Balkinization: The President as Commander in Chief: More reflections on our defective Constitution

Comments:

At the risk of being unoriginal, if Congress could fire an incompetent C in C, it would probably have fired Truman when he fired McArthur and forced the US to invade China. Presidents and generals, there is no doubt, make serious blunders. So can Congress or the general public.

# posted by

Essayist-Laywer : 12:59 PM

I am not obsessed with George Bush's "wickedness," but, rather, with his awesome ignorance and incompetence. Frankly, I am stunned by the general degree of apathy about his unfitness. My explanation, of course, is that our defective Constitution generates a psychology whereby, given its imperviousness to serious modification, we delude ourselves into believing its consequences are far better than they in fact are. but if I haven't persuaded you by now, I don't expect this to change anything. (And, yes, my posting was somewhat rambling.)

And yes, Truman's firing of MacArthur may serve as an illuminating example of inspired civilian control over a megalomaniacal general. But stopped clocks are right twice a day, and any serious effort in public policy has to be based on summing up the risks of both Type 1 and Type 2 errors. If, as is argued to be the case, we are now in an era of permanent war (against terror), then the risks of a defective Commander-in-Chief are considerably highter than they were in eras where war was less pervasive.

I agree, incidentally, that we need to think long and hard about how best to allocate the civilian "commander-in-chief" power. My own preference, obviously, is get rid of our commitment to a fixed-term presidency (except for criminals of a certain grandeur). My "proopsal," such as it is, is meant only as an initial thought experiment with regard to what may be the single most important (and ominous) presidential power.

We might follow the Swiss route of having a plural president (they have seven of them!), with the one filling the Commander-in-Chief portfolio being subject to a vote of dismissal by a vote of four of the six other "presidents." I am far from believing that I have knockdown solutions. My confidence is only that I'm asking some necessary questions. If you're one of the roughly 1/4 of the American public who's satisfied with our current state of affairs, then everything I write has to seem simply a rant. Fair enough. I'm writing to the other 75%

# posted by

Sandy Levinson : 1:46 PM

Enlightened Layperson: if Congress could fire an incompetent C in C, it would probably have fired Truman when he fired McArthur....

There is probably a long list of examples that could be presented here. If a GOP had the chance, they would have removed Clinton for his actions in Somalia, possibly Bosnia, or as a supreme irony, his bombings of Al Quaeda camps in Afghanistan.

# posted by

Zathras : 1:47 PM

I'm not sure what the complaint is about Bush. Mind you, I'm likely to agree with just about any complaint, but I'm just not sure exactly what it is.

I think we have to separate two functions, the policy function of the President and the CinC function. Bush's errors seem to me to be a consequence of bad policy rather than bad generalship.

Now, you may argue that he appointed bad generals or fired good ones. I don't think that explains the problems in Iraq. Best I can tell, the military has done the best it can do within the policy restrictions Bush has given them. It was a policy decision, for example, to invade with too few troops. It is a policy decision to insert our troops into the middle of a civil war. It is a policy decision to keep them there to fulfill a political goal ("free and democratic Iraq") rather than a military one.

Even if we removed the President as CinC, I assume he would still have a substantial say in policy (the Republican Congress enabled Bush, so shares some responsibility, as do some cowardly or mistaken Democrats). Thus, I can't see Iraq as a situation in which the CinC title plays much of a role.

Moreover, I'm not sure how we could simultaneously replace the President as CinC and maintain civilian control over the military. It might help to clarify the limitations of the CinC position (which I believe are substantial), but I can't see the benefit of inserting someone else in that role.

Just a note about Madison and his generals. It is true that the original generals in the War of 1812 were incompetent. The same could be said for many of Lincoln's original generals. By the end of the war, both succeeded in putting competent leaders in command (in Madison's case, generals like Scott, Brown and Jackson).

# posted by

Mark Field : 2:06 PM

I've followed some of the excellent commentaries here on the flaws in the U.S. Constitution. Certainly many of the points made are insightful and accurate. The constitution is not a perfect document. It did not anticipate many of the problems that we face today in America. It ignored others while making correcting them difficult. But I feel that these arguments ignore the perhaps unique nature of the times we live in.

Sure it seems absurd to suggest we live in unique times but I still feel that way. They are certainly unique to my lifetime. Any time I look at the problems I see America facing I can't help but think the basis is an uninformed public. What I think of as the public dialog is not even vaguely related to the public interest. And the extension of that problem is that the idea of a representative democracy doesn't exist in America. The people's representatives don't represent the people, not because the people are lacking in perception skills but because they are misinformed and deceived regularly and systematically. The public dialog has become a propaganda machine and the alternatives for accurate sources are only just beginning to appear. This blog is one of those alternatives.

So all this denigrating of the constitution seems almost meaningless when in the last few decades we've seen the people's representatives act against the best interests of the people. What constitution could anticipate and counter that? A representative democracy was supposedly one avenue to counter an incompletely informed public. But what happens when the representatives aren't "representative?" Even a pure democracy is based on a truthfully informed electorate and America does not have that today and hasn't had it for decades.

In the last few years we've had a strong Republican majority in all branches of the legislature. That in itself is not unique, having a single party controlling multiple branches of the political structure. But the unique aspect is the block voting nature in a completely top down manner. Rather than voting in the interests of a representative's constituents, we've seen a rigid pattern of block voting in the interests of a Republican "majority of the majority."

The courts are strongly political and by political I don't mean ideological. Political. The 2000 presidential decision was not an ideological decision. It was a political decision. When I read Lawrence Lessig's commentary on the "Supreme" Court's decision on copyright term extension I couldn't believe his naivete. He thought he could persuade some of the jurists by using their own prior decisions, as if those decisions were based on some sort of judicial ideology. Dare I suggest, judicial honesty. But he was wrong because those decisions were based on political motivations rather than judicial ones.

We see this regularly both in the political and judicial realms. States rights? The political decisions are rarely in the interests of the people or the nation but again - in the interests of the political "majority of the majority." And the block voting representatives never challenge that structure and the people are never fully and accurately informed. It's been Republicans before Americans. The deciding "majority of the majority" is really a very select few.

Look at the revelations in the current Libby case. Much of the press was fully aware of the lies put forth by the highest reaches of America's government in matters of war and yet the people were never informed. Misinformed and mislead instead. The public dialog was a deadly farce. And the Libby case is being tried as a fibbing matter rather than one with connotations of treason. Much of the investigation's findings are being kept from the public and the public dialog. We're told, even by the "liberal" bloggers, that the prosecutor is a model of perfection. But is this perfection in the best interests of America?

Americans are passengers on a plane flying in a fog under instrument flight conditions. But the instruments are being manipulated to serve the choices of a select few. The plane goes where those few choose. It lands where they choose and crashes if they choose. If this analogy seems a stretch consider the repeated objections to verifiable votes.

You can blame the instruments but it's the fog that's the problem.

America has a vicious petty small minded person as president and an even more dangerous schemer as vice president. But they were described to the public as someone you'd like to have a beer with, a "regular guy" who related to "you" and a brilliant CEO. "Help" was on the way. These two "won" the election in 2004. Not much has changed since 2004 other than the lies becoming harder to keep hidden from the public dialog.

# posted by

Amos Anan : 2:43 PM

I think there's much to consider in what "madisonian" writes in the past post. I have no doubt that he's right that my burning contempt for Bush leads me to be critical of the Constitution in ways that I might not otherwise be, since the costs, say, of a fixed-term presidency seem especially obvious. But, more to the methodological point, I think that "madisonian" is describing a form of "reflective equilibrium" analysis in which we constantly go back and forth between fairly abstract propositions--e.g., adherence to precedents generally promotes stability--and concrete cases--e.g., this particular precedent is really terrible and adherence to it might even promote instablity, and so on. So I think I can plead guilty (maybe only to a misdemeanor) without condemning myself to pleading guilty to irrational analysis. "'Til death do we part" might seem perfectly acceptable, for many years, so long as one's spouse is acceptable. When (s)he turns out to have unexpected and ominous sides, one may re-evaluate the principle. Committed Catholics would say it's irrelevant. Most of the rest of us believe that divorce can be justified in at least some circumstances, even if we reject "no-fault divorce."

It may be, at the end of the day, that George Bush's presidency can be accepted as a very costly instance of presidential power, but that the costs are offset by lots of other examples of beneficent use of the Commander-in-chief powers under pressure. George Bush is, to be sure, only one data point, and there are many others that have to be considered in the mix.

My point is simply that we should be having a conversation about whether we're in fact being well served by our present system (one which, recall, is markedly different from most of our fellow democratic political orders around the world). At the point, the conversation is more important to me than the final outcome, even if I do adopt a rhetorical style of slugging with a baseball bat (or perhaps the better metaphor is throwing a cold bowl of ice water on someone who is unwisely, from my perspective, continuing to sleep) in order to get the reader's attention.

# posted by

Sandy Levinson : 3:43 PM

Prof. Levinson,

The stopped-clock aphorism needs some tweaking. In this case, the mechanism tends to reinforce both good and bad decisions. Can you clearly articulate a standard that dances the line between Lincoln's suspension of habeas corpus and Bush's? More importantly, a standard that would be comprehensible to the public you're looking to to provide the motive force for impeachment?

I'm not certain that I'd want to take a devil's bargain like that one, nor have to make it politically workable. I'm having trouble seeing where the "thought experiment" ends and the substantive critique begins.

# posted by

A : 3:55 PM

Can you clearly articulate a standard that dances the line between Lincoln's suspension of habeas corpus and Bush's? More importantly, a standard that would be comprehensible to the public you're looking to to provide the motive force for impeachment?

I know I'm jumping in here, but I wanted to correct one part of your question if that's ok. Bush hasn't suspended habeas.

As for the standard, the Constitutional one -- invasion or rebellion; public safety endangered -- seems pretty clear IMO.

# posted by

Mark Field : 4:35 PM

To spin off from A's post: if we all were to agree that this was precisely the sort of action that needed to be taken, what then? By what process should we begin to change the current situation?

Repeatedly in recent posts (and obviously, this is related at least somewhat to the appearance of the countdown) there has been mention of how we can't do anything about the current example, but in Xxx days we'll have another person with the potential to screw up in like (or worse) fashion. The underlying message/motivation is: "act now before its too late."

Assuming some of us agree, in part if not in whole, with your assessment of the current conditions, what do you suggest we do to move the project forward?

Or should we be simply providing input towards a better theoretical model that will be implemented at a later to-be-determined date?

# posted by

PMS_CC : 4:49 PM

Back in the day, left-liberal academics wrote scholarly tomes designed to prove that generals made terrible presidents. Nonetheless, Adlai couldn't get elected. There's no reason to take Prof. Levinson any more seriously than Arthur Schlesinger. (Or my old history professor, Ramsey McMullen, who wrote a book to show that Iran/Contra was just the sort of thing that caused the fall of the Roman Empire.) All of them like to make up long weighty constitutional/historical analyses to explain why the results of the last election are wrong. In a few years, when a Republican congress is trying to stop a Democratic president from intervening in Rwanda or something, it will all be "never mind."

# posted by

sean : 5:52 PM

My argument in the book is that we could ultimately use a new constitutional convention. But that's not going to happen for some years, obviously. A preparatory condition is to awaken public concern about the defects of the Constitution, just as other people try to tell their friends about global warming, the threat to social security solvency, or whatever future possibility they are very worried about and think needs more discussion.

A completely different point: I just read an analysis of the German constitution that suggests that it is absolutely averse to "direct democracy," including the kinds of referenda that work quite successfully in Switzerland, because of the use that Hitler made of direct democracy. Maybe that makes sense in Germany, but if one were advising a country today, INCLUDING THE US, about whether to include a mechanism for direct democracy, which, of course, is available in many of our Western states, would the single example of Hitler be enough to say, no, never, or would you simply have to take it account in putting together a more nuanced view about whether to include or exclude such mechanisms? I obviously believe that the latter is correct.

# posted by

Sandy Levinson : 5:53 PM

With regards to Mark's point: I apologize for the rhetorical flourish, but it was Professor Levinson who made the Lincoln comparison in his post. I was merely asking him to follow up on it.

Professor Levinson: Are you referring to Kim's paper on Bush/Gore? (She is, after all, a contributor here.) I don't think that your reading of the German constitution is particularly nuanced -- if you're referring to the rule-of-law provisions, there's a lot more to it than that.

To respond specifically, many of the former Warsaw Pact countries have used similar provisions to good effect; I think that you could make a strong argument for including such a provision in a "new" U.S. Constitution. Would you consider that acceptable?

In addition to hearing how you would balance direct democracy against republican government, I'm still curious to hear your thoughts on Lincoln versus Bush.

# posted by

A : 6:37 PM

The example of direct democracy in, say, California, is more than sufficient to give me misgivings about the initiative.

# posted by

Essayist-Laywer : 6:39 PM

The example of direct democracy in, say, California, is more than sufficient to give me misgivings about the initiative.

I don't know whether you're referring to their referendum process or their recall process, but I was saving both of those as ammunition. Oh, well.

# posted by

A : 6:48 PM

The example of direct democracy in, say, California, is more than sufficient to give me misgivings about the initiative.

As a CA resident and voter, I say "amen" to that. I'd still consider an initiative, but there need to be modifications from the CA model.

# posted by

Mark Field : 7:14 PM

"(This tendency toward legalism, of course, is one of my objections to the Impeachment Clause.)"

I consider this a more than slightly ironic note, since it is only that very legalism which you decry that stands in the way of your realizing , in practice, Congress can fill the phrase "high crimes and misdemeanors" with any meaning the requisit number of members of each House are in a mood to support. Your "vote of confidence" already exists.

Further, I must agree with Jao that Congress in fact has all the tools at it's disposal necessary to rein in any President. What it lacks is the will, and you do not propose a way to give them that.

# posted by

Brett : 7:35 PM

Apropos Brett's last posting, I believe, especially after the Clinton impeachment, that a majority of the country would refuse to accept as legitimate the view that one could be impeached for "whatever" the House decided. The analogy that comes to mind is the refusal to accept FDR's Court-packing plan because it just didn't seem kosher, not least because FDR lied through his teeth about his motivation for the plan.

If this be legalism, make the most of it.

Incidentally, I've written quite extensively on Lincoln, including an article in the Illinois Law Review suggesting that the Emancipation Proclamation raises all sorts of difficulties for someone who is not enamored of full-throated presidential war powers.

# posted by

Sandy Levinson : 8:06 PM

In 2007 we may not criticize Lincoln for firing McClellan, but in 1862 some Northern Democrats did. Lincoln's wartime leadership was always controversial, and if there had been opinion polling during the Civil War, I'm sure his approval rating would have been abyssmal at several points. Whether a congressional supermajority would ever have removed him we cannot know, but if the Constitution had allowed it, an attempt might well have been made, which hardly could have helped the Union cause.

In any case, a wartime American president does far more than simply "hire and fire" commanders; he (or she) decides the most basic questions of strategy. FDR decided to defeat Germany first, to develop nuclear weapons, to invade North Africa in 1942, to make a double advance across the Pacific, to demand unconditional surrender, to invade France in 1944. Truman famously had to decide how to bring about Japan's surrender. And so on.

Countries that have changed their wartime leadership "in midstream" have fared for both the better (Churchill replacing Chamberlain in 1940) and the worse (Erich Ludendorff taking control of Germany in 1916).

Professor Levinson, clearly you favor a Constitution that would permit GW Bush getting the immediate hook for his conduct of the Iraq war. If the Constitution had been amended along the lines you suggest in 1975, do you think President Carter should have been ousted from office in 1980 following the failed attempt to rescue the hostages in Iran?

# posted by

dericksch : 8:39 PM

So the question is this: If we rely on the Commander-in-Chief to have the requisite judgment to know when to replace generals, admirals, etc., because they are not adequately serving all-important national interests, then why can’t We the People fire a Commander-in-Chief (save on quadrennial election days) who has demonstrated similar deficiencies in judgment, strategic vision, etc. To allow Congress, by super-majority vote, to declare no confidence in the Commander-in-Chief is not in the least to question the principle of civilian control. Rather, it states that this particular civilian is in fact—or, at least, in the judgment of many, many informed political leaders—not up to the task.

Under this reasoning, you could equally argue that the People through the President should be able to fire Representatives or Senators for incompetence in enacting a budget which is not in the national interest. After all, it is unimportant which civilian controls the budgetary process and the President is the only federal office elected by all the people and is more likely to be acting in the national rather than the parochial interest.

Professor Levinson, it is interesting how you keep calling an elected Congress the voice of the People, while calling an equally elected President some sort of dictator. Did you make this distinction when the President was a Dem and the Congress was GOP?

I think not. This is why the Framers made the Constitution difficult to amend.

# posted by

Bart DePalma : 8:40 PM

I happen to favor a constitutional convention, too. Not because I think the Constitution is hugely defective; As the joke goes, "The Constitution, for all it's flaws, is better than what we have now."

But a con-con could contribute to restoring the rule of law, by resetting the current vast divergence between the judiciary's "Constitution" and the actual document. Thus allowing our government to function without such a staggering level of sophistry being required to pretend that the day to day operations of the Leviathan are consistant with a constitution mandating limited government.

It's a pretty funny legalism that won't let the President be impeached for continuing to wage a war Congress undeclares, but sees nothing wrong with reading the commerce clause as it is currently read.

At any rate, a Congress with the necessary supermajority could satisfy your legalism by passing a veto proof law the President was sure to violate, and then impeaching him for the violation.

# posted by

Brett : 8:57 PM

a Congress with the necessary supermajority could satisfy your legalism by passing a veto proof law the President was sure to violate, and then impeaching him for the violation.

They tried that with Andrew Johnson. Didn't work.

# posted by

Mark Field : 10:37 PM

The question about Carter in 1980 is extremely interesting. As many will recall, Cyrus Vance resigned in protest after the fiasco of the attempted rescue. So let's play out the suggestion that a supermajority of Congress would have been sufficiently turned off by Carter's ineptitude to bounce him. Under one scenario, Walter Mondale would have become President, which is just fine. Under another, the Democratic caucus in Congress would pick the successor, who would have been in office until Jan. 1981. Would the world (or the American republic) have come to an end? I doubt it.

# posted by

Sandy Levinson : 10:59 PM

Just about every democratic constitution describes the head of state as commander-in-chief. There's not even much variance in the language. Why has it become a central aspect of the US presidency? Why does the man on horseback symbolism dominate presidential conduct of foreign relations?

You might be interested in a fundamentally different different idea about being a commander-in-chief by a former governor-general and high court justice of Australia.

# posted by

Alan : 2:22 AM

"They tried that with Andrew Johnson. Didn't work."

The fact that every trial doesn't end in a conviction doesn't mean that trials "don't work". Don't get into Sandy's trap, where any mechanism which has a chance of leaving Bush or Cheney in office is thereby "defective". Johnson would have been convicted if one more Senator had actually wanted to get rid of him.

Bush and Cheney aren't in office because of a "defective" Constitution. They are in office because they were elected, and there is no consensus to remove them. Any mechanism which would remove them under the present circumstances would render removal so easy that divided government would become an impossiblity.

Maybe Sandy thinks divided government is bad, but that doesn't make a system permitting it "defective".q

# posted by

Brett : 8:38 AM

The accumulation of powers rested within the American Presidency is certainly quite unique: Head of State, Head of Government, Commander in Chief of the Armed Forces, the Power of Pardon, and on top of it it is almost impossible to remove him prematurely from office once elected. It seems he has to exhibit openly criminal behaviour or be seen as clinically insane to get him possibly removed. This happened only once (or better was on the verge of happening) in the case of Nixon. No wonder that the assassins bullet was a far more common form of removal from office.
For the case at hand, it seems to strip the President of the CinC job is actually one of the easier tasks. Just make it like in Germany and give the job to the Secretary of Defense during peacetime and transfer it to the President when Congress declares formal war. This way the President has to get a proper DoW from Congress when he wants a shot at military glory and at the same time the senators cannot pretend they didn't know what they were actually voting on (Senator Clinton being a good example for this). This has the added advantage that in case of a fuckup the SecDef can be easily fired, made the scapegoat for the whole disaster, and the course smoothly be changed while the President pretends he had nothing to do with it without having to insist on a current course of action just because he has invested already so much face in it.

# posted by

jallabo : 8:48 AM

I apologize for going off topic for a moment, but after the screaming headlines parroting the claims by Padilla's attorneys that their client was tortured to the point of being mentally incompetent, I noticed a tiny article buried in page A28 of my paper reporting that the Bureau of Prisons psychs examined Padilla against the strenuous objections of his attorneys and found him completely competent.

http://www.washingtonpost.com/wp-dyn/
content/article/2007/02/13/
AR2007021301064.html

Big surprise.

Anyone want to wager that Padilla's claim that he was fed LSD is also a lie?

# posted by

Bart DePalma : 10:22 AM

The fact that every trial doesn't end in a conviction doesn't mean that trials "don't work".

I read your earlier post as implying conviction rather than as a procedural device to get around the "legal" hurdle.

Bush and Cheney aren't in office because of a "defective" Constitution. They are in office because they were elected, and there is no consensus to remove them.

Well, I don't think either one could win an election today, so I'm not sure what constitutes a "consensus". I think Prof. Levinson's point is that the door should open both ways equally, so I'm not sure your argument actually undercuts his.

Personally, I think removal should be harder than election, so I share your view that Cheney and Bush remain in office due to lack of the (implicitly necessary) "consensus".

# posted by

Mark Field : 10:35 AM

"They were selected by the SCOTUS."

I will readily grant that Bush's margin of victory in Florida, as measured by both the election day count, and several recounts, was small. And recounting IS a noisy procedure, especially when human bias is given free rein by the refusal to mandate a uniform counting standard. And, thus, if you simply kept recounting, over and over, eventually Gore would have won a recount, the Democratic party would have declared the election over, and we could have all gone home.

I scarcely think the Supreme court's refusal to let a state Supreme court carry out that trivial demonstration of basic statistics amounted to the Supreme court "selecting" Bush.

# posted by

Brett : 5:31 PM

I will readily grant that Bush's margin of victory in Florida, as measured by both the election day count, and several recounts, was small. And recounting IS a noisy procedure, especially when human bias is given free rein by the refusal to mandate a uniform counting standard. And, thus, if you simply kept recounting, over and over, eventually Gore would have won a recount, the Democratic party would have declared the election over, and we could have all gone home.

This is apparently a common view, but it's not accurate. Gore won both the popular vote and FL. Now, in fairness, he didn't win FL according to any recount he requested, but he DID win if all the votes had been fairly counted.

The key to understanding this is recognizing the distinction between overvotes and undervotes. Gore sought a recount of "undervotes". These were the hanging chads, etc. He would have lost and recount based on the undervotes, making it all the more ironic that Bush opposed such a recount.

Gore did not ask for a recount of the "overvotes". "Overvotes" typically occur when someone fills in the bubble next to the candidates name and then also puts other marks on the ballot. For example, someone might check off Bush's name and then write in "Bush" below.*

As it turned out, the "overvotes" would have given Gore the victory. Link (pdf).

*There are other categories of "overvotes" also. These were situations in which the voter checked two names as a result of confusion about the ballot design. If you're willing to make the assumption that, for example, Palm Beach voters who voted Dem for Senate meant to vote for Gore and not Buchanan (both names being checked), then Gore's margin of victory would have been in the 10s of thousands.

# posted by

Mark Field : 6:52 PM

"but he DID win if all the votes had been fairly counted."

IF you define "fairly counted" as "counted in the manner most likely to result in Gore winning even if it requires guessing how voters really intended to vote, instead of counting the votes they actually cast".

I don't. We don't count intentions, we count ballots.

And it certainly points out the absurdity of blaming the SCOTUS for "selecting" Bush by cutting short a procedure which would have... selected Bush. Unless you're positing that that, absent Bush v Gore, the recount would have been followed by yet another recount conducted by yet another set of rules, which was a recipe for a real Constitutional crisis.

All of this is beside the point, though, aside from underscoring the absolute necessity of conducting elections and counting according to the rules established before the vote, when judgements about what procedures are "fair" are not poisoned by the knowlege of what procedures would result in a particular candidate winning.

# posted by

Brett : 8:16 AM

JT, I don't want elections officials licensed to read minds. (Or for that matter, licensed to switch between full and hanging chads on the fly depending on hos the count is adding up, as we saw in Palm Beach.) If a ballot records votes for two candidates for the same office, barring physical evidence on the ballot, such as an "X" drawn next to one of the votes, with an arrow to the other being underlined, there's no trustworthy basis for assigning the vote to one or the other candidate. "Surely nobody in THAT neighborhood could have meant to vote for Buchanan!" is not the sort of thing elections officials ought to be taking account of.

So, yes, the intention of the electorate is important. And the ballots actually cast are the most reliable, and certainly the only legitimate, way of determining that intent.

And if you want your vote to count, take some care in filling out your ballot.

# posted by

Brett : 10:06 AM

IF you define "fairly counted" as "counted in the manner most likely to result in Gore winning even if it requires guessing how voters really intended to vote, instead of counting the votes they actually cast".

That's not at all what the study showed. What it showed was that in most FL counties, overvotes were counted a certain way. In a few, they were not counted that way. If they had been counted the same way in all counties, Gore won.

I know it's an article of faith among some on the right that Bush "won" FL. So he did, in the real world sense that he has occupied the White House for the last 6 years. Nobody's going to undo that. There are, however, lessons to learn about our electoral practices from the mistakes in FL. To learn those lessons, everybody needs to acknowledge the basic facts.

# posted by

Mark Field : 11:12 AM

"Jeb, Katharine Harris and the rest of those thugs down there pulled out all the stops to get it as close as they did. "

Sigh. Yes, Katherine Harris snuck into each of those polling places, and threw a switch on the voting machines...

Considering that, for better or for worse, the mechanics of voting are administered by local officials, I suppose the lesson would be, if you want your vote to count in Florida, don't vote where Democrats are administering the elections.

# posted by

Brett : 7:30 PM

Flying combat missions is not exactly "observing" a war. Observation is something you do form the top of the Empire State Building. Flying over hostile territory, amking diving and strafing runs, close air support and other missions with top rate NVA AA coming at you from all directions is not "observation".

Prof Levinson's lack of knowledge about the military is amazing.

I guess the thousands of Americans who were shot down over Europe and the Pacific and Korea and Vietnam weren't relaly fighting, they were just observing.

Same with all the sailors who are often at sea miles away from the action. Would you say that everyone on a carrier is just "observing"?

In many cases, being a combat pilot is actually more dangerous than being on the ground.

In any event, if electing a CINC with military experience is so important for you, I take it you voted for Bob Dole in 1996 and George HW Bush in 1992 over Bill Clinton.

You didn't?

Why am I not surprosed.

# posted by

SarahWeddington : 7:44 PM

"Fixed your typo."

I'll have to translate that to latin, and scribble it in next to "Ad Hominem" and "Post hoc, ergo propter hoc" in my old logic textbook. ;)

# posted by

Brett : 7:01 AM

"Bart" DePalma [to Prof. Levinson]:

Professor Levinson, it is interesting how you keep calling an elected Congress the voice of the People, while calling an equally elected President some sort of dictator. Did you make this distinction when the President was a Dem and the Congress was GOP?

I think not.

Show of hands: Who cares what "Bart" thinks?

<*crickets*>

Thought so. ;-)

If "Bart" has a legitimate example of Prof. Levinson's supposed hypocrisy or partisanship here, the honourable thing for "Bart" to do would be to trot it out. "Bart", however, is not an honourable person. Rather, he'll tell you that he, "Bart" thinks that Prof. Levinson is inconsistent aned intellectually dishonest, and absent any evidence for such, present that bare insinuation as some kind of 'argumnent' or 'discussion'. Typical "Bart" MO.

Cheers,

# posted by

Arne Langsetmo : 4:54 PM

"Bart" DePalma says:

Anyone want to wager that Padilla's claim that he was fed LSD is also a lie?

Anyone want to wager that "Bart" thinks that feeding him LSD would have been perfectly acceptable?

We can go back to the Google record for the answer once the bets are in.

Cheers,

# posted by

Arne Langsetmo : 6:29 PM

Mark Field:

Gore did not ask for a recount of the "overvotes". "Overvotes" typically occur when someone fills in the bubble next to the candidates name and then also puts other marks on the ballot. For example, someone might check off Bush's name and then write in "Bush" below.*

One small note: Gore didn't have to ask for a recount of the overvotes. The Florida courts, by law, were granted fairly wide latitude in fashioning a remedy should they have upheld the contest.

Cheers,

# posted by

Arne Langsetmo : 6:33 PM

brett:

IF you define "fairly counted" as "counted in the manner most likely to result in Gore winning even if it requires guessing how voters really intended to vote, instead of counting the votes they actually cast".

I don't. We don't count intentions, we count ballots.

Ummm, in Florida (as in many states, including Dubya's Texas under laws he signed), the relevant standard is the "intent" of the voter as best can be determined. Technical adherence to every detail of voting procedure is not required; one prior case had requierd ballots that were marked in ink to be counted (IIRC) despite warnings that they should only be marked by "#2 pencil". IIRC, they had to go back and recount all the ballots not marked so as to be machine-readable.

Cheers,

# posted by

Arne Langsetmo : 6:38 PM

Mark Field:

That's not at all what the study showed. What it showed was that in most FL counties, overvotes were counted a certain way. In a few, they were not counted that way. If they had been counted the same way in all counties, Gore won.

In some counties, "stealth" manual recounts (includng overvotes) had been done, resulting (IIRC) in close to 200 votes added for Dubya.

What was most ridiculous was the U.S. Supreme Court sayng that statewide recounts would (in advance of any factual basis for even making such a "determination"), result in an impermissible EPV, but their "remedy" (which froze in place the horrible mishmash of some counties having done manual reconts and others not) unarguably produced the very situation that they claimed to find so unacceptable: that different votes would be counted under different standards (i.e. some manually recounted, such as Broward, and some just what the machines read).

FWIW, Judge Lewis has stated that he was considering whether to order that all ballots be recounted, includng the overvotes.

Cheers,cmlfmsnq

# posted by

Arne Langsetmo : 6:47 PM

brett:

"Jeb, Katharine Harris and the rest of those thugs down there pulled out all the stops to get it as close as they did. "

Sigh. Yes, Katherine Harris snuck into each of those polling places, and threw a switch on the voting machines...

No. She illegally purged many thousands of people from the voter rolls ... and then resisted all attempts to actually count all the ballots.

See here and here.

More links on the election here.

Cheers,

# posted by

Arne Langsetmo : 6:59 PM

Arne, you seem a bit confused about who does what in Florida elections. Here's a simple question:

Did Katherine Harris have the power to purge voters?

No, she had the power to send out an admittedly over-inclusive list of potentially ineligable voters. Here's how People for the American Way, no friend of Republicans, described the list:

"a list of more than 47,000 registered Florida voters who the Division thinks may be ineligible to vote because of felony convictions."

The word, "may" in your vocabulary? The list was not sent out as a list of names to purge, it was sent out as a list of names to check.

Now, some elections officials just purged them without checking. Some, a great many of them Democrats, just ignored the list, deliberately leaving people who really WERE ineligible registered.

It's an interestng question which factor predominated in 2000: People wrongly purged who might have voted for Gore, or people wrongly NOT purged, who DID vote for Gore.

Democrats seem to have little interest in the latter group...

# posted by

Brett : 7:22 AM

brett:

Arne, you seem a bit confused about who does what in Florida elections. Here's a simple question:

Did Katherine Harris have the power to purge voters?

Yes and no. I'm not confused. I know what went on.

No, she had the power to send out an admittedly over-inclusive list of potentially ineligable voters.

Which she indicated should be used to pure the rolls. Trying to pretend she was just sending out fluff that could be ignored is simply dishonest.

... Here's how People for the American Way, no friend of Republicans, described the list:

"a list of more than 47,000 registered Florida voters who the Division thinks may be ineligible to vote because of felony convictions."

WTF does that quote have to do with the price of tea in Sri Lanka?

As Palast has discovered and reported, the list was woefully inaccurate, it was known to be inaccurate (and it was known who was likely to get inaccurately "purged"), and it was based on a false reading of Florida law (for one, people whose voting rights had been restored or hadn't been revoked in other states were eligible under Florida law, but the list included them anyway.

... The word, "may" in your vocabulary? The list was not sent out as a list of names to purge, it was sent out as a list of names to check.

Oh, bulltwaddly.

Now, some elections officials just purged them without checking....

How are they going to check it if the list says that someone should be purged (due to supposed loss of voting rights in other states, even though the purge list doesn't say why they're supposedly ineligible)?

.. Some, a great many of them Democrats, just ignored the list, deliberately leaving people who really WERE ineligible registered.

Your proof of this? As for people ignoring the list, if what you say is true, that it was just a "recommendation", and Harris had no power, then what's your beef here?

The people that igored the list saw that it was trash. At the very least, officials that ignored the trash were not committing a crime of commission, and causing problems themselves by using known faulty information to deny legitimate voters their rights. If that meant that perhaps some ineligible voters did get a chance to vote, so be it, but if someone who's ineligible to vote vites, that's their problem, and if they misrepresent themselves, it is they that should, and can, be held to account.

It's an interestng question which factor predominated in 2000: People wrongly purged who might have voted for Gore, or people wrongly NOT purged, who DID vote for Gore.

For moonbat Republican apologists, for whom evidence is optional and in fact best ignored when inconvenitent to the party line, perhaps. You have evidence for the latter, out with it.

Democrats seem to have little interest in the latter group...

And in flying pigs and LGMs on the moon.

Cheers,

# posted by

Arne Langsetmo : 11:58 AM

It was reported in the Miami Herald, Arne.

# posted by

Brett : 12:46 PM