Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Tuesday, July 22, 2008

Opportunism and Power

Last Thursday, I posted some thoughts about independent Senator Joseph Lieberman's unique and temporary position in the current Congress as the Senator who could most plausibly switch from caucusing with the Democrats to the Republicans, thereby putting the Democrats out of power in the upper house. I offered two observations: (1) Lieberman has done nothing on matters of policy to advance anything that might be called a "Lieberman agenda," which I would have thought a public-spirited career public servant (and former presidential aspirant) would want to do if freed from the purgatory of being "just one vote out of 100" in the Senate; and (2) Since Lieberman seems not to have a unique policy agenda, his decision to run as an independent in 2006 against the Democrat who defeated him in his party's primary was evidence of personal opportunism, a choice to keep his Senate seat simply because he likes to be a Senator and not to advance any version of the public good.

These arguments generated some discussion among various readers on the Comments board, a discussion in which I took part. Two further issues arose in that conversation that I wanted to explore a bit further here. First, is it possible that Lieberman simply does not differ from his former fellow Democrats on anything other than Iraq, so that there is nothing for him to do with his temporary power? Second, if that is an accurate description of Lieberman's position, should it save him from being labeled an opportunist? My answer to the first question is ultimately no, although there is reason why one might think the answer is yes. To the second question, though, the answer is still no.

It is almost certainly true that my palpable disdain for Lieberman is currently rooted in my rejection of his views on Iraq and his support for Bush's policies on war and terrorism. While my observations on Thursday could be viewed as non-ideological, in the sense that a conservative could be just as surprised (and disappointed) as a I am surprised (and relieved) that Lieberman has not pushed the Democrats to do things that they would not otherwise want to do, I would not have chosen to use this space to condemn him as an opportunist if I did not view Lieberman's substantive policy views with alarm. While my choice of words is undeniably driven by policy differences, however, the question is whether the substance of my critique is defensible. Which leads to the first issue: Is Lieberman just another Democrat on policy issues other than Iraq and national security?

It can be argued with some plausibility that Lieberman is not really the apostate that liberals think he is on non-security issues. See here for an example of a liberal's concession that Lieberman's voting record is pretty much what someone like me would want. On the other hand, "Lieberman's voting record in 2005 was more conservative than that of any other senator from a blue state, according to National Journal's annual analysis of liberal and conservative votes." (cite here). He has been on the corporate side of the debate over limiting damages in civil suits. He has been a loud voice injecting religion into public policy discussions, even suggesting that one must be religious in order to be moral. More to the point, however, Lieberman has always seemed to pursue a strategy in which his conservatism does not show up fully in his voting record, because he tends to work in advance of votes to move the result to the right and then votes with the party when the vote comes along (when the outcome either way is no longer in doubt).

In my view, Lieberman thus seems to have at least some issues on which he differs from the Democratic leadership. If he is not using his current position to pursue public policies that he genuinely believes would make the world a better place, why is he in the Senate? It is simply not the case that there is nothing for him to do.

For the sake of argument, though, let's imagine that Lieberman really is an absolutely down-the-line Democrat (as if the rest of the party agrees on everything!) on all issues except national security. In the summer of 2006, he lost his party's nomination to an anti-war candidate whose views on other issues were not in play during the primary campaign (and which were also reasonably characterized as standard-issue Democratic positions). Even if Lieberman genuinely believed that he was right and his opponent was wrong, was his decision to take a second bite at the apple as an independent required by his principles and not his personal ambition?

At the time, virtually no one thought it likely that the Democrats could retake the Senate in 2006; but let's give Lieberman credit for impressive foresight in imagining that they might. To justify running as an independent, he needed to believe that his vote would matter on security issues. Lieberman instead of Lamont would have to make us safer. How would this work? He knew that Bush would be president in the two years during which he would hold the key to the Senate. He would also have to know that the Democrats could not break a Republican filibuster or override a presidential veto on any war-related measures. In short, he would not be needed to make the difference on national security issues. The Lieberman vote would not be the key to keeping us safe.

In other words, Bush and 49 Republican senators could stop the Democrats on everything else that Lieberman might care about, and Lieberman's 50 caucus-mates could do nothing to stop the Bush war policies. If we believe that Lieberman really viewed himself as a Democrat on everything except national security matters, he could not make a difference on any issue at all, and his choice to run as an independent is even more obviously simple opportunism. His only reason to be in the Senate, it seems, is because he likes it there.

-- Posted by Neil H. Buchanan

9 Comments:

  • At 12:50 PM, Blogger retlwyer said…

    In my last of several comments to Professor Buchanan’s previous post, I observed that:

    "Apart from Iraq, Lieberman's "policy agenda" is little different from that of the other members of the Democratic Caucus. Having joined that Caucus, the notion that he could somehow leverage his position as an Independent to advance his and its common agenda, is curious at best."

    Perhaps, Professor Buchanan will elucidate further on that point."

    Professor Buchanan has now replied in a new posting at considerable length, but little elucidation. All that his latest post manages to make clear isthat his hostility to Senator Lieberman is driven by his opposition to Lieberman’s position on Iraq. The Professor is entitled to his hostility, but unfortunately it benumbs his analysis.

    Professor Buchanan now argues that, even apart from Iraq, Lieberman not only has differences with the Democratic Caucus but has sought to advance his own views:

    "He has been on the corporate side of the debate over limiting damages in civil suits. He has been a loud voice injecting religion into public policy discussions, even suggesting that one must be religious in order to be moral. More to the point, however, Lieberman has always seemed to pursue a strategy in which his conservatism does not show up fully in his voting record, because he tends to work in advance of votes to move the result to the right and then votes with the party when the vote comes along (when the outcome either way is no longer in doubt)."

    I do not know whether Lieberman has in fact been engaging in such activities (and Professor Buchanan provides no citations). But if he has, it would seem that he has been doing precisely what Professor Buchanan (when momentarily donning his non-ideological hat would urge: “push[ing] the Democrats to do things that they would not otherwise want to do.”

    In seeking to pin the label of “opportunist” on Lieberman for seeking reelection, Professor Buchanan argues that Lieberman should have known that his vote would not be necessary on national security issues and hence it was not necessary for him to run. Apart from the fact that such a circumstance was hardly clear at the time Lieberman ran, there is, as Professor Buchanan surely knows, a great deal more to providing leadership in and from the Senate than casting votes. As I noted in a comment to the post, Lieberman’s role with respect to Iraq “has been[to be] an articulate and effective leader--which is precisely what his Democratic colleagues find so irritating.”

    In short, the attempt to paint Senator Lieberman as an “opportunist” remains bereft of evidence or logic.

     
  • At 1:57 PM, Blogger Hamilton said…

    I believe the point is that Joe-mentum has shown that his views differ from those standard for the democratic party, both before and after his election as an independent, but after 2006 when I gained substantially more power he did not/has not used that power to pursue more strongly those policies he prefers. The leadership aspects and behind the scenes action would have been more effective before he split with the party (either by saying "I'm on your side here" or "I'm on the other team, but you guys are right on this issue, so I'm on your side"), while after the split he has more power from his actual votes, and isn't taking advantage of that.

     
  • At 5:51 PM, Blogger Neil H. Buchanan said…

    In response to the assertion that Lieberman's policy preferences are "little different from that of the other members of the Democratic Caucus," I provided two examples of things that he did when he was a Democrat that were directly at odds with the majority of his party but that he has not pursued as an independent; but I now am told that this is evidence that he HAS done something different from the Democrats, justifying his independent run. The comment by hamilton identifies the timing error with this argument. Moreover, this is yet another classic circular argument. If Lieberman is exactly the same as Democrats on other issues, he is not an opportunist; and if he is different from Democrats on some other issues, he is not an opportunist.

    The assertion that Lieberman has been "an articulate and effective leader" again misses the point. He could have continued to speak out on Iraq after leaving the Senate, perhaps as a campaign spokesman (much as former Senator Gramm was being a spokesman on economic policy ... until recently). Again, however, this series of posts is NOT about Lieberman's stand on Iraq. Many others have argued that Lieberman is wrong on Iraq. My point is that, whether he is right or wrong on Iraq, he has surprisingly done nothing to use the unique position that he occupies. Whatever leadership he is offering on Iraq does not differ from his actions when he was a Democrat who did not hold the majority status of the two parties in his hands.

    Other than a complaint that I provided no citations to two of Lieberman's public stands, all we are left with is an assertion that my logic is unpersuasive. I'm absolutely persuaded that, at least for one reader, that is true.

     
  • At 6:12 PM, Blogger Chriso said…

    Not to worry...the one reader seems to be getting senile in his retirement...or simply has an ideological ax to grind.

     
  • At 8:59 PM, Blogger retlwyer said…

    It is Professor Buchanan whose logic is circular, or perhaps spiral. The point is that whether one views Lieberman as identical or not identical to other Democrats, there is no plausible evidence (from either Professor Buchanan or Hamilton) that he could have used his position to advance some hypothetical (non-Iraq) agenda with some hypothetical degree of aggressiveness. Beyond that it is amusing to have those who detest Lieberman for his position on Iraq attempt to flagellate him for not pursuing other positions that they would also detest. None of it makes any sense.

    Equally vacuous is the claim that Lieberman’s position on Iraq provided no principled reason for him to seek reelection:

    “He could have continued to speak out on Iraq after leaving the Senate, perhaps as a campaign spokesman (much as former Senator Gramm was being a spokesman on economic policy ... until recently).”

    As Professor Buchanan has to be aware, Lieberman has not only been a “campaign spokesman,” but effective leader in debates within the Senate. Moreover, his position in the Senate has given him a stronger voice outside the Senate than he would otherwise have had. The contributions of Senator Gramm were hardly comparable even before his recent demise as a spokesman. Ironically, if Lieberman had followed Gramm’s example and taken a remunerative position on Wall Street, he might arguably have deserved the opportunist label that Professor Buchanan is so eager to apply.

    Finally, as to Chriso, I would simply suggest that ageist slurs are enough to give ad hominem attacks a bad name. Perhaps Professor Buchanan will wish to disassociate himself from them.

     
  • At 9:25 PM, Blogger Neil H. Buchanan said…

    We have no conclusive evidence that anyone "seems to be getting senile in his retirement." I reject and renounce that part of chriso's comment.

     
  • At 10:25 PM, Blogger retlwyer said…

    I note that Professor Buchanan concedes only a lack of "conclusive" evidence of my alleged senility. Somehow,I do not find that a source of great comfort. Indeed, it seems to me the sort of "apology" that would make even Don Imus blush. But perhaps it is par for the course in the blogosphere.

     
  • At 11:10 PM, Blogger Tam Ho said…

    To respond to the "flagellate" comment, there's nothing wrong with using a person's actions as evidence of their lack of principle even if one actually prefers, as a matter of end result, the unprincipled course taken over the principled one not taken.

    Indeed, the relief due to Lieberman's lack of conviction and principle has been duly acknowledged.

    Conversely, it is also perfectly commonplace to admire one's opponent for adhering to principle and conviction even if one disagrees with them.

    Be less obtuse.

     
  • At 8:53 AM, Blogger retlwyer said…

    RE tam ho's comment:

    Alas, obtuseness(like senility) may be in the eye of the beholder.

    tam ho wrote:
    "To respond to the "flagellate" comment, there's nothing wrong with using a person's actions as evidence of their lack of principle even if one actually prefers, as a matter of end result, the unprincipled course taken over the principled one not taken."

    tam ho's argument is fine in the abstract, but it is not applicable here; it is he who misses (or chooses to ignore)the substance of the argument. In the comment to which he was responding, the operative point (which tam ho does not address) was that:
    "[W]hether one views Lieberman as identical or not identical to other Democrats, there is no plausible evidence (from either Professor Buchanan or Hamilton) that he could have used his position to advance some hypothetical (non-Iraq) agenda with some hypothetical degree of aggressiveness."

    I then added the observation that
    "it is amusing to have those who detest Lieberman for his position on Iraq attempt to flagellate him for not pursuing other positions that they would also detest."

    It was amusing and it remains so.

    With the thought that this will be my final comment on this subject, I would offer this observation. I can understand the disagreement with Lieberman's position on Iraq and that is not a subject I would have chosen to debate in this forum. But I find the passion to villify his character both sad and silly. I have found it necessary to write many more comments than I ever expected to and as far as I am concerned, it is time to turn to something more productive.

     

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