an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
If you can drag yourself away from the filibuster underway on the Senate floor, let's talk about Hillary Clinton for a minute. I've been asking myself a question lately: What was the significance of the 2008 primary fight between Senators Obama and Clinton? And how did it shape the Administration?
If HRC follows the President into office in 2016, then a reasonable answer is that the 2008 primaries made no real difference--they both reached the White House. One response, though, is that Obama's victory gave us the Affordable Care Act. In other words, a President Clinton would not have gone in that direction because of the failure of her health care proposal in 1994. Whether a world without the Affordable Care Act (and with some other statutes instead) would have been better is hard to assess, but it's worth considering given the amount of political capital the President has spent on health care.
A related thought is that the President's decision to invite HRC into the Cabinet (and her decision to accept) was probably the most significant action of his Administration. Why is that? If Clinton had remained in the Senate, then she would have had the authority to challenge Administration's direction. There would have been the possibility of a primary challenge in 2012, and she had powerful credentials to energize certain factions in the Democratic Party. In her absence, nobody could really challenge the President in his own party (at least until recently). To the extent that the President has made mistakes because of this lack of (relatively) friendly criticism, that may be the result of paying way too much attention to Doris Kearns Goodwin's "Team of Rivals" model of governance.
One final point. Normally a President in his second term (even an unpopular one) wields considerable authority within his party and over the choice of his successor. Not this time though. Hillary Clinton is an independent force who does not need to pay special attention to the President's agenda over the next two or three years. This may mean that lame-duck status will be conferred upon President Obama much sooner than was true for other two-term leaders. Posted
by Gerard N. Magliocca [link]
The primary fight strengthened Obama for the general and it is doubtful the two were simply fungible, that it would "make no difference" to what would happen 2009-17, including regarding the acts of the Secretary of State (less important there though how former rivals worked together etc. would likely affect Clinton's campaign and governing somehow).
I also doubt seriously that she would deem it a good idea to put up a challenge to a sitting Democratic President in 2012. The appointment of Clinton is quite significant, especially if she runs and it provides serious claim of foreign policy / executive experience, clearly.
I agree Clinton's force diminishes Obama's authority over his successor, but I'm not sure how much that contributes to his 'lame duck' status. The influence would only matter just so much.
When the voters returned divided government and Obama did not tack right to where the electorate is like Clinton did, Obama took office as a lame duck. Obama's only remaining role is a rear guard defense of his 2009-2010 programs.
I'm not sure I follow some of your post, and I'm not sure I agree with some of it.
Do you not think that Hillary would have expended the political capital necessary to pass the ACA? Obama basically adopted the Hillary plan, so I assume this is what you mean?
I'm not sure I agree that there would have been a primary battle in 2012. Clinton was a relatively gracious primary loser in 2008, I see no evidence that she had any desire to undermine Obama (despite the relatively acrimonious primary). And I think the Democratic base was relatively happy with Obama in 2012... according to Gallup, Obama's approval rating among Democrats right now is ~78%, and was in the 80s throughout 2012.
If Hillary had defeated Obama, I doubt there would have been the 2010 Tea Party rebellion that ushered in the current crop of crazy into the House (and, to a lesser degree, the Senate), and ground so much to a halt. Hillary was battle-tested, and 1) knew what might be coming for her, and 2) had noting left for the rabid to chew on, as they had chewed up everything before. And who's to say that she would not have pushed through some kind of health care reform -- let alone immigration reform or any of the other things that became swept up (and away) in the ACA imbroglio. I cannot see that there would have been many, if any, policy differences between Hillary and Obama, and she would have been a tougher president, with a far-more battle-hardened team. She certainly would have handled the messaging around health care reform far better than Obama did (there would have been none of the idiotic negotiating with himself in press interviews before he got to the negotiating table with the GOP, for instance). Look at how much more eloquently Bill Clinton was able to make the case for Obama's re-election at the Democratic National Convention -- far more eloquently than Obama himself.
And this notion that Hillary would have challenged Obama in 2012? Get over it, people. Hillary has proven herself time and again as a team player -- in the Senate, after her primary loss, and at State. Give her some credit, will you?
The Tea Party rebellion grew in part because of the economic problems and how they were handled during the Bush Administration & it is unclear to me that Clinton being elected would have tempered them so much that they would not have remained a serious force, including as in effect the new base of the Republican Party.
There still is a sizable base of haters etc. who would have targeted Clinton. I don't really buy the "it's all racism" argument -- some are motivated by that against Obama, but it is but a means. Different President, something else would be found. Sexism would probably be involved.
Clinton very well might have handled the politics of it all better, but then if she is such a wiz, why did she run such a dubious primary campaign?
@Joe, I agree with the thrust of your post, if not all the details. My main argument, however, was that Hillary would have been better able to handle what was thrown at her, as she had been there. I think Obama was naive about how he could change the dialog in Washington, that there could be a principled policy debate, that the shouting and the crazies were all on the fringe. Hillary would not have suffered those illusions -- she knew the fringe was now inside the Beltway.
As far as her primary campaign -- I don't know whether it was conspicuously inept, or rather suffered from the 20/20 hindsight that we tend to ascribe to all losing campaigns (to philosophize a bit, I think that ties into the general deterministic undercurrent to much American thinking). The larger point, however, is that campaigning involves a skill set far different than that required for governing. Look no further than George W. Bush, a brilliant campaigner, awful at governance.
Gerard is talking about obama being a lame duck in context with his inability to enact legislation. It is precisely Obama's lack of ability and lack of interest in enacting bipartisan legislation why our caesarist president turned early and often to ruling by decree.
@Bart, you are a funny dude, to wit: "lack of interest in enacting bipartisan legislation". You are so right -- pushing a health care plan designed by the Heritage foundation and implemented by the GOP candidate for Prez when he was governor is totally partisan. And adopting GOP immigration plans (only to have Republicans who introduced the damn thing in the prior Congress vote against it). I could go on -- and many others have detailed the numerous examples of the GOP voting against ideas Obama proposed that were originally GOP ideas. Bipartisan does not equal "I do whatever the other side wants." Bipartisan means you find common ground. Whenever Obama finds that common ground, the GOP rapidly abandons it -- usually calling their former positions "socialist". Makes it kinda hard to get things done -- which is, of course, the whole idea.
Heritage once suggested a requirement to buy free market health insurance similar to the auto insurance requirements and is nothing remotely like Obamacare.
Romneycare was a Democrat plan supported by a RINO governor and massively criticized by the GOP outside of MA. Obamacare did indeed take Romneycare and add several pages of its own. Both are German Zwangwirtschaft socialism, where the government declines to nationalize an industry, but directs it as if it were the owner.
Obama met only once with the GOP minority leadership after his election, summarily rejected their ideas and declared that he had won the election. That was Obama's idea of bipartisanship.
@Bartbuster, don't you realize that today, anyone who does not agree completely with a particular Republican is a RINO. (Of course, that means when a different Republican differs on a point with that first Republican, the first Republican also becomes a RINO, and the second RINO-claiming RINO is a RINO to the first one... it gets confusing.) And anyone who is not a Republican is, naturally, a Socialist, regardless of whether the person is a Democrat, independent, or an actualy Socialist (when that person is not a Fascist -- though sometimes the person is a socialist AND a fascist AND Hitler AND Stalin AND a Muslim plant, somehow) even when the supposed Socialist is espousing ideas that in recent years, or even just months before, were espoused by Republicans, or ideas to the right of Saint Ronnie, who somehow is always invoked and genuflected towards despite his raising taxes on multiple occasions and signing an immigration amnesty bill (that was explicitly amnesty -- he embraced it as such) and other such heresies that today would make him a RINO (or a Democrat), but I guess beatification will do that when politics has become theology.