Personality and Presidents

October 11, 2016

I walked by a group talking about the election and a young woman was saying she would never vote for Hillary because of her personality – I forget the word she used. So I stopped and asked her if that was the most important thing in a candidate. She responded “Yeah” like wasn’t it obvious and went on talking. I moved on shaking my head about her naiveté. This president is going to have to deal with Russia, China, the Muslim world, climate change, and her personality is the issue? The next president is going to have to be cool under pressure, not shoot wildly from the hip, and understand the stakes, the pressures, the possibilities and the limitations of what we can accomplish, and her personality is the issue?

I know some people want to feel like they could have a beer with the president. I think George Bush would have been great to sit down with over a beer. From all accounts I think he’s probably a really nice guy, and easy to get along with. But he was so unprepared to deal with foreign affairs that he made mistakes that will reverberate for decades, if not centuries. I want someone who is preoccupied with what he or she needs to know – which doesn’t tend to make good drinking conversations.

I’ve never met Clarence Thomas but the people I do know who know him tell me he is a really nice guy to be around – including, despite the Anita Hill affair, some of the women who have worked for him. But I think he has been a disaster as a member of the Supreme Court. I did meet Chief Justice Rehnquist, more than once. Sweet guy, at least toward me. But I’m convinced he led the Court in disastrous directions. I’ve also met Breyer. He’s much more often on my side, so Steve, please take care of yourself and stay on the Court. But as far as I’m concerned, if I sat down with Breyer it would be all about business. I didn’t like his apparent manner. I say apparent because what do gestures and expressions or tones of voice really mean about someone’s congeniality when you don’t really know them?

Culturally we often think people who look over their glasses are being haughty – but former Secretary of State Cyrus Vance who wore reading glasses and generally looked over them when talking with me, was very helpful regarding things my office and I were trying to do on behalf of the disadvantaged, and in the process I learned to like him as much as I respected him, which was a lot.

I’m not sure I’d even want a president to take the time to have a beer with me. I’d want her to be focused on what she needs to know to manage any of the life and death problems that are on her desk. I know presidents do take time out to meet people and try to seem connected. But I don’t have the need to take their time. The most connected thing Obama has had to do is to grieve with the families that have lost loved ones, soldiers, children, spouses, and I know he has been as deeply affected by that experience as any president. He’s got more important things on his mind than chatting with me.

Lobby him? That’s not social; that’s business. Beer? That’s my problem, not hers. Personality? Give me a break.

— This commentary was broadcast on WAMC Northeast Report, October 11, 2016.

Democratic Decay

October 10, 2016

I wish it weren’t so, but the anti-democratic elements in this US election, and the Trump campaign, are making the dangers identified in my book seem like a near-term prediction – the well-justified revolt of the economically forgotten leading them to trust a bankrupt businessman and TV star who recycles empty promises, stereotypes and prejudices to gain their votes, the courting of the gun-toters coupled with thinly veiled threats and violence, the racist and male-chauvinist language, religious bigotry and xenophobia proposals, a candidate clearly out of control by the party he nominally represents, a demagogue repeating empty slogans until they start to seem believable, are all dangerous. Worse it seems to be a world-wide trend, Tom Gerald Daly, Time to View Democratic Decay as a Unified Research Field?, Int’l J. Const. L. Blog, Sept. 30, 2016, at: This clearly needs to stop.


September 27, 2016

I’ve been traveling and so I’m playing catch up. But I was shocked at the reactions I heard to Hilary’s illness. I expected people to do what we do when most people get sick – wish her well and hope she can get over it quickly. What I heard was just grousing that she said she was fine.

What do you and I do when people ask how we are? “Fine how about you?” “Good, I’m fine too.” Got a cold? “Nah, I’m fine. How about you?” In America we’re taught to be tough and not complain. In fact, if I ask my students how they are, their most common answer is “Can’t complain.” I often joke back, asking what they’re doing in law school if they can’t complain. I once passed one of my best college profs and with the usual pleasantries, I asked him how he was. Prof. Babbitt leaned in toward me, with a smile on his face, and burst out “Terrible!” Then he straightened up laughing and walked on, leaving this college kid totally nonplussed. But I got the message. We’re taught to be strong; that’s the way Americans handle illness. And we admire that in others.

But people didn’t give Hilary the benefit of adhering to our standards of behavior. The woman tried to tough it out like we’re all taught to do but the press crucified her for it. Thank heavens I’m not running for president; I don’t need that nonsense. You’d of thought people would have the grace to wish her well instead of crucifying her for trying to put a strong face on an illness.

I hate to tell you folks but anyone can get sick, including presidents and candidates, whether they try to tough it out or play bluster about their health. We can argue ‘til kingdom come about what Hilary should have done. But what she did do was to behave the way we are all taught to do. How bad is that? As for me, I wish her well.

I also wish that people would give her the credit she deserves. She’s pretty obviously a very intelligent person, and had the benefit of a terrific education. She could have earned a mint as a lawyer. But she left her practice and devoted herself to public service. I respect her for that.

She was our senator here in New York and what I kept hearing was that she won a great deal of respect all over the state and in Congress because people quickly saw that she worked hard at the job, worked on the needs of the whole state, studied the problems, and worked with everyone she could to solve problems. She was our senator and she took that seriously. I respect her for that.

She’s also been criticized for the way she handled some of her husband’s mistakes. But we are all taught to forgive. Hilary did, and she was crucified for it. We used to be taught that marriage is permanent, for all time. Hilary stuck by her husband and got crucified for it.

It seems that there is no code of behavior that is good enough for Hilary. But I respect her as a person who is doing her best to work for me and for you. She ought to get a lot of credit for that.

— This commentary was broadcast on WAMC Northeast Report, Sept. 27, 2016.

The Bully in the Debate

September 20, 2016

People keep saying that Hilary will destroy Donald in debate. But I’m concerned. I’m bothered by the memory of one exchange between Bush and Gore in one of the presidential debates in 2000. When Gore confronted Bush with the math behind Bush’s tax proposals, Bush just responded by calling Gore’s figures “fuzzy math.” In fact, Gore’s numbers weren’t fuzzy – he had laid it right out for all to see. I concluded that Bush was trying to bully Gore and the American people by substituting insult for fact. But people reacted that Gore was a nerd and Bush would be nice to have a beer with. I think that was unfortunate largely because, as president, Bush took us into the war in Iraq with what I believe were disastrous results. This isn’t the place to refight the issues of the Bush presidency. The real problem is that Trump has never shown any dedication either to the facts or to policy detail and many Americans have shown an appetite for unsupported slogans and invective. So I’m concerned that he may try to bully Hilary in the debates and concerned about how Americans will react.

We’re not perfect and it’s clear that some of us like bullies. The big question is whether that’s just a few or a lot. We know that some people think it’s perfectly appropriate to win their disputes by brandishing their “Second Amendment” powers; that some still spank their wives and girlfriends and put them through hell so the almighty men can get what they want. We know that some people still behave as if rape is just the assertion of their own “authority,” and as if it’s perfectly appropriate to belittle women, gays, Blacks, browns, immigrants, or people who grew up in different religious traditions. Some still think it’s OK to get what they want by denying other people access to the vote, running them out of town, throwing Blacks and browns into prison, or shooting and killing young men out of fear for their skin color, scared that they meant ill by walking home. We have laws against schoolyard bullies but some adults act like them. Some people are bullies and some people like bullies.

Donald with his bullying jabs is clearly after their votes. He wants the votes of people who put others down like he does because of the color of their skin or put people down like he does because their parents brought them to America from somewhere else. He reminds people they might solve problems with their Second Amendment rights because he wants the votes of bullies who intimidate people with their Second Amendment rights.

The question that will be settled by the debates is not just how Trump will, or can, behave, but what proportion of us  are or admire bullies, what proportion of us are prepared to admire Trump supporters like leaders of the Ku Klux Klan because they appear strong, and what proportion of Americans respect careful, thoughtful and considerate behavior.

Make no mistake, this is a battle for the soul of America. Who stands for decency and who standards for hate, who stands for considerate behavior and who admires the bullies of this world?

— This commentary was broadcast on WAMC Northeast Report, September 20, 2106.

Democracy and Compromise

September 13, 2016

Since Obama’s election, congressional Republicans and their Tea Party challengers made Obama’s defeat their overriding goal, and when they couldn’t do that, they did everything they could to make him seem like a total failure, an example of politics gone completely awry. To accomplish those goals, they refused to give him any victories – not on infrastructure, not on economic stimulus, not on judicial nominations and they tried to retract his success with the Affordable Care Act under a Democratic Congress.

The Republican decision that nothing could go forward without support of a majority of the Republicans in each house of Congress gave power to a majority of their caucus but a minority of Americans. Had dissenting Republicans been able to vote their conscience, some real negotiation would have been possible. The harsh stance driven by the Tea Party was a form of power play by a determined minority that got its hands on a way to block the congressional majority from even bringing bills to the floor.  It was not a prelude to negotiation and it was not an example of democracy at work.

On the other side of the political spectrum, many Sanders supporters argued that they could take nothing less than Sanders or a third party – even if it made a Trump victory more likely.

In this era of my-way-or-the-highway politics, it needs to be explained why democracy is and should be about compromise.

If a majority can do anything, or a majority of representatives, can do whatever they wish, then one portion of the population can be left with virtually nothing. That may be majority rule. But it has nothing to do with fairness or equality. Democracy gets its moral authority from taking everyone’s interests and needs into account. We routinely talk about the combination of majority rule and minority rights. Merely giving the majority the power to exercise power over everyone else is a definition of tyranny, not democracy. Where bargaining is possible, even small or unpopular groups can get some recognition of their needs. Where bargaining is possible, even permanent minorities can get some modicum of decent treatment. Without bargaining, permanent minorities can be stripped of virtually everything. Bargaining gives some meaning to the ideal of equality. The willingness to work things out has always been one of the things that had made America a leader of the free world.

The Founders of this country tried to force some degree of compromise by the different ways they constructed the Senate and the House of Representatives. Before the Civil War the struggle to reach compromises was all about slavery and freedom, the rare area where compromise ultimately became as impossible as it was immoral. After the war, a spirit of compromise reemerged so that America could deal with conflicts between rural and urban areas and other issues.

Sometimes compromise works better than others. Some of us remember within our own lifetimes when absolutely nothing could be done if it included any benefits for African-Americans, and the use of the filibuster to prevent any breach in the wall of segregation.

Many astute observers of democratic government point out that the system works best and most fairly when the needs of different groups of people overlap – disagreeing on some, agreeing on others. That gives groups an incentive to bargain so that everybody gets a fair shake. Even so-called nonnegotiable demands can sometimes be balanced against other similarly important demands of other groups.

Civil war becomes more likely when democracy becomes a contest over nonnegotiable demands that are beyond any form of bargaining. Democracy does not have to be a zero-sum game, where some win the brass ring and the rest merely polish the brass.

Americans need to relearn the art of compromise. Our democracy and our country will be better for it.

— This commentary was broadcast on WAMC Northeast Report, September 13, 2016.


Trump’s Audience

August 23, 2016

Behind Trump’s remarks and his imperviousness to criticism is the audience he’s after.

Trump charges that this election is rigged because his audience doesn’t like who can vote. One can respond that elections have been rigged by the Court since it stopped the count in Florida to make Bush president, but that misses Trump’s and his audience’s objection. The Court has unleashed the full contents of corporate treasuries, tightened the screws on union finances, encouraged states to exclude African-Americans from the voting booths and supported gerrymandering so that Republican controlled legislatures could rig elections against Democrats. Those decisions rigged the election in Trump’s favor. But for his audience, rigging the election means including what some still call Fourteenth Amendment citizens. They object that the first sentence of the Fourteenth Amendment makes everyone born here citizens, especially Blacks and browns.

Trump’s inconsistency on foreign policy is also because of the audience he wants. While claiming Democrats are weak on foreign threats, Trump also wants to withdraw from NATO which has held the Russians at bay for over half a century. And he has told us that he would consider not coming to the aid of an attacked NATO member. Never mind speculating whether he’s a wimp, a loudmouth, or a Russian agent. The important question is who’s his audience and why? Actually extremists have imagined international conspiracies that only they can believe in. Trump clearly wants their support. That leaves the rest of us wondering whether they would be center stage if he won. Making international conspiracies the number one villain helps explain Trump’s admiration for Vladimir Putin, and his invitation to Russia to hack into the computers used by a Secretary of State. One points out in vain that’s an invitation to foreign espionage. Trump got his message across; he’s with the fringe, the conspiracy theorists, and the people with lots of hate.

Then there’s Trump’s comment that Second Amendment people might have a way of dealing with Hilary and her judicial nominees if she is elected. When questioned about those remarks Trump responded that he was just kidding. Besides, he said maybe. No advocacy there. He wasn’t trying to get anyone killed. But why did he do that?

Politicians have reasons for what they say. He was seeking support from precisely those people who could imagine using guns that way. Surely some would just like to have violent dreams. But some are more likely to act on dreams like that when encouraged by people like Trump, and will understand his words as a call to violent action, action that undermines democratic self government.

Beyond whether Trump should be expected to talk like a responsible adult, is the question whether we have the responsibility, whatever our politics, not to enjoy such language, responsibility not to reward it, but to stand tall for the real America, the America that claims to believe in law and order and in self government that celebrates our ability to disagree without threats, assaults and murder.

Trump makes statements like that because he has an audience for it. If most of that audience has the maturity and the loyalty it claims, it must be prepared to turn against candidates who misuse it. Supporters of gun rights must believe that gun owners have an obligation to act and speak responsibly and to keep political and racial hatreds away from trigger fingers.

— This commentary was broadcast on WAMC Northeast Report, August 21, 2016.


Beyond Channeling Money

August 9, 2016

This is the sixth and last in a series on Money in Politics

Money finds ways to influence the political system despite our efforts to prohibit or replace it. It’s like a balloon that bulges wherever it can, or water that finds any path to cause trouble. Limits on contribution and gifts matter. But prohibitions aren’t enough. They just force politicians to spend more time looking for money and find ways around the limits. Even public funding for election campaigns isn’t a magical solution that will banish every problem in a puff of public green.

There are many problems we can solve to improve the rules of self-government. Employees deserve some protections. Employers can and some do pressure workers, make them go to some candidates’ talks, or give them work to do in political campaigns. Employer requests are hard to resist for fear of demotion, or other damaging consequences. We restrict sexual invitations to workers to avoid subtle or not-so-subtle intimidation. For similar reasons, employees deserve political protection on the job.

Still, we need more than prohibitions and public money. Parties were once the people’s answer to the power of money. Without parties, the wealthy and well-connected would rule. Parties were promptly corrupted, so Americans adopted primaries. Primaries shifted power to individual candidates and their organizations, and shifted power from the center of the voting population to majorities of primary voters, who tend to be much more extreme. That offers what Barry Goldwater, in his losing 1964 presidential bid, called “a choice, not an echo.” But it can also polarize politics and create a politics that almost nobody wants.

Most important for the future is how we prepare ourselves. We’ve been telling each other since the Revolution that we need an educated public. Unfortunately, many schools no longer educate people in relevant ways. We graduate students who have little idea who or how government is run, what our history is, or any understanding of the economic and social issues of our time. We complain that immigrants will not respect our ways, but leave the majority of natural-born Americans ignorant of how America came to be America. We need to do better.

What I see as truly encouraging is that this election has drawn many people into politics out of a real sense of public duty. I remember earlier waves like those that Adlai Stevenson, John Kennedy, Ronald Reagan, the civil rights and feminist movements drew into politics. I hope those of you whom Hillary, Bernie and Obama drew into politics will stay active and not become discouraged because all our dreams cannot be achieved quickly. I hope you’ll enjoy mixing with others door to door, in community meetings, house parties, barbeques, and otherwise staying in touch with the people.

I do think we can make life better. I don’t think we should expect a political heaven on earth. A large part of politics is about resolving differences of perspective, interests and needs – many of them legitimate on all sides. It’s not just about getting things done. It’s also about disagreement, conflict and compromise. Few of us ever get complete victories, and probably shouldn’t. But finding decent solutions to problems that divide people is also the challenge and one of the truly honorable tasks of democratic government.

— This commentary was broadcast on WAMC Northeast Report, August 9, 2016.

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