Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Tuesday, January 8, 2008

The Contest for the Democratic Nomination

I am curious to hear what law professors make of the Democratic nomination process (it does, after all, involve three lawyers!).  The remarkable change in fortunes for Hillary Clinton over the last couple of weeks seems to betray almost a sense of relief among voters, as though now they have another viable and competitive candidate who is not her.  Senator Obama, despite saying almost nothing of substance in most of his speeches, may be the most effective orator on the national stage since Ronald Reagan performed his own psycotherapy on the public more than a quarter-century ago.   The prospect of the first female or first African-American President is exciting to many--and notwithstanding the fact that we have already had a female African-American (Rice) and a male African-American (Powell) orchestrating much of the current international catastrophe in which the U.S. finds itself.

So what do law professors think?  Signed comments are far more likely to appear, regardless of point of view.  I am genuinely curious what my professional colleagues make of the current electoral situation.  Post only once; comments are moderated and may take awhile to appear.

UPDATE:  Comments are now open, sorry about that!

http://leiterlawschool.typepad.com/leiter/2008/01/the-contest-for.html

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Comments

For whatever reason, it seems that law professors have already spoken on the question you ask: http://busmovie.typepad.com/ideoblog/2008/01/betting-on-obam.html
As I note in the post, I think that Obama is and always has been the more viable candidate, though less substantive and, from some perspectives at least, less qualified.
The question, I think, is whether and how experience matters in getting this job. Bush had eight years experience running a state larger than many nations. This taught him how to deal with a legislature and administrative agencies -- but it really gave him very little experience dealing with a legislature that closely resembled Congress, or with an administrative agency comparable to the DoD.
Obama has a lot of experience talking. It turns out that oratory matters -- and this is an ability that H. Clinton (and Bush, for that matter) sorely lacks.
Of course it would be good if Obama also had ideas. But, then, he would lose votes. And how many ideas does his competition have?
In other words, as Cass Sunstein would say, Obama needs to stay incompletely theorized in order to win. This will make for an interesting presidency.

Posted by: Larry E. Ribstein | Jan 8, 2008 7:12:29 AM

I started to write a comment here, and realized it was turning into an entire blog post. So I have cross-linked your question in my comment over at Concurring Opinions: http://www.concurringopinions.com/archives/2008/01/the_paradox_of_1.html#comments

Posted by: Jeff Lipshaw | Jan 8, 2008 8:56:39 AM

What I find most astonishing is that the media has given us so many months of useless horserace coverage, and then, when voting finally starts, they are so eager to just declare a victor (at least on the Democratic side; the Republican narrative seems to be more "Survivor" style, with the MSM eager to knock Romney or whomever off the island). Glenn Greenwald has commented on the establishment media's allergy to substance incisively (if polemically).

For me one big question of 2008 will be: can voters finally become more important than the echo chamber of press assessments of "momentum" and "inevitability"?

As Tim Noah observes:

"Instead of achieving the necessary delegate count, a primary candidate wins by achieving the necessary momentum. If you build sufficient momentum, the necessary delegate count will come, Field of Dreams-style. But it will come not before but after the news media and the political establishment have already named the putative nominee."

from:
http://www.slate.com/id/2179500/

Posted by: Frank Pasquale | Jan 8, 2008 3:17:40 PM

Obama stands out from the others because he is more future oriented. I think people can imagine him taking a prominent position domestically and internationally as a leader, a leader calling for solutions to difficult problems that can move the US and the world forward.

While I never liked JFK, JFK, and his contrast with the others, including Ike and Nixon, seems to be the model because of the lack of charisma of the other Democrats and the complete collapse of any credibility of the Bush regime. Since the Republican candidates generally, with some slight exceptions by McCain and Huckabee, accept the Bush regime, they collectively lack the appearance of true leadership potential.

Posted by: Michael Zimmer | Jan 8, 2008 3:55:42 PM

I start with my bias -- I spent a month in Iowa with Joe Biden and believed (and, well, still believe) he was by far the best embodiment of charisma and knowledge/experience. (Many on this list may question the charisma point as the media really didn't give anyone enough glimpses of him on the campaign trail -- he was awe-inspiring.)

I watched Saturday night's ABC debates and felt that the discussions were far less substantive that the previous ones. I attribute that to the absence of Biden and Dodd. Biden was the guy who told us in the Las Vegas debate that no one cared about the bickering between the top-tier candidates and drew applause. He was the guy in the Philadelphia debate who told Tim Russert that his question about whether he would allow Iran to get a nuclear weapon was a silly one because it failed to account for all of the countries implicated by even discussions of invading Iran -- India and particularly Pakistan.

He'd have told Charlie Gibson Saturday night that this change/experience semantic battle between Obama/Edwards and Clinton was meaningless and silly -- and that we should move on to substantive matters. Bill Richardson sort of did that, but only to remind us that he has been a hostage negotiator.

The battle lines between Clinton and Obama have become silly. Obama's about change -- and Clinton says she's been changing things for 35 years. They spend time talking about this stuff -- a LOT of time. I watched Joe Biden take 25 minutes to explain his take on the Palestinian/Israeli conflict to a college student who went from being an Obama supporter to becoming a fired up precinct captain for Biden in Corning, Iowa. The answer didn't come from a prepared stump speech -- and at the end, he didn't try to return to a campaign slogan. The slogan was unstated and crystal clear -- this guy KNOWS his stuff, can explain the nuances, and has extraordinary judgment. Now we're trying to decide who is an "agent of change." This would not have been the battle line for the nomination if Joe Biden had still been in this race.

Forgive me for ranting -- I miss having Joe in this race.

Posted by: Wes Oliver | Jan 9, 2008 11:21:28 AM

I miss Joe Biden, too. He would have been a very sensible President. But Barack Obama has the potential for transformation, and not just because he is trans-racial. He is the candidate who has most clearly experienced personal transformation, and he is the one who is most comfortable with himself. He knows who is. He has no need for reinvention. In that quality he is similar to Abraham Lincoln and Harry Truman. None of the others possess that quality, and all of them lack the potential for national transformation. Hillary Clinton is perhaps most deficient in these qualities. Her potential to produce further bitter division is quite retrograde.

Posted by: Calvin Massey | Jan 9, 2008 2:41:05 PM

By way of full disclosure, I have just unpacked from a week of volunteering in New Hampshire with the Obama campaign. And I am just a volunteer and have no authority to speak for the candidate or the campaign.

But the suggestion that Obama lacks ideas is terribly unfair. For example, the ideas he had about the Iraq war before it began have proven to be exactly right, which shows he has judgment worthy of trust on the most important decision a president makes. This matters not only in regards to Iraq policy, but in considering that the next president will very likely have to make other decisions about whether and how to use military force. His being right on Iraq before makes it more likely he's right about it now, and gives me greater confidence in his ability to make decisions about what to do in other troubled areas than I have in candidates who were wrong about the war.

Obama has also participated in candidate surveys on issues of constitutional law, executive power, and international law, and has demonstrated great depth and grasp of these issues. His health care plan is sophisticated in its emphasis on cost-reduction and recognition of the unique vulnerability of children.

These are serious, and in my view great, ideas. Obama has great rhetorical skills, and has a keen sense of the role of discourse in public life. But that is not exclusive of substance. He's also shown a first rate intellect and keen pragmatic sense about policy issues.

Charlie Martel

Posted by: Charlie Martel | Jan 9, 2008 8:27:31 PM

Surely it is relevant Obama is not only a lawyer, but one of the few law professors and, I believe, conlaw professors to run for president. The Clintons were professors of course, but not for as long as Obama. I believe Obama taught at the Univ. of Chicago Law School for a number of years.

Posted by: Steve Griffin | Jan 10, 2008 10:43:03 AM

Like Charlie, I just returned from a few weeks of slogging through the snow for Obama. Also like Charlie, my comments do not reflect any opinion from the campaign, but I think disclosure of bias is important.

I echo what Charlie said above. I actually attended a speech in October in which Obama gave a typical Democratic kitchen sink speech in which he talked in detail about policy. It was less than electrifying. He now clearly realizes that a great weapon in his fight against the Democratic establishment and old politics is his oratorical skill. So he uses it. But to conclude because of that that there is no substance is nonsense. Go to the website. Read old speeches. Do the research. Lack of substance is the among the most baseless accusations against Obama.

In fact, I defy anyone to watch this video http://youtube.com/watch?v=sXzmXy226po and not conclude that he has the best analytical skills and judgment of any Democrat in the race.

Posted by: Bart | Jan 10, 2008 11:57:07 AM

Yes, some variants of Obama's strump speech are light on substance, but his proposals (which do make it into other of his speeches) actually are quite substantive and daring. Two quick examples: (1) Obama's health care proposal, alone among the 3 candidates', includes ending the insurance company antitrust exemption; (2) he openly states that even if we exit Iraq right away, we may well have to spend more rather than less on the military to replenish it (I heard him say this in response to a liberal pacifist-type question about Iraq).

Sure, I (and some of you) would like to see him give these sorts of details in all-policy-substance speeches all the time -- but I think that appealing to Scott's (and your) inner geek isn't the way to get elected president.

Posted by: Scott Moss | Jan 11, 2008 8:18:00 AM

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