Balkinization: Thinking like a pundit

Thinking like a pundit

Sandy Levinson

Thomas Reed Powell, the great professor of law at Harvard in the early 20th century, once memorably said, If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer]. I am afraid that the same can now be said of all too many of our punditry. See, for example, David Broder's column in today's Washington Post, which takes Nancy Pelosi to task for the relative paucity of accomplishment by the Democratic Congress. It ends with a call for "the Democrats to get real about their own record on Capitol Hill. It needs improvement."

I have no doubt that the record of accomplishment is weak. But, as I actually said prior to the 2006 elections, anyone who believes that a Democratic victory would in fact lead to any significant changes was ignoring the barriers that the Constitution places in the way of such achievements. Broder himself notes that "[O]n 46 of the measures passed by the House, more than one-third of the total, the notation is added [by Pelosi], "The president has threatened to veto," or has already vetoed, the bill." Rather astonishingly, he goes on to say that "One would think that this high level of institutional warfare would be of concern to the Democrats. But there is no suggestion in this recital that any adjustment to the nation's priorities may be required. If Pelosi is to be believed, the Democrats will keep challenging the Bush veto strategy for the remaining 12 months of his term -- and leave it up to him to make any compromises. "

Broder, of course, doesn't suggest what further compromises Democrats should make in order to pass insipid legislation that the White House would be willing to sign. Nor, more to the point, does it seem to occur to him that it might be worthy of some discussion whether we're well served by a system that not only promotes such incessant "institutional warfare," but, more to the point, gives the President such a clear advantage in that war by being able to stop Congress dead in its tracks so long as he enjoys as 1/3+1 level of support in one House of Congress. Recall that presidents are successful 95% of the time when exercising the veto. Even if one likes the presidential veto, might one not agree that a success rate this high suggests that it is too severe a check on two Houses of Congress? (Nor, of course, does Broder mention the way that the filibuster has brought the Senate basically to a halt with regard to any half-way controversial legislation.)

I'd love to see an "improved" Democratic performance in the coming year. But Broder, as is typical of the modern punditry, focuses on the particular leadership styles of Pelosi (and, in earlier columns, Harry Reid) without its ever occuring to him that the Constitution to an amazing degree does in deed "constitute" our defective political system. Like John Edwards, he is willing to say that "our system is broken" without ever recognizing that relationship between our system and our Constitution. He would make a fine lawyer (and that is no compliment in this context).

[ADDENDUM: I should have been clearer in my original post that the "institutional warfare" is a function of what Rick Pildes and Darryl Levinson have called the "separation of parties" more than the "separation of powers" per se. Although Democrats were able to stymie some Republican legislation by the use of the filibuster, Republicans were able to score some victories, particularly with regard to judicial appointments, because of their control of both presidency and Congress. The present gridlock is a function of institutional divisions by party. A principal task facing any constitutional convention is figuring out what, if any, part of the modern party system should be "constitutionalized" and what should be left to the vagaries of the political marketplace. As to the former, for example, we would be well advised to emulate the Germans by putting certain congressional oversight committees relating to national security in the hands of the political opposition, since it is patently obvious that one cannot look to Congress to perform the oversight function vigorously if it is in the hands of the President's own party.]-

Posted 5:41 PM by Sandy Levinson [link]

Comments:

One of the talking heads on Fox News last week proclaimed Bush the "man of the year," citing among his accomplishments his successful blocking of almost all of the Democratic Congressional agenda. (He went on to respond to a question about Bush's low approval ratings by noting that Congress's are even lower and blaming the low rating on "disapproval of Washington generally" rather than any particular dissatisfaction with Bush individually).

This struck me as an interesting tactic... simultaneously decrying the "do nothing" Congress while applauding Bush for blocking their attempts to escape the label.

One of the great tragedies of the last decade or so has been the decline of non-partisan journalism. Sure, news media has always had its biases. I think we all realize that everything comes with a perspective, and there is no such thing as "neutral" reporting. Nevertheless, the last decade has seen such a growth in blatantly one-sided, partisan slog masquerading as "reporting" that I think it has done and continues to do real damage to our national political discourse.

You are more generous than I when you call this "lawyer-like thinking." I was thinking more along the lines of blatant disingenuousness.

# posted by

Unknown : 6:32 PM

A few months ago I stopped reading Broder . . . . I don't remember the exact article that made me reach the tipping point, but it amounted to a critique substantially similar to the point you are making (albeit less eloquently). So I did not, and will not, bother reading this piece.

My (less eloquent) characterization is that Broder is something of a fool, and not worth paying attention to. But of course he does have a rather prominent platform with which to say foolish things. And thus many people will read him and think he is sensible. I don't recall that he used to be this bad.

# posted by

Chausovsky : 7:26 PM

I think it's fair to say that for some years David Broder was thought to be among the leading political journalists/pundits. He spent a lot of time in the field, and he discerned some important things before others. That said, I agree with Jonathan Chausovsky that there has been a remarkable decline in the quality of his analysis. The best of the current crop of Washington Post columnists is E.J. Dionne, though I confess that I wish that he would place our system, of which he is properly critical, within the context of the Constitution itself. But, of course, as I've whined too many times, no pundit or politician, how ostensibly critical they are, has made that connection, save for Bill Moyers, who was willing to give the analysis a full hearing.

# posted by

Sandy Levinson : 10:35 PM

Sandy,
Can you provide the full quote of Thomas Reed Powell as the bracketed portion may call for too much interpretation by the reader?

# posted by

Shag from Brookline : 7:05 AM

The Democrats' great achievement was getting Bush to fire Rumsfeld and hire Petraeus. They should take credit for the great improvements in Iraq.

# posted by

srg : 11:24 AM

Like John Edwards, he is willing to say that "our system is broken" without ever recognizing that relationship between our system and our Constitution.

I'd like the context to this dig. Our system IS broken even if the "fix" will be less than perfect and the reason it is broken is in part a result of the very system. I think a former senator and such realizes such facts.

As do others, including the authors of "The Broken Branch" (Ornstein and Mann) and "Broken Government" (John Dean).

# posted by

Joe : 1:27 PM

Sandy,
I located the full T. R. Powell quote at footnote 1 of Peter R. Teachout's "Uneasy Burden: What it Really Means to Learn to Think like a Lawyer," 47 Mercer L. Rev. 543:

"1. Letter from T. Powell to R. Schuyler (Sept. 22, p. 1.). On file in Thomas Reed Powell papers in Harvard Law School Manuscripts Division. The actual quote reads: 'If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have a legal mind.'"

I have been unable to access this letter to understand the context of this sentence. Was Powell being critical of lawyers in their thinking? (Powell had a mischievous sense of humor.) In any event, the role of a lawyer differs significantly from that of a pundit.

# posted by

Shag from Brookline : 8:12 AM

I too would like to know the full context of the quote but perhaps the article cited by S. is of some help. It suggests a positive interpretation, at least in part:

It means, as Thomas Reed Powell once remarked, "learning to think about a thing that is hitched to other things without thinking about the things that it is hitched to."(65) While there are some kinds of moral questions with which the law is and ought to be concerned, in other words, there are others that ought to be left to the conscience."

In many cases, the lawyer has to "think inside the box," and not worry about deeper issues of politics and morality. In some ways, politicians should too -- this can be the path to limited but still useful accomplishments.

# posted by

Joe : 2:42 PM

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# posted by

Unknown : 12:29 PM