Author Archives: Michael Froomkin

Veepstakes, Republican Style

Your bigtime mainstream political bloggers like to talk about issues such as which Democrat might best help which candidate as a Veep (Clark is the equivalent of 'O' blood here—the universal match, and Edwards works almost as well, except of course when one of them is imagined as the candidate). That's a nice parlor game, but I have a new one, just as fun. Suppose, just for the sake of the argument, that all this talk about the source of the Great Leak being someone in Richard Cheney [fixed] office pans out. And, just to make it more exciting, suppose the Veep knew before, during, or even not too long after the Leak, and/or the circumstances are such that he should have known. (Please keep in mind that all is pure hi-octane speculation at the moment. There are no facts on the public record about who leaked.)

Who does Bush pick as his running mate to replace Cheney after he reluctantly decides on health grounds to spend more time with his family?

Posted in Completely Different | 5 Comments

Some Musings on Blog Ethics

My law school classmate Eric Muller of IsThatLegal? writes that he agrees with Ed Cone, when Ed Cone says,

Eugene Volokh and Glenn Reynolds are just a couple of guys messing around on the web. They are amateurs writing what pleases them. They have no responsibility to their readers to cover the uncovering of Valerie Plame.

That's all true, and at the same time it is total bullshit. These guys aren't lawyers for nothing.

To skip the CIA story is to declare it unimportant. It's a lie to their audiences. Yet Reynolds is devoting limited energy to the matter, Volokh even less.

A weblog is not a game of Solitaire. You engage your readers. You promise them certain things. Volokh and Insty have created themselves as important commentators on the serious issues of the day.

To ignore this story is to abdicate a role they are only too happy to play in other situations, which in turn devalues their credibility when they want to put the pundit's hat back on.

What they say about PlameOut is their business. If they really do think it's unimportant, then they should explain why it's unimportant.

Of course, as Volokh says, nobody is paying them and they are free to write what they want.

But if they want to be taken seriously as a new kind of journalist , then they have to assume some of the responsibilities of journalists, too. Otherwise, it's just a hobby.

Eric Muller is a very sensible guy, so odds are that what I'll call the Ed-Eric view is worth thinking about, on its own terms and also for whatever impact it should have on my conduct as the proprietor of a blog that truly is at the fringes of the public sphere. (I should disclose that in addition to liking Eric, I also think of Eugene as a friend, and regularly read his blog, but don't know the other participants in this debate. I will use The Volokh Conspiracy as my example here because I don't read the other blog at issue.)

Start here: It's obvious that everyone who puts up a web page on current events doesn't therefore take on a moral obligation to write about all the issues of the day.

Nor does everyone who puts up a me-zine blog.

Nor does everyone who puts up a political blog.

The hinge of the Ed-Eric view must therefore either be something about the responsibilities that come with a large readership, or “new journalism,” or something about the way in which they think the The Volokh Conspiracy and other very popular blogs with lots of political content (note that this is not the only thing they have, Volokh even carries recipes whose ideological tinge escapes me) hold themselves out to the public: “You engage your readers. You promise them certain things.” Well, yeah, if you promise to discuss all the important political issues of the day, and you skip some, you're a lousy promise-keeper. But where was that promise? Ed Cone thinks it is implicit: “Volokh and Insty have created themselves as important commentators on the serious issues of the day.” Thus, “To ignore this story is to abdicate a role they are only too happy to play in other situations, which in turn devalues their credibility when they want to put the pundit's hat back on.” Here's where I get a little lost. Where is this implicit promise? Is it disclaimable? And, legalism aside, why should even large-readership punditish bloggers be expected to weigh in on everything? Why shouldn't we instead respect a decision to only speak about the things where you have something to say? Why do they (or I) have a duty to explain why they (or I) are not writing about this legal/political scandal or that one?

Similarly, I think the claim that “if they want to be taken seriously as a new kind of journalist, then they have to assume some of the responsibilities of journalists” is overwrought. Some blogs are surely engaged in an enterprise like journalism—reporting facts and analysis. Some may even have explicit or implicit claims to comprehensive coverage of a topic or topics. But the political blogs are to my mind a lot more like op-ed columns. Must every newspaper columnist across the land weigh in on each scandal? Or even every syndicated columnist? Talk about pack journalism monoculture!

Before you get too excited, though, there are aspects of this in which I'm in sort of in agreement with the Ed-Eric view. First, I do believe that there are a very small number of issues which touch us all as citizens, and on which we all have a moral duty to bear witness when the opportunity presents itself. I think wars, systematic injustices and deprivations of liberty get on that list for me, but I recognize that other people might have longer, shorter, or different, lists and I am still pondering mine. But those moral duties to speak out are not dependent on one's status as blogger, a pundit, or an any sort of recognized author—although they are neither utterly independent of the chance that one's speaking might have an effect on a listener nor utterly dependent on it either. (And, none of what I'm saying in any way denigrates from Eric's other point, that all web authors ought to think about the consequences of what they post. Where I disagree is with his claim that the two issues are “essentially identical”.) I don't think this scandal du jour makes that list. Bush's lying to the American people about the reasons for war might. Back-alley bare-knuckle political tactics such as outing agents to send a message to future critics and sliming an honorable public servant are reprehensible and well worth criticizing, but that job is being handled pretty well at the moment. Lacking any insight on it, I don't personally feel a duty to pile on, and I don't see how one can fairly impose that duty on others.

That said, I also agree that readers should not only be free, but actually encouraged, to engage their critical faculties and apply it to the silence of authors as well as to their clamor. That someone ordinarily voluble is silent tells us something, although exactly what can be hard to discern. Is it a tactical silence? An embarrassed one? Or perhaps just a modest one?

For the record: I don't promise to discuss all the important issues of the day. Instead, I promise to try to only discuss those issues where I think I have something to say that might be worth your time to read.

Update: It looks as if maybe Eugene and Eric and I have come close to agreement.

Posted in Blogs | 8 Comments

A Modest Proposal For Improving White House Press Conferences

I have a modest and practical proposal for improving White House press conferences.

Sooner or later, probably later, there's going to be another official press conference in the White House. Past form suggests that the Administration will wait as long as it dares before having one, but sooner or later they'll do it. And, past form also suggests that the White House will have worried about nothing, because the reporters will ask softball or inane questions, and will be so caught up in their own narratives, or competitive agendas, that there will be little follow-up probing on any evasion.

So, here's my suggestion: All the White House correspondents—especially the foreign ones whose easy questions can be counted on to break the flow of any serious attempt to follow-up—should club together. They should agree a list of questions that need answering, and draft them carefully to minimize the opportunity for a fudgy answer (this can never be eliminated—a good pol knows how to spin it). Then, the whole press corps should go to the press conference with a copy of the list in hand. Everyone would agree that if called on they would either ask a followup to the question previously asked, or ask the next question on the list. And nothing else.

It's nice to dream.

Posted in Politics: US | Comments Off on A Modest Proposal For Improving White House Press Conferences

Kim Lane Scheppele on the Dangers of Rushing the Iraqi Constitution

A transfer of sovereignty to a functioning Iraqi government is a prerequisite to an orderly US departure.

The official US policy is that the Iraqi constitution must be drafted before the US can transfer sovereignty back to the Iraqis:

Bush administration officials contend that if they transfer sovereignty before a constitution is drafted and a democratically elected government is seated, the interim political authority could prolong or subvert the process. “If a constitution has to be drafted before there can be a government, you bet we’ll get a constitution.”

Indeed, The US has a lot riding on getting the Iraqis to draft a new constitution quickly. So long as there is no Constitution, and no interim government either, bodies such as the IMF may not recognize the local authorities as a government to which they can give funds. And, so long as the US (or, if you prefer, the “coalition”) remains an occupying power, it has various obligations arising from International law.

Last week Colin Powell optimistically suggested the constitutional drafting might be completed within six months. That idea seems unlikely to survive its encounter with the reality of an Iraqi political scene that is divided and fractious.

Kim Lane Scheppele, Professor of Law and Sociology at the University of Pennsylvania, an expert in comparative constitutional law, is worried about the rush to design an Iraqi constitution, and she's graciously allowed me to reproduce a listserv contribution of hers on the subject:

having observed some constitutional drafting processes at close range and participated in a couple, it seems to me that it's important to start with the history of the place and the specifics of the culture and legal system. Toward that end, I've found the following sources helpful.

The Public International Law and Policy Group and the Century Foundation has produced a sobering report on the major issues involved in drafting a constitution for Iraq. The report can be found at:

http://www.tcf.org/Publications/iraq_report.pdf

The Iraqi constitution of 1990:

http://www.oefre.unibe.ch/law/icl/iz00t___.html

And the Iraqi constitution of 1925 can be found at:

http://www.geocities.com/dagtho/ iraqiconst19250321.html

(For those interested in constitutional borrowing, the 1925 Constitution begins, “We, the King …”

What seems to me most troubling about a future Iraqi constitution is that the country is a cobbled together collection of people and places without a common sense of history or (as far as I can tell) a common sense of the future. Iraq's own brief constitutional history (seen in the documents above) is not particularly promising as a place to start. By contrast, the Afghan constitution started with far more inspiring raw materials — in particular, a 1964 constitution that was a perfectly respectable modern constitution that actually functioned for nearly a decade. As a result, when the war ended in Afghanistan, the 1964 constitution could be restored and used as a starting point for the new drafters. Just where one starts to get a grip on constitutional issues in Iraq will be much harder because there is no such prior text that could provide a point of common reference if the drafting process produces deadlocks. This is one tough place to write a constitution.

Nation-building is hard work. Isn't it good that we have an Administration so fully committed to the project?

Posted in Law: Constitutional Law, Politics: International | Comments Off on Kim Lane Scheppele on the Dangers of Rushing the Iraqi Constitution

Unexpected Perils of Blogging

Many law professors dream of having a theory of constitutional interpretation attributed to them. As it happens, that was never quite exactly my dream. But if—as just happened on a mailing list for teachers of constitutional law—someone had been going to credit me with stating 'the universal insight that explains constitutional law' and even promised to “steal it and use it without remorse, giving due credit, of course,” I don't think that I'd choose to be known for blogging the 'squint theory' of interpretation.

Posted in Discourse.net | Comments Off on Unexpected Perils of Blogging

It’s OK to Send Them to Die in Iraq, But Please Don’t Encourage Them To Vote

Now this sort of rot does make me mad. Someone named Andrew Ferguson, who is clearly an establishment journalist (“Andy Ferguson's ideas were, as usual, very subtle and secretly forceful” — Davd Brooks) and writes regularly for Bloomberg and is a contributing editor to the Weekly Standard, has written a column with the provocative title, Will the Dixie Chicks Ruin U.S. Democracy?.

Unfortunately, the title is the best part, as the article's thesis is that young people should be discouraged from voting, and that the Rock the Vote campaign, and the Two Million More in 2004 young voter registration campaign are—get this!—dangerous [sic] to democracy because they will bring out the yahoos. Mr. Ferguson, whose photo suggests he may have reached a certain age, is apparently all aflutter at the “specter of two million more children in turned-around baseball caps queuing up for the voting booth, as they nod drowsily to the thumps drilling through the earplugs of their portable MP3 players.”

“Young Americans,” Mr. Ferguson quotes the National Conference of State Legislators as concluding on the basis of a survey, “don't understand the ideals of citizenship; are disengaged from the political process; lack the knowledge necessary for effective self-government; and have limited appreciation of American democracy.'' Of course, without some comparison to other age groups we have very little idea of what to make of this fact, but never mind. (I tried to find the actual survey online, but failed. The http://www.ncsl.org/ web site was not responding.) In the end, if you really believe in democracy, that number matters when considering how much to increase the state education budget, not when deciding if you should encourage people to vote.

There are an enormous number of ways in which our democracy could be improved. Disenfranchising younger voters, or even discouraging their exercise of the franchise, is not remotely among them. If they're old enough to fight our wars, they're plenty old enough to vote.

Based on Mr. Ferguson's essay, though, I'd have say he's a pretty poor poster child for his age group's supposedly superior comprehension of democratic principles.

Update: The National Conference of State Legislators website woke up, and I found the survey. It seems voting participation rates and the belief that civic participation matters are noticeably lower for younger citizens than for older ones. Rather than blaming young people for their civic disenchantment, the National Conference blames…Mr. Ferguson and his age cohort:

The findings of this public opinion survey leave little doubt that Baby Boomers and the World War II generation have failed to successfully pass on the ideals of citizenship to the DotNet generation that is now coming of age. They have botched President Bush’s challenge “to teach what it means to be citizens.”

Posted in Politics: US | 4 Comments