Legal Commentary

Full disclosure: I watched only a few minutes at the beginning and end of Friday's debate. I did not expect that I would hear anything different from either candidate than the standard talking points squeezed into an answer that may or may not be responsive to a direct question. And I knew that nothing I did hear was going to change my mind. Plus, given that I already have a dog in this fight, I either would get nervous or apoplectic--and who needs that?

This is, in part, a product of the debate format, which really does nothing more than give each candidate time to hit his usual talking points in response to vague questions, perhaps with a minimum of direct engagement between them (something moderator Jim Lehrer repeatedly tried to force, although without great success). I have written about the question of debate format in discussing a proposal by Charles Collier to make the debates more like trials, with candidates questioning one another directly and the moderator, a la the trial judge, enforcing rules of timing, scope, relevance, etc. A new piece in Northwestern's Colloquy by Alexander Blenkinsopp criticizes Collier's trial analogy and argues for a model with an active moderator, one who does not just ask questions, but who pushes the candidates with sharp follow-up questions. His model is Meet the Press and the model moderator is the late Tim Russert; his legal analogue is the civil-law judge, who acts as the evidence gatherer by doing most of the questioning of witnesses. Sandy Levinson apparently agrees with the need for more-active moderators (perhaps drawn from the smartest and more-principled of the commentariat--he names, among others, Andrew Sullivan, Paul Krugman, Charles Krauthammer, and E.J. Dionne) to press candidates with hard questions and follow-ups in ways that the "neutral" reporters cannot or will not. Some good comments to this post, as well, including one call to return control over debates to a neutral organization (who remembers when the League of Women Voters ran the show?) and to devise a format with questions asked by panels of experts in different areas.

These latter arguments suggest that the appropriate legal analogue is not trial, but oral argument. A judge or (taking the idea for a group of experts) panel of judges asks questions and pushes the candidates to answer without falling into talking points, with the expectation and freedom to ask follow-up questions and get the candidates out of their comfort zones. Admittedly, some tinkering is necessary so the format does not become all about the moderators/experts/commentators and not the candidates and their positions--there actually is an occasional problem with oral arguments becoming all about the justices/judges and not about the attorneys, parties, and the case. But this format has the benefit of getting information out of candidates in a way other than how they might want and with opportunities to see the holes in the candidate's position. Doing it jointly draws contrasts directly and immediately.

Note that the common theme among all format changes seems to be the search for the appropriate moderator role. The oral argument/panel of experts/Blenkinsopp model is about enhancing the moderator's power, but in an appropriate way that hopefully makes the debate more informative and less predictable. Professor Collier's proposal (somewhat of a piece with talk about bringing us back to a Lincoln-Douglas model of only direct candidate exchange) is about reducing all power of the moderator, turning her into largely a timekeeper and traffic cop.

The question, it seems to me, is whom do we trust to better push each side, through questions and follow-up, in a meaningful way to create a beneficial, informative format--"judges" or the opposing candidate. I am not certain what my response is. A lot may depend on the skills of the particular candidates (conventional wisdom is that neither McCain nor Obama is particularly good at this). Watching congressional hearings or floor debates does not inspire confidence that many likely presidential candidates are good at exchange, as opposed to rote speech-making.

Finally, an interesting tidbit. On Sunday's This Week , McCain defended his refusal to look at Obama during the debate by saying "I'm focusing on the people and the American people that I'm talking to. That's what the debate's all about." But I wonder if most people think the purpose of a debate is to debate--to talk to and engage with your opponent on the issues, for the benefit of the American people who are watching. That is what distinguishes a debate from a televised speech. The fact that McCain saw this as nothing other than a joint speech/press conference suggests that some format change is necessary.