Legal Commentary

Well, I guess we know what South Carolina Democrats think of the slash-and-burn tactics that the Clintons have been employing in their third campaign for the White House.

What bothers me about the Clintons isn't that they play rough. Frankly, after the unrelenting, and frequently personally based, Republican attacks of the past 15-20 years, I think it's really important that the Democratic nominee for president (heck, the Democratic nominee for anything) be prepared to fight back. So I count the Clintons' ability to counterattack in the general election, should the Clintons get this year's nomination, as a plus.

No, what bothers me about the Clintons' attacks is what has always bothered me about the Clintons:

their single-minded (if two people can together be single-minded) focus on personal (dual?) victories, whatever the costs to anyone and everyone else.

They say that politics is the art of the possible. And they have a point. But presidential politics is also the art of determining what's possible. To use the language of math/economics, the Clintons largely took as given the political constraints of their time in the White House, while GOP members of Congress, and later George W. Bush, decided to simply change the constraints. They argued for truly bad policies, but they did so with such full-throated vigor and unabashed certainty that their message went down well with the media and the electorate: "we're the ones with ideas, we're the ones who are for change, and the Democrat Party, led by those extreme liberal Clintons [sound of coffee/beer being spit out] in the White House are about the failed liberal policies of the past". Having (at least helped to) enable the advent of the GOP congressional majority by their stunningly bad performance on health care in their first two years in the WH, the Clintons' reaction was.....to bring in Dick Morris. Morris helped them cast their own party and the GOP as equally blameworthy, and the Clintons essentially sat out the 1996 election as far as the Congressional part went. That was the best chance the dems had to take back the Hill until last year, and the Clintons didn't even try.

More generally, the Clintons spent their last 6 years in the WH largely playing defense--signing some bad bills and avoiding others, but rarely doing much more than proposing school uniforms. The two notable exceptions when the Clintons stood up to the GOP congress on big-picture items were the budget fight of 1995 and Kosovo. I'll hopefully have more to say about both these cases soon.

Contrast all this to the way George W. Bush handled the 2002 midterms, and you see what I mean. Bush, for all of the horrible political and substantive damage he's done to our country, was never embarrassed or unwilling to come out swinging in his party's interests. And the fact is that, together with the defensive-crouch mentality that the Democratic Party developed in the wake of the Clintons' years in the WH, Bush was able to change the terms of the political debate, over and over. It's still happening, with Democrats backing down over war policy, illegal wiretapping, judicial appointments, telecom immunity, and down the line. To be sure, there are more moments when the Dems in congress show evidence of possessing spinal tissue, and that is a welcome development.

What terrifies me is the notion of 8 more years of Clinton presidents who aren't willing to fight strategic fights in order to avoid future tactical losses. I don't consider winning to be a per se advantage. Unlike the Clintons, when they win I don't get to be president. I just have to live with their poor choices and inadequate voices.

More to come, regarding the Clintons' third campaign for the presidency and Obama......

*My name is Jonah B. Gelbach, and as Scotty might have said, I'm an economist, not a lawyer. But I did once serve as Visiting Professor of Law and Economics at the College of Law at Florida State University, which is how it came to pass that I met Dan Markel. I'm grateful to Dan for inviting me back for stint #2 as a guest blawger here at PB. I'm sorry it's taken me 2 weeks to start posting, and I hope I don't embarrass Dan, or myself, too much more than I did last time.