Balkinization  

Tuesday, January 12, 2010

"Connecting the dots": A meta-analysis

Sandy Levinson

Paul Light has an outstanding column in today's Washinton Post on "the real crisis in government," which has to do with defects in the contemporary bureaucracy, for reasons ranging from the ridiculous vetting required of anyone who answers the call for public service to the grandstanding of senators like Jim DeMint and his "hold" on a vital appointment to the Homeland Security Administration because of his (DeMint's) rabid anti-unionism. The point I draw from the column is that all the people who attack the Obama Administration for its failure to "connect the dots" re the Christmas almost-bombing are themselves unable to "connect the dots" about significant failures in the entire governmental structure that increase the likelihood of future disasters ranging from tainted meat in our food supply to economic collapse to terrorist incidents.

Given my repeated criticism of various pundits, including Nobel Prize winners like Paul Krugman, to "connect the dots" with regard to our Constitution's independent contributions to the dysfunctionality of American politics, it occurs to me that all of us are probably defective in "connecting the dots." The reason is plain: Facts do not "speak for themselves," and much "dot-connecting"--consider the constellations of the stars--is obviously without a true "scientific" basis, but is useful for our own human needs, such as a mixture of navigation aids and the desire to believe that the Universe is "meaningful" rather than irretrievably arbitrary. All of us are constantly "connecting dots"; the problem is that they are usually different dots, for reasons ranging from ideology--I, of course, believe that a central example is our ridiculous "veneration" for a patently defective Constitution--to intellectual laziness to fear of the consequences of connecting certain dots--how many relationships depend on a willingness not to connect certain dots?--and so on. And many of the dots, of course, are only probabalistically connected: There is an X% chance that doing A will lead to B, but, by definition, there is a 1-X probability that it won't. (After all, the bomber was in fact not successful, so in some theoretical sense, it "didn't matter" that our intelligence systems failed to connect the dots. It's like "safe" drunken driving, where one gets home without in fact getting into an accident.) We can always be certain that the interconnectability of the dots seems "obvious" after some event changes things: the heart attack occurs, the terrorist incident happens, the state is indeed unable to pass a budget and basic services are eliminated, etc., etc., etc. But even then, of course, we do not agree on what particular dots should have been connected or what particular weight should be given any particular dot.

Comments:

I can think of another reason for the problem. Dan Froomkin outlines it here:

From which:

"A particularly unique facet of Bush’s approach to the executive branch has been a pattern of driving out competent, senior-level civil servants – often by removing their decision-making power – and replacing them with unqualified Republican loyalists.

Emphasis mine.

The result? Froomkin cites Princeton Professor David E. Lewis:

"Driving out career employees can result in a loss of expertise, institutional knowledge, long term perspective, and break up networks of relationships that facilitate governance across agencies"
 

I think the efforts to amend the Constitution would have more credibility if they did not appear so partisan. Many of the defects in the current system--Senate rules, the Supreme Court, etc.--seem to become problematic only when they are perceived as blocking the Administration's political agenda. This is in fairness not true of Prof. Levinson, who has been addressing most of these issues for some time; but it seems true of many othre commentators.
 

Constitutional debates are rarely free of partisanship. But, Prof. Levinson is surely not the only one who has addressed these things in a non-partisan way (even as he clearly has certain policy leanings).
 

Tom Toles had a terrific political cartoon in the WaPo shortly after the XMas terrorist act displaying in a single block a mass of dots bearing the title:

"PUZZLE TIME"
"'Connect the Dots' in the National Security Picture"

with this "Answer: Pretty Much Any Picture You Want to See." This was followed by : "Correct Answer: Haystack."

I'm waiting for the pictures that constitutional scholars come up with or needles found.
 

Since Professor Levinson is one of the few bloggers here willing to tolerate comments, I would like to use this opportunity to comment on Professor Koppelman’s latest post.

Koppelman quotes Professor Calabresi’s Senate testimony on judicial filibusters and, it must be said, one hopes that Calabresi is appropriately embarrassed by that testimony. I say that not because of the legal position he expressed (which I think is weak, but non-frivolous), but because of the ridiculous political rhetoric used to justify that position (beginning with the congratulatory reference to our “great victory” in Iraq).

Unfortunately, Koppelman connects the wrong dots, as it were, and somehow leaps to the conclusion that the legal position Calabresi expressed must be the “principled position” and therefore those who would now defend the constitutionality of the filibuster must be unprincipled. Of course, Koppelman fails to identify any “principled” liberals who joined Calabresi’s position at a time when it would have been politically inconvenient to do so.

Rather, it would make more sense to draw the conclusion that academics who conflate their political positions with constitutional law (and particularly when they try to substantiate their constitutional positions with political rhetoric rather than legal reasoning) risk later having to eat crow.

I also note that Koppelman and others have adopted the “meme” (not entirely sure I am using that word correctly) that the filibuster is somehow making the country “ungovernable.” Recall that during the 2006 elections the Democrats ran on the concept that divided government was an inherently good thing because it provided a check on executive power. Perhaps Koppelman and other Balkinization bloggers derided that idea at the time, but I don’t recall them doing so. If not, it would seem odd to now make the claim that the country will be ungovernable unless one political party has a total monopoly on all political power.
 

mls segues from the title of this post to say of Prof. Koppelman's latest post:

"Unfortunately, Koppelman connects the wrong dots, as it were, ...."

Connecting the dots is not an easy task as demonstrated by Tom Toles' political cartoon noted in my earlier comment. Here's how I would connect the dots.

Let actual filibuster in the Senate continue and eliminate the threat by means of the 40 vote minority tail wagging the dog. Let these 40 stay around the Senate on cots, etc, and actually filibuster. Let the nation observe this via the Internet, including the quorum calls. Let's have reality filibuster rather than reality show threats of filibuster. Let's see the bodies of these 40 in the Senate, let's listen to what they have to say, as long as they can afford to do so physically and financially. Let's see how principled the 40 actually are. Let voters determine, with the aid of witnessing filibusters, whether the country is ungovernable with their votes.

By the way, based upon mls comments at this Blog and elsewhere, he's had to eat crow from time to time. We all do. And sauce for the goose is sauce for the gander.
 

"Recall that during the 2006 elections the Democrats ran on the concept that divided government was an inherently good thing because it provided a check on executive power."

I don't recall them saying that no matter who the president was, Congress should be run by the other party. That is, it was a good thing that the Gingrich Revolution happened.

They argued that the current occupant needed checking. The Republican Congress was not providing a proper check, in part because it was letting party override its constitutional function as a different branch that checks the executive.

If the current Congress does not do its job well enough, and if the alternative is better, sure, it logically follows that B. bloggers should support Republican control in 2010. It doesn't mean that the filibuster is required.

After all, it doesn't stop one party monopoly. It gives a few members of one party more power as their votes are sought. Also, "political power" includes state governments controlled by Republicans.

And, on various issues, Republican votes can join with Blue Dog Dems and at times others (Paul/Grayson v. the Fed), so there is no "total monopoly."
 

Joe- my recollection is that in 2006 the Democrats made an appeal to independent voters along the lines of “even if you don’t agree with us, you ought to let us control Congress in order to check the Bush Administration.” I specifically recall Nancy Pelosi making this argument in a manner that implied that divided government was inherently a good thing, ie, that giving one political party full control of the government was dangerous regardless of what the party’s agenda was.

Needless to say, this was a situational argument on the part of the Dems, and I doubt that anyone seriously thought that they were suggesting that it would be a bad thing if they controlled the entire government. However, I do think that it is fair to interpret their argument as suggesting that divided government was better from the standpoint of independent/moderate voters who are somewhat distrustful of both parties. And as a fair-minded person, I think you would concede that this argument is in substantial tension with the proposition that the filibuster renders the country “ungovernable.”
 

You now readily note that focus was ALSO on the need to check a specific administration, not just divided government as such, though that might have been used partially, particularly for certain voters.

The honest debater would note that Republicans as compared to Democrats provided (and provide) a less consistent check. They were and are more johnny one note, then more concerned about party, than being a good honest broker for Bush, except (somewhat) when it become overly obvious they needed to do so.

Comparing the number of filibusters by Dems (who had over 40 votes) used in the Bush years when the minority party alone suggests the point. But, there are other ways to judge.

Again, the filibuster is not the only path to "divided government," even if we put aside that in '06 the concern was for a specific person in the White House.

The real comparison would be the '10 elections. That is, some should support Republicans to have a balance like there. OTOH, again, it isn't just that. If the opposition stinks, they provide a poor check.

Likewise, Republicans are not w/o political power, if they actually wanted to play. As in the past, there are various coalitions available, particularly in the Senate, on many issues.

But, Republicans are johnny one note, suggesting why Specter left the party, while Democrats are conservative sorts that in past days would be Republicans.
 

that is, some Dems are conservatives who would be Republicans in other times. One even switched. A few of these will probably lose their seats.
 

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