When you hear the word “torte” you probably think: Mmm. Yummy.
When you hear the words “tort reform” you probably think: Change the channel.
Tort reform is not a very delicious issue and it is one about which few Americans are well-informed. The tort system is important because it represents our effort as a civilization to address the wrongs, intentional and unintentional, that we inflict on one another from time to time. As some would say more crudely, “stuff happens.” The tort system is how we deal with it after stuff happens, balancing the needs of victims with practical considerations of the injuring party.
First, a refresher from the first year of law school. A tort is an injury to a person or property, not a layered cake (unless, that is, the cake is filled with shards of glass as one creative Torts professor allegedly served to effectively drive home the homonym). Without knowing it, we are all very familiar with torts. An auto accident injury, a medical malpractice claim, a suit against a tobacco company, a claim against McDonald’s for too hot coffee – these are all torts, and there are many more.
The debate on tort reform pits tort reformers, those who feel too many meritless suits are burdening our judicial system and too large jury awards are bankrupting good companies, against tort crusaders who see tort practice as a noble battle to gain deserved compensation to victims of wrongdoing or negligence. Currently, legislatures nationwide are considering tort reform efforts that may cap jury awards or immunize entire industries from suits. These efforts are throwing out the baby with the bathwater. Effective tort reform would seek to address the problems with the system while recognizing its strengths.
For strengths, tort crusaders cite the field of defective consumer products, where the tort system and the potential for heavy penalties encourages a high degree of care for consumer safety (some would say not high enough) and does a good job of making the consumers who do bring suits whole again. Although some would argue that the costs of defending these suits is debilitating to business, if a company is unable to affordably create a product that is safe enough to not harm people, maybe that company should not be making the product in the first place.
Tort reformers, meanwhile, can point to the field of medical malpractice as particularly illustrative of the problems with the system. When doctors make mistakes, patients’ first instinct is not typically to sue. Instead, they want to know what went wrong and why, and they do not want to worry about paying to fix the mistake. The tort system completely fails to address these concerns. Doctors, spooked that any acknowledgement of fault will translate into a future massive jury award, are reluctant to communicate openly when mistakes are made, making the apology and explanation the patient wants highly unlikely. Since, as Dr. Atul Gawande notes in this week’s New Yorker, the medical profession has come up with no alternative, patients’ next step is to find a lawyer. In the end, often both winner and loser finish the process dissatisfied.
Lawyers themselves are also part of the problem. Because of lawyers and the divergence in the interests of lawyers, their clients, and society at large, the current tort system suffers from a paradoxical problem – there are both too many and too few tort suits. Why too many? Lawyers, knowing the high cost of a suit to any defendant, count on the defendant’s willingness to settle even where wrongdoing is far from clear. Such lawyers bring faulty suits fishing for deep pockets. Conversely, lawyers refuse to bring many smaller, valid claims. Despite the outcry that doctors are overrun by meritless suits, 98% of patients actually harmed by doctors never bring suit. Lawyers will not take such cases because they are not interested unless the potential recovery is enormous. This situation leaves a large segment of the population with legitimate claims and without any means of addressing their grievances.
So, how to reform the system? Here are three suggestions:
- Discourage meritless suits without discouraging suits with merit. In England, losing litigants pay the winner’s legal fees. This system highly discourages bringing suits that simply fish for deep pockets since such plaintiffs may be stuck with the defendant’s legal bills, but it goes too far. “Loser pays” removes any incentive for a plaintiff, such as one harmed by an untested but well-marketed drug, to take a chance on filing a claim. A modified loser pays system recognizing that some losing cases are brought with merit could help both discourage meritless suits and pave a smoother road for cases that deserve to be heard.
- Line up the incentives of lawyers with the incentives of their clients. Lawyers should be rewarded for bringing cases of merit even where a large award is unlikely. Providing juries with the flexibility to assess a standard “lawyer’s award” for even small recovery cases would help provide access to tort victims who cannot currently find representation and must simply swallow their losses.
- Discourage litigation and encourage less adversarial mediation. This is probably the most important step. Dr. Gawande notes that this has been done with respect to vaccines, where a small surcharge is added to every dose of a vaccine, money that goes to a fund to help pay for the expenses of the few victims whose vaccines go awry. Because victims’ needs are met up front, there is no impulse to sue and relations between parties remain cordial and productive.
The tort system needs revamping, but efforts to cap awards and immunize industries from suit only benefit defendants without recognizing the good that the system serves. A more thoughtful debate on tort reform is worth having – perhaps over a delicious layered cake (hopefully without glass).
November 18, 2005
November 11, 2005
Missed Opportunities on "Elections"
Once upon a time, Americans mocked the elections taking place in the single-party Soviet Union by referring to them as “elections,” rather than elections. The quotation marks implied that the removal of choice from an election stained such an election as inadequate or even fraudulent.
These days, even as we export democracy to Iraq and celebrate the elections taking place there, our own elections may not be quite adequate themselves. Nathanial Persity, an election law expert at Penn Law School, pointed out earlier this year that the turnover in the U.S. House of Representatives is actually lower than the turnover in the Soviet Politburo.
Indeed, according to the government reform group Common Cause, in 2004, only 7 of the 399 incumbents running for the House were defeated. That’s a 98.2% victory rate for incumbents, and 4 of the 7 who were defeated came from Texas where a supremely sketchy mid-decade Tom DeLay-inspired redistricting led to the ouster of Democrats. And the incumbents did not win competitively – 85% of them won by more than 60 points.
Shocking, isn’t it? Elections in the House, the body imagined to be closest and most accountable to the people, may be nothing more than “elections.” By removing the barrier of contested elections, an oligarchy of permanent politicians has taken an enormous bite out of government accountability. The result is greater concern for the donors who fill incumbents’ coffers to ensure that the next “election” will turn out exactly like the last. Given this situation, it should be no surprise that it is special interests and not voter interests that move the ball in Washington.
How did we get to this point? In 1812, Massachusetts Governor William Gerry transformed the Essex County district to a shape vaguely reminiscent of a salamander, birthing the term “gerrymandering,” and providing what would become the tool-of-choice for politicians to entrench themselves and their parties in office.
Although generally thought of in a negative light, gerrymandering has its upside. It can be an extremely useful method to maintain minority representation in government. In the South and Southwest, gerrymandered districts have been used to assure Black and Hispanic Americans a seat at the political table and to prevent minority interests from being ignored by the tyranny of the majority. However, more often, gerrymandering is used not to benefit the voters, but the politicians themselves. State legislatures are generally given the responsibility of drawing the very district lines they depend on for their positions. Leaving the inherently political task of redistricting to those with the most at stake in hope that they will not exploit that power defies centuries of human experience.
Voters this week in Ohio and California had the opportunity to consider reforms to redistricting, but the measures in neither state passed. The two plans were met with considerable disdain from both parties. Redistricting for selfish political gain, after all, is a nonpartisan issue – both parties gain from eliminating competitive elections.
In California, the measure was proposed by a Republican governor in an effort to break a Democratic lock on the state legislature. Governor Schwarzeneggar proposed that the task of redistricting be handed over to a panel of retired judges, but ran up against heavy Democratic opposition. The sides were reversed, but the result the same, in Ohio, where labor unions and moveon.org pushed for a measure creating an independent panel to redraw districts and break Republican control of the state assembly.
Both measures would have maintained the necessary human involvement in redistricting in order to keep the good of gerrymandering (minority representation), while eliminating the bad (partisan strangleholds). The defeats were a setback for the election reform movement, though the fight moves on to states like Florida and Massachusetts.
The self-dealing of redistricting is truly repugnant to most Americans. With voter accountability slowly being removed from the political process, referendums like those in Ohio and California provide the rare opportunity to halt partisan redistricting. Unfortunately, voters failed to capitalize on the opportunity this week and ensured that at least in two states, elections will be more like “elections.”
These days, even as we export democracy to Iraq and celebrate the elections taking place there, our own elections may not be quite adequate themselves. Nathanial Persity, an election law expert at Penn Law School, pointed out earlier this year that the turnover in the U.S. House of Representatives is actually lower than the turnover in the Soviet Politburo.
Indeed, according to the government reform group Common Cause, in 2004, only 7 of the 399 incumbents running for the House were defeated. That’s a 98.2% victory rate for incumbents, and 4 of the 7 who were defeated came from Texas where a supremely sketchy mid-decade Tom DeLay-inspired redistricting led to the ouster of Democrats. And the incumbents did not win competitively – 85% of them won by more than 60 points.
Shocking, isn’t it? Elections in the House, the body imagined to be closest and most accountable to the people, may be nothing more than “elections.” By removing the barrier of contested elections, an oligarchy of permanent politicians has taken an enormous bite out of government accountability. The result is greater concern for the donors who fill incumbents’ coffers to ensure that the next “election” will turn out exactly like the last. Given this situation, it should be no surprise that it is special interests and not voter interests that move the ball in Washington.
How did we get to this point? In 1812, Massachusetts Governor William Gerry transformed the Essex County district to a shape vaguely reminiscent of a salamander, birthing the term “gerrymandering,” and providing what would become the tool-of-choice for politicians to entrench themselves and their parties in office.
Although generally thought of in a negative light, gerrymandering has its upside. It can be an extremely useful method to maintain minority representation in government. In the South and Southwest, gerrymandered districts have been used to assure Black and Hispanic Americans a seat at the political table and to prevent minority interests from being ignored by the tyranny of the majority. However, more often, gerrymandering is used not to benefit the voters, but the politicians themselves. State legislatures are generally given the responsibility of drawing the very district lines they depend on for their positions. Leaving the inherently political task of redistricting to those with the most at stake in hope that they will not exploit that power defies centuries of human experience.
Voters this week in Ohio and California had the opportunity to consider reforms to redistricting, but the measures in neither state passed. The two plans were met with considerable disdain from both parties. Redistricting for selfish political gain, after all, is a nonpartisan issue – both parties gain from eliminating competitive elections.
In California, the measure was proposed by a Republican governor in an effort to break a Democratic lock on the state legislature. Governor Schwarzeneggar proposed that the task of redistricting be handed over to a panel of retired judges, but ran up against heavy Democratic opposition. The sides were reversed, but the result the same, in Ohio, where labor unions and moveon.org pushed for a measure creating an independent panel to redraw districts and break Republican control of the state assembly.
Both measures would have maintained the necessary human involvement in redistricting in order to keep the good of gerrymandering (minority representation), while eliminating the bad (partisan strangleholds). The defeats were a setback for the election reform movement, though the fight moves on to states like Florida and Massachusetts.
The self-dealing of redistricting is truly repugnant to most Americans. With voter accountability slowly being removed from the political process, referendums like those in Ohio and California provide the rare opportunity to halt partisan redistricting. Unfortunately, voters failed to capitalize on the opportunity this week and ensured that at least in two states, elections will be more like “elections.”
November 04, 2005
Activism Shmactivism
Hardly had the words “Samuel Alito” left President Bush’s lips before conservatives nationwide started gushing about Judge Alito’s judicial philosophy. President Bush insisted that Judge Alito had “a deep understanding of the proper role of judges in our society. He understands that judges are to interpret laws, not to impose their preferences or priorities on the people.” Senate Majority Leader Bill Frist lauded Judge Alito’s judicial restraint and his “respect for the limited role of the judiciary to interpret the law and not legislate from the bench,” a compliment echoed by Roberta Combs, president of the Christian Coalition of America, who called Judge Alito a “strict constructioninst who will not legislate from the bench.”
Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.
The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.
To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.
Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.
Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.
What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.
Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.
Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.
The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.
To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.
Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.
Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.
What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.
Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.
October 28, 2005
Tortured Response
As Washington buzzes with speculation about Plamegate and the Miers withdrawal, a truly reprehensible request by Vice-President Cheney is slipping under the radar. Last week, I applauded Senator John McCain for standing up in the face of a threatened White House veto and rallying the support of 90 Senators from both parties to attach a provision to a defense spending bill that would ban torture of any detainee held by the U.S.
Standing up against torture is a good thing, right?
Not according to the VP, apparently. Cheney, along with CIA Director Porter Goss, reportedly lobbied McCain to include a broad exception to the ban that would allow CIA agents acting abroad to continue with carte blanche interrogation. No more of the legal-speak about the torture convention or the Geneva accords or even the Constitution. The Administration’s policy is not disturbingly clear: We have a right to treat prisoners inhumanely. How’s that for moral values?
A stand like this by the Administration erases any doubt that it is the leaders at the highest echelons – and not the “bad apples” being punished – that created the detention culture that led to the disgrace of Abu Ghraib. Allowing the CIA to continue inhumane interrogation practices will only further that culture. But don’t trust me. Check out what the government’s own August 2004 report on Abu Ghraib concluded:
“CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib. Speculation and resentment grew over the lack of personal responsibility, of some people being above the laws and regulations. The resentment contributed to the unhealthy environment that existed at Abu Ghraib.”
In the face of this, the Administration continues to insist that torture is a necessary, if repugnant, part of gathering intelligence in the war on terror. Yet, interrogation experts repeatedly assert that torture yields a high percentage of faulty intelligence as detainees say whatever comes to mind in order to end their suffering. This is why the McCain torture ban – authored, it should be noted, by a former POW who knows a bit more about sacrificing for his country than the Vice-President with “other priorities” – has the support of two dozen retired senior military officers, including Cheney’s everlasting thorn in the side, Colin Powell.
Torture and the outrage that accompanies its inevitable discovery actually undermines the war on terror far more than any intelligence gained through torture helps it. In other words, torture may put more American lives in danger than it protects. The imagery and resentment that emerge from Abu Ghraib and Guantanamo Bay fuel terrorist recruitment and anti-American sentiment among even the moderate Muslim community and erode any moral authority the US has in the rest of the world. Torture rallies our enemies and alienates are friends. It is not only illegal and generally immoral, but it is bad strategy.
Instead of undertaking the difficult work necessary to create global systems to gather good intelligence, the Administration continues to pursue a lazy strategy of torture. Unfortunately, this unwillingness to tackle difficult problems with thoughtful solutions is nothing new for this Administration or any other recent Administration. Politicians-in-chief look for easy solutions, like torture, rather than effective ones. Politicians, it seems, will always have other priorities.
Still, Senator McCain and his bipartisan Senate allies continue to stand firm on this issue in the face of a disgraceful and unwise, yet unsurprising proposal from Vice-President Cheney and the CIA. At least some in Washington still have their priorities right.
Standing up against torture is a good thing, right?
Not according to the VP, apparently. Cheney, along with CIA Director Porter Goss, reportedly lobbied McCain to include a broad exception to the ban that would allow CIA agents acting abroad to continue with carte blanche interrogation. No more of the legal-speak about the torture convention or the Geneva accords or even the Constitution. The Administration’s policy is not disturbingly clear: We have a right to treat prisoners inhumanely. How’s that for moral values?
A stand like this by the Administration erases any doubt that it is the leaders at the highest echelons – and not the “bad apples” being punished – that created the detention culture that led to the disgrace of Abu Ghraib. Allowing the CIA to continue inhumane interrogation practices will only further that culture. But don’t trust me. Check out what the government’s own August 2004 report on Abu Ghraib concluded:
“CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib. Speculation and resentment grew over the lack of personal responsibility, of some people being above the laws and regulations. The resentment contributed to the unhealthy environment that existed at Abu Ghraib.”
In the face of this, the Administration continues to insist that torture is a necessary, if repugnant, part of gathering intelligence in the war on terror. Yet, interrogation experts repeatedly assert that torture yields a high percentage of faulty intelligence as detainees say whatever comes to mind in order to end their suffering. This is why the McCain torture ban – authored, it should be noted, by a former POW who knows a bit more about sacrificing for his country than the Vice-President with “other priorities” – has the support of two dozen retired senior military officers, including Cheney’s everlasting thorn in the side, Colin Powell.
Torture and the outrage that accompanies its inevitable discovery actually undermines the war on terror far more than any intelligence gained through torture helps it. In other words, torture may put more American lives in danger than it protects. The imagery and resentment that emerge from Abu Ghraib and Guantanamo Bay fuel terrorist recruitment and anti-American sentiment among even the moderate Muslim community and erode any moral authority the US has in the rest of the world. Torture rallies our enemies and alienates are friends. It is not only illegal and generally immoral, but it is bad strategy.
Instead of undertaking the difficult work necessary to create global systems to gather good intelligence, the Administration continues to pursue a lazy strategy of torture. Unfortunately, this unwillingness to tackle difficult problems with thoughtful solutions is nothing new for this Administration or any other recent Administration. Politicians-in-chief look for easy solutions, like torture, rather than effective ones. Politicians, it seems, will always have other priorities.
Still, Senator McCain and his bipartisan Senate allies continue to stand firm on this issue in the face of a disgraceful and unwise, yet unsurprising proposal from Vice-President Cheney and the CIA. At least some in Washington still have their priorities right.
October 21, 2005
E: Democrats
Imagine the manager of the Astros or White Sox delivering this pep talk as the World Series kicks off this weekend:
"Guys, I'm proud of you for getting this far and I've got a fantastic game plan thats gonna win us this World Series. We're gonna take that field and were gonna hope -- and I mean really hope -- that the other team makes a bunch of errors! Are you with me?!"
It's hard to believe that the players would rally around this anti-Lombardian battle cry. The very spirit of competition requires a strategy more bold than hoping an opponent simply screws everything up. Yet, this appears to be the exact strategy employed by Democrats these days. The party of FDR and JFK and LBJ, a party that once dreamt big ideas and pursued them, has been reduced to a cadre of eggshell-walkers and finger-crossers.
While Republicans populate think tanks and cook up big ideas to push their conservative agenda, Democrats read books like Whats the Matter with Kansas? and Dont Think of an Elephant -- excellent accounts of the marketing aspect of politics -- and tell themselves that it is simply presentation that is their problem.
Although Republicans are undeniably winning in P.R., a marketing advantage does not automatically translate to electoral success. How many big budget movies with million-dollar marketing campaigns flop and how many less marketed, but higher-quality films do well? Compare the fates of Troy (flop) and Sideways (Oscar nominee) and youll see that better marketing is far from determinative.
It is not superior marketing that has lead to the recent Republican domination, but the fact that Republican marketing is the only thing filling the current void in American leadership. Any leadership void will be filled by something. Instead of stepping up and filling it with progressive ideas and strong leaders, Democrats have watched the current void be filled by White House propaganda. The results --control of zero of the three branches of government -- speak for themselves.
Sadly, Republicans have been making error after error recently, convincing many Democrats that the wait-and-hope strategy is finally paying off. Such belief is self-delusional. The recent failures and scandals in Republican leadership confirm nothing except the well-known fact that a party left unchecked by effective opposition can undo itself by abusing its power.
This Administration has been failing for five years now and they have yet to pay any price for it because Democrats are spending too much time waiting for the next error and too little time actively offering an alternative. Why should the current Republican struggle be any different? The most recent Democratic presidential candidate was nominated not because he had the best ideas or because he could connect with the American people, but because he was thought to be "electable." We know how that turned out -- electability alone, it seems, does not make one very electable. Still, hopefuls for 2006 and 2008 continue racing to the right to attain that very same badge of electability.
These days the most successful Democratic opposition is coming from a Republican. Senator John McCain recently pushed an anti-torture clause into a defense spending bill in the face of a threatened White House veto, rallying the support of Senators from both sides of the aisle. McCain, himself a veteran of the bullying marketing of the current Republican machine, is unburdened by wariness of electability. Instead, he has repeatedly identified problems and acted to solve them. In the process he has made himself quite electable.
As I sit to watch the Astros and White Sox battle it out over the next week, I will be hoping to see sharp, error-free baseball. I want to see each team give its best effort, pushing its opponent to the brink and fighting back when pushed. The World Series should not be decided by which team makes more errors. Neither should the leadership of our communities and our country.
Come on Democrats. Play ball!
"Guys, I'm proud of you for getting this far and I've got a fantastic game plan thats gonna win us this World Series. We're gonna take that field and were gonna hope -- and I mean really hope -- that the other team makes a bunch of errors! Are you with me?!"
It's hard to believe that the players would rally around this anti-Lombardian battle cry. The very spirit of competition requires a strategy more bold than hoping an opponent simply screws everything up. Yet, this appears to be the exact strategy employed by Democrats these days. The party of FDR and JFK and LBJ, a party that once dreamt big ideas and pursued them, has been reduced to a cadre of eggshell-walkers and finger-crossers.
While Republicans populate think tanks and cook up big ideas to push their conservative agenda, Democrats read books like Whats the Matter with Kansas? and Dont Think of an Elephant -- excellent accounts of the marketing aspect of politics -- and tell themselves that it is simply presentation that is their problem.
Although Republicans are undeniably winning in P.R., a marketing advantage does not automatically translate to electoral success. How many big budget movies with million-dollar marketing campaigns flop and how many less marketed, but higher-quality films do well? Compare the fates of Troy (flop) and Sideways (Oscar nominee) and youll see that better marketing is far from determinative.
It is not superior marketing that has lead to the recent Republican domination, but the fact that Republican marketing is the only thing filling the current void in American leadership. Any leadership void will be filled by something. Instead of stepping up and filling it with progressive ideas and strong leaders, Democrats have watched the current void be filled by White House propaganda. The results --control of zero of the three branches of government -- speak for themselves.
Sadly, Republicans have been making error after error recently, convincing many Democrats that the wait-and-hope strategy is finally paying off. Such belief is self-delusional. The recent failures and scandals in Republican leadership confirm nothing except the well-known fact that a party left unchecked by effective opposition can undo itself by abusing its power.
This Administration has been failing for five years now and they have yet to pay any price for it because Democrats are spending too much time waiting for the next error and too little time actively offering an alternative. Why should the current Republican struggle be any different? The most recent Democratic presidential candidate was nominated not because he had the best ideas or because he could connect with the American people, but because he was thought to be "electable." We know how that turned out -- electability alone, it seems, does not make one very electable. Still, hopefuls for 2006 and 2008 continue racing to the right to attain that very same badge of electability.
These days the most successful Democratic opposition is coming from a Republican. Senator John McCain recently pushed an anti-torture clause into a defense spending bill in the face of a threatened White House veto, rallying the support of Senators from both sides of the aisle. McCain, himself a veteran of the bullying marketing of the current Republican machine, is unburdened by wariness of electability. Instead, he has repeatedly identified problems and acted to solve them. In the process he has made himself quite electable.
As I sit to watch the Astros and White Sox battle it out over the next week, I will be hoping to see sharp, error-free baseball. I want to see each team give its best effort, pushing its opponent to the brink and fighting back when pushed. The World Series should not be decided by which team makes more errors. Neither should the leadership of our communities and our country.
Come on Democrats. Play ball!
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