Tuesday, January 22, 2019

How Unforgivable Are the Democratic Candidates' Various Mistakes?

by Neil H. Buchanan

As Donald Trump continues to prove his unfitness for office -- indeed, as he continues to demonstrate his complete lack of empathy for anyone who doe not support him (or even for millions who do) -- the Democrats are now launching their 18-month marathon to determine who will replace Putin's puppet.  Things are already rather interesting.

Earlier this month, Professor Dorf wrote a column discussing the flurry of media coverage about a whisper campaign designed to sink Senator Elizabeth Warren's candidacy.  The idea is that Warren is supposedly not "likable," or something, and the people who want to bring Warren down are saying that she has all of the personality issues that supposedly were Hillary Clinton's undoing.

Dorf's question was whether a person who does not buy into the obviously sexist basis for that argument can responsibly take others' sexism into account when deciding who should be the Democratic nominee next year.  Drawing from a Supreme Court case called Palmore, which described a situation in which we can and should refuse to validate (that is, to be complicit in) others' biases, Dorf argued that there are nonetheless times when the consequences of ignoring those biases are simply too serious to ignore.

The possibility of giving Trump a second term in office is one such unacceptable consequence.  He concludes: "Trump is an existential threat to American democracy, world peace, and the habitability of planet Earth. Even a small diminution in the likelihood of defeating him in 2020 is too high a price to pay for compliance with the Palmore principle."

I thus begin here by emphasizing that any Democrat (in fact, almost anyone at all) would be better than Trump, which means that none of my forthcoming criticisms of the Democratic candidates is serious enough to move us -- for Palmore-style reasons or any others -- to say that any of those candidates is fatally flawed.

I do, however, want to ask whether the inevitable scrutiny of the candidates can turn up issues so worrying as to be essentially disqualifying (again, assuming that the alternative is another Democrat, not Trump -- or Pence).  So far, much to my surprise, there is only one candidate who is in serious trouble on such grounds: Senator Kamala Harris.

Before I get to Harris, it will be worth thinking about a few other candidates (or all-but-certain candidates) whose records have already received some unfavorable scrutiny.  Because none of the others' problems rise to the level at which I would abandon ship, the contrast with Harris is instructive.

First, Beto O'Rourke.  He did not unseat the hated Ted Cruz in last year's midterms, but it was Texas, after all.  The unlikely path from failed senatorial run to presidential candidacy makes sense for anyone who has ever seen O'Rourke, even for a moment.  The man is living, breathing youthful charisma.  He is a white guy who does not seem like a White Guy.  He now seems interested in running for President, and a lot of people are excited.

But Washington Post columnist Elizabeth Bruenig, who is also a Texan, is not on board.  Last month, she wrote two pieces arguing that O'Rourke actually is -- on the merits -- essentially the Democrats' version of a White Guy.  That is my phrasing, not hers, but our shared point is that O'Rourke is actually not much of a progressive.  He is the type of candidate that the "defensive crouch" crowd from the 1990's would love, refusing to be too liberal for fear of being unacceptable to mythic swing voters.

What is interesting about this framing is that Barack Obama is essentially the 21st-century prototype of the Democratic White Guy.  That is, Obama spent much of his presidency disappointing liberals by following the Bill Clinton triangulation strategy of trying to win over the people who hated him by adopting conservative positions.  From symbolic matters like inviting a conservative evangelical megachurch founder to pray at his first inauguration to policy issues like abandoning a public option in the health care debate, becoming a fiscal hawk while the economy was still weak, offering to cut Social Security, and on and on, Obama's instincts seemed always to push him to say, "No, we really can't."

Bruenig (and I) might grudgingly admit that Obama's strategy worked, at least for his own elections, and certainly that it was better to have him as president than John McCain or Mitt Romney.  Obama, for all of my criticisms of him over the years, was transformative in important ways.  But the point is that Beto O'Rourke is not running in 2008 or 2012, and the country on policy matters has become even more obviously liberal than it already was.  Why settle for him, especially when there are truly good alternatives out there?

Of course, this is all a matter of policy preferences; and the argument here is simply that O'Rourke's cool progressive image does not match his centrist/overly-cautious substance.  But he also seems to be a triangulator in his purely political instincts, with a lot of criticism now coming his way for having essentially saved a Republican congressman's 2018 reelection campaign.

A la Obama, O'Rourke wants to say that he is post-partisan, and his friendship with the Republican in the nearby district caused him to refuse to endorse the Democratic challenger.  This is, in my view, a dangerously naive impulse on O'Rourke's part, and I do think that he was wrong to stay neutral.  Even so, if I were otherwise more sympathetic to his policy views, I would not view this as even close to disqualifying.  He thinks that there is more room for post-partisanship than I do, and that might have cost the Democrats a seat in the House.  Other than suggesting that he might be an easy mark in some situations, that is a judgment call.

Now consider Senator Kristen Gillibrand.  She began her career as a right-leaning Democrat from a rural district in upstate New York.  When she was named to replace Hillary Clinton (upon Clinton's confirmation as Obama's Secretary of State), it was especially repellent because Gillibrand was a darling of the National Rifle Association.  (And as Maureen Dowd pointed out at the time, this was poignantly disgusting because Gillibrand taking the seat once held by Robert F. Kennedy.)

Gillibrand is now also trying to explain and apologize for some very anti-immigrant remarks.  I think that she is doing a good job of it, given the hand that she dealt herself.  She is politically opportunistic, to be sure, but no more than most politicians.  More to the point, she is also convincingly arguing that she has simply updated her views based on more complete facts and better arguments.

She also gets some benefit of the doubt for having correctly assessed the political moment when the Al Franken situation emerged.  She led the charge to get Franken to resign, which (as a colleague recently pointed out to me) completely changed the optics of the Kavanaugh hearings last Fall.  Picture, if you will, those hearings with Senator Franken on the committee.  That Kavanaugh was ultimately confirmed does not change the fact that Gillibrand's leadership allowed Democrats to accurately present themselves as willing to stand up for women.  Extra points for Gillibrand also for saying forthrightly that Bill Clinton's actions should not be defended.  (Clinton loyalists immediately labeled her a traitor and an opportunist, which only increases my admiration for her.)

Even so, Gillibrand was not my favorite candidate, but for a different reason.  Palmore-like, I worry that her "I'm just a mom who cares about her kids, and other mom's kids" shtick might make her look weak.  But if I were to set that aside, I do not think that a candidate is forever stuck with her previous views.

Similarly, long-shot candidate Tulsi Gabbard's comments against same-sex marriage happened in the early to mid-2000's, when she was in her early twenties.  I believe that she has changed her views, and I certainly do not think that she would ever do anything to reverse the civil rights gains of the LGBTQ community.  What she said was wrong, but she seems simply to have grown up.

If I am in such a forgiving mood, then, what is my problem with Kamala Harris?  Harris had been my top choice, in large part because she was extremely impressive in the Kavanaugh hearings.  She also (unlike O'Rourke) seems to have truly progressive policy views.  She is the test case, from my perspective, of whether something from a candidate's past can be truly disqualifying (unless, as I discussed above, she were nevertheless to become the Democratic nominee, in which case her differences with Republicans would easily overwhelm these concerns).

What is wrong with Harris?  Last week's bombshell op-ed in The New York Times by Loyola-L.A. law professor Lara Bazelon obliterated Harris's carefully cultivated image as a "progressive prosecutor."  Although there is a substantial argument in Harris's defense, Bazelon presented facts that are truly upsetting about Harris's actions as a district attorney and state attorney general.

The greatest concern is that Harris repeatedly defended convictions that were badly tainted, including in cases where there was substantial evidence of the accused's genuine innocence.  Why does this bother me so much more than the past comments and actions by O'Rourke, Gillibrand, and Gabbard?  It might not be an exaggeration to say that nothing scares me more than an abusive prosecutor.

Amassing the power of the state against an innocent person has always terrified me, because we always hope that when wrong is being done, the "good guys" will come to save us.  When the wrongdoer is a heedless and ambitious prosecutor, we are all in danger.  Moreover, that is not the kind of thing that can be explained away by having had bad facts or failing to understand a complicated policy issue.  Harris knew exactly what she was doing, yet she still committed the cardinal sin of being a prosecutor: putting winning above justice.

Bazelon allows for the fact that ambitious politicians have to play the "tough on crime" card, but she points out that Harris did not seem to get much in return for her actions: "But in her career, Ms. Harris did not barter or trade to get the support of more conservative law-and-order types; she gave it all away."  Perhaps that is unfair, because it is possible that what Harris was getting was not exactly a quid pro quo but simply insurance against future charges of being soft on crime.

But that does nothing to allay my concerns about a person who would keep people in prison for decades when guilt is by no means proven beyond a reasonable doubt.  That is a character flaw of the highest order.  Stephen Colbert's old right-wing persona kept a list of people who are "dead to me."  Harris is not dead to me, but this blot on her record gives me grave doubts about her fundamental ethics and judgment.  She might eventually be able to reduce my doubts (although it is difficult to see how), but at least for now, I am looking for a new favorite.