Biden v. Palin
Posted on October 2nd, 2008
by Daniel Larison |
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Ramesh Ponnuru is right that Biden doesn’t seem to understand, or refuses to admit, what Roe v. Wade held, and doesn’t even seem to be able to explain the doctrine of incorporation properly, so it is perfectly right and necessary to hit him on this. It is always useful to be reminded that the man who derided Robert Bork and Clarence Thomas does not understand these things. There is an argument, I suppose, that one would rather have a candidate who reaches the right conclusion, even if she can’t articulate why, than someone who comes to the wrong conclusion and offers a lot of windy, inaccurate justification. However, I’m not sure that it is ultimately very helpful to Palin to make technical critiques of Biden’s dissembling and confusion, just as it never made a lot of sense to defend Palin’s answer on the Bush Doctrine by saying that Charlie Gibson didn’t define it correctly, either. In other words, it is fair to hit Biden and Gibson on their technical errors, but in the very criticism of Biden or Gibson Palin’s partisans are effectively admitting that they are judging her interlocutors’ statements by a standard so much higher than the one they are using for her statements that they are acknowledging that she can’t really compete on the same level.
It would make it more of a fair fight if Palin seemed to know in detail what Roe held and also how it was related to Griswold, which would be possible if she knew that there was a case called Griswold. Yes, it’s good that she thinks the matter should be returned to the states (even though this federalist position is actually extremely unpopular with some pro-lifers), but if she had to make an argument about why Roe was wrongly decided and so should be overturned I’m sorry to say that I don’t think she could persuade anyone. Biden makes a lot of unforced errors and false claims, as he did in his interview with Couric, but he is not going to have an opponent who can exploit that weakness. Another problem is that he can make a wrong answer sound more informed than it is, just as McCain was able to bluster about Pakistan despite being basically wrong in what he said, because for some reason people give him the benefit of the doubt on foreign policy. Likewise, as an old Judiciary Committee Chairman, Biden receives deference from reporters who don’t care or don’t know much about the details of these Court rulings.
It is also true that there is no need to endorse the conclusions of Roe if one acknowledges that there is a right to privacy. The problem is that she gave no indication that she understood that these might be seen to be in conflict or that there is any tension between them. Politically, I’m not sure how satisfactory this will be to legal conservatives and pro-lifers who must be hoping that Palin would be a driving force in shaping McCain judicial appointments, since it seems likely that she will have only as much influence in these matters as she does expertise. Perhaps it is also obvious, but it might be worth noting that if Palin did not have a personal reputation for valuing the sanctity of life her answers on Roe would be seen as red flags for pro-life activists who would regard her references to federalism and a right to privacy as clues that she is lacking in the kind of conviction they want. In Palin’s case, the personal is not only the political, but her personal story seems to have redefined what an acceptable answer on this question is. National Republican candidates are often criticized when they opt for a federalist answer, which seems to many pro-lifers to be a dodge or an unacceptable compromise. The social conservative tribune in the primaries, Huckabee, made a lot of hay out of Fred Thompson’s federalist position, and constantly came back to the plank in the party platform supporting a Human Life Amendment as something that he thought his rivals were abandoning. Whether or not one agrees with Huckabee, he spoke for a large constituency that is not necessarily interested in a federalist solution, but instead wants the practice banned nationally. As most people assume that Palin is familiar with life issues, it can hardly help her reputation that even on this subject she seems less than fully prepared.
Over the last few weeks, I have been watching Palin’s defenders deploying their expertise to make sense of answers by Palin that were wrong, insufficient or embarrassing. When she manifestly knew nothing about the Bush Doctrine, her defenders chimed in that her answer was fine because the precise definition of such a doctrine–if there really is a doctrine or just a jumble of policies–is so intensely disputed. In short, the sheer nuance and complexity of an issue excused her utter cluelessness, or, to put it another way, she knew so little about the subject that she would have no way of knowing that Biden or Gibson erred. When she talked vaguely about Putin rearing his head, there was only a relative handful of people who could have deciphered that she was referring to long-range Russian bomber flights. Even on something like that, where presumably Palin did know something about what she was saying, she could not articulate it. No doubt her claim that she reads “all” newspapers will soon be cited as proof of her voracious appetite for knowledge and her curiosity about the world. What Palin’s defenders are showing is that it takes well-informed, very engaged policy wonks to lend even minimal coherence to her statements. Unfortunately, she will not be able to call on them tonight.
P.S. Speaking of federalism, what would Palin be able to make of Biden’s defense of the constitutionality of VAWA? Could she cite the relevant precedent of U.S. v. Lopez and explain why these federal laws represent an unacceptable encroachment of the federal government into areas that are properly the preserve of state and local governments? Could she explain why the commerce clause does not apply in the case of the gun legislaton thrown out in Lopez or in the case of VAWA? To ask these questions is to answer them, because I think we all know that she could not. I can’t say that gives me much confidence. I was debating these issues in my high school government class; Palin probably does not know that these issues exist. That’s a problem, and the more people try to pretend that it isn’t the worse it is going to get for her and her defenders.
Update: Hilzoy comments on the Court ruling answer:
First, I cannot imagine a conservative watching this video without wincing. I just can’t.
A lot of people have this same reaction and assume that these interviews must be embarrassing most of Palin’s supporters, but what I think Hilzoy and many others are not taking into consideration is the degree to which Palin’s fans simply don’t care and are doing their best to answer her question to Halcro about policy details (”does any of this really matter?”) with a resounding no.
Second Update: Here’s another thought. The question Couric asked was about Court rulings that Palin disagreed with, and we all know that McCain thinks that Boumediene was one of the worst rulings in history and Palin thought it was cute to knock Obama for his opposition to Boumediene by misstating his position in her convention speech. So, here’s a question for the VP debate moderator to ask: “Gov. Palin, you said in your convention speech that Sen. Obama wanted to read terrorists their rights. Why do you say that, and how do you interpret Boumediene v. Bush to have anything to do with reading suspects their rights?” Or maybe keep it simple: “Gov. Palin, does habeas corpus apply in cases concerning suspected terrorists, and do you think the Supreme Court was wrong to grant suspected terrorists due process?”
Third Update: Alex Massie has more.
Filed under: politics
Ponnuru’s criticism is utterly shameless and should be called out as such.
On Biden: He thinks there’s a “liberty clause”. What Biden is describing is the Due Process Clause, which contains the word liberty! He’s not exactly off his rocker there. You can disagree with his (and the Supreme Court’s) interpretation of that clause, but you can’t really imply he doesn’t know what he’s talking about just because you disagree with him. Then he slightly misdescribes Roe and doesn’t say anything about social peace.
On Palin: She’s totally incoherent, knows absolutely nothing, and tries to fake it. So of course it’s because Couric’s question is “oddly phrased”.
Ponnuru gets a lot of credit from people who praise him as a “smart conservative”. It seems to me he only gets that kind of respect because the people he works with at NRO are such slack-jawed morons. Next to K-Lo, even a hack like Ponnuru looks like the second coming of Socrates.
I don’t think it takes a complex legal mind to bit Obama and Biden on Roe.
All that is required is to note that Obama voted against the Born Alive Act on the basis that it violated Roe v. Wade. If Roe v. Wade prevents states from asserting the personhood of an infant that has been born alive, then support for Roe v. Wade is an extreme, rather than consensus, position.
Now, I don’t know that Obama’s reading of Roe v. Wade is valid, but that’s his problem, not his critics’.
It seems one doesn’t need to know anything about federalism to be a state governor.
The rub is that the sophisticates and literati, who might know something, have screwed up the country, and continue to do so with dizzying rapidity.
Is the choice really between Ivy League quasi-Bolsheviks and sodomites on the one hand, and unlettered yokels with good instincts on the other?
As a Big Ten non-Bolshevik sodomite, I think I take offense to that.
And let’s not get carried away with “instincts”. Other than flirtation with a secessionist party she now repudiates and a claimed opposition to earmarks she never actually possessed, what about Sarah Palin’s instincts strikes you as particularly good? I guess she’s still pro-life, but that seems like precious little to hang an entire hat on.
I wouldn’t say that Biden was wrong when he referred to that as the liberty clause, though I think more people are familiar with references to the due process clause. However, he does seem flub why the 14th Amendment applies to this matter. Biden talks about consensus, which is absurd, since there is obviously *not* a consensus on this, but I agree that he didn’t refer to social peace.
GOM, I think they’ve screwed up the country, too. They’ve done so in no small part because there have not been enough people who opposed their agenda who could articulate their arguments effectively and dissect the opposing arguments to show them to be lacking. Making excuses for any candidate who bungles these matters concerning culture war topics–the very topics she is supposed to be most conversant with–is a bit like making excuses for utterly incompetent commanders in the field on the grounds that the other side has an eccentric field marshal who makes his battlefield decisions based on augury.
“The rub is that the sophisticates and literati, who might know something, have screwed up the country, and continue to do so with dizzying rapidity.”
“GOM, I think they’ve screwed up the country, too.”
I’m honestly curious – how have “sophisticates and literati” screwed up the country? From what I can see, “literati” control little apart from a few faculty break rooms; they otherwise have a hard time winning the shelving wars at Borders, never mind controlling the country. As for “sophisticates,” its an awfully broad term to my mind and sounds more like code than a term one would use to clearly define a class of controlling elite. What exactly do you mean?
Daniel, that’s fair.
I was, in fact, complaining that we seem to lack alternatives to “smart” wrong-headed people and good-hearted yokels devoid of book-larnin’ .
The presence of a few people like Bishop Hilarion (Alfeyev), Andrew Bacevich, and your good self offers some solace.
Are there a few like-minded mayors and city councilmen lurking in the hinterland? Let us hope.
Does not understand this? Biden correctly describes the basic holding of Roe v. Wade and identifies one of the amendments that have ‘penumbras” dealing with privacy. The consensus answer is not legally relevant, but is a damn good answer for a pro choice politician to give. And didn’t the USSC just site national consensus in its Louisiana case dealing with the death sentence for sexual abuse of a child?
On Lopez and VAWA, I think Biden is right on. After finding federal jurisdiction through the commerce clause for decades, no matter how remote the connection, the USSC all of a sudden decides that Congress has a real burden to meet on this issue? Legal scholars are still puzzled by those two decisions, regardless of what side of the debate you are on.
I completely agree with Gen Mobius – you can agree or disagree with Biden, but how can Biden’s answers honestly give you “more concerns about Biden than Palin”?
The expression “Liberty Clause”, as distinct from the “Property Clause” is the common formulation in Con law classes, which I think Biden has occasionally taught. He should get a pass on the term of art.
I believe Biden meant to say that Roe is a good decision because it is balanced – balances a woman’s right with the state’s right to intervene on behalf of the child. Consensus is not the right word. As for the liberty clause, it’s central to due process. He at least has a clue. I sincerely doubt that Palin will expose his gaffes because she will not have that much of a clue, if any.
I don’t think Biden’s answers give us more concerns than Palin’s do, except in the sense that pro-lifers are going to be opposed to Biden’s view and sympathetic to Palin’s. That’s part of my complaint about Palin’s defenders, which is why I spent most of the post focusing on her. What her defenders want to say is, “I disagree with Biden’s reasoning/explanation, so Palin’s remarks are irrelevant.” Biden’s answer was somewhere in the ballpark, and Palin is barely playing the game, so I don’t think it is credible to say that his answers are more troubling (except in the sense that pro-lifers are going to find any endorsement of Roe more troubling).
Grumpy,
Setting aside the needlessly provocative language (”Ivy League quasi-Bolsheviks and sodomites” – and yes, the pairing with “good hearted yokels” removes some, but not all, of the sting), I think that there is a more fundamental (and depressing, from your point of view – even mine!) problem. General Mobius pointed out the extent to which Palin’s instincts aren’t even that good, except, by your lights, on social issues. But I think the same can be said for the “good-hearted yokels” as a whole. Good instincts (again from your point a view) on social issues? Check. But what else? America’s role in the world? That constituency is every bit as supportive of our foriegn entanglements as is the rest of the electorate. Size of government? Sure, they love to hear politicians bash big government. So do constituencies on the left and center. But when the tire meets the road, they are every bit as supportive of the big ticket programs as traditional Democratic constituencies. The big government ways of the modern day GOP are in large measure a reflection of that. Opponents of both our adventurous foriegn policy and big government have to acknowledge that, as unresponsive as the government can be in some ways, on those issues, at least, the programs exist, and our interventionist foreign policy exists, in large measure because they are broadly popular. (Look at what happens when the GOP takes even baby steps to reign in entitlement spending.)
Look, I’m not celebrating these facts. With regard to support of our foreign policy, certainly, and size of government issues, increasingly, I join you in lamenting these facts. But facts they are.