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
I want to thank Jack for inviting me to post on Balkinization. I’ve been thinking about Hillary Clinton’s emotional moment in New Hampshire, and I appreciate the chance to discuss some of the issues it raises.
Compare Hillary’s moment with the most famous moment in the campaign of Michael Dukakis; the one many think derailed his presidential bid. Here’s a typical account of what happened:
“The second debate, opening with CNN anchor Bernard Shaw's question to Michael Dukakis whether or not he would favor the death penalty for someone who raped and murdered his wife, was a crucial moment in the 1988 campaign. The question was meant to give Dukakis an opportunity to show emotion, but he blew it, and answered in a wooden, lawyerly manner.”
In both cases, the candidate’s affect communicated something that voters found important. Did these displays have any information value, or were the reactions to them disheartening proof that “feeling, not thinking” is all important for some voters? ( as Judith Warner said in this morning’s New York Times.)
Not that Warner is wrong to worry about the journalistic focus on superficial issues, or the voters’ capacity to choose the candidate we’d most like to drink beer with. But it’s worth considering whether these emotional displays might have some information value. Is feeling at odds with thinking when we evaluate a candidate? Here’s a first cut at sorting out some issues about the Hillary question:
There are two issues here that are often conflated. First, do these displays of emotion have any information value? Second, how reliable can such information be?
When we size people up, we look at affect. That isn’t a problem with our cognitive apparatus; it’s a legitimate and helpful way to obtain information about people. We don’t conduct presidential campaigns solely through written questions and answers, any more than we conduct trials that way. We want a chance to judge credibility, and we do it, in part, by judging non-verbal behavior. The interaction between these quick, intuitive judgments and more conscious, deliberative judgments is the focus of intense debate in the cognitive sciences. This is a fascinating and complex issue, which I can’t do justice to here. But the consensus is that both types of cognitive processing are necessary to good judgment.
The problem with evaluating affect is that we’re stuck evaluating the display, not the internal emotions. There’s been much discussion about whether Hillary’s moment was scripted. There is no foolproof way to see into the candidate’s soul. Or, as either George Burns or George Cukor said, “Sincerity is everything. If you can fake that, you’ve got it made.” But I don’t suppose I need to point out that the candidates’ actual words aren’t necessarily accurate reflections of their character either. It’s all information, and we do the best we can to evaluate it in light of everything else we know about the candidate.
So did we learn anything of substance from either defining moment? Here’s an argument that in both cases the affect was part of the answer to the substantive question. Dukakis demonstrated that he didn’t really understand what is at stake for many people who support the death penalty. As Dan Kahan and I have both argued, to have a real discussion about this issue, we need to acknowledge not just the doctrinal but the emotional concerns animating people’s strongly held positions. Dukakis treated the question like just another dry policy question. As for Clinton, one interpretation is that her tears, along with the words that accompanied them, did answer the question asked. How does she do what she does? She keeps going because she cares passionately about making our country a better place.
We need to evaluate the sincerity, accuracy and importance of these messages, and that isn’t easy. Affect, like language, can mislead. But it also conveys information we need.
I agree that affect can convey useful information for human decision-making. But it seems to me, a person without training in the cognitive sciences, that it's still not possible to say what exactly is being conveyed, much less how humans process that data. I'd be careful about generating facile interpretations so long as we lack a a better understanding of cognition.
Displaying appropriate affect is a good start. Dukakis has been a total failure at this, and Hillary is surely a better candidate. But the next level is the non-verbal communication and general tone that convey integrity and caring about other people. Hillary understands this, but except at carefully choreographed performances she's just no good. Bill was so much better, and George Bush is also amazingly good.
Obama is also a natural, and I dare think he actually really does have sincerity and doesn't have to fake it. However, I think he is a bit inward looking, and doesn't always understands what he needs to say. Everybody talks about his ill judged remark about Hillary being likeable enough, but the most obvious thing to me in the NH debate was that facing Hillary's attack he only defended himself, and totally missed the opportunity to strike back calling Hillary the Bush/Rove clone that she was, when she was making attacks that she knew were false. If he had seized the moment it would have really been the end of the Clinton dynasty there and then. By failing to counterattack he left the record murky in the minds of people who didn't follow the details, making it a clear win for Hillary. What's more, he was emotionally hurt by her attack, and this came out later in the "likeable enough" comment.