Balkinization  

Wednesday, January 30, 2013

The monumental self-indulgence of Deval Patrick

Sandy Levinson


I expect to post a longer message regarding the conference that Jack just wrote about.  What I want to do now, though, is simply to vent about the patent irresponsibility of Massachusetts Governor Deval Patrick in appointing his friend Michael Cowan to replace John Kerry as senator, apparently for no other reason than his (Gov. Patrick's) desire to have an African-American Democratic senator for at least four monts or so, and regardless of the fact that there is no reason at all to believe that Sen. Cowan, as I presume he'll become tomorrow or very shortly thereafter, has any real knowledge about national political issues that may in fact come up in the next four months.  This is "expressive politics" at its absolute worst, and Gov. Patrick should be ashamed of himself.  Frankly, it is the kind of self-indulgent gesture by someone with power that gives "affirmative action" (which I support) a bad name with many Americans.  He has, in one instant, disserved his state, his party, and the nation (even if, as I presume, Sen. Cowan is an extremely fine and able person whom all of us would be proud to have as a friend or, if governor of Massachusetts, an aide, as he was.)  Nothing in my remarks should be read as casting aspersions on Mr. Cowan's personal character (other, frankly, than that he didn't have the personal self-discipline to exercise what Madison might have described as the "civic virtue" to tell the Governor that he is highly flattered but not really qualified for the job). 


A couple of years ago, a Harvard student wrote a superb senior thesis under my notional supervision on this particular aspect of the Seventeenth Amendment, which allows states to allow their governors a free hand in making interim appointments to the Senate when a vacancy opens up.  He demonstrated that gubernatorial appointees generally have a relatively rough time winning the subsequent election (assuming they run) because of public suspicion that the appointee is nothing more than a friend of the governor rather than someone who has really earned the appointment because of public service.  Can you recall Roland Burris, who received the nod from Rod Blagoevich to succeed Barack Obama as senator?  This seems to be the best possible illustration, at least since the Burris appointment, of how a governor can abuse the legal authority that is certainly his under a combination of the Seventeenth Amendment and authorizing state legislation.  Nicki Haley's apponitment of Tim Scott, the first African-American to represent South Carolina in the United States Senate, though no doubt based on political considerations (nothing wrong with that) raises no such questions inasmuch as he had represented his district in the United States House of Representatives and, presumably, is thought by many South Carolina Republicans to have the attributes of genuine public leadership.  I obviously don't share Haley's and Scott's politics, but that's another matter entirely.

One should read my rant against the background that there was an absolutely superbly qualified candidate in the wings, more than happy to accept the role of interim appointee, pledged not to run in the special election, and, most importantly, remrkably up-to-speed with regard to the various issues that will face the Senate in the next four months:  Barney Frank.  One could understand why former Massachusetts Governor Mitt Romney would not appoint former Rep. Frank.  It is utterly inexplicable why Gov. Patrick did not do so, unless, of course, he believes that Frank is just too left in his politics.  I don't share that view, but if that's Patrick's view, he should say so and specify why he has more confidence in Senator-to-be Cowan's insights into the ways we should approach various forthcoming cliffs and sequesters.  Massachusetts voters would be interested in such information, particularly given Patrick's closeness to President Obama.  (Is it conceivable--I certainly hope not--that Obama lobbied against the Frank appointment because he might make waves should Obama cave, in order to achieve a chimerical "grand bargain" on a number of issues dear to political liberals and their working-class constituents?)  Perhaps I would be less upset if Barney Frank weren't so clearly available--ready, willing, and able--and if Patrick had selected someone else, including, most certainly, an African-American, to fill the vacancy because of their demonstrated qualifications to take Massachusetts' seat in the Senate to replace John Kerry.  So consider Louis Henry Gates, who may not be an expert on the debt but is a nationally-prominent figure with interesting things to say about race and, I suspect, immigration, as is true of William Julius Wilson, one of the nation's ranking academic students of structural unemployment and race.  Or my friend Randy Kennedy, a distinguished Harvard Law School professor who has written seminal books on various aspects of race and the law.  Or, to move away from race, why not appoint Peter Diamond, the Nobel Prize-winning economist who was prevented from taking a seat on the Federal Reserve Board because of the smarmy know-nothingism of Republican Sen. Richard Shelby, who claimed that Diamond, whose specialty is apparently the labor market, was unqualified for the Fed.  It would really be wonderful if Massachusetts were represented, albeit for only four months, by Elizabeth Warren (also the victim of a Republican vendetta) and Peter Diamond. 

For what it is worth, this is what the Times story announcing the appointment tells us about Senator-to-be Cowan.  As I've already suggested, he sounds like a fine person who certainly deserves some public kudos, just not the interim appointment as United States Senator in these particularly parlous times:
Mr. Patrick and Mr. Cowan built up a strong friendship over the years, The Boston Globe reported, as both men rose from difficult childhoods to prominence in Boston and in the state. Mr. Patrick also served as a mentor to Mr. Cowan when both were practicing lawyers.

Mr. Cowan has also mentored many black professionals and has served as a talent scout frequently called upon to help diversify the city’s institutions. He helped former Gov. Mitt Romney, who faced criticism for the lack of diversity in his judicial picks, identifying minority lawyers who would make good judges. He recruited black lawyers for the law firm Mintz Levin and for the Middlesex County district attorney, Gerard T. Leone Jr.

“He’s cool,” Lt. Gov. Timothy Murray said of Mr. Cowan at a packed news conference at the statehouse, adding that George Clooney and James Bond “have nothing on Mo Cowan.”

Mr. Cowan, 43, is a former chief of staff and chief legal counsel to Mr. Patrick, the state’s first African-American governor. His appointment makes Mr. Cowan the second African-American to be seated in the current Senate, after Tim Scott of South Carolina was appointed by Gov. Nikki Haley.

From 1997 to 2009, Mr. Cowan practiced civil litigation as an associate and later a partner in the Boston office of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. He also served as a special assistant district attorney in the office of the Middlesex County district attorney. He left the Patrick administration last year with the intention of returning to the private sector but said this brief detour to Washington was a sacrifice worth making because he wanted to give something back to the state that had given him so much.

Mr. Patrick said that he notified Mr. Cowan only on Tuesday that he intended to name him. Mr. Cowan said he was proud to take the post, noting that his mother, who was home in North Carolina recovering from knee surgery, was a child of the segregated South, had not attended college and became a single mother at a young age.

“My mother told me that days like this were possible,” he said. He also said that he was not picked because he was African-American but because the governor had confidence that he could do the job.

Quoting his mother again, Mr. Cowan said that she had told him he was better than no one but that he was everyone’s equal.

He seemed to be a quick study in the senatorial art of not answering questions definitively. Asked, for example, if he would vote for defense cuts if they cost jobs in Massachusetts, he called for “a balanced approach,” with some cuts and some revenue growth.




Comments:

Barney Frank had been my Congressman for many of the years I have lived in Brookline. I had hoped Barney would be appointed as interim Senator, perhaps making Senate sessions on C-SPAN more interesting as we see the new filibuster rules in action.

But there may be back political issues that Patrick had to address, including future political roles for Patrick after serving his current term. It is of course possible that Pres. Obama might have had some influence in the decision. Or perhaps it may have been felt that the Democrat nominated to finish Kerry's term might fare better with Cowan rather than Frank. Perhaps more information may come out. Let me be clear, I am just speculating and have no special information on Patrick's choice.
 

If it makes you feel any better, I doubt it will make a whit of difference to Massachusetts, the nation or anyone else that Governor Patrick appointed Cowan rather than Barney Frank. If we are going to speculate on reasons why Frank was not appointed, I would guess that it has a lot more to do with Frank’s personality than with his politics.

As for why Cowan, it seems rather obvious that Patrick is rewarding him for years of faithful service and friendship. Possibly it is also thought that he will do the Governor’s bidding (unlike say Frank). These may not be particularly admirable reasons, but they are not unusual and certainly not comparable to the seedy, if not outright corrupt, appointment of Roland Burris.

Maybe Cowan is “qualified” (whatever that means), maybe he isn’t, but I don’t see that his race has anything to do with it. The fact that there are lots of black people in Massachusetts that you happen to think are qualified, but Patrick chose not to appoint, suggests that it doesn’t.

You may recall that last time there was a Senate vacancy in Massachusetts, Patrick appointed Paul Kirk, who was a political functionary in the Kennedy dynasty. Frankly, that was more offensive in that the seat was being treated as the virtual family property of the Kennedy clan. Did you fly off the handle then?

 

Senators' and Representatives' function are representation, not administration. Therefore the relevant qualification is representation of the state, in this case as determined by the governor. There's really no gainsaying a sitting governor's judgement of who will best represent his state in the Senate on an interim basis, within reason. And this judgement is eminently within reason. Your sense of greater "qualification" in other men is simply not on point. The governor owes such considerations no attention. You have your back up over nothing.
 

Isn't the Occam's Razor explanation here just that Governor Patrick has a high level of confidence and trust in Mo Cowan, who seems like an extraordinarily able lawyer with experience as a top aide to a governor? And that Governor Patrick doesn't want to appoint someone with a record of election to office precisely because he doesn't want to prejudice the results of the election that will fill the senate seat for the longer term? Hard to see why that is abuse of power or giving affirmative action a bad name. It actually seems to me profoundly respectful of the democratic process to appoint an able caretaker with governmental experience but no obvious political base or ambitions, so that the voters can ultimately decide who will hold the seat. Barney Frank was my representative for a while, and I am a big fan, but Governor Patrick might have thought that he wouldn't actually be able to keep himself from running for reelection (he retired from Congress largely because of redistricting), or he might have responded negatively to the way Rep. Frank campaigned for the office and tried to box Governor Patrick into appointing him (in the iterative game that is politics, "nobody puts Baby in the corner" is a smart play and hardly an abuse of power), or maybe he just thought that Rep. Frank would be less reliable as a champion of what Governor Patrick cared about. In the last regard, I should note that some folks in the disability community were opposing Rep. Frank's appointment because of his aggressive sponsorship of legislation that would limit systemic lawsuits in certain disability rights cases. For myself, I think the bill is a terrible idea, but hardly disqualifying for a senate appointment. But I also think that nobody has any entitlement to an appointment like this.

Finally, you might usefully compare Mo Cowan's resume at this point with the resume of Michael Bennet at the time he was appointed to the Senate. Bennet has turned out to be a very, very able senator, but I don't think there's much difference in the quality of his resume at the time he was appointed versus that of Cowan. And I don't recall any complaints at that time about abuses of power, or affirmative action (for the children of university presidents) run amok. Roland Burris, by contrast, had won statewide office in Illinois four times at the time he was appointed to the Senate. There are aspects of ability or qualifications that are not captured in a resume of election to office, and I would suggest that Governor Patrick knows much more about Mo Cowan's ability and qualifications than you or I do. But on the face of things, I don't see how you can immediately condemn Cowan as unqualified.
 

As Rachel Maddow last night noted, there is in fact a certain responsibility in appointing placeholders like this who have no intention of running again until the people of the state vote in a full time senator.

Also, the guy is not a dweeb. He is a strongly qualified individual who was the chief of state for the governor of the state. This suggests he is more informed than many a person about the needs of the state.

It is rather likely that executives will appoint those they know. This person is a well educated, experienced in state affairs individual who ALSO is a friend and a second AA senator, both btw appointees (from each party) of non WASP governors.

I think you are pretty off base here. If anything, blame him for appointing a crony. He appointed one other senator, a white guy, fwiw.
 

"former chief of staff & chief legal counsel"
 

A Suffolk Probate Judge I first appeared before in the late 1950s used to berate some attorneys (not me) appearing before him unprepared on simple uncontested divorces. He stressed the need for lawyers to be prepared and said that this also applies to judges, who are (usually) lawyers, then pointing out that all a judge is is a lawyer who knew a Governor. While a judge is appointed to serve until mandatory retirement in MA, Mr. Cowan, a friend of Governor Patrick, will serve for only 4-5 months. No harm, no foul.
 

I probably shouldn't have described Sen.-to-be Cowan as "unqualified." Sam Bagenstos is clearly correct that Patrick should be trusted not to pick someone truly "unqualified." He's also correct, of course, in pointing out that Roland Buriss had in fact won state-wide contests for public office and had, by most accounts, been competent in his position.

That being said (and conceded), it's hard to believe that Cowan would be likely to emerge at the top of a list as "more qualified" than a variety of other contenders, starting with Barney Frank and including many others who might have been mentioned.

And yes, it turns out that Sen. Bennett has proved to be a sagacious choice. But, presumably, it took him at least his first two years in office to bring him up to speed and to demonstrate his abilities that led to his election (plus, of ocurse, the kindness of the Colorado Republican Party in nominating a far-right opponent).

As for the Paul Kirk nomination, I agree with MLS that that, too, scarcely represented a shining example of disinterested selection. I didn't "fly off the handle then" because, frankly, no one else of Frank's stature had indicted an interest in the job. And I find it literally incredible that Frank would break his word not to run in the special election, not only because he is a man of honor but also because, frankly, because, at 72, he really is too old to begin a career in the Senate. And, of course, the winner of the special election will have to run again in 2014, when Kerry's term would be up. Perhaps Patrick refused to appoint him because of his stand of the disability rights bill, but then it might have been appropriate for him to say so (by leaking the reason to a trusted reporter, for example).

Incidentally, I should also have included former governor and presidential candidate Michael Dukakis on the list of able place-holders. He has been an absolute model of public service throughout his life.

I'm mystified by the notion that "there's no gainsaying" a governor's judgment as to who would best represent his/her state. That makes no more sense than saying "there's no gainsaying" a governor's judgment about any given issue of public policy after he/she has said that the state needs X (even as one thinks that X would be a disastrous policy for the state to adopt). Governor Patrick, whom I have happily supported, is a fine human being, but recall that "to err is human...." And I respectfullfy continue to believe that the appointment of Sen.-to-be Cowan, whatever his seeming personal attractiveness and undoubted abilities as a lawyer, represents an error in judgment that is properly open to criticism.




 

Didn't Barney Frank publicly oppose the nomination of Chuck Hagel as Secretary of Defense? Hard to imagine that someone close to President Obama, as Governor Patrick reportedly is, would select as interim Senator someone who could help torpedo a Cabinet nomination. As smart as Barney Frank is, I was surprised that he did that. How could there not be repercussions?
 

It's of note that all your proposed alternative candidates come from academia. I can't say I agree that professors are uniquely or unusually qualified to be political leaders.
 

I certainly would not generally look to the academy for "political leaders." But an interim four-month US senator is not really being asked to be a "political leader" so much as to exercise good judgment about the issues likely to come up in the very short-run future. That is why I would applaud the appointment of either Wilson or Diamond, especially, but I certainly assume there are many other people who might have been appointed, including, for that matter, innovative (Democratic) business leaders or entrepeneurs. My gripe is that Cowan, at least on the basis of the limited material I've read, doesn't leap out as someone ready to play a vital role in deliberating and voting, in the next four months, on the issues coming before the Senate.
 

Assuming that others mentioned by Sandy might have been better caretakers for 4-5 months than Cowan, is it clear that any of them (other than Barney Frank) was prepared to accept?
 

Looking at some of the senators now in place, there are many who probably are "more qualified" out there, but the system encourages certain people who can be elected to be put in place. And, as a whole, most of them are pretty qualified.

Cowan is as qualified as any number of them. With all respect to Barney Frank, he is not a demigod. He was the one who wanted to just let the PPACA go for other concerns. He is a divisive figure who the leadership might in fact not wish to work with in some ways. He would be a newbie to the Senate.

And, again, the chose of elector here will lead to a certain candidate. "Most qualified" is ultimately debatable in that respect. By what criteria? Anyhow, given the quite qualified person and the fact Frank is not a demigod, the OP is a bit overblown.
 

Scott Brown has announced he will not seek the Senate seat left by Kerry. This is understandable what with so many campaigns going back to 2010.. Surely Patrick's appointment of Cowan did not precipitate Brown's decision but as the "strongest" Republican candidate, who may fill the vacuum? One might speculate that if Patrick had appointed Barney Frank, Brown might have had stronger political issues as Brown could have focused on Frank. So Brown may have lost what may have seemed a strong issue as Frank may not be that popular statewide. Recall that Frank's district had been in a sense gerrymandered several times, as other Democrat Congressmen had more influence with the MA Legislature than Frank in retaining favorable districts for their reelections. Was this part of Patrick's thinking?

[Note: Frank provided excellent constituent services in his district and handily won reelection in 2012 against a Republican who received much o bucks from outside MA.]
 

Given the Deval/Barack relationship, I HOPE Cowan was appointed to be a 100% reliable vote in the Senate, and there was fear that Barney would not be such.
 

It's hard to see how Cowan, who as spent many years in government administration just not in a representative capacity, is somehow less qualified than professors and academics who have spent their careers in academia, focusing on a narrow field like race or economics. Especially when, as you note, a senator needs to be well versed on a host of domestic and foreign affairs.

You also seem to assume that Cowan is inherently unqualified, but fail to articulate what exactly about his skills or beliefs make him less qualified than college professors. While obviously Cowan and Patrick are close, there's no reason to assume that this closeness overshadowed all other considerations by Patrick.

Finally, while Barney Frank has obviously the knowledge required, he is retiring in large part because his district was redrawn and he essentially didn't feel like having to campaign for new votes. Frank, an outspoken and far leaning liberal, may not have the requisite statewide appeal that you seem to think he will based on his congressional career. And in terms of party politics, it's quite possible that Patrick and/or the state Democratic Party may have been concerned that appointing Frank would galvanize the state Republicans into action; by appointing a relatively unknown (politically speaking) faithful servant of a popular governor, the democrats' chances for success in the subsequent election are probably higher. While voters should be apprised of Cowan's stances on issues, that is more a fault of the process of special appointment, than any fault or suspicion about Cowan.
You seem to ascribe some sort of nefarious intent to Patrick, and even to Obama. But not having the requisite information you would like as a voter is not the same as presuming there is something suspicious going on.

 

In what way do you folks find Barney Frank to be qualified to serve in government in any capacity?

Frank was one of the architects and later primary defenders of the government directed and subsidized subprime home mortgage market, one of the all time great government screw-ups which directly and indirectly impoverished millions.

http://www.theatlantic.com/business/archive/2011/12/hey-barney-frank-the-government-did-cause-the-housing-crisis/249903/#

http://www.huffingtonpost.com/2011/05/26/gretchen-morgenson-reckless-endangerment_n_867158.html

Frank knew exactly the risk he and other subprime mortgage proponents were imposing on the nation. In 2003, when he was defending this insanity against one of two half-hearted Bush era reform attempts, Frank quipped: "I want to roll the dice a little bit more in this situation toward subsidized housing."

As reward for his tireless work, the corrupt Frank enriched both his campaign war chest and his personal bottom line with leftover campaign contributions and a sweetheart home mortgage deal.

Whenever I hear mystified complaints wondering why the Obama Justice Department is not prosecuting the banks for making subprime home mortgage loans, I think of Gretchen Morgenson's book Reckless Endangerment - a scathing indictment of the Democrat power structure led by Frank who lined their pockets pressuring, suing and imposing regulations on the banks, Fannie and Freddie to create this monster. Justice knows that the banks' primary defense will be "the government ordered me to do this" and that Frank and other luminaries will be hauled into court under oath.

If the same rules that applied to business applied to our political class, Frank would be in prison occupying a cell next to Bernie Madoff.
 

I wonder if our yodeler thought of Gretchen Morgenson's columns during the Bush/Cheney years that led to their 2008 Great Recession. Apologists for those eight (8) years of Bush/Cheney that have devastated the GOP ignore all of the evidence of the Bush/Cheney failings. Our yodeler has commented of his looking back in awe to America's laissez-faire days of the late 18th and the 19th century (much of which included slavery) as America's glory days, spoiled by the progressives. Of course, our yodeler wasn't even a twinkle in anybody's eyes back then, but he seems to yearn for those good old days. No regulations. No charity, at least by government as a safety net. But what about the government's subsidizing or the railroads, etc, during those laissez-faire glory days? Did America need a Pure Food Law? Anti-trust laws? Of course there were no truly free markets back in those laissez-days. Bush/Cheney did some devastating deregulation that led to their 2008 Great Recession. Fannie and Freddie may have been incestuous in serving the institutions that Bus/Cheney deregulated. But the major blame falls on Bush/Cheney and the GOP that accommodated them. To paraphrase our yodeler:

"If the same rules that applied to business applied to our political class, [Bush/Cheney] would be in prison occupying a cell next to Bernie Madoff."

Remember Halliburton, WMDs, etc?
 

I just read Paul Krugman's NYTimes Blog post today "Cockroach Ideas" that I incorporate to add to my response in the preceding comment to our yodeler, whose shadow (in competition with the groundhog) will forecast more bile from him (but not limited to 6 weeks).
 

Shag:

I will take your strawman rants as a tacit admission that Frank is as I described him and unqualified for government office.

Sandy,

I am truly curious why you believe Frank to be qualified?
 

Who is the "strawman" our yodeler claims I rant about? Are they Bush/Cheney, the undynamic duo that brought about their 2008 Great Recession after squandering the Clinton surplus?

Since our yodeler did not respond to my comment on Bush/Cheney, I take that " ... as a tacit admission that [Bush/Cheney] as I described [them] and unqualified for government office."

Further, since our yodeler did not respond to my incorporation of Krugman's NYTimes blog post "Cockroach Ideas" (which I assume our yodeler has read and thus takes personally), I take that as a tacit admission by our yodeler that he fits the description of that post.

As for Frank, surely he has demonstrated that he is qualified, having been elected to a House seat for 16 terms despite changes in his district by the MA Legislature that were not considered favorable in comparison to changes in other MA congressional districts. Prior to that, he had served in the MA Legislature. Then there are his Harvard College and Harvard Law degrees. Perhaps our yodeler is demonstrating his anti-gay persona, like that of the Red Queen.
 

Shag:

The fact that voters like you repeatedly reelected Frank despite his well documented corruption is far more an indictment of your competence as voters than a confirmation of Frank's competence as a representative.

Harvard credentials no more make Frank competent to serve in government than they do insider trader and newly minted felon Rajat Gupta.

Your clumsy attempt to play the homophobia card (because your preferred race card was unavailable) in defense of Frank's competence only raises other examples of official corruption like Frank doing favors for his boy toy, Steve Gobie.
 

Yes indeed, our yodeler played his card, just like the Red Queen.

Barney Frank succeeded Father Drinan in the congressional district where I reside. Father Drinan was a liberal who challenged the Vietnam War decisions and Richard Nixon. Frank shared many of Father Drinan's liberal views, including the excess being spent on defense. The right wing hated Father Drinan, just as the right wing hates Frank. They wore that hatred as a badge of honor.

Our yodeler is a little man living on a little mountain spewing bile and hate at liberals and progressives but has been particularly vehement in his hatred and vileness of and towards President Obama from day one of his first term. Perhaps there may have once been a sense of decency in our yodeler, now merely a spent tea bagger.
 

It's fine to argue that there were other candidates available who were better qualified, but does Sandy have any evidence that Cowan was chosen because of his race? Is that really the only other salient quality he possesses? It's a fairly rotten charge to make with no evidence.
 

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