Writing Legal and Policy Analysis at an Insane Moment in History

by Neil H. Buchanan

Other than a Dorf on Law "classic" column that ran last Friday, this is my first column of 2020.  I certainly hope that everyone comes into the new year with happy memories from end-of-year celebrations and with confidence that the coming year will see marked improvements in the world.

On that latter point, however, I cannot muster much hope that things are even going to stay the same, much less improve.  And Donald Trump's insane and illegal warmongering and baiting of Iran to start the year -- notwithstanding the happy news that we apparently are not headed into the full-on war that seemed likely only a day or two ago -- certainly eliminated any thought that the world will seem less terrifying than it has since November 8, 2016.

What to do when each day seems certain to present us with terrifying news, and when the press's largely incompetent minute-by-minute coverage of an erratic president and his sycophantic party only serves to embolden them?  Earlier this week, Professor Dorf described his own decision to try to disengage a bit from the insanity of up-to-the-moment news coverage.  He did this not only as a needed mental health strategy but also to give him time to think and write about other topics.  I applaud him for that decision.

Can I do the same?

To be clear, Professor Dorf wrote (with complete sincerity): "I certainly shall not be imposing any restrictions on the content that my co-bloggers post."  That is consistent with his generosity and is most appreciated, especially because I tend to write columns that are much more directly responsive to news developments.

But any perceived difference between our approaches might actually be a bit of an illusion.  Professor Dorf continued:
"I continue to expect to use news stories involving law and politics as 'hooks' for my writing, but I hope to intensify a tendency I think I already have -- to use a news angle only as a hook, that is, as an occasion for reflecting upon some issue or problem that will be salient in other contexts and at other times."
That, I think, describes how all DoL bloggers have approached the news over the years, meaning that Professor Dorf is describing not a change in direction but is offering a very important reminder for all of us to keep it up and not to allow ourselves to become myopic.

Indeed, when I respond to news items about, say, the presidential campaign, I always try to tie whatever is happening into some larger theme of American or global affairs, treating news items as data points either to reinforce a larger story or to reconsider what we think we know.

For example, in my columns this past Fall criticizing Pete Buttigieg's campaign strategies, I had no particular reason to care about him other than as an avatar of the neoliberal business-controlled interests that have dominated the Democratic Party for too long.  (Spoiler alert: My criticisms of neoliberalism are going to be a theme of my writing for the foreseeable future.)

Another common theme in my writing is the tragicomedy that is U.S. press coverage of policy and politics.  My analysis there examines how the minute-by-minute coverage and the media's obsessive need to be "balanced" misses the real story or even makes matters worse.  The only way to write in a timely way about these larger subjects is, per Dorf, to use news items as hooks to highlight and discuss what is really going on.

Generally speaking, there is little reason to comment on, say, a chyron that happened to be on Fox New as I channel-surfed earlier this week, where reliably-vile Laura Ingraham responded to some Democrats' criticism of Trump's Iran non-strategy by claiming "Dems want to impeach Trump for killing a terrorist."  I only mention that destructive dishonesty in passing here as an example of the day-to-day nonsense that Professor Dorf rightly wants to avoid.

Similarly, I have been thinking over the past few weeks about the ways in which Republicans have been trying to manipulate the impeachment story, including Senator Mitch McConnell's creation of the now predictably repeated (and, it goes without saying, dishonest and absurd) talking point that "the Democrat Party" had claimed that it was "urgent" to impeach Trump but now wants to delay transmitting the articles of impeachment to the Senate.  Which is it, Dems, urgent or not?  Huh?  HUH??

If I were a tweeter (and I pray that I never will engage with that particular time-sucking medium), I might have mocked that with something like this:
Man: "My daughter is very sick.  It's urgent that we get a doctor."
Republican: "OK, Dr. Kevorkian is on the way!"
Man: "Well, hold on a second."
Republican: "Oh, so now it's not so urgent?  I knew you were lying!"
But the point is not merely that Republicans are being completely disingenuous in this particular argument but that they have over the past generation become incapable of doing anything but rely on disingenuous arguments.  McConnell, after all, is the guy who came up with the claim that Merrick Garland did not deserve a hearing because "the people" should decide who the next Supreme Court justice should be when an opening arises in an election year.  Who cares that the argument was both constitutionally incoherent and historically ignorant?  It is all about power and how to abuse it.

Is there a clean line between writing about ephemera and using ephemera to write about something larger?  Clearly not, just as there is no known tipping point where one goes from talking about a series of anecdotes to analyzing data (plural).  And even there, some single data points -- outliers being an obvious example, but also where there is no larger dataset outside of which the particular observation lies -- are surely important to discuss due to their profound importance.  (The Great Depression comes to mind.  Also, the Civil War.  Also also, the Holocaust.)

And, to again be clear, I did not read Professor Dorf to be claiming that there is a clean line that allows us to know what is ephemeral and what is profound.  He (and I) try to choose projects that are in some sense important and interesting (to us, and hopefully to readers), but we always do so in the shadow of the grim reality that "we'll all be dead in a hundred years, so what does it all mean, anyway?"

In an important way, this idea is consistent with a point that I have made a few times (most extensively here) that the notion of being a public intellectual is somewhat absurd, because it is so difficult to identify any impact of what we do.  Even high-profile academics like Paul Krugman and Laurence Tribe, who are regularly quoted and spend large amounts of time engaging with the public debate (almost always making points with which I agree), have not seen their powers of persuasion carry the day on almost any major issue of the past few decades.  Professor Dorf and I tried to swing the debate about the debt ceiling a few years ago, with a notable lack of success (notwithstanding the lack of any coherent opposition to our argument).  Does any of this matter?

In short, Professor Dorf's point earlier this week is that it is always worth being mindful about what one is doing, to avoid inadvertently wandering down a path that one later regrets.  He has decided to spend more time thinking about soul-enhancing pursuits like art, which I am sure will be a source of joy.  On a less exalted plane, I found myself over the last few months needing to set aside the political noise temporarily by writing about rock'n'roll music and beer -- in separate columns, not a single column about the importance of drinking beer while listening to rock music.

These kinds of sanity stabilizers have become all the more important because the stakes of the political debate have been raised so high, meaning that commentators like us -- and responsible citizens in general -- must figure out a way to engage with what matters without letting it swallow us whole.  That has been true for more than three years now, and it will be even more important in this year of impeachment debates, a national election, and who knows what else.

May we all remain sane and grounded throughout it all.  After all, if things go as badly as I suspect they will, we will need to have our wits about us to cope with post-democratic life.  And if we have lost our minds on the way, we will not be able to enjoy it if things actually turn out well.  As a great man used to say: "Let's be careful out there."