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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts For this we had a revolution?
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Wednesday, December 17, 2008
For this we had a revolution?
Sandy Levinson
Nicholas Kristoff has a marvelous blogpost in the Times that captures some of my own disquiet about the prospect of Caroline Kennedy's emergence as the apparent "front-runner" as Hillary Clinton's successor in the Senate. He writes, After all, Beau Biden seems poised to succeed Joe Biden in the senate from Delaware, once his military service is completed. Ken Salazar’s senate seat from Colorado may be filled by his brother John. And here in New York State, we have a governor who is a second-generation politician who is choosing a senator from among such front-runners as a woman who is the daughter of a former president and a man who is the son of a former governor. And, of course, Jeb Bush now seems poised to be the Republican candidate to succeed Mel Martinez to the Senate from Florida. I wonder if there are any other "democracies" around the world who have so much dynastic succession as part of their contemporary political order. "Isn’t that the kind of system we rebelled against in 1776? " Kristoff asks. Perhaps we're not really out of line; after all, there is always the exhilarating possibility of a Barack Obama or, even if less exhilarating to most of us, a Sarah Palin. I must also say, as a partisan Democrat, that I genuinely wonder whether Ms. Kennedy, whatever her strengths might be, would necessarily prevail over Peter King or some other well-financed Republican in 2010, who might well find a constituency to agree with another of Kristoff's comments, that Gov. Patterson is "said to be drawn to appointing Caroline Kennedy to the senate because she would be a good fund-raiser who could be reelected in 2010 and would cast a glow around him and his issues. But we don’t want a plutocracy, we want a democracy."
Comments:
Well, from the originalist point of view, what about the Adams family? What about the Tafts of Ohio? The Byrds of Virgina, the Longs of Louisiana, the Talmadges of Georgia? Nancy Kassabaum is the granddaughter of Alf Landon. Nancy Pelosi is the daughter of somebody I forget. Who was Charles Robb's father-in-law? The apple just doesn't fall far from the tree. Especially in today's world of manufactured candidates, who knows the imagemakers better, who's known the big money boys longer than the children of politicians?
I have to assume the people of these states *DO* want dynasties, or at least these particular dynasties, because they keep voting for them.
Even the Communists are doing it these days. Kim Jong Il has taken over from his father, Kim Il Sung, and now Raul Castro has taken over from Big Brother Fidel.
India: Jawarharlal Nehru begat Indira Gandhi begat Rajiv Gandhi married Sonia Gandhi. Two members of the fourth generation are currently members of Parliament and poised to move into leadership positions in the Congress Party.
And here we also have the Udalls and many other political dynasties. An innocuous explanation might be that political families are kind of like circus families: bred to the trade.
A less innocuous explanation would be that officeholders are running the political parties for their own benefit, including nepotism for their relatives.
It's just of a piece with reelection rates so high you're more likely to get rid of an incumbent by heart attack than voting. Our democracy has run so long we've accumulated a lot of institutional knowledge in the political class on how to make it less democratic, and more suitable to their own interests.
For large swaths of the electorate, elections are simply popularity contests. Family names are simply that phenomenon expanded from individuals to families.
Early on in the campaign, Robert Kennedy, Jr. of New York (as well as a sister) endorsed Hillary Clinton. I recall commenting to my wife at the time that if Clinton were successful then Robert might be in line to fill her Senate seat. Then Caroline, who like her cousin Robert lives in New York, endorsed Obama, joining her uncle Teddy. This seemed to be a split in the Kennedy dynasty. But I did not think at the time that Caroline's endorsement might have been as opportunistic as I thought may have been the case with Robert, especially since Caroline was not as political as Robert. But my curiousity has been aroused as to whether the dynasty had perhaps "agreed" that it would be Caroline's turn. While the appointment would be for just short of two years before an election would be required for the balance of two years of Clinton's term, might that suggest that Caroline from day one would have to start campaigning while at the same time learning on the job? Or perhaps Caroline just might be keeping the seat warm for her cousin Robert?
According to Akil Amar, the age requirements for the house, senate, and presidency were put in to minimize (if not totally avoid) the nepotism we're seeing. The framers figured that the only person who could get elected to public office at a young age would be the son of a famous man, coasting off the reputation and money of his family. They figured that as long as the person had to make it to his 25th or 35th birthday, we would have a chance to view the person they would become, and then make a reasoned judgment.
The current situation seems a bit messed, but what's the alternative: bar the children of electeds from holding office?
Greece!
The mess in Greece at the moment is due in large measure to the fact that every prime minister since 1974 has been called either Karamanlis (New Democracy party) or Papandreou (PASOK), with the one notable exception of Simitis in the 1990s.
what's the alternative: bar the children of electeds from holding office?
I wouldn't bar them from being elected, but I'd support a bar on the appointment of relatives. We ought to modify the 17th A in any case to require an election for the replacement instead of giving the power to governors.
I think it a particularly mindless, and typically Kristoff slant, to criticize based on family origin. It closes his mind to the genius which might reside in CK's outlook. The essence of the genius of our form of government is to let people who are good get the job. But that is not what the commentators on the right wish, with respect to the current challenger's expressed interest. If she is strong, let her be the leader. America is benefitting from lots of guidance from people in her generation, and perhaps circumstances.
Last year I read a comment by a lady who wished to run for political office in an affluent borough in a large metro area. She had two obstacles which she felt were difficult to address, one being that the incumbent already had accumulated $1 million. Name recognition helps overcome that barrier. But I think voters have shown a new openness recently, a willingness to change the boring inertia of the recent past. Let's let this new challenger make her statements and present her vision. There is a lot of colorful subtext of these kinds of conundra in the founding documents. It would be fun to elucidate some of those in this space, as well. Brilliance and polity sometimes are at odds, and occasionally mutually reinforcing. I find myself reluctant to let obtuse commentary from Kristoff influence in any way my ability to hear what the candidate is about to say as she tosses her hat in the ring. Let her run. I have read as well the usual commentators' recent stated misgivings about Upstate New York gentry's attitudes toward Downstate intellectualism. Let the candidates address that somewhat specious though partly historical trend in the region in their public remarks. I say let her try.
The tradition of wealthy families playing major roles in government is as old as civilization itself.
In the feudal Anglo Norman settlement the chief barons of the country had their prerogatives which gruadually evolved into a bicameral parliament with the great families providing not only all the seats in the House of Lords but also by patronage controlling a number of seats in the House of Commons, the balance being occupied by the "Knights of the Shires and the Burgesses of the Principal Towns". Colonial legislatures in British North America had similar legislatures - with a far from universal franchise. In both our countries it is not unknown for families which have become very wealthy to encourage their sons to go into "public service" and in the right cases this can be beneficial. In the UK the limits on what an individual candidate may spend in a parliamentary election will seem ludicrously low to US eyes. As of 2005, the figure was £7,150 per constituency and 7p per elector in a rural constituency and 5 p per elector in an urban constituency. Television advertising is prohibited - the parties are allocated free airtime for political broadcasts apportioned broadly in accordance with the number of seats won in the previous election. Broadly, electioneering for individual candidates is a matter of volunteers pounding the streets. The parties on the other hand must look to advertising - by means other than television - and by seeking to get into the news and current affairs cycle (where there are airtime rules). No system is perfect, but I do wonder if the prohibitive cost of seeking election to any major public office in the USA is not a real deterrent to good people coming forward, particularly with the short period between elections. That must mean that once elected some candidates have to be in permanent fundraising mode. And that surely makes the system very vulnerable to corrupt practices.
In a truly democratic society, of course, political dynasties would be rare, or nonexistent. This would seem to be another argument in favor of the proposition that America is not a democracy but something approaching a dynastic autocracy, especially if one construes a dynasty to also consist of shared ideology.
Our democratic revolution was effectively overthrown in the 19th century, particularly after the Civil War. The pleasant fiction of American democracy has long since entered the mythic land of Santa Claus and political altruism.
Why would a "dynasty" be rare or nonexistent in a democracy? Please explain. I'm not sure under what political theory this couldn't or shouldn't occur.
1. What experience does Al Franken have that Ms. Kennedy does not?
Except of course being a darling of the left. 2.I actually did a scan of members of older Senates. I would estimate that 20% were cited as having a relative in house senate or governorship. 3.Lets compare CK and Obama. BO did not have a childhood mileau particularly rich in American politics. He spent IIRC two terms in the Illinois House before his Senate Campaign. CK grew up in an extended family where politics was like the air and water (remember in American President where the daughter was quizzed at meals about things American). Just what experience did BO gain in his time in the IL house that would transfer to being a good Senator??? 4. Finally, I do believe in a general inheritance of traits. Whatever genes makes a good pol, CK has them. Thus by Nature and Nurture she is far ahead of some NYS political hack.
"Isn't that the kind of system we rebelled against in 1776?"
Paine said nepotism alone is not a qualification for office. But, having a father that is a carpenter might suggest the child is skilled as one. It isn't a given, but in this country we have things called elections that help determine the fact. Making it impossible for John Quincy to be President was not a major reason for the war, was it? As to appointing senators, the 17A gives state legislatures (our representatives) the power right now to require elections. But, these take time, so logically they also have the option of selecting fill-ins giving a state only has two senators. Think also if Vermont's representative died, and the seat was absent for months until Election Day. As to nepotism, where would it end? Why stop at children? The Roosevelts were related too, I'm talking Eleanor and Franklin, so "family" is rather broad. This includes spouses, of course. It's sort of like term limits where instead of electing the experienced person the people might want, you might pick a staff member or someone else rather closely connected to the person. This is of limited value really. This is one -- of many -- reasons people are chosen or elected for positions. Hint: having money and being a white male helps a lot too. Also, being certain religions and so forth.
Al Franken has had an active public role in politics in the last few years, including a national radio show. The "public" part is important here since many are concerned Caroline Kennedy has not really "put herself out there" enough to be a good candidate.
I'm unclear how membership in a rather big family puts her above some "NY political hack" ... does osmosis counter actual political experience? Also, the term seems a bit critical. After all, she wants to be one too.
JOE;
I suppose that to really have an good discussion of this we would first have to kind of operationally define first what is a good Senator, and then what kind of experience is needed to achieve that level of ability. At least in NY I have not noticed that coming up through the ranks of local politics is good training for anything special. Mostly I have seen on a State and City level there being a peter principal. The best mayors and governors have come pretty much outside of this group Lindsey,Guilliani Bloomberg;Harriman Rockefeller and Cuomo. Pataki I must say was a pleasant exception to this rule. For the Senate especially an ability to know what is inmportant and what not, with a knowledge of what is going on in the nation and world is to me essential. And I feel that Ms. Kennedy grew up in that kind of world.
So can someone explain o me why she shouldn't ask for the appointment?
In theory any citizen interested in the job has a right to ask for it, why not someone with a famous last name? PE-Obama said he hoped to inspire people to become more involved, so here you go, he inspired someone rich and famous. She should be disqualified from seeking the appointment which is a logical conclusion to the objections raised to her request.
Growing apart doesn’t change the fact that for a long time we grew side by side; our roots will always be tangled. I’m glad for that.
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