Monday, November 24, 2008

Change in Moderation

Many Obama supporters continue to express dismay at the number of former Clinton officials and other moderates being offered for appointment to the Obama administration. If Obama does not appoint a few flaming liberals, a lot of people are going to wonder whether he really stands for change. Is Barack Obama thinking that if the country moves a couple of degrees to the left, that will constitute the kind of change his supporters were hoping for? We did not vote for Obama to get a second Clinton administration.

I think that those who are impatient with the lack of leftist credentials of Obama's appointments so far are missing the point. I think that Obama actually meant what he said during the past two years that his understanding of change means reducing the divisiveness and partisanship that has characterized Washington for many years. What that means is that if Obama were to appoint a slate of militant left wingers to his Cabinet, that would NOT represent the kind of change he is talking about. In fact, by doing that, he would be staffing his administration with ideologues in exactly the same way that George Bush has done. Maybe left wing ideologues would be an improvement over right wing ideologues, and maybe payback would be satisfying, but that would not represent change.

The kind of change that Obama has been talking about requires that he attempt to include everyone. That means he needs to forgive Joe Lieberman, even though Lieberman may not deserve forgiveness. He needs to put Hillary Clinton in the most important position in his cabinet. He needs to get John McCain and other prominent Republicans on board to the extent possible. And at the same time, he wants to appoint smart, experienced and competent people, which means that a lot of those people happen to be former Clinton appointees. I don't think that Obama is going to govern in the same way that Clinton did, even though Obama is going to bring a lot of former Clintonites back into the government. Clinton governed by moving the Democratic party to the right. And he did not have much success with including or reaching out to Republicans. I think Obama's intention is to move the whole country to the left, in the way that Ronald Reagan moved the whole country to the right, and to do that by making great efforts to include and not antagonize anyone. So I am not particularly worried about bringing a lot of moderate people back into the government. It is more important that these people know what they are doing, and can reassure the public that we are on the right track. At the head of the government, we have a president who understands that change is always an incremental process, and who also understands that people should be moved willingly if possible in the direction progressives want policy to take.

Monday, November 17, 2008

Barack's Cabinet

A lot of people are probably rushing out to buy Doris Kearns Goodwin's book Team of Rivals, after all the talk about how Barack Obama is emulating Lincoln's method of putting together a cabinet. It is well worth reading.

If Lincoln is your model, then inviting Hillary Clinton to be Secretary of State makes perfect sense. There are strong parallels between Hillary Clinton and Lincoln's Secretary of State, William Seward. Like Clinton, Seward thought he was much more experienced than Lincoln, whom everyone thought of as an unsophisticated country lawyer from the sticks of Illinois. Seward, like most people, underestimated Lincoln, however, and thought that he was going to dominate the administration. Seward also thought that Lincoln had usurped the Republican nomination for president that should rightfully have been his. Seward clearly thought that he could take the 3AM phone calls and pass the Commander in Chief test, and Lincoln could not. But Seward soon learned to respect and even love Lincoln, and he well understood who was boss, and Seward performed brilliantly as Secretary of State, at the same time being eliminated as a potential critic or rival of the president.

There are also some important differences, however. However distinguished a record Hillary Clinton has, it may not quite compare with Seward's who was a true elder statesman of the party. Hillary really doesn't have a lot of first-hand foreign policy experience. The job of first lady is not really a policy job. Also Hillary's position in the Democratic Party may not be quite the same as Seward's. As soon as Obama became the nominee, both Clintons became a declining power in the Democratic Party. Seward, on the other hand, continued to view himself as the most important Republican even after Lincoln's nomination. Therefore, at this point, Hillary Clinton may need Obama more than he needs her. She is a junior senator from New York a long way from getting much seniority in the Senate, and she is about to be bypassed on her signature issue of health care reform. Making her Secretary of State may restore her foreign policy credibility more than it adds to Obama's. It's also a little hard to imagine Clinton and Obama developing the kind of close relationship that Seward and Lincoln had. Lincoln used to spend many evenings at Seward's house, which was within walking distance of the White House, and they grew to enjoy each other's company tremendously. Clinton and Obama have such different personalities, and lingering animosities from the campaign, that make it less likely they will be able to work together well as a team.

But what such a move does do for Obama, as with Lincoln, is to place a potential critic of the administration inside the administration. As difficult a character as Hillary Clinton can sometimes be, Barack Obama no doubt feels more comfortable having her on the inside rather than on the outside.

Seward turned out to be a perfect choice for Lincoln. The troublesome figure in his cabinet was Salman Chase as Secretary of the Treasury, who never quite reconciled himself to Lincoln's view of putting the issue of union ahead of the issue of slavery. If Obama really wants to follow in Lincoln's footsteps, he might think of some really seemingly-irreconcilable people for important positions, like John McCain for Defense, or Mitt Romney for Treasury.

Thursday, November 13, 2008

Gay Marriage

The issue that seems to have taken everyone by surprise in California is Proposition 8, which purports to amend the state constitution to limit the right to marry to couples made up of one male and one female only. I say taken by surprise because it was only AFTER Proposition 8 passed, that we are suddenly seeing demonstrations in favor of gay marriage, and politicians coming out of the woodwork on this issue. Perhaps because of the focus on getting Barack Obama elected, a lot of supporters of gay marriage may have paid less attention to this issue than they now wish they had. In a way, it may have been unfortunate that the California Supreme Court held that denying gays the right to marry was unconstitutional, because this prevented the development of civil unions to the point where the public might have become more accepting of gay marriage. Now it is going to be very difficult to find an Obama-like common ground solution to this issue.

One option that has been suggested, allowing civil unions for all, gay or straight, with marriage left to religious authorities, is not available. That is because the state has always been in the business of sanctioning marriage, and marriage has always had both a legal component--giving certain rights and obligations to married couples--as well as a moral component, sanctioning certain relationships so as to punish others. Remember that fornication used to be illegal in many states; so was sodomy; so was adultery; so still is bigamy. These are all moral judgments that the state was always assumed to have the power to make, that is, until constitutional rights took over, and the state was told that it no longer had the power to regulate birth control, or abortion for the most part, or sodomy, or most anything that people want to do in their own space that does not hurt anyone. Remember also that marriage does not have to have any religious or spiritual component; It's fine for people to get married in a church or synagogue, but people have also always had the option of having a purely civil marriage ceremony performed by a judge or a clerk, that has no religious significance whatsoever. And they should continue to have that right.

So where we are today is that gay couples are demanding the same rights as married couples as a matter of constitutional rights. Allowing civil unions for gay couples was at best an interim step that was permitting society to get used to the idea of equal rights for gay couples. It might have been good for that experiment to continue for a while longer, just to allow public opinion to come around, because the idea of gay marriage really is something new in history, but when the issue was brought to the courts, the courts were forced to recognize that denying gays the right to marry was denying them equality with married couples, and therefore the courts got a little ahead of public opinion on this issue.

And now that the California Supreme Court, and other courts, have decided the issue as a matter of constitutional law, there is, perhaps unfortunately, no middle ground left on this issue. Either gays are going to be allowed to get married or they are not. The legal issue that remains is whether the proposition amending the constitution to deny gay people the right to marry was such a fundamental change that it required more than a majority vote. I think there is a good chance that the California Supreme Court will invalidate the results of the proposition on that ground. But whichever way the Court decides, the issue will not die, as one side or the other will keep bringing it up for a vote. And we are all forced to vote up or down. There is no room for compromise any more.

Wednesday, November 12, 2008


One of the less-noticed ballot measures we Californians voted in last Tuesday was a proposal to take the power of creating the boundaries for state legislative districts away from the state legislature and give it to a bi-partisan commission. Gerrymandered districts have been rightly criticized for making it extremely difficult to remove incumbents from office, and thereby engendering a sense of complacency and non-reponsiveness from our elected representatives. Some believe that the security of representing a district that is skewed to contain a majority of your supporters also makes legislators more intransigent and unwilling to compromise. I supported this proposition for all of these reasons.

It should be noted, however, that it is impossible to draw district lines without taking into consideration the political consequences of doing so. Even a completely politics-blind drawing, that is designed only to create the most compact possible districts, will have a political effect, most likely the effect of over-representing the majority party, and under-representing the minority party. In other words, almost any way you draw a district line can be considered a gerrymander, because those lines will have discernible political consequences.

One might also question how much impact this measure will have in light of the term limits already in effect in the California State Legislature. To me, it would make more sense to introduce this kind of insecurity in the ability of legislators to get re-elected, in conjunction with a repeal or extension of term limits. That way, voters have the ability to retain their elected representative, but that representative would also face more competitive elections every cycle.

We should also recognize that creating more swing districts, which is generally a good thing because it allows the will of the voters to be more quickly felt in the legislature, also has the undesirable effect of substantially increasing the cost of running for election. A representative of a swing district must fight for his seat at the expiration of every term, and that costs a lot of money. So by fixing one problem, we may be exacerbating another. This year's election cycle might cause us to look more closely at the enormous costs of running for office, at the presidential and congressional and state levels. We might ask whether it is a good idea to shorten the campaign season, or whether it is a good idea to require the networks to provide some free air time for political commercials, or other reforms that would reduce the potentially corrupting force of money in politics.

Wednesday, November 5, 2008


I saw first hand this week why Obama won this election. I was one of thousands of out-of-state lawyers recruited to do voter protection work in Ohio. On election day, I visited three campaign offices in Cleveland and met some of the legions of volunteers who have been working tirelessly to canvass, phone call, and make sure the election was run properly. Why did we do it? We all know that no one volunteer is going to make the difference in the election, no matter how hard any of us worked. But I have no doubt in my mind that this collective effort did make the difference, particularly in close states like Ohio, Virginia, North Carolina, Indiana, Florida and others. There was simply no comparison between the level of commitment and enthusiasm shown by the grassroots-organized field staff in the Obama campaign and the Republican regulars who half-heartedly staffed the McCain campaign.

The themes of Hope and Change obviously won out this year over Fear and More of the Same. But another theme that may have been under-recognized is that the virtue of collective action won out this year over the virtue of individualism. It may be true that Obama supporters, like McCain supporters, generally believed that things will get better for them personally if their candidate were elected. But Obama supporters also demonstrated a far greater commitment to self-sacrifice for the common good. We worked on this campaign not because we thought that any one of us could make the difference, but because we wanted to feel part of a larger, historic collective movement. Even though we live in an competitive society, we have through this campaign come to discover the values of solidarity and community. We are going to need that collective-minded spirit, and a willingness to work hard and make sacrifices, to deal with the challenges that lie ahead for all of us.

In any case, it was worth traveling to Cleveland just to observe the fall scenery and attend the victory party!