obama at one year

I would give him at best about a B. The good news is he seems competent, has a reasonably clear and coherent agenda, and has kept most of his base intact. The bad news is he seems slowly but surely to be losing everyone else. There is also a sense of diminished stature: too much celebrity and too little accomplishment, and personal energy wasted on efforts (the would-be Chicago Olympics, Copenhagen, the Nobel Prize) that bring little or few real results. Current developments, like the health care bill, carry the potential to strengthen but also to hurt him: the long delay between likely enactment and actual provision of benefits is especially dicey here.

A problem in evaluating Obama, like all Presidents, is what standard to judge him by. The reality is that it is extremely difficult for any President to be successful under current conditions, and probably that much more so for a left-of-center politician. This results in part from economic and budgetary constraints, but also from underlying political realities.

In the period marked by roughly the 1930s to the 1970s, politics was conditioned by the threat of the extreme left, which was taken seriously abroad (the Soviet Union and Communist China) and at some points (notably the 1960s) at home. Because of this threat, traditionally conservative interest groups--business, the professions, the political and economic elite--perceived it as in their interest to pursue a moderate reform agenda, if only to avoid more radical change. The liberal Republicans and establishment Democrats in America--like the Social or Christian Democrats in Europe--were typical of this way of thinking.

With the fall of the Soviet Union, and the collapse of the extreme left in the West, this incentive largely disappeared. Conservatives now feel comfortable directing unwavering fire at any and all liberal proposals, and are strengthened by the addition to their ranks of many ordinary people who cannot stomach the left on religious or cultural grounds. That the left itself is divided along economic and cultural lines--and becomes more so as it tries to expand--doesn't help, either. The most conspicuously successful liberals in this period, Bill Clinton and Tony Blair, succeeded largely by accommodating these trends and governing as moderate conservatives, something Obama has so far refused to do.

So Obama has been disappointing in some ways, but it is not clear that anyone else--at least, any other liberal Democrat--could have done much better. For all his unique characteristics, his trajectory is not really that different from other liberals in an essentially conservative age, with the difference that he has (so far) proved less willing to abandon his liberalism for political gain. As the pressures on him build--and the conservative resurgence continues--it will be interesting to see if this pattern continues.

"constitutional moments" and the health care bill

With the Senate health bill having received 60 votes the danger of strong-arm tactics, designed to pass the bill with fewer than 60 supporters, has subsided for the moment. But talk of such tactics--and the likelihood that similar situations will recur in the future--makes the issue worth discussing nonetheless. The issue is important, I think, less for the sanctity of the 60-vote requirement than for what the tactics say about constitutional theory and its application in the current political environment.

Writing at Balkinization last week, Jack Balkin, the creator of the blog, argued that Barack Obama faced a "constitutional moment" of the type identified by his colleague Bruce Ackerman's theory and, if he failed to act appropriately, might see his entire agenda unravel. Balkin called for aggressive action, including the use of reconciliation procedures or other similar members, so as to force the Senate's hand. A few days later Paul Krugman, writing in the NY Times, called the existing political system "dysfunctional" and called for changes in the Senate rules, albeit in a somewhat less confrontational manner.

It must be conceded, at the outset, that the 60 vote requirement is a matter of Senate rules rather than a constitutional provision; the term "quasi-constitutional" is probably best applied to it. And it can hardly be denied that both Democrats and Republicans have misused the rule: the filibuster concept, to which it is tied, was always intended as a way to slow down legislation rather than permanently defeat it. A combination of excessive partisanship and rule changes, which allow an effective filibuster without even the need to keep talking, appear to be responsible for the deterioration.

That said, the attempt to end-run or simply overpower the 60 vote rule leaves cause for alarm. While the rule has questionable origins, it has been understood to be the rule for some time, and both sides have played with that understanding. If the rule can simply be avoided when the results are displeasing, what is to stop other rules--constitutional or otherwise--from suffering a similar fate? It must be remembered here that health care is not the only Democratic priority: cap and trade, financial reform, and perhaps a second stimulus bill are similarly "vital" measures in the liberal worldview, and if means are subjected to ends one time they will likely be again.

The theory of "constitutional moments" is especially troubling here. The theory was originally intended as a descriptive matter, explaining how important constitutional changes (the post-Civil War amendments, the New Deal, etc.) often came about as a result of procedurally dubious, extra-constitutional developments. I doubt that even Bruce Ackerman intended it to be used as a prescriptive tool, justifying the intentional strong-arming of existing rules and procedures so as to achieve a desired result. Suppose, in this context, that the Democrats lose the next election and Obama himself is voted out in 2012. Will it be time for a Republican constitutional moment, in which a GOP majority rides roughshod over Democratic dissent, or tries (again) to remove a Democratic President on legally dubious but politically attractive grounds?


I also wonder about the effect on "civility," which everyone claims to favor, if these proposals go forward. It is said that Glenn Beck and the "tea party" types are paranoids for thinking that the constitution and the republic are in danger as a result of Obama's agenda. Won't direct assaults on established rules give them more credence, and won't the long-term damage outweigh any short-term gains?

a day at the museum: arshile gorky

As often happens around the Holidays, the various members of my family are starting to get on each others' nerves, so I took a couple of hours off to visit the Phila. Art Museum. Having seen most of the permanent collection maybe thirty times or so, I decided to take in a special exhibit on Arshile Gorky, the Armenian-American painter who produced an astonishing range of work before his self-inflicted death in 1948. As a good exhibit should, the visit inspired me to think not only about Gorky's own accomplishments, but the broader question of artistic greatness and the relationship between different fields.

One of the interesting things about Gorky is that, rather than attempting to seem "original" for its own sake, he consciously borrowed from the styles and techniques of others, always expanding and modifying these techniques for his own artistic ends. Thus one set of paintings looks a lot like Joan Miro: but not really, because human subjects, reflecting Gorky's preoccupations and perhaps his demons (more on this later), keep intruding on the otherwise abstract forms. Another series departs from a painting by Giorgio De Chirico, wisely included in the exhibit, but by the end bears little resemblance to the De Chirico original. One can thus observe in Gorky's work much of the history of Twentieth Century art, but also the tension between the general and the particular, between the artist and his or her surroundings, that make art at once so rewarding and unpredictable.

The exhibit also offered a chance to meditate on the relationship between great art and suffering, a cliche perhaps but rarely on such vivid display. Plainly Gorky was troubled: by the Armenian Genocide which took his mother's and countless others' lives; by his own depression; by physical ailments (notably cancer) and family problems. Yet many of the things that troubled him--his cancer, a fire in his studio, his wife's affair and ultimate departure--and things that happen to ordinary people, as well. Some of his work, notably his American landscapes and his murals for the old Newark Airport, were cheerful or downright whimsical in nature. Did Gorky really suffer more than other people, or did he simply respond with more intensity: and is there really a difference between the two?

I am reminded here of the debate regarding Primo Levi, who (like Gorky) lost numerous friends and relatives in a twentieth century genocide and took his own life, decades later, after countless intervening events. Levi's biographer, Carole Angier, is convinced that Levi's psychological problems (especially with women) predated the Holocaust and that the latter cannot be blamed for his suicide. Undoubtedly there are Gorky biographers who have debated the same question. All that can be said for certain is that there is a certain something that leads artists and writers to perceive the world a bit more intensely, a bit more sardonically, than the rest of us: which does not appear to make them any happier, but which leaves the rest of us incomparably richer.

still more on college football . . .

Having attended Cornell, and with a son at the University of Pittsburgh, I get to see the full range of college football possibilities. Cornell lost its final game, 34-0, to Penn in a contest that I had the bad fortune to witness with my second child. Pitt was in its way more unfortunate, losing to Cincinnati (the #3 team in the country) by one point in a game that it led, 31-10, in the first half. The Panthers now get to play in a bowl named for an auto repair company while Cincinnati plays Florida in the Sugar Bowl; with a little less voter bias they'd be playing for the national championship.

One of the reasons football is so interesting is that, sooner or later, it raises almost every conceivable intellectual and philosophical issue. For example, why is Cornell football so bad? It's the largest or second largest (after Penn) school in the Ivy League, probably the easiest to get into, and (except for Dartmouth) easily the most rural. So why does it always lose? I've heard all the explanations: fear of success and consequent labeling as not-really-Ivy; emphasis on other sports; a run of unfathomable bad luck. (One successful coach, a previous NFL star, left after an affair with an assistant coach's wife.) Still, it doesn't quite compute, and no amount of Ivy League brainpower seems capable of addressing it.

Ditto for the BCS Bowl System, the holy grail of big-time college football. Pitt lost by one point to the number three team in the country, having pushed them all over the field for thirty minutes or more. So how is Pitt number 17, and Cincinnati number 3? For that matter, how could all the principal polls--people, computers, composites--have ranked Florida ahead of Alabama when the latter absolutely demolished the former in a head-to-head contest? What is especially unnerving about all this is that computer polls, which one would think correct for voter biases, have consistently been more irrational than the human ones, which seem capable of correcting for subjective factors, like the greater importance of late season than early season results, better than their digital cousins. There is a lot of interesting theoretical work on the difference between human and computerized ways of thinking: surely the fear of computers taking over is exaggerated when they can't predict a football game correctly.

Whatever the results, there is always the pleasure of attending a big-time college game, as I did at Pitt in October. Even television doesn't capture the full spectacle of college football, in all its homoerotic splendor. In the Pitt student section an hour before game time, four male Pitt fans, undressed to the waste, lovingly painted each other blue with the letters P-I-T-T stenciled somewhere on their chests. Front, back, sides, they didn't leave a spot uncovered. Not fifteen feet away sat a half dozen attractive females, wearing T-shirts and apparently not much else, whom the body painters completely, totally, and willfully ignored. Pitt won, 41-14.

amanda knox

I have no idea if Amanda Knox, convicted of murder by an Italian court in the death of her college roommate, is guilty or not, although I suspect we have not heard the end of the case. (The Italian courts allow for much broader review of criminal cases than their American counterparts, and there are frequent pardons and amnesties, so I wouldn't bet on her serving a full term.) I do know that many comments from American observers have been less than edifying, reflecting numerous misconceptions about Italian law and a generally imperial bias.

My personal favorite is the accusation that the Italian system is "inquisitorial" in nature and provides inadequate protection to defendants. But of course the civil law system is designed to be inquisitorial, in the sense of empowering the judge (magistrate) to seek the truth rather than allow an adversarial process of prosecutors vs. defense attorneys--often severely mismatched in ability and resources--to arrive at a solution or more often a plea bargain arrangement. There are many criticisms of this system, and indeed Italian law in particular has leavened it with several common law-inspired modifications, including limited use of juries and protections for witnesses and defendants unheard of in the traditional civil law (such a jury was indeed used in the Knox case). But I have never heard the criticism that the civil law reaches false conclusions more often than common law courts, much less that Italian courts are harsher than the American version in criminal cases: Knox herself might well be looking at a death sentence in many American states.

A second criticism, made by Alan Dershowitz in a NY Times exchange yesterday, is that Italy lacks a "real" jury system and is inferior to American courts on this basis. (When Dershowitz became an expert on Italian law, I don't know.) But of course, Italy never claimed to have an American-style system: its limited use of juries--actually, judicial panels with a measure of citizen participation--is specifically intended as a hybrid which combines the essence of civil law with the better features, or supposed better features, of the American system. Since another frequent accusation is that people in Perugia are biased against the American students--probably true, on balance--it's hard to see how greater reliance on a jury system would help the defendants, anyway.

A final criticism is that the Italian courts tend to look at a lot of evidence about the defendant's values, behavior, etc. that would not be admissible in an American court. This is mostly true--it reflects a combination of civil law procedure and a sort of Catholic morality that seem alien to American observers--but doesn't necessarily mean the system functions less efficiently. It's flip side is a much greater emphasis on forgiveness and reconciliation as reflected in the absence of the death penalty and other features mentioned above.

There are plenty of things wrong with the Italian judicial system, as even a cursory reading of the newspapers will tell you; and I don't doubt that anti-American prejudice has played a role in the proceedings. (A number of my Italian correspondents have refer to Knox as "Foxy Knoxy" which reflects a somewhat less than open mind to the case.) But I don't think there is reason for a wholesale condemnation of Italian justice or the civil law system, in general. Italy, by the way, repealed its racial (antisemitic) laws in the 1940s. The United States took twenty years longer, and some would say we've never really finished the job.