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Tuesday, March 23, 2010

A Comment and Plea on the Nature of Our Political Debate

Glenn Reynolds, the Beauchamp Brogan Distinguished Professor at the University of Tennessee College of Law, linked approvingly to a post by Dana Loesch, a conservative pundit, on the Breitbart "Big Government" website:

The Socialists Won a Battle; Now It's Our Turn

Yesterday was my son’s 9th birthday and for his present, the government jacked his future. As he sat in the floor and happily opened his gifts, Bart Stupak appeared on television and revealed that he’d sold his soul. The joy was sucked from the room, but my son didn’t notice – thank God for innocence. The faces of the adults in the room fell as Stupak held his presser, as Pelosi gained another YES vote for health control.

The scene was an eerie replay for me; eight-and-a-half years ago that same boy sat in his bouncy seat while cooing and kicking his legs as his father and I watched the twin towers crumble to dust on live television. The feeling was the same.

A lot of people ask why I and others do what we do.

The scene I just described is my answer.

Yes, this is a law prof blog, and no, I don't really think this is the place to complain about this policy or that commentator.  I know some folks have complained when politics overruns us law blogs, and I generally agree.  But you know, I just feel that at this point, things have gone too far and I need to say something.

A law professor at a state school has linked approvingly to someone who not only says that the health care reform bill is socialist, but compares its passage -- in its emotional resonance -- to the feeling she had when the twin towers fell.

I'm sorry, but this pushes the crazy too far for me.  And I worry about what will happen next.  I hope that those who post things like this -- and link to them -- will reconsider their rhetoric before the well of public discourse has become too poisoned.

Posted by Matt Bodie on March 23, 2010 at 01:31 AM in Current Affairs | Permalink


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In the history of Politics, there has always been present the issues of "socialist" and the "dictatorship" at each other's throat. It is always best when these extremes are left out and the substance considered. The audience it draws would be less radical.

Posted by: Outdoor Solar Lights | Mar 31, 2010 11:36:31 PM

Matt, I don't think you have to take the comparison that literally. I remember watching the Twin Towers fall and thinking, "nothing will ever be the same - it will be a different world from now on." And indeed it has been. And I think it's perfectly reasonable to have the same impression after Sunday's vote (though people may differ on whether the change is for the better or for the worse), even though the events themselves have nothing in common substantively.

(I agree, though, that to the extent Ms. Loesch was using 9/11 to elicit a visceral reaction, that is most unseemly.)

Posted by: Mark D. White | Mar 24, 2010 9:05:22 AM

cynic, I tend to put the "socialist" and the "dictatorship" comparisons on the same plane -- overblown and basically wrong, but based on some small kernel of ideology that gives it resonance. I think it's completely absurd to say that a bill devoid of any government ownership is "socialist." And I have more sympathy for those who saw some of Bush's torture policies as dictatorial in nature. But to say we lived in a dictatorship during the Bush years degrades the meaning of dictatorship in the same way that throwing around "socialism" does now. And I agree that before you point out the splinter in your opponent's eye, you have to notice the log in yours.

However, the socialism comparison was not what moved me to post -- it was the 9/11 comparison. My deep concern with the 9/11 comparison is that (a) it compares a piece of legislation to a terrorist act; (b) it compares the Democrats to Al Qaeda; and (c) it justifies a violent response to the action in question. All that seems to be way out of bounds in the political debate.

Posted by: Matt Bodie | Mar 23, 2010 11:30:19 PM

Cynic, see Rick Esenberg's post just a few up from this one.

Posted by: Bruce Boyden | Mar 23, 2010 8:32:31 PM

As for the "socialist!" charge, I am confused by seeing those who say it's unfair because it's inaccurate, versus those who focus on questioning why it's so bad to be socialist. The latter essentially aligns with the recent post here questioning defamation claims for being called gay. Richard Cohen had an article today saying that the GOP is right in saying that we're becoming more like Western Europe, but that, he says, is a good thing. Some people sneer "Republican!" with the same disdain, but does that make it out of bounds? Only if you say so about a non-Republican. I think reasonable minds can differ on where something merits the term "socialist," given the spectrum of European approaches to state-owned industry, heavily regulated private companies, and so on.

Posted by: cynic | Mar 23, 2010 6:21:03 PM

Anon asks me to name a law prof who called Bush "tyrannical." Before answering, I ask that we agree to table the debate over whether Bush deserved the tag (or we then must debate whether it's also fair to call Obama socialist or tyrannical etc.). I also ask for permission to use synonyms for tyrannical, because I've only had five minutes of googling.

Jack Balkin, a leading light, called the controversial Yoo memos "a theory of presidential dictatorship."

Scott Horton, a Harper's editor and lawyer who taught at Columbia Law wrote that "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship."

Justice Richard Sanders of the Washington Supreme Court, also an adjunct professor, stood up at a speech by then-AG Mukasey to yell "Tyrant! You are a tyrant!' (I know he's just an adjunct, but I'd hope we expect the same of state Supreme Court justices. Mukasey as Bush stand-in should count, too, I hope.)

Prof. Bodie separately asks for a specific comparison of the Bush taax cuts to 9/11. No one said so at the time of the cuts, because they predated 9/11. I will look later to see if anyone did after. I'm pretty sure I've seen tax cuts criticized with some equally over-the-top comparisons. For example, long before Bush's 2001 cuts, in 1994, the esteemed Charlie Rangel explained that all tax cuts were racist: "It's not 'spic' or 'nigger' anymore," he raged. "[Instead,] they say, 'Let's cut taxes.'" Of course, his insistence on tax fairness did not extend to paying his own taxes, but that's another issue.

So was Balkin out of line for calling Bush dictatorial, just because the term is so harsh?

As a separate point, keep in mind that Reynolds' linked "approvingly" to the statement, which is a bit removed, and I'm sure I could find profs linking to extreme statements by others.

Further, I don't read the quoted comment as comparing the health care passage as similar to 9/11 in content or actors' intent, but as similar in inducing the depth of despair about what has happened to the country. Unfair, perhaps, but a bit different.

Posted by: cynic | Mar 23, 2010 6:20:00 PM

I don't remember ever seeing anyone compare the Bush tax cuts to 9/11. If a law professor ever made that comparison, or linked favorably to such a comparison, let me know.

Posted by: Matt Bodie | Mar 23, 2010 5:20:33 PM

name a law professor that called Bush tyrannical.

Posted by: anon | Mar 23, 2010 5:20:33 PM

Here's my proposal for all speakers, left or right, who wish to be known as honest brokers. In criticizing anyone on purportedly neutral grounds, whether "going too far" in speech, or procedural manuevers ("deem and pass," filibusters, executive orders), the speaker should aspire for a 2-1 ratio in favor of criticizing her or his own substantive side for such violations.

So I will accept concervative criticism of CBO scoring games only from those who were on record condemning the bogus budget claims by Bush & Co. in passing the Medicare prescription drug law.

Likewise, I will accept liberal handwringing about rightwing extremist statements only from those who can show me their public statements bemoaning the left's overheated "Bushitler" tropes.

Exemptions will be available for those too young to have had a public outlet at the time of the most recent comparable events on the other side. However, personal e-mails to friends will be accepted. Claims to have "said that to all friends orally" at the time shall be viewed skeptically.

Prof. Bodie, are you 25 or younger, or do you have public statements on record criticizing the all-too-common similar statements from the left throughout the years of Bush's fascist tyranny?

Posted by: cynic | Mar 23, 2010 5:07:22 PM

I can't take him seriously as an academic.

Posted by: anon | Mar 23, 2010 2:54:05 PM

Very nicely put Matt.

Posted by: Michelle | Mar 23, 2010 2:30:17 PM

My question is, who watches TV during their kid's birthday party? Sheesh, turn the tube off already and live your life!

Posted by: sehi | Mar 23, 2010 12:53:43 PM

Amen, Matt Bodie. Amen.

Posted by: anon in bellevue | Mar 23, 2010 9:28:45 AM

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