost for a good reason — not because they’ve been overpowered or muscled by the big, bad business community, but they’ve lost because reason won.”
Conrad looked at me squarely, and then added, “I guess if Ralph Nader wants to say we did him in” — she paused to weigh her words — “so be it.”
Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author, most recently, of “The Supreme Court: The Personalities and Rivalries That Defined America.”
Wednesday, March 5
Why Voters Aren't Motivated by a Laundry List of Positions on Issues
by Joe Brewer, George Lakoff
There is a faulty view of voting behavior – widely held by political strategists on the left – that people already know what they want. All you have to do is conduct a poll to find out where they stand on the issues, then build a platform of positions that accords with the polls, and they will vote for you. Missing from this view is the importance of cognitive policy – the ideas necessary to understand what the issues are and how they should be addressed. It is the ability to understand where a candidate is coming from that makes public support possible. Endorsement quickly follows when this understanding combines with a sense of shared values.
There are two kinds of policy: cognitive and material. Material policies are familiar: they outline what is to be done in the world. For example, the details of a health care plan, or a plan for getting out of Iraq. Material policies each have a cognitive dimension, often unconscious and implicit. This includes the ideas, frames, values, and modes of thought that inform the political understanding of the material policy. For example, consider the following questions: Do all Americans, just by their very existence, deserve health care, just as they deserve police protection? How does health care differ from health insurance? How these questions are answered plays a crucial role in what the material details of health care policy should be.
The Rockridge Institute is centrally concerned with the cognitive dimension of particular material policies and how the cognitive dimension—the often-unstated ideas behind material policies—shapes those policies. We are especially concerned with how change in those ideas point toward material policy changes.
But there is a deeper aspect to cognitive policy—general cognitive policy: strategies for getting high-level ideas—values, frames and principles—to dominate public discourse and shape public understanding so that future material policies will be natural and win public support with ease.
Conservative think tanks, over the past three decades, have been extremely successful in pure cognitive policy, that is, in shaping public discourse to lead the public to accept basic conservative values and principles. That long-term investment has paid off in making material conservative policies seem natural, for example, massive tax cuts for the wealthy, the pre-emptive invasion of a country that hadn’t threatened us, defunding such federal agencies as FEMA and the FDA, and government spying on US citizens.
The success of a policy depends on how it meets both cognitive and material criteria. Concentrating on material criteria alone can be counterproductive if a policy is either unpopular, or if it instills in the public’s mind long-term values that contradict the aims of the policy.
Cognitive policy comes first. It is comprised of ideas, frames, and arguments. It forms the basis of what the issue is, how it is understood and what should be done about it. The material criterion is comprised of mechanisms for achieving the goals that emerge from the cognitive criteria.
This can be seen in the Endangered Species Act (ESA). It was based on the fundamental progressive values of empathy and responsibility: empathy with all forms of life, a sense of their inherent worth, and a responsibility for maintaining them and the habitats they depend on. The material policy had specific cognitive dimensions: (1) an understanding of the human activities that place species in jeopardy and of the role of habitat protection in species protection, (2) an understanding of how government agencies could play an effective role, and (3) a legal strategy based on the Constitution’s interstate commerce clause to give the federal government not only the authority, but the responsibility, for protecting endangered species and their habitats.
Such moral and practical understandings guided the formulation of material policy—the legal guidelines of the ESA. A material criterion that emerged through this understanding is that any land development project that places an endangered species in jeopardy must halt until the Department of Fish and Wildlife assesses the situation.
Over the years, the conservative think tanks working on cognitive policy have succeeded in getting into public discourse and the public mind a set of general cognitive policies that conflict with the Endangered Species Act:
1. The idea that nature is a resource for human use that habitats and species are such resources, and that human beings have a natural right to the use of such “natural resources.”
2. The metaphor that markets are both natural and moral, and that government regulation is an unnatural and immoral interference with the operation of markets.
3. A special case of (2) is the idea that the potential for development of real property is a form of “wealth,” that governmental regulations restricting development is a “taking” of that “wealth,” and that such “takings” should be illegal or that property owners should be compensated for the loss of that “wealth.” This is, of course, an extended metaphor, but one capable of being made into law.
4. Jobs are at odds with environmental protection. Inevitably, specific constraints on development can result in the lost of specific jobs, though overall habitat protection can lead to the creation of other, often more attractive, jobs. But conservatives rally political support by pointing to the specific jobs.
5. When habitats are in a single state, endangered species do not cross state lines, and hence do not fall under protection of the interstate commerce clause of the Constitution.
Conservative think tanks have patiently spent a vast amount of money and energy getting these general ideas into the public mind and public discourse, so that they now seem natural to many people. Conservative legal theorists and judges have promoted these ideas as well. And the Bush administration took them as basic governing principles, for example, refusing to add polar bears to the list of endangered species so that resources can be developed freely in the arctic. The result has been a whittling away at the effects of the Endangered Species act — not through legislation, but through the workings of cognitive policy.
Progressives have lacked a cognitive policy-making arm. As a result, they try to sell policies on a case-by-case basis via “messaging,” last-minute PR for the specific policy (e.g., listing polar bears as an endangered species), rather than developing a progressive worldview that automatically makes sense of the policy and counters conservative ideas.
Without this deeper exploration, progressives often inadvertently adopt conservative ideas. For example, a significant number of progressives give preference to immediate existing jobs that are environmentally destructive over the development of green jobs.
Political Support for All the Right Reasons
To be implemented, worthwhile policies must have political support. Whether they have such support depends on how the public understands them. Public understanding, for the sake of political support, should be an inherent and explicit part of policy-making.
There is a fundamental principle behind robust public policies, what we might refer to as the Cognitive Criterion for Public Support:
An effective policy must be popular if it is to stand the test of time and it must be popular for the right reasons, namely because it promotes the right long-term values in the minds of citizens.
It is not easy to meet this criterion, but we cannot afford to overlook it in the policy-making process. It is a cognitive criterion for generating and evaluating policies. That is, it is a criterion based on how the cognitive dimension of policy affects the minds — and hence, the brains — of the public.
Creating Policies that Work
The ultimate test of any policy is simple: does it work? We take a pragmatic approach to policy-making that incorporates insights from the cognitive sciences – the array of disciplines devoted to the study of brain, mind, and thought. A major finding of the cognitive sciences is that roughly 98% of the neural activity comprising human thought is structured outside conscious awareness. It is necessary to analyze the mental structures – called frames – that bring substance to our thoughts, in order to see the critical role they play in effective policy.
Cognitive analysis reveals how to make the way the world should be and the way the world could be into a coherent whole. This synergy of values, meaning, and truth – from commonsense understanding to inspirational vision – is the essential feature of successful policy.
An example is Social Security. This popular program has survived decades of attack by conservatives. It is based on the simple ideas that (1) we are all in this together; (2) hard-working people should be taken care of when they retire; and (3) a caring society takes care of its people. These progressive ideas are easy to understand, get reinforced each time a senior citizen receives a social security check and thus does not have depend on children or grandchildren—if he or she has them—in their old age. And it is reinforced when the grown children understand that burden that social security has lifted from them.
Social Security stands not only as a bulwark against material conservative policy, but as a wedge against conservative cognitive policy. The ideas behind it are general ideas, and the effectiveness of social security should be trumpeted regularly as support for the general values that underlie it. Those are the values needed, for example, for support for a sensible health care plan. Social security and health care are different specific policies, but the general cognitive policies behind them overlap strongly.
Material Failure for Cognitive Success
When conservatives are in power, they can institute policies that are designed to fail—fail in a way to support conservative cognitive policies. In short, for conservatives in power, deliberate material policy failure can lead to cognitive policy success, and hence many strategic successes in the future.
For example, take No Child Left Behind. Its stated purpose is to improve public education, but its covert purpose has been to undermine it so that public schools can be replaced by charter schools, private schools, and religious schools. This would increase conservative control over what is taught and further inculcate conservative ideas. It would institute a two-tier educational system to maintain and reproduce the two-tier economic system in the country, so that children of the elite can get an elite education subsidized by the public through vouchers, while children of the uneducated poor remain educated just enough to continue to provide a source of cheap unskilled or low-skilled labor. This agenda is hidden, but it is justified and advanced via cognitive policy.
Conservative cognitive policy over many years has resulted in the following ideas being promulgated to the public:
1. Successful wealthy people merit their success. Those who are not successful and wealthy don’t deserve to be.
2. Success is a matter of individual talent and discipline. Social factors do not enter in and government is a hindrance, not a help to this success.
3. Accountability works from the top down; those lower on the hierarchy are accountable to those on top. Hence, the schools, the teachers, and the students are accountable to those political leaders who allot funding to the schools. But political leaders and taxpayers are not accountable for providing adequate funding for teacher salaries, school maintenance, and social factors that affect education.
4. High standards will separate out those who merit success from those who don’t, and rewards and punishments should be based on performance — of the students, the teachers, and the schools.
5. Morality comes from conservative religion, and so conservative religious education will help instill morality and should be publicly supported.
6. Education is, or should be, a market phenomenon, in which competition benefits consumers. This involves three metaphors: The students are consumers of their education, and will benefit from consumer choice (hence vouchers and charter schools). The public is the consumer of educated students, and competition will produce better products (students). Knowledge is something that can be delivered whole from teacher to student, like FedEx delivers packages.
7. The main purpose of education is financial success in the market. Thus education should be tailored to the needs of business.
8. Government is wasteful and ineffective, and so cannot produce quality education. Thus, education should be privatized whenever possible.
All these ideas are part of a conservative worldview. Teaching to the test is a material policy that helps to inculcate many of these ideas, as does defunding “failing schools.”
Conservatives have put a tremendous effort and a lot of money over many years into their cognitive educational policy. Progressives cannot turn it around overnight. It will take a considerable cognitive policy effort, along with well-funded and well-designed material policies.
Conservatives have the advantage here. They have a strong cognitive policy arm, which will be hard to match and overcome.
They argue that government is bad. When they create programs designed to fail, this idea is reinforced. Progressives, on the other hand, must argue that government is good AND make their programs work – as conservatives try to keep them from working or appearing successful.
The take home message is simple: Progressives need to learn about cognitive policy and put it to use.
There is a faulty view of voting behavior – widely held by political strategists on the left – that people already know what they want. All you have to do is conduct a poll to find out where they stand on the issues, then build a platform of positions that accords with the polls, and they will vote for you. Missing from this view is the importance of cognitive policy – the ideas necessary to understand what the issues are and how they should be addressed. It is the ability to understand where a candidate is coming from that makes public support possible. Endorsement quickly follows when this understanding combines with a sense of shared values.
There are two kinds of policy: cognitive and material. Material policies are familiar: they outline what is to be done in the world. For example, the details of a health care plan, or a plan for getting out of Iraq. Material policies each have a cognitive dimension, often unconscious and implicit. This includes the ideas, frames, values, and modes of thought that inform the political understanding of the material policy. For example, consider the following questions: Do all Americans, just by their very existence, deserve health care, just as they deserve police protection? How does health care differ from health insurance? How these questions are answered plays a crucial role in what the material details of health care policy should be.
The Rockridge Institute is centrally concerned with the cognitive dimension of particular material policies and how the cognitive dimension—the often-unstated ideas behind material policies—shapes those policies. We are especially concerned with how change in those ideas point toward material policy changes.
But there is a deeper aspect to cognitive policy—general cognitive policy: strategies for getting high-level ideas—values, frames and principles—to dominate public discourse and shape public understanding so that future material policies will be natural and win public support with ease.
Conservative think tanks, over the past three decades, have been extremely successful in pure cognitive policy, that is, in shaping public discourse to lead the public to accept basic conservative values and principles. That long-term investment has paid off in making material conservative policies seem natural, for example, massive tax cuts for the wealthy, the pre-emptive invasion of a country that hadn’t threatened us, defunding such federal agencies as FEMA and the FDA, and government spying on US citizens.
The success of a policy depends on how it meets both cognitive and material criteria. Concentrating on material criteria alone can be counterproductive if a policy is either unpopular, or if it instills in the public’s mind long-term values that contradict the aims of the policy.
Cognitive policy comes first. It is comprised of ideas, frames, and arguments. It forms the basis of what the issue is, how it is understood and what should be done about it. The material criterion is comprised of mechanisms for achieving the goals that emerge from the cognitive criteria.
This can be seen in the Endangered Species Act (ESA). It was based on the fundamental progressive values of empathy and responsibility: empathy with all forms of life, a sense of their inherent worth, and a responsibility for maintaining them and the habitats they depend on. The material policy had specific cognitive dimensions: (1) an understanding of the human activities that place species in jeopardy and of the role of habitat protection in species protection, (2) an understanding of how government agencies could play an effective role, and (3) a legal strategy based on the Constitution’s interstate commerce clause to give the federal government not only the authority, but the responsibility, for protecting endangered species and their habitats.
Such moral and practical understandings guided the formulation of material policy—the legal guidelines of the ESA. A material criterion that emerged through this understanding is that any land development project that places an endangered species in jeopardy must halt until the Department of Fish and Wildlife assesses the situation.
Over the years, the conservative think tanks working on cognitive policy have succeeded in getting into public discourse and the public mind a set of general cognitive policies that conflict with the Endangered Species Act:
1. The idea that nature is a resource for human use that habitats and species are such resources, and that human beings have a natural right to the use of such “natural resources.”
2. The metaphor that markets are both natural and moral, and that government regulation is an unnatural and immoral interference with the operation of markets.
3. A special case of (2) is the idea that the potential for development of real property is a form of “wealth,” that governmental regulations restricting development is a “taking” of that “wealth,” and that such “takings” should be illegal or that property owners should be compensated for the loss of that “wealth.” This is, of course, an extended metaphor, but one capable of being made into law.
4. Jobs are at odds with environmental protection. Inevitably, specific constraints on development can result in the lost of specific jobs, though overall habitat protection can lead to the creation of other, often more attractive, jobs. But conservatives rally political support by pointing to the specific jobs.
5. When habitats are in a single state, endangered species do not cross state lines, and hence do not fall under protection of the interstate commerce clause of the Constitution.
Conservative think tanks have patiently spent a vast amount of money and energy getting these general ideas into the public mind and public discourse, so that they now seem natural to many people. Conservative legal theorists and judges have promoted these ideas as well. And the Bush administration took them as basic governing principles, for example, refusing to add polar bears to the list of endangered species so that resources can be developed freely in the arctic. The result has been a whittling away at the effects of the Endangered Species act — not through legislation, but through the workings of cognitive policy.
Progressives have lacked a cognitive policy-making arm. As a result, they try to sell policies on a case-by-case basis via “messaging,” last-minute PR for the specific policy (e.g., listing polar bears as an endangered species), rather than developing a progressive worldview that automatically makes sense of the policy and counters conservative ideas.
Without this deeper exploration, progressives often inadvertently adopt conservative ideas. For example, a significant number of progressives give preference to immediate existing jobs that are environmentally destructive over the development of green jobs.
Political Support for All the Right Reasons
To be implemented, worthwhile policies must have political support. Whether they have such support depends on how the public understands them. Public understanding, for the sake of political support, should be an inherent and explicit part of policy-making.
There is a fundamental principle behind robust public policies, what we might refer to as the Cognitive Criterion for Public Support:
An effective policy must be popular if it is to stand the test of time and it must be popular for the right reasons, namely because it promotes the right long-term values in the minds of citizens.
It is not easy to meet this criterion, but we cannot afford to overlook it in the policy-making process. It is a cognitive criterion for generating and evaluating policies. That is, it is a criterion based on how the cognitive dimension of policy affects the minds — and hence, the brains — of the public.
Creating Policies that Work
The ultimate test of any policy is simple: does it work? We take a pragmatic approach to policy-making that incorporates insights from the cognitive sciences – the array of disciplines devoted to the study of brain, mind, and thought. A major finding of the cognitive sciences is that roughly 98% of the neural activity comprising human thought is structured outside conscious awareness. It is necessary to analyze the mental structures – called frames – that bring substance to our thoughts, in order to see the critical role they play in effective policy.
Cognitive analysis reveals how to make the way the world should be and the way the world could be into a coherent whole. This synergy of values, meaning, and truth – from commonsense understanding to inspirational vision – is the essential feature of successful policy.
An example is Social Security. This popular program has survived decades of attack by conservatives. It is based on the simple ideas that (1) we are all in this together; (2) hard-working people should be taken care of when they retire; and (3) a caring society takes care of its people. These progressive ideas are easy to understand, get reinforced each time a senior citizen receives a social security check and thus does not have depend on children or grandchildren—if he or she has them—in their old age. And it is reinforced when the grown children understand that burden that social security has lifted from them.
Social Security stands not only as a bulwark against material conservative policy, but as a wedge against conservative cognitive policy. The ideas behind it are general ideas, and the effectiveness of social security should be trumpeted regularly as support for the general values that underlie it. Those are the values needed, for example, for support for a sensible health care plan. Social security and health care are different specific policies, but the general cognitive policies behind them overlap strongly.
Material Failure for Cognitive Success
When conservatives are in power, they can institute policies that are designed to fail—fail in a way to support conservative cognitive policies. In short, for conservatives in power, deliberate material policy failure can lead to cognitive policy success, and hence many strategic successes in the future.
For example, take No Child Left Behind. Its stated purpose is to improve public education, but its covert purpose has been to undermine it so that public schools can be replaced by charter schools, private schools, and religious schools. This would increase conservative control over what is taught and further inculcate conservative ideas. It would institute a two-tier educational system to maintain and reproduce the two-tier economic system in the country, so that children of the elite can get an elite education subsidized by the public through vouchers, while children of the uneducated poor remain educated just enough to continue to provide a source of cheap unskilled or low-skilled labor. This agenda is hidden, but it is justified and advanced via cognitive policy.
Conservative cognitive policy over many years has resulted in the following ideas being promulgated to the public:
1. Successful wealthy people merit their success. Those who are not successful and wealthy don’t deserve to be.
2. Success is a matter of individual talent and discipline. Social factors do not enter in and government is a hindrance, not a help to this success.
3. Accountability works from the top down; those lower on the hierarchy are accountable to those on top. Hence, the schools, the teachers, and the students are accountable to those political leaders who allot funding to the schools. But political leaders and taxpayers are not accountable for providing adequate funding for teacher salaries, school maintenance, and social factors that affect education.
4. High standards will separate out those who merit success from those who don’t, and rewards and punishments should be based on performance — of the students, the teachers, and the schools.
5. Morality comes from conservative religion, and so conservative religious education will help instill morality and should be publicly supported.
6. Education is, or should be, a market phenomenon, in which competition benefits consumers. This involves three metaphors: The students are consumers of their education, and will benefit from consumer choice (hence vouchers and charter schools). The public is the consumer of educated students, and competition will produce better products (students). Knowledge is something that can be delivered whole from teacher to student, like FedEx delivers packages.
7. The main purpose of education is financial success in the market. Thus education should be tailored to the needs of business.
8. Government is wasteful and ineffective, and so cannot produce quality education. Thus, education should be privatized whenever possible.
All these ideas are part of a conservative worldview. Teaching to the test is a material policy that helps to inculcate many of these ideas, as does defunding “failing schools.”
Conservatives have put a tremendous effort and a lot of money over many years into their cognitive educational policy. Progressives cannot turn it around overnight. It will take a considerable cognitive policy effort, along with well-funded and well-designed material policies.
Conservatives have the advantage here. They have a strong cognitive policy arm, which will be hard to match and overcome.
They argue that government is bad. When they create programs designed to fail, this idea is reinforced. Progressives, on the other hand, must argue that government is good AND make their programs work – as conservatives try to keep them from working or appearing successful.
The take home message is simple: Progressives need to learn about cognitive policy and put it to use.
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