February 19, 2006
Democracy and Vice-President Cheney
Jonathan Alter's column this week is about Cheney, and his relationship with the press and (by extension) democracy. For me, the money quote is:
So Cheney has quietly figured out how to avoid answering the messy questions that are a vital part of a modern democracy. His message to the Washington press corps is the same as the one he delivered to Sen. Patrick Leahy in the Senate cloakroom, when the Democrat had the temerity to criticize him: "Go f--- yourself." By not holding a press conference since 2002, Cheney is telling the men and women assigned to cover the White House that they are irrelevant. No wonder they went crazy after learning of the shooting accident from a Texas paper. [emphasis added]
I guess this must be true (they have to pay some intern to check facts at newsweek); it's certainly extraordinary. I understand that (normally) the Vice-President isn't interesing or newsworthy; Cheney certainly is. He holds (and wields) more power than any other Vice-President in history. How could he not have a public press conference in four years?
Quiet. That sound you hear is the slow, almost imperceptible, evaporation of democracy in America.
Posted by baltar at February 19, 2006 09:03 PM
| Posted to Politics
2002!?! I had no idea. And the fact that I didn't know that speaks volumes too.
The idea that we live in a responsive republic is really becoming complete fiction. There's one "accountability moment" in an 8 year time span - otherwise these jokers can just do what they damn well please. And given what pleases them - well, too bad for us.
Yeah, I was kinda stunned too. I know that Bush hates press conferences, but he does give them from time to time (not often enought). Cheney hasn't given any? I really am stunned by this; I suspect that there are all kinds of questions worth asking him.Yeah, I was kinda stunned too. I know that Bush hates press conferences, but he does give them from time to time (not often enought). Cheney hasn't given any? I really am stunned by this; I suspect that there are all kinds of questions worth asking him.
How often did Gore hold press conferences when he was VP? (Yes, I know that Gore's role was arguably different from Cheney's, but it would be useful to have a baseline of expectations. You may find that, generally speaking, VPs don't have their own press conferences for the most part.)
I asked baltar that very same question. I'll let him give you his argument about why even if gore did few, it still matters that Cheney hasn't done any in years.
I spent a while on google and couldn't find a number. He had at least two (one over the campaign fund-raising/buddist temple spat, and one with a Russian government official in 1998). I'd bet he had more, but I can only find references to those. In any event, that's two more than Cheney has had since 2002.
yeah, and unlike cheney, gore's chief of staff (and gore himself) wasn't implicated in a felony. and i assume baltar's extended reasoning on the distinction sounds in the fact that gore wasn't nearly so involved in policymaking as cheney is, with which i wholly concur.
I would have thought he had a lot of press conferences, especially on the administration's environmental policy.
And don't forget the "Reinventing Government" activity in the 1st term.
If you really really really want know - I suppose I could ask our connection to the former Vice President. He'd obviously be in a position to be able to give us a general estimate.
who cares how many press conferences he has had. Its interesting to point out but beyond that every VP his own perogatives and as it turns out Cheney does not trust the media. If you read Clinton's autobiography, every other page he talks about how him and Hilary were naive about the White House press corps coming in and shocked when they learned of their true nature. Heck Democrats envy the way Bush and Cheney have whipped the press. We have a strong willed executive and its up to the media and the Congress to be just as strong willed in response. Its hard to blame Cheney. obviously people may not like it for one reason or another. Remind me what felony Cheney was involved in? Are you refering to Haliburton?
"We have a strong willed executive"
You mean Cheney?
I just re-read Moon's comments and see that he's refering to the CIA leak investigation. If Cheney came out and held a press conference on the subject then he'd have the worst legal advisers in the history of the vice presidency. Obviously he's not going to offer up what he knows about the situation because Democrats given an inch would take a foot and try to steer the investigation (at least the coverage of it by the press) into a rehasing of the decision to go to war in Iraq. Which bring to mind another thing that runs contrary to the way our system has always worked--but something jonathon alter probably didnt mention--and that the democrats' criminlization of politics and their desire to hold a virtual mid-term presidential election by trying impleach to Bush because given the benefit of hindsight the war in Iraq looks like a mistake.
1) So we're not supposed to have any investigations of probably criminal behavior, or a Vice President of the United States cooperating with an investigation into criminal behavior b/c .... someone might go off topic and reference the war?
2) How on Earth are Democrats trying to criminalize politics?
3) And how is an impeachment for malfeasance in office or conspiracy (or I guess something like that - it's hard to know exactly what the charge would be since the Democrats aren't actually pressing impeachment, but if you want to talk about it ...) like a mid-term election?
Legally, neither the President, nor the Vice-President (nor any member of Congress, or any member of the executive branch) is required to give a press conference: there are no laws that govern when, how, or if any individual must speak publicly (the only exception I know is the President's "State of the Union" address).
Thus, the larger question is whether or not the lack of press conferences by the second-most-powerful figure in the executive branch is good, bad, or irrelevant in a democracy sense. Democracies don't run themselves; it takes (needs) involvement by actual people. People need information. That information can only come when the powers-that-be decide they are willing to speak to reporters. Look at Rumsfeld: I think he has weekly press conferences (sometimes more often). Whatever else you think of him, he has clearly done what he can to keep the people informed about what the Department of Defense is up to. Cheney, on the other hand, hasn't had a press conference (if the story is to be believed) in four years (or so). Considering the power he wields, wouldn't it be nice if we could get some information out of him? So we (the people) can actually evaluate whether he's doing a good job? What his opinion is on, say, Hamas? What he thinks our policies ought to be on any number of subjects (since, as noted, he's a fairly powerful figure, with influence on the policies of the country)?
Look, I believe in full disclosure of as much as possible by every and all officials in DC. It's the only way to know who's doing what to whom. I'll admit the Dems would love to run a Cheney press conference (to gain political points); however, they don't. The press does. And, whatever you believe, the Press isn't "liberal" (they're sensationalist; there is a difference).
Don't you think citizens should be able to ask their representatives (in the larger sense of the word; not just Congress) why they are doing what they are doing?
i didnt say dont have any investigations. i was just was pointing out that you would have to think cheney has some bad advisers (and lawyers) to be surprised that he talks to the media as little as possible.
and no demoracts are no longer pushing impeachment, mostly because they realized that there wasnt much public momentum for it. And of course they realized it would be darn near impossible with the republicans in control of congress for at least another year.
I don't think the Dems are deliberately criminalizing politics: think the criminalization of politics is a natural outgrowth of two independent factors: (1) the explosion of lawyers and the intrusion of courts into political matters (note: this isn't necessarily a bad thing - Brown v. Board of Ed. - or a good thing - Hamdi, and the other legal decisions allowing the administration to keep the enemy combatants out of the Federal courts. It's just what has happened in American politics over the last 30 to 40 years: sue to change a policy), and (2) the fact that the Dems own neither the Congress nor the Executive, which means the only branch they can use to fight back is the courts. These two independent events have contrived to push the Dems towards using the courts as a means of preventing the Bush policy initatives. It's not unethical, just politics.
the press isnt liberal, its sensationalist. ok perhaps. but the outcome for a conservative vice president giving a press conference would be essentially the same whether the press was liberal or sensationalist.
I dont know what you imagine would come out of a press conference with Cheney that would help that many people decide what kind of job he's doing. I've seen many of Rumsfeld's press conference and they can be interesting but 1) my opinions of the kind of job he is doing arent effected very much in the long run by watching them and 2) how many people would watch these press conferences? and relating back to point 1) above even if as much as a large minority of people read news articles that sprung out of these news conferences would these articles with cheney's qoutes and analysis of cheney's qoutes provide a significant foundation on which people would actually base their opinion of the job he's done? I think people see the proof in the pudding, not in the press conferences.
Now sure if the VP had lots of press conferences it would symbollic of something, but practically i dont think it makes much difference. I think Cheney has given us adaquate grounds for judging the job he's done over the past 5 years.
If gore had 2, 3, 4 press conferences in 8 years as VP did that really make people more informed? it might have a made a small slice of tsociety--the national news media and people who are slightly addicted the national news media (including myself)--FEEL like they are more informed but I dont think it would provide any substantive difference in even those peoples' level of informed-ness.
I think the fact that he hasnt had any news conferences in indicative of a general truth about cheney and perhaps the whole administration. But I think as much as anything it is instructive of the ugly socio-political climate we are in right now, where your political opponents are going to run with anything that potentially could hurt you and the 24 hour news channels will reproduce and amplfy your opponents message and increase the chances that you will be politically harmed. I mean given the rise of cable news and 24 hour news channels, the internet and blogs we are probably as informed about this administration as any administration. All administrations shy away from too much media scrutiny. Given that, Cheney's reticence is probably the proper counter balancing move to the revolution in our societies ability to gather and share information.
whats not unethical? the dems using the courts to counter balance bush initatives? i wouldnt say unethical, but i would call it a misuse of the courts. since the courts are supposed to be insulated from the political process. so you could forcefully claim that the democrats are subverting the democratic process by using unelected judges to counter elected officials in matters that traditionally are left to those elected officials.
although i am a pragmatist and therefore i would not claim that the "misuse" of the courts is always a bad thing, which we seem to be agreement about, even if it is a bad thing in theory (or at least counter to the separation og powers set up by the constitution). and likewise the VP not holding press conferences is not always a bad thing.
How else do you think the public is kept informed about what the government is doing? Press conferences are necessary to get the Administration's official position on any policy. I don't know how you envision a democracy works if they don't exist. It doesn't matter how many people would watch it; it's the principle of the matter - the people in the administration owe it to the country to stand in front of the cameras and tell us what they are doing, and how they are doing it. Again, ratings and viewership don't matter - it's the democratic principle that's at stake. You note that "I think Cheney has given us adaquate grounds for judging the job he's done over the past 5 years." That's my point: we don't have any idea what sort of job Cheney has done, since we don't have any idea what he's been involved in or not (since he hasn't had a press conference so anyone could ask him). How can we judge him without any knowledge?
I don't think (no matter what the political enviornment) it's proper for Cheney or any other official to duck the press.
If a Democrat ever gets back in the White House, will you support that administration not having any press conferences, since that would be the "proper counter balancing move to the revolution in our societies ability to gather and share information"?
As for the courts - you may not like how they are used, but there is nothing illegal about their political activity. It's more of a "norms" thing; today, people accept that the courts can change policy - a hundred years ago, I doubt that would be true (moon?). I'm honestly not sure that the courts are violating the separation of powers by being involved in policy - their job is to say whether activites by the Executive and/or Congress are illegal - that job is inherently part of the separation of powers.
well you seem to be contradicting yourself. first you say (paraphrasing) "how else is the public supposed to be informed if there arent press conferences" and then you say (again paraphasing) "viewership does not matter, its the principle of the thing".
well if its all about the public being informed than viewership does matter. and the "principle of the thing" is the same argument on which democrats could get crushed for mixing up the courts with political issues.
regardless of whether the public accepts (and im not sure they do) that courts can create policy, the fact is that that practice is undemocratic and runs afoul of the powers given the judiciary in the constitution. now im not going to kill democrats over it, but im always not going to kill cheney over not holding press conferences just because either party is not not in strict accordance with democratic principles.
and yes i would not care that much if the next democratic VP holds no press conferences for 3 or 4 straight years. i think when you figure in the new ways in which information gets use, the speed and sizes, in which we have access to it a more reticent administration probably means we are no more or less informed than under the previous administration.
and also i think you could say there is something "illegal" about the court's political activity. although it is kind of a catch-22 since on one hand you have the consitution and the powers it grants to each branch and on the other hand you have the courts which say what the proper interprtation of the constitution is. but to say that there is 'certainly nothing illegal" about the courts political bend these days is not true.
"yeah, and unlike cheney, gore's chief of staff (and gore himself) wasn't implicated in a felony."
That's only because Janet Reno was AG.
"The half-inch stack of e-mails released Friday are part of some 100,000 incoming messages that were not properly archived under the White House e-mail system -- and thus, not turned over to investigators in response to various subpoenas issued by the Office of Independent Counsel, the Justice Department, and several congressional committees.
The e-mails were turned over to House Government Reform Committee Chairman Dan Burton, a long time critic of the Clinton administration.
'The evidence is clear the Whitehouse has obstructed this committee's investigation time and time again,'" said Burton in a statement."
"The e-mail messages do appear to contradict initial claims made by Gore and other White House officials that the vice president did not know the Buddhist temple event was a fund-raiser. Gore initially said he believed it was a community outreach event, and later acknowledged that it was 'donor-related.'"
"The messages were reconstructed from back-up tapes as ordered by U.S. District Judge Royce C. Lamberth, who is holding hearings on allegations of obstruction of justice by White House officials concerning the computer problem. Judge Lamberth ordered the White House to reconstruct the e-mails on a timely basis in conjunction with the lawsuit, which was brought by the conservative group Judicial Watch."
"The disclosure of the e-mails comes less than a month after Attorney General Janet Reno announced she would not appoint a special prosecutor to investigate the vice president over statements he made regarding the Buddhist temple and other fund-raising events."
So from what you're saying it sounds like the only difference is that the Bush AGs have been less competent at protecting the administration.
Are you suggesting that Janet Reno was "protecting the administration" rather than seeking justice? I'm shocked, who would think that someone who'd cover up the Waco massacre would do such a thing?
I was just paraphrasing you Morris:
"yeah, and unlike cheney, gore's chief of staff (and gore himself) wasn't implicated in a felony."
That's only because Janet Reno was AG.
Marc - Press conferences do matter for two reasons, even if the public never watches them. 1) They are the only occasion during which public officials in the executive branch of the federal government (none of whom are elected except for the president, and even he's not directly elected) are in any sense held accountable for their actions or forced to explain themselves (excluding Congressional oversight - but of late there's extremely little of that). So they are the one setting where those in power have to explain their actions and not simply hide out in their offices for 4 or 8 years. Will a lot of what they say be spin and evasions? Sure. But it seems to me that the whole point of democracy is to have a responsive government - and getting quizzed on what you are doing and why you are doing it is central to maintaining that aspect of democracy. If the people would rather watch American Idol, well, that's their business. 2) They serve an important role in creating cues for those few people who do watch the press conferences (principally other political actors in DC). You can pick up on what the party line is supposed to be. If you are a member of Congress you might not something that could potentially require an investigation down the road. You might get a sense of what policies can be changed, which can't, and why.
So basically even if the average person doesn't watch the things - they are still important to the internal workings of government and keeping the checks and balances system that's kept this government afloat for 200+ years working (particularly in the era since World War II when power is concentrated in the executive branch at unprecedented levels).
well we simply differ on the real world effect that a VP press conference every couple has. sure it would be symbollic but so would the dmeocrats not trying to pressure the courts into asumming more power than the constitution gave them. but you guys dont seem to be up in arms about it. and if less press conferences mean its harder for political actors to pick up cues to the party line then I'm all for less conferences. the less repition and amplifying of the party line the bettter. the two pary system sucks right now and both parties suck. and the fact that the VP does not have press conferences is pretty far down on my list of reasons why that is so.
I have no idea what you are talking about in terms of Democrats assuming they have power at the moment. I think it's pretty clear they know they don't.
And the cues I'm talking about aren't meant to be matters of "the party line" - often they are matters of plain old substantive differences regardless of party. There have been a number of times when the administration has caved (while saying it didn't) to pressure - sometimes it's from Dems, sometimes (usually) not - but the press conferences are a way of keeping all of Washington informed (partisans of various stripes, the media, people in a wide vareity of agencies) ... It's through this kind of straightforward presentation of views and responses to it (and again, many of the responses aren't partisan matters) that we can ensure that 1) our system of checks and balances remains in place and 2) our system doesn't fly totally off the rails into poorly thought-out initiatives and corruption. That has nothing to do with partisanship - but everything to do with a responsive government that will work effectively regardless of who is in charge.
And if you really want to live in a democracy - I think it's pretty close to absurd to think that the country's leader shouldn't ever face questions on anything. That's a system more appropriate in the USSR or the mob.
the soviet union and the mob aren't the most apt comparisons. i think the autocratic streak in the administration is far more reminiscent of corporate power structures. no obligation to hear others out, no accountability, and disproporationate rewards and perqs regardless of performance, and whatever messes he makes he just leaves for the loser tapped to succeed him.
the GOP sold the U.S. an MBA president, and an MBA president is what the U.S. got. that americans couldn't extrapolate from the rampant self-interest and fatal short-sightedness of the standard corporate mentality even in the shadow of the dot-bust is everyone's misfortune.
but as i've heard any number of corporate executives say in the past, "this is not a democracy." and it isn't.
Moon, you might be interested in this piece from Robert Kaplan.
Link fixed, thanks Mo.
Your linky's messed up (you have a comma where your alligator's supposed to be).
Question for anyone: If Kerry had had a single Cheney moment during his re-election campaign, let's say accidentally shooting a friend while out quail hunting on a ranch, would that have given him the tough image he needed to win the last election?
hey, thanks for the linkage. that was, indeed,a fascinating article. i like this line, among many favorites: "
Whereas the liberal mistake is to think that there is a program or policy to alleviate every problem in the world, the conservative flaw is to be vigilant against concentrations of power in government only--not in the private sector, where power can be wielded more secretly and sometimes more dangerously."
hellelujah on both points.
i never said i didnt think the leaders in our country should ever face questioning and that not a reasonable reading of my post if you're saying thats my position.
also i didnt say the democrats assume they have power. obviously they dont. i said that you can just as easily argue (probably much more forcefully actually) that democrats have been symbollically and in reality subverting democracy by pressuring the COURTS TO ASSUME more power relative to Congress by creating legal rights through constitutional interpretation which would probably be better left to statutory enactment. and it does not matter what your interpretation of the constitution is really. the fact is that democrats and liberals have been trying over the last 40 years to get the courts (successfully for the most part) to make more policy decisions, effectively taking those policy decisions away from the popularly elected branch of government. thats a stragety which is anti-democratic in theory and practice anyway you slice it. i dont think VP's not holding press conferences is a great idea. but its less anti-democartic than the democrats strategy in relation to the courts and achieving their policy objectives. as someone mentioned there is nothing in the constitution beyond the state of the union in terms of members of the federal government making public speeches or Q & A sessions. but there sure is a lot mentioned about balance and separation of powers between the legislative and judicial branches.
and i have a feeling you aren't up in arms over that "evaporation of democracy in America".
You might have a feeling - but you'd be wrong. Here at the Coup we've noted several times that the Rehnquist Court was by several measures the most "activist" in many decades. It's certainly been unusually active in striking down acts passed by Congress - though often not in ways that the Democrats wanted. And I think you'd be hard pressed to find many Supreme Court obersvers who see this activism as a purely partisan matter. The judiciary's role has been growing since Marbury v. Madison. And justices like Rehnquist and O'Connor generally viewed their jobs in ways that meant they would have a great deal to say over national laws.
But perhaps this is not always a bad thing. Lots of people think Brown v. Board of Education is an important landmark in American political history. I'm sure even President Bush wouldn't criticize it. But I think most people would say it's "activist" - if there is such a thing.
And of course Bush v. Gore is arguably the most activist Supreme Court decision imagineable - and that surely wasn't the work of the Democrats.
Of course there is one reform of the Court I personally would like to see that might make it in spirit a bit more responsive/democratic - terms limits. I think if we knew exactly how many justices were likely to be replaced in the next presidential term it would help clarify for voters the amount that their concerns over the Court should enter into deciding who to support for president.
"subverting democracy?" first of all, please. second of all, read again what armand said. liberals and conservatives alike who have more of a background in the law than what they can read in USA Today know that by basically any measure the Rehnquist Court was no less "activist" than the Warren Court. this meme is so atrociously overplayed and so manifestly misinformed that it literally nauseates me every time i see it.
and given your trenchant concern for the balance of powers, just out of curiosity, marc, where's the strident outrage over the sea change the white house is forcing and the GOP toadies in Congress are facilitating by omission in the balance between executive and legislative power. since the Court neither packs heat nor has access to all sorts of high tech toys, like hundreds of thousands of people under the authority of the president do, one would think your veneration of tripartite government would manifest in more outrage at the increasingly autocratic decision-making (or perhaps i should say fiat-issuing) process in d.c.
I agree with what what Moon says - except for the slap at USA Today. They employ one of the country's most highly thought of Supreme Court reporters, Joan Biskupic.
I cant agree that Rehnquist thought his role was to have a hand in shaping national laws. He thought his role was to help shape which types of laws could be passed at a federal level and which types of laws should be made at the sate level. Mosttly he simply redistributed law making power AMONG representative branches at the national and local level. Most of the laws overturned, esp. those the commerce clause ones did not reflect the judiciary substituting thier policy making for that of elected officials. It refected the substitution of STATE legislative power for that of FEDERAL legislative power. that not anti-democratic. if anything its more democratic by giving more power to people back home who are directly in touch with that people. thats much different then the democracts use of the courts which has generally been more to substitute policy making of unelected officials for that of elected representatives. conservatives have dabbled in it as well, case in point trying to overturn the oregon law allowing physician assisted suicide. my point is that neither party has a monopoly on strategies (whether it be PR strategies or court strategies) that one can argue work against democracy in theory and perhaps also in practice. while the point about cheney not having press confereces is valid in that it could be interesting case study visa vie the free flow of information and the workings of democracy, i think you far overstated the case when you said it was resulting in the "evaporation of democracy in america". i think your real problem with cheney is you dont like the policies he and people likeminded put in place and if you oppose his policies in general its a useful rhetorical stance to point to his lack of acces to the media and claim that his conduct in that regard is somehow hurting american democracy in some crucial way. just like when people on either side of the illogical divide dont like a judicial decision b/c it has policy ramifications they make their stand look more prinicpled by tagging the judges "activists" (a term i loath b/c it is completely meaningless) thereby implicitly claiming that concerns of "democracy" and "separation of powers" supports their opposition against that particualr judge or his decision.
and dont worry my knowledge of the judiciary branch goes beyond USA today. i didnt even know USA covers any judicial issues. im impressed. w
and moon as to your question about "wheres my strident outrage", i think if you read my posts you'll see i dont have strident outrage towards any issue we've discussed. i do , however, have "trenchant concern" for everything we've discussed.
important typo above. 6th line from the bottom should read "policy ramifications they dont like..."
i'll make this real easy and ask you straight out whether you think roe v. wade (which is universally supported by democrats in washington and liberals all across the country) is worse than cheney's lack of media access in terms of interfering with the democratic process. im pro-choice but that doesnt mean i cant recognize that roe v. wade was an afront to democratic principles. im just wondering if you are an equal opportunity whistle blower when it comes to calling people on tactis they employ that evaporate democracy.
1) I fail to see anything whatsoever in common with a Supreme Court decision and the press conferences the Vice President does or doesn't hold.
2) Why pick out Roe v. Wade? Unless you are talking about the tiny handful of Supreme Court decisions that broadened the franchise back during the Warren Court era, there are extremely few Supreme Court decisions that are any more or less democratic than any other - though arguments could certainly be made that Bush v. Gore was a particularly blatant end-run around democracy, or at least letting existing political branches function has they were designed to function.
3) Even if I grant you your premise that Rehnquist was just giving power back to the states (and if he was doing that he was doing it extremely selectively, and one could argue with particular political results in mind) - I fail to see how that makes the Court "democratic" in any way. In many parts of the country people actually know less about their local government than they do the national government. And besides the Court is still picking winners and losers in policy fights, and if the members of the Court aren't publicly accountable ...
4) And of course I tend to think Cheney's policy views are disasterous. But I could at least have more respect for him as a public figure and supposed proponent of democratic principles if he had the guts (or merely inclination) to actually engage the nation's people and not conduct what's often termed "the people's business" behind locked, heavily-guarded, closed doors. I think there are both matters of substance and matters of procedure that matter and help us maintain an efficient, responsive republican form of government. Just b/c I disagree with Cheney's priorities on the former doesn't have anything to do with my views of his behavior when it comes to those latter matters.
1) i just explained what the have in common, they are both in theory in conflict with democratic principles. but you only seem to take issue with one of them. its a matter of logical consistency and intellectual honesty.
2) why pick out Roe v. Wade? because people march in the tens and probably even hundreds of thousands every year all the across the country in order to voice their support or opposition to abortion. if tocqueville was alive today he'd cite the abortion debate as probably the best on going manifestation of a vibrant democracy in action. except that vehement debate among the people is rendered completely null and void because of a supreme court decision 30 years ago that where the court claimed the authority to deicde the issue. yet the debate among "we the people" still rages on. thats why i picked out roe v. wade.
3)i dont follow your chain of logic in this section. but i will say that on the issue i was discusing (the balance of power among federal and state legislative branches)we are discussing you have it backwards. the the important thing to consider isnt whether the PEOPLE know more about their local government than the national government. its whether the FEDERAL GOVERNMENT knows more about the people, with all their local and regional preferences and interests, than the STATE and LOCAL GOVERNMENTS do.
In adittion in decisions like Usery, Lopez and Morrison where the Rehnquist court (actually Usery wasnt during the "Rehnquist" court per se, however he authored the majority opinion)struck down federal statutes because they regulated activity that was beyond Congress' Commerce Clause powers, its hard to make a case that the court was shaping policy. This is because (as i mentioned above) the decision did not subsitute judicial policy making for legislative policy making. rather those decisions simply meant that the state legislatures opposed to the federal legislatures were the proper places for passing laws in those areas. therefore you cant say rehnquist displayed any policy preferences in these decisions because the state legislatures could have gone ahead and enacted the exact same laws/policy that were invalidated by the courts decision. he wasnt opposing a SPECIFIC policy, rather he was opposing the federal government's power to implement ANY policy whatsoever in SPECIFIC areas of regulation and bind the states into following it. he was also promoting the idea of the states as "labratories" which in turn promotes diversity of thought, tolerance and outside-of-the-box thinking.
4) I respect your views about Cheney's media relations and there may be something to them. but there is not something to them soley based on the fact that cheney's media relations are opposed in theory to democratic principles. no more than there is anything to objections against a judicial decision like roe v. wade based soley on the fact that it "usurped" legislative perogative.
im dissapointed theres no response.
I imagine Armand is disappointed that he has 100 exams to grade.
I still have 70 exams to grade (30 down!) - so I don't have time to do much posting/commenting for a bit longer.
But I'll go ahead and note two things now - 1) If the post Roe debate is as vibrant as you say, it's hard to say that "democratic" actions in this area have really been shut down in its aftermath. The Court hasn't worked to do that. And of course it's allowed a host of restrictions on access to abortion procedures to stand, while so far maintaining the fundamental right (which if we had national referenda on such matters is likely the vague area where national policy would end up through the people's choice). 2) Court decisions holding that Congress can't do something but the states can are, to my eye, very clearly "activist". I mean you are taking power from one set of actors and giving it to another set of actors (who have different preferences and interests). So the judiciary is inserting itself (undemocratically some would say) into matters where it has a huge say as to who allocates resources, limits freedoms, etc. Whether or not there is a specific winner 100% of the time doesn't strike me as particularly relevant (though states and the feds do have clearly opposing interests on many matters, and so the Court is deciding who's usually going to win on those). And of course it's also key to note that the Rehnquist "federalism revolution" or whatever you want to call it wasn't remotely even-handed or consistent. And so in deciding cases one at a time the Court can indeed choose more specific winners and losers depending on the issue they confront at a specific time.
As an aside, while a lot of the country's professionalized legislatures may indeed foster outside the box thinking, many of this country's state legislatures are the last places you'd want national policy set. They are filled with part-timers who don't know much about how the government works, they don't face much competition for their jobs, and there is even less press coverage of them and what they are up to (essential if the whole idea is to favor the more democratic or responsive government) than there is of Congress. And that's before you even get to the good-ole-boy, cronyism thing, which again is in many states worse than what you see in Congress. None of that is really on point to this issue of the Court's power or responsiveness - but it's important to keep in mind in terms of what kind of democracy we really want if we want responsive government.
i'll echo armand's observations about state legislatures. here in pennsylvania, there is widespread agitation against professional legislatures, and it's very likely that this next round of state elections is going to be a bloodbath. of course, in some sense that's a vindication of democratic principles, but given the hamfistedness of most of the candidates who are running under the "clean sweep" banner (including those who saw to the first-time non-retention of a supreme court justice who was essentially blameless in all of the putative legislative offenses against which CC and co. rail, and who celebrated the victory with a glee disproportionate to the modest objective benefits of the successful campaign (no obvious jurisprudential advantages; tremendous expense to the taxpayer; more distracting of the legislature from the usual work of legislating)), i'm not terribly hopeful that things will be better when this bunch of opportunistic naifs get into office with no clear legislative agenda except "not them."
in any case, what we're discussing is freedoms, and even the framers, who would have deferred more to states than most people (including the modern GOP) would now, saw it as necessary to promulgate the bill of rights as a hedge against factions operating in individual states.
i guess the question i'm inclined to ask goes to the degree to which we would revert to older conceptions of the constitution. it's all well and good to say that roe is bad law (either for its rationale or its result), but only the most strident of right wingers seem to hearken all the way back to the pre-incorporation era, which to me is a necessary position in any hard-core originalist position. bork, for example, would take us back to before incorporation.
the incorporation rulings -- those that extended most of the protections of to bill of rights beyond their original ambit as restrictions on federal authority and applied them to state government action as well -- sounded in a reading of the fourteenth amendment no more textual than roe v. wade. so, marc, should we no longer apply the first, fourth, fifth, and sixth amendments, inter alia, to state action? should every state be free to eliminate protections against self-incrimination, to refuse to furnish competent counsel to an indigent criminal defendants, to enact content-based restrictions on speech? should states be free to deny state prisoners access to a law library? indeed, should due process of law itself not be federally protected in state criminal and civil proceedings? and what about the contraception rulings?
if you don't take the bork position, i'd be curious to know how you distinguish these examples from abortion, aside from relative moral furor. although we take most of the incorporation rulings for granted by now, many of them were the source of great moral outrage in their times.
i pretty busy myself writing a few but this dicussion is getting well developed. Armand,i'd be interested to know what you are a professor of if you dont mind me asking.
general overview: its pretty simple how roe v. wade (regardless of the soundness of the policy it set up) is undemocratic. it was handed down at a time when the majority of the coutry opposed abortion and it was handed down EXPRESSLY BECAUSE the democratic process offered abortion supproters no real hope. representative bracnhes across the county (while perhaps not 100%) had restricted restricted access to birth control and made abortion illegal. the only way the minority who suppored legalizing abortion could achieve their objective was by making convincing 5 out of 9 SCOTUS judges to make it (or view it if you prefer) as constitutional issue. regardless of the mertis of abortion rights this much is obvious: people who were in the minority on the issue employed the courts to circumvent the democratic process, because that was the only way the could get abortion policy changed to thier liking. This is anti-democratic, theres no way around it.
But you can make an argument can be made that this little abuse of the courts was merited, that sometimes we can turn a blind to the strict principles of dmeocracy. Heck, our founders did not create a pure democracy so we have some persausive precedent to take liberities when it comes to the application of strict democractic principles if helps bring about our desired ends, like certain policy objectives.
But this reality of policits in this country, that democratic principles are always adhered as a matter of practicality (roe. wade being perhaps the most famous example) means that arguments like armand's (theoretically democracies rely on an informed electiorate and thuss cheney's lack of press conferences is anti democratic, and whats more, it is leading to the evaporation of democracy in america) are flimsy and somewhat unconvicing. im not saying im persauded to believe eactly the opposite of what armand was arguing, but im definately not convinced by his argument and general stance on the issue.
also what armand agued about the court redistributing power among state and federal representative branches (that its undemocratic because the courts are deciding which popularly elected branch gets the power in general areas of policy making) does not really hold up under examination. WHY? well it simply flies in the face of Marybury v. Madison and the role it set up for the federal judiciary by that decision.
Think about it; there are two layers of popularly elected government in this country. the constitution sets a general framework for dividing the power to make laws between these two layers. judges interpret the constitution. so who is supposed to divy up the power between these two levels of representative government? the representative levels cant very well do it themselves. or maybe armand is suggesting we elect a third branch of goverment for the sole purpose of deciding this issue? that makes no sense. so is the executive going to do it? a few second reflection points out the disaster of such an idea. so we're left with the judicial branch. they translate the constitution and apply this standards of federalism v. federal supremacy, divying up power between state legislatures and federal legislatures accordingly. its Marybury v. Madison in a nut shell. Its the court's job, as given to them by the constitution, to say what the law is. NOT "make the law" but once it is made, "say what it is" to the extent that there are grey areas and legitimate disputes as to what the law really says in practice.
so to say that it is undemocractic for the supreme court, any supreme court, to DISTRIBUTE power among the two levels of popularly elected law making bodies simply does not make sense. the SCOTUS has ALWAYS asserted the right to determine the power of congress:state legislatures.
Now, armand it sounded like might have been implying that the Rhenquist court was RE-DISTRIBUTING power among state and federal legislatiure. in other words armand was arguing that courts in the recent past had said (to simplify) "the congress gets 60% of the law making power, and state legislatures get 40%" and now the Rehnquist court came along and said "the congress gets 40% and the state legislatures get 60%". this statement probably overstates the change made by the Rhenquist court but for the sake of this analysis let's assume that the Rhenqsuit court DID change the balance of power from 60-40 in favor of the Feds to 60-40 in favor of the states.
Well then you're beef with Rehnquist is not that his court was anti-democratic but rather that his court did not adhere to the JUDICIAL, i'll repeat JUDICIAL, principle of stare decisis when they should have. this, at least, would be have been a supportable argument. first off it would be important to note in that argument that the framework of power sharing which the Rhenquist court altered slightly was not a framework eternally endoresed by the supreme court. The Rhenquist court's conception of the balance of power between congress and state legislatures had been held by many justices and courts throughout the country's history. in fact for probably 75% of the country's history the SCOTUS has adhered to the Rhenquist court view. this view by the way, for those who view Justice O'Connor as the gold standard for jurispreudential philosophy, was shared by O'Connor and she sided with Rehnquist's side on
the important cases in this area. MOST IMPORTANTLY and beyond the argument of which conception of congress/state legislature power-sharing was intentioned by the constitution, your beef with the Rhenquist court is that he alterted the conception of fed:state power sharing that dominated on the court immediately preeceded him and therefore in this area of law was guilty of not following stare decisis. Such a beef obviously has little to do with demoractic or anti-democratic principles.
ALtering a prior decision made WITHIN the JUDICIARY has no ramification whatsoever on the functioning of the democratic mechanism. however in Roe v. Wade we dont have the JUDICIARY merely altering a prior decision by the JUDICIARY. In Roe. v. Wade instead we have the judidicary nullifying a decision by the popularly elected branches and saying the judiciary-and not one of two levels of populary elected bodies-is the one with the power to make that decision. this, obviously is anti-democratic plan and simple. theres really no way around it. its inconsistent to both support roe v. wade (the decision itself) if you are coming from a "the principles of democracy are sacred and can never be disturbed" stance.
First off I left out an example in the previous post and i want to include it b/c it should make crystal clear the doubious nature of the claim Armand made about Roe. v. Wade not being anti-democratic, basically evidenced by the fact that there still is an abortion debate amoing the people. well that plain does not make sense as a logical conclusion. so there is democracy if people disagree on an issue but have absolutely no power to vote on the issue, or influence the outcome of that disagreement through the votes of their representatives? that logic would mean you agree with the following statement: If Bush canceled 2008 elections and stayed in office for a 3rd term democracy would not be harmed because there would be people marching in the streets. Roe v. Wade has not effected freedom of speech, which is what you really point out, but freedom of speech without the vote, or voting through representatives is not democracy.
also Armand you said many state legislatures are "the last place you'd want national agenda set". I respond by pointing out that nobody is purposing this. state legsialtures make state agenda, no more. and if all 50 state legislatures happen to agree on an issue then you COULD say there is de facto national agenda. but if all states happened to agree then why shouldnt it be the de facto "national" policy right? more to the point, state legislatures cannot make national policy under any supreme court, and thats certainly not the real world effect of anything that the rhenquist court decided.
Moon my last post was directed to Armand so here's my reply to you:
1) you say:
"in any case, what we're discussing is freedoms"
Actually I was under the strong impression that we were discussing Democracy. I think both the title of thread and the content of the posts bear that out. My reasoning has been based on democracy not freedom. and of course democracy and freedom are not the same thing nor do they came hand in hand (a statement that is proven by the recent South (or maybe North) Dakota abortion legislation). Most of your post is about freedoms and since that is a change of gears from our conversation on Democracy (of course im not proposing that there is not a nexus theoretically or real world interactions between the two) I'll have to tackle that tommorrow. and of course the nexus between dmeocracy and freedoms is important and ill be interested to see how that conversation develops.
2) but one last comment on democracy before (if) this discussion moves to freedoms b/c in fairness to myself thats the theoretical umbrella underwhich the thread started and under which i've developed my arguments. both the first paragraph's of Moon's post and a good chunk of Armand's post give off an slight anti-democratic bent. for example Armand it seems to me when you're saying state legislatures should not make national policy (which as i said is not anything that anyone is purposing and which seems a practically impossible feat anyhow) what you really mean is that the federal government should be making STATE policy. under our federal system thats anti-democratic and in fact that has been ruled unconstitutional in an opinion written by O'Connor in New York v. United States (1992).
And federal government making state policy is unconstitutional PRECISLEY because in to paraphrase O'Connor "such an arrangmene skews accountability among elected officials in democratic government". In other words she is saying if we want the federal government to really make state policy then we should dissolve state legislatures. because if we keep the state legislatures as de jure law making bodies only then local elected officials will be accountable for good or bad consequences that spring from good and bad policies that they did not enact but instead were enacted at the national level. if we really want federal legislatures making state law then we should get rid of state legislatures so there people at least know where the laws are coming from and who they should hold accountable. its a matter of transparency and institutional honesty. from reading your posts it seems pretty clear to me that niether of you is as concerned with democratic principles as your outrage with Cheney's lack of media access would lead one to believe. As a result I see a lot of inconsistency in taking a stand against Cheney's media relations and then justifying this opposition in such a democratically principled way. Take a stand if you want, but dont pretend like your defending against the evaporation of democracy. you lose creditibility with arguments like that.
3) Most importantly im not saying either of you should be as concerned with strict adherence to democratic principles as your post villifying Cheney for not being more accesible to the media would indicate you should be. Im myself am not (and i think our posts have shown that neither are you guys) that caught up in strict adherence to democratic principles and thats why i did not really agree with your post in the first place.
4) I'm all for a discussion of a the nexus between democracy and freedoms but its important that we make sure which one we are talking about. I can think of few things more dishonest and counterproductive (although in this age of labels and imprecise langauge im sure we all are guilty of this on occasion) in a discussion of politices than using democracy in a hollow way and dropping the word "democracy" when we are really discussing freedom (or, perhaps national security or morality, etc.) in order to convey on our argument/position the good will and general favor that the word "democracy" generally engenders. To use the word "democracy" in this way woud be just another form of misinformation. I see it as basic matter of intellectual honesy. otherwise "democracy" beomes something a motto without any true meaning behind it that people to use to score cheap debator points and strengthen their positions in the minds of other. this is a warping of ideas and political commentary in a 1984 type way.
well, there's a lot there marc, but let me couch my money question in terms of democracy, since you're intent on separating that out. democratically, we have the constitution and the bill of rights, the latter of which for nearly a hundred fifty years was thought not to have much of any effect on one's rights with regard to state government. then all of a sudden, over a span of fifty years and several chief justices, the fourteenth amendment, which said nothing of the sort, was suddenly read to expand the protections of the first (speech, press, religion), fourth (search and seizure), fifth (due process and self-incrimation), and sixth amendments (right to counsel), inter alia, to apply not only as against federal power but also as against state power.
there was no national referendum on incorporation, and even to the extent the fourteenth amendment was democratically enacted (and one might argue it was not, given the partial exclusion of the confederate states) it appears not to have been understood at the time of enactment to extend the protections of the first ten amdendments to state exercises of authority within their sovereign realms. so again i ask, are you so intent on democracy that you would throw out the baby with the bathwater (pun so intended), leaving states open not only to bar abortion as a function of the restoration of democratic prerogatives, but also to take away your rights to speech, counsel, searches only warranted by law, not to incriminate oneself, and so on? if democracy is the thing, then i fail to see how you can avoid these things, since each was at least arguably a creation of the supreme court that did not reflect any clear national mandate.
btw, i reject your claims about the popular consensus at the time of roe regarding abortion, and will stay skeptical in the absence of robust sources to the contrary. presently, poll after poll shows that between sixty and seventy percent of the electorate believes abortion should be available in more cases than just where the life or health of the mother is at stake. and with full information about D & X procedures (regarding how passingly rare they are and that they usually entail a dead, dying, or non-viable fetus), i suspect people wouldn't even be too freaked out about that (but of course abortion opponents aren't big fans of full information, and how democratic is that)? if the right could pass an amendment, they would. so why do you think it doesn't? because the math doesn't work out; the people don't want it and the right knows it.
while i've tried to honor the distinction you wish to draw between democracy and freedom, i'd like to point out that you are using examples that specifically sound in the supposed democratic will to deny people freedoms. in this context, it's pretty hard to separate the two.
Well thereís tons of stuff to talk about here and honestly Iím not sure where to begin.
It strikes me that a central problem with this discussion is that you are saying Roe is anti-democratic because the policies it produced were not backed by a majority or plurality of the countryís population at that time. I have no idea whether thatís the case or not (though Iíd doubt it). But if thatís the standard Ė then shouldnít Roe stay the law of the land now since a majority of the people of the country back a womanís right to choose?
This notion that the government should do whatever it is that 50%+1 of the people want on every policy matter, and if they donít they are being undemocratic, is highly problematic. How should that be determined? Should it only apply to policy areas where the public really have a deep understanding of issues Ė or should every superficial mood be followed? And what do you do with times when the politicians and the people that the country support donít match up (famously, Reagan won big in 1980; but if according to polling done on the US populationís views about the candidatesí proposals on various issue areas, they generally preferred Carterís policy proposals).
Look, the country wasnít designed to be 50%+1 democratic. People can argue about whether or not thatís a bad thing. There are some barriers to that that I find to be silly and rather dangerous anachronisms (like the electoral college). But there are also some barriers to that that I think are good for both the countryís people, and for holding the country together (and I think most of the Founders would agree with me on that). If you want a more democratic system, well, a variety of mechanisms can be pursued to achieve that Ė but we werenít designed to be a direct democracy.
"This notion that the government should do whatever it is that 50%+1 of the people want on every policy matter, and if they donít they are being undemocratic, is highly problematic."
And also antithetical to the founding principles of this country.
Moon I wholeheatedly agree with you that the democratic process had no part in the establishment of some of our most cherised freedoms. Thats been my point the whole time. Thats why I said Armand's initital posting about cheney was flimsy and unconvincing. By itself, saying that a certain practice (like not holding press conferences) is contrary to democratic principles does not lend much force to any argument. I thank god (not literally) that the constitution is not any more democratic than it always is.
i'm not trying to overturn roe v. wade. i support abortion. i was trying to point out to armand that an honest appraisal of the facts leads one to the understanding that the roe v. wade decision was no more un-democratic than what people on the blog were railing against cheney for doing, or not doing to be precise. and since i've read this blog enough times to feel comfortable assuming you all would think roe v. wade was also the correct decision at the time. i percieved a double standard on this blog when it came to the condemning individual instances of anti-democratic principles and i wanted to point that out and inject a different point of view onto this blog. I like your blog but I think sometimes it could use some more moderate conservative views.
and come on Moon. first off i never suggested their was a popular consensus against abortion in 1973. yes the last poll i saw (just yesterday i believe) said that right now 66% of americans would support roe v. wade if it came to an all or nothing up-or-down vote on the issue. but no one seiously believes a majority of americans would have voted to make abortion legal if given a chance to vote on the issue back in 1973. a majority of elected representatives OBVIOUSLY would not have supported its legalization 30 odd years ago; why else, tell me, did they have to go through the courts?? they knew it was the only viable option. the popularly elected branch was a dead-end for abortion rights. and unfortunately in many states it still is.
but back to the point i was making: when discussing the demoractic legitimacy of the roe v. wade decision IN ITS TIME is the question at hand, the important poll numbers are the ones back in 1973. the decision was made back in 1973, thats when the judiciary asserted its power, and you have to take into the public opinon on the issue at the time the power was asserted by one of the competing branches of government to make an honest assesment of the demoractic or un-democratic nature of that decision.
but again i dont want to throw out the baby with bathwater. i just think roe is lacking a certain democratic legitimacy which it would gain if roe was overturned and abortion rights bills were then passed in state legislatures all across the country. Of course that probably would not happen all over the country. But im saying in theory it that would happen how great would that be for abortion rights??? b/c no matter what the actual poll numbers are the christian right and the hijacked conservative party is going to drum up christian conserative indignation by CLAIMING that their views on abortion are actually representative of most of america. and this stragtegy wins them votes and gets their base to come up on election day, and this strategy would have most of it oxygen supply cut off if abortion rights were derived from decisions by the representative instead of the judicidary branch of governmenr. and theres nothing inconsistent in my views. so im a little confused at what i feel is the misunderstanding or misrepresentation of my views.
i just feel that since I think undemocratic means are acceptable (even if not ideal) in certain situations (like roe) where it serves certain ends i believe in I am bound not go around criticizing politicans by contrasting myself to them as some kind of democratic fundamentalist. and since it seems like you guys agree with me you should feel the same way. i mean all it would mean is your positions are logically consistent.
i aplogize if im being long-winded. i guess where some of you guys are grading papers and are probably tired of reading, i guess I'm just in full blown writing mode these days.
and just to throw some more fuel on the fire by actually agreeing with one of your statements but then applying the same general logic to a different situation; i loath as much if not more than anybody the idea that 50.1% of the people should be able to decide any. I generally can be labeled an elitest, i dont believe in direct democracy (not in this place in time and space anyhow) and that idea is absurd and im glad you all agree on that. but based on my belief that 50.1% is not a meaningful democratic majority AND the importance of an orderly and straightforward succession of power (perhaps the practical essence of democracy) I think that bush v. gore was decided correctly.
re bush v. gore: no one ever convinced me that the succession of power wouldn't have been orderly had we been patient enough to find out how floridians really voted, so we'll have to disagree on that. as best i could tell, only the inaugural would have been screwed up, and i'll take procedural integrity over pomp an circumstance any day. it would have been a fine day for our republic if everyone involved had decided to do the best thing for democracy without regard to logistics. they could have counted florida before the date of transition, which is all that should have mattered.
back to abortion -- you write: "first off i never suggested their was a popular consensus against abortion in 1973. * * * but no one seiously believes a majority of americans would have voted to make abortion legal if given a chance to vote on the issue back in 1973."
um, huh? a propos, i agree with you that as to your proposition it's the 1973 poll numbers that matter. i was referring to those poll numbers in my last post when i asked for sources. i simply don't take it as granted that a majority didn't support roe in 1973; indeed, i suspect that the contrary was true.
you cited marbury, and you're right that it set up judicial review, the mechanism by which the court decides what the law is. the court largely has taken the view (and this crosses ideology, though each court's pet issues differ) that rights are dynamic, and that prior court compositions occasionally get it wrong, or that changed conditions require a reevaluation of the constitution in light of the framers' understanding that they were creating a document with play in the joints, since anything more rigid would become unworkable in time.
abortion was a very different matter, medically and socially, in the nineteenth century. so the court recognized changing conditions, considered them in light of the constitution, and did what our less-than-directly-democratic system asks them to do: it said what the law is.
sure, that's not direct democracy, and in that sense is anti-"democratic." that has nothing, however, to do with transparency in government, which is what's at issue in cheney's apparent contempt for the public. the people making decisions at the highest levels of government should do so in the light of day when circumstances (say, national security) do not require otherwise.
surely, cheney's got more to say than he has. how he can not hold a press conference when his chief of staff and one of his closest advisors comes under indictment, even if only to say a) i can't comment on the merits of the underlying charges but b) i'm truly as concerned as the american public that someone in my office with access to my decision-making process and highly classified information pertaining to national security and i'm determined that justice be done and will help the investigation however i can, is utterly beyond me. seriously. i just don't get it. even nixon was more forthcoming with regard to the charges swirling around his administration. cheney goes public, finally, to discuss a hunting accident, but not the fact of widespread corruption allegations all around him and his inner circle, nor to acknowledge the criticisms of whose counsel he takes on matters of national policy, and the list goes on and on . . .
his is not responsible stewardship that reflects the most basic principles of our polity. it's autocratic and insulting. roe, whatever else it was, wasn't autocratic and insulting, and it wasn't contemptuous of our system. even if it was wrongly decided, it was wrongly decided in precisely the fashion that our government institutions were supposed to make decisions, right or wrong. we have no idea how cheney's making decisions because he won't condescend to talk to us about the process. ever. ever. ever. that disgusts me.
I strongly agree with Moon's first sentence and disagree with Marc's last one. The Earth was not about to explode - the Court's rush in Bush v. Gore wasn't necessary. There were functioning mechanisms in place, and I think the Court's action needlessly shut those off.
I guess I just fundamentally have different expectations of the level of responsiveness that the executive branch and the Courts should show to the people's interest and will. Even if the Vice President isn't directly elected, most American probably don't realize that. They see the leaders of the executive branch as people who they have elected and who should respond to their interests and concerns. And of course the Executive has immense power - and therefore close oversight of its actions by the people is needed in a functioning republic that will protect the people's rights.
The Courts one the other hand aren't designed or meant to respond to the popular will in the same way at all. If the popularity of an issue is all that mattered we'd have a legal system that looks nothing like our own.
So, given that, of course I have different expectations about the level of responsiveness to the people that executive branch leaders and Court members should provide.