Friday, December 21, 2007

Someone Has to Win? Really?

One of my favorite political blogs is The Fix, a regular feature of, written by Chris Cillizza. On Fridays The Fix has a special feature called The Line where he gives a rundown of the horserace as he sees it. Today's The Line is entitled, "Someone Has to Win the GOP Nomination." So far, I'm willing to accept that someone must eventually win the GOP Nomination. Where I disagree with the esteemed political writer is:
What gets lost in all of the negativity about the Republican field is that in less than two months, someone will be the party nominee. Put simply: Someone has to win this thing.
Less than two months?! That's just a bald-face lie.

Yes, it is true that a majority of delegates will be decided within the next two months, but if things go as they have been, there is no certainty that any one candidate will have amassed the number of delegates necessary to win the nomination. Granted, it's been many a year since this has happened, but there used to be a time when the nominee was chosen at the convention by elected delegates doing more than just waving signs and clapping their hands. If a clear winner does not emerge from the pack to claim a majority, then the convention will once again reign supreme. All the political commentary about the split nomination race seems to miss the actual process of the nomination and how it functions in reality. The nomination is not chosen by an election where a plurality is enough. Strict rules govern the processes, and fifty years of not needing to use them doesn't make them any less relevant.

This has an interesting impact on the decisions of the national party to strips delegates from states violating the nominating calendar, namely Florida and Michigan. Conventional wisdom says this is all positioning because the eventual nominee, who will control the Rules Committee, will seat the delegates anyway. But what if the Rules Committee seats are split among the candidates and thus lack the majority votes to change the rules? What then?

So no, no one has to win anything in the next two months. But if someone doesn't, well, then we are in for some interesting times come convention time.

Wednesday, December 05, 2007

The Court & The Public

In the past week I have read no fewer than three different editorials about the need for the Supreme Court to allow cameras into oral arguments, or at a minimum release same day tapes of the proceedings. Most recently I read this anemic editorial by the Washington Post. The outcry is the same... people deserve the right to see the proceedings of the court because it's a public institution. I couldn't agree more with the objective, transparency of public institutions is paramount to good decision making... even courts, who are the least participatory of our political institutions.

Where these critics go wrong is in thinking that cameras make a difference... or that oral arguments are someone the "functioning" of the court. The events leading up to a legal decision are a complex web of filings and briefs, of which oral arguments is but one tiny piece. Lawyers generally agree that cases are won and lost on the brief... oral argument is just an chance to run through the briefs and address questions raised by the justices. But it's not like the questions are unexpected and no Supreme Court practitioner worth their salt leaves an unanswered question in hopes the topic comes up during orals. It's all there, in the brief, which are publicly available.

Yet, this isn't even the most amazing part about how incredibly transparent our legal process really is. Consider for a moment the House of Representatives. On a given day the 425 members cast votes on a number of different issues. Now imagine if each of those members had to write down why they voted the way the did, had to cite previous votes by themselves and those who held the seat before them as justification, and had to provide a detailed step-by-step analysis of their thinking. Wouldn't that be something? If the members of Congress had to publicly justify every single one of their votes! How would constituents feel if their member wrote they voted for a particular provision because they got a fat donation check!

Of course, House members don't have to justify their votes... nor do Senators... nor do Presidents (except in the case of a Veto, which is a whole other can of worms). Two out of three branches of government may exercise their constitution powers without a single word of explanation and routinely do so. The Court, in shocking contrast, explains everything. Complete with citations, justifications, historical narratives, transcripts, finds of fact, depositions, and the decisions of the District and Appellate Court from which the appeal originated. It's an overwhelming amount of information and quite frankly more transparency than your average Joe is really interested in. But, it's the law, and the law isn't easy... the law is complex, and no matter how simplistic campaigns may make governing seem, we should never allow the law to become a sound-byte.

So why then fixate on oral arguments? It is but one small (some might argue insignificant) part of the process. When a whole world of records is available to analyze, why are we getting all worked up over this? Lawyers, who have the most to gain from a transparent court, have never demanded it... so why suddenly is everyone else?

I don't have an answer, but I fear it's part of a larger trend to treat the court (federal or state, doesn't seem to matter) as just another political body, whose officials should be subject to the whim of the electorate and the twenty-four hour media machine. It's a bad trend that strikes a blow at yet another of our critical institutions designed to protect the minority from the tyranny of the majority. What I do know is that someday I want to attend an oral argument, not for the knowledge, but for the singular experience. If I ever want to know what actually happened in a case, I'll crack open a book.