by Neil H. Buchanan
Last week, a columnist in The Washington Post wrote a very important piece that brought back some very bad memories. Radley Balko noted that we have now reached the 25th anniversary of Bill Clinton's signing of AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996.
Balko began the piece by recounting that Clinton expressed concern in 2011, the day after a man named Troy Davis was executed by the state of Georgia, about the railroading of Davis. Clinton, well into his ex-presidency, could not understand why the extensive evidence that Davis had been wrongly convicted was not being heard in a federal court. Indeed, Clinton called it "an unusual case," but as Balko demonstrated, it was no such thing. It was, in fact, the direct result of how AEDPA was designed to work.
During my clerkship on the 10th Circuit in 2002-03, AEDPA was the bane of our existence. We (and I think I can speak for every clerk I knew who ever expressed an opinion) hated it not only because it was so manifestly set up to perpetrate injustice. It was also a freakin' mess. Navigating the procedural morass around habeas and criminal appeals in general had never been easy, but the career clerks who had seen both pre- and post-AEDPA appeals said that the new law made it immeasurably worse. Every appeal was ridiculously complicated, but the net result was almost always that the appellant lost on a procedural bar. Merits? We never reached the merits.
Again, Clinton signed that law. Not only did he sign it, he crowed about it. I had not known that he was later so hypocritical about it, but that certainly should not surprise anyone. In the midst of the country's understandable freakout about the Republican Party's descent into dictatorial madness, this was a helpful reminder that there really are some things for which the Democrats should be held to account.
This is not a matter of bothsidesism or false equivalence (or another near-synonym, whataboutism). It is, instead, to remind ourselves that the Democrats’ worst days have been those -- most of them under Clinton, but many under Barack Obama (and even during Republican presidencies, led by Democratic "centrists" in Congress ) -- when they try to act like Republicans.
Bill Clinton did not invent Republican Lite, but he perfected it and unleashed it on his party and the body politic. We are still seeing its effects. Let us review.
I have, as it happens, mentioned AEDPA on Dorf on Law before. Almost ten years ago, in Obama's third year as president, I recounted Clinton's efforts during his first term in office to nail down his claim to being a "new Democrat." Obama seemed at that point to have been overtaken by Clinton's itch to engage in unilateral disarmament, and indeed, Obama soon thereafter completely botched the first debt ceiling crisis by playing the game under Republicans' "heads we win, tails you lose" rules.
The proximate motivation for my 2011 column was a ruling from the U.S. Bankruptcy Court invalidating the not-at-all-dearly departed Defense of Marriage Act (DOMA). After describing the ruling, I wrote:
I then started to think about DOMA itself, in particular the date of its passage, 1996. In addition to DOMA, 1996 also saw the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA, commonly known as Clinton's Welfare reform law, even though it was part of the Contract on America and was introduced by a Republican in the House), and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA).
That is quite a murderers' row! DOMA speaks for itself. AEDPA was mostly about habeas law, not the death penalty or anti-terrorism, and its effects have devastated criminal defendants ever since, especially the worst-represented among them. IIRIRA was blatant immigrant bashing. And PRWORA, although lauded even by many liberals for years afterward, only received its acid test when the economy went bad. Unless one views welfare reform as successful purely because fewer people receive benefits, no matter the need, then that law, too, has been a disaster.
As soon as I read Balko's piece the other day, and as I was awash in revived anger about AEDPA and these other terrible laws that Clinton enthusiastically pushed (and I did not even mention NAFTA or the WTO), I said (possibly out loud, but at least clearly in my head): "I will always detest Bill Clinton." When I decided to write this column, however, I looked up "detest" on dictionary.com and found this: "to feel abhorrence of; hate; dislike intensely." I do not feel abhorrence or hate for Clinton, although I admit that it is a close call. The definition of "despise" is: "to regard with contempt, distaste, disgust, or disdain; scorn; loathe."
So "despise" it is. Clinton, even facing a weak Republican field in 1996 and with all of the advantages of incumbency as he headed into his reelection campaign, decided that he would continue his efforts to convince Americans that Democrats suck. Too strong? Not at all. He (helped most damagingly and gleefully by his Republican advisor Dick Morris) had built his brand by saying, in very explicit terms during his first presidential campaign, that Clinton and Al Gore were different from all those other Democrats, who were ... you know ... liberal. In 1988, Michael Dukakis had disastrously decided not to respond to his opponent's attacks on "the L-word," and Clinton made the damage immeasurably worse.
To be clear, this was not merely a matter of not wanting to be seen as "big spenders," although Clinton also made the completely ridiculous decision -- for the first time by a Democratic leader -- to agree that annually balanced federal budgets were the proper goal of fiscal policy. Even Republican-leaning economists have never been able to make that case as a matter of economics, because it is arbitrary and guarantees that we will not invest in things like infrastructure -- thus leading to our current crying need for more public investment.
As an aside, I should also note that Clinton talked as a candidate about instituting "capital budgeting" for the federal government, which would have made it much less likely that we would have neglected our public investments so badly in the ensuing decades. Almost the second he won, however, he buried the idea by creating a commission to study it to death.
But Clinton's harmful choices were not confined to the seemingly bloodless realm of economic policy (although bad fiscal policies have very human -- and often very deadly -- consequences). Clinton reveled in being a tough-on-crime guy, which is why he was particularly excited about AEDPA. In 1992, he had very operatically suspended his campaign so that he could return to his governor's duties in Arkansas and preside over the execution of an effectively lobotomized black man, Rickey Ray Rector.
The cynicism is just too much to bear. I am aware, of course, that Clinton's many defenders will insist that he had no choice, but the evidence for that is thin at best. Clinton, among other things, signed the end-welfare-as-we-know-it bill after his own policy wonks announced that it would doom millions of children to poverty. There was no reason that he could not have signed a much better bill and still campaigned on killing "welfare," but rather than fixing the bill, Clinton signed it and started bragging about it.
I understand that no campaign seems like a sure thing, but given the environment in 1996 (especially the reaction by the public against Newt Gingrich's immediate overreach), how many lives did Clinton need to damage to make sure that he won reelection comfortably? His every move, it seemed, was an unforced error, as he gratuitously worsened policy after policy.
When Democrats who defend Clinton make their case, they invariably end up saying that he balanced the budget, which (per my comments above) was not necessary and reinforced bad public messaging. But it also was a mirage, because tax receipts surged during the dot-com bubble. The welfare bill was hailed by some at the time, but it was never a good idea. And the other policies (certainly including DOMA) were similarly bad ideas in the first place and have aged very badly.
But other than the flashback effect of reading about AEDPA, why should I (or anyone) care about this now? Part of the reason, as I wrote above, is that what happened in the 1990's is very much with us today. Many of those bad policies are still on the books, continuing to ruin people's lives.
It is also about how Clinton degraded the political narrative. I cannot find the original quotation, but a wag once pointed out that if you give people a choice between Republicans or Democrats who are acting like Republicans, the voters will choose Republicans every time. Even when they chose Clintonian Democrats, they were choosing Republican policies.
The problem, moreover, goes beyond Clinton's embrace of harsh neoliberal policies and rhetoric. He also induced far too many people to defend his personal transgressions. Michael Gerson, a NeverTrump conservative pundit, noted this week in the course of discussing his former party's current insanity that "almost any GOP response to charges of deception will eventually include the words 'Bill Clinton.'"
Again, I am not arguing (nor was Gerson) that Clinton was "just as bad" or "as big a liar" as Trump, or anything like that. I am certainly not saying that Democrats' taking the high road has any effect on Republicans' behavior -- except when Republicans play people like Clinton and Obama (as they are trying to do to Joe Biden) by using Democrats' naivete against them. I am not even saying that hypocrisy has any impact on how the public votes.
I am, however, saying that it was truly a bad thing when some Democrats -- including some people who until then had stellar reputations as feminists -- responded to the Lewinsky scandal by slut-shaming her and giving Clinton a complete pass. The Republicans' impeachment of Clinton was ridiculous in the sense that it was obviously pretextual and based on a non-impeachable offense, but what he did was plenty bad, both with Lewinsky (the most extreme example imaginable of a power imbalance in the workplace) and in his evasive deposition in the Jones case.
Is that also old news? When Kristen Gillibrand responded to the MeToo movement by saying in 2017 that Clinton should have resigned over the Lewinsky affair, one could reasonably ask whether a resignation back then would have only encouraged the Republicans to be even more aggressive in the future. At that time, I thought that he should have resigned, and I still believe so. Still, one could make a decent argument that he chose the least-bad option by refusing to quit. Again, I disagree, but it is far from a crazy position.
What happened next, however, was classic Clintonism. Suddenly, Gillibrand was branded a traitor and an ingrate. Although her presidential candidacy in 2019-20 was an improbable effort all along, she was effectively cut off from money and political oxygen, based on her heretical attacks on "the Big Dog."
Essays like this one must of necessity dive into alternative histories and hypothetical time lines, but in the case of Bill Clinton, doing so is actually not as difficult as these things usually are. In real time, what he was doing was clearly opportunistic, selfish (hanging out his party to dry through triangulation), and simply bad policy, again and again and again. He continually tried to do things to please Republicans, only to find that they hated him more. Despite his popularity among African American voters, he was willing to play the race-baiting game as often as he felt necessary.
As I conceded above, not everything that Clinton did originated with him. The Democratic Leadership Council had started its union-bashing efforts -- and every other part of its response to the false belief that Americans are fundamentally conservative -- in the 1980's. Clinton was simply their dream come true. Even though he did not start that fire, if one were to make a list of the policies, rhetorical assumptions, and sheer political cowardice that haunts the Democratic Party to this day, Clinton either initiated or worsened nearly all of them.
Happily, as Balko pointed out in the column that I discussed above, then-Senator Biden aggressively opposed AEDPA in 1996, and he now has a chance to undo some of the damage that it continues to inflict, all these years later. To be clear, I was not a fan of Biden during the 2020 primaries, because there were too many other times over the course of his long career when he sounded a lot like a Clintonian triangulating type. We are, however, now seeing signs that Biden is successfully inducing Democrats to get out of their defensive crouch.
If there is to be a positive future for America (which might have nothing to do with any of this, given how aggressively Republicans are rejecting constitutional democracy itself), it will involve Democrats rejecting Clinton and his approach to politics and policy. There are surely reasons for Democratic politicians not to say out loud what I have written here, but even if one thinks that Clinton had no choice back then, the only path forward now is to undo his lasting damage.
So yes, I do despise Bill Clinton. He seems like an affable guy, and he certainly can talk a good game about positive social change. If he can contribute to mitigating his harmful legacy, he should obviously do so. That will not change what he did.