The End of Politigation
Are you still perplexed by Hillary's non-concession speech last Tuesday night? Still confused by Bill's finger-wagging campaign fusillades? Throughout this primary season, did the Clintons look like they were playing Monopoly when everyone else was playing mah jong?
Well, they were playing a different game. Everyone knows the Clintons "don't quit" and "fight till the end." But there's a more elemental explanation. To most people, politics is politics. To the Clintons, politics is litigation.
Lawsuits are contests between two parties. So are elections. Litigation is war. Litigators never surrender a single piece of ground until they're compelled to do so. The litigator's job is to preserve all rights, claims, demands, and leverage -- and never admit liability. Litigators go for the jugular. Their goal is to prevail with the judge or jury or to weaken their adversaries so severely that they capitulate or settle.
From the rise to power of the "Comeback Kid" until June 12th -- when the last dog died -- that is how the Clintons played the game. It's how Bill prevailed over Newt Gingrich when the government shut down. It explains the president's testimony in the Paula Jones case. And it was behind his strategy throughout the Starr Chamber proceedings. Who else but a litigator would say "it depends on what the definition of 'is' 'is'?"
For a decade and a half, "Politigation" has differentiated, distinguished, and delivered for the Clintons. Their legend grew, provoking the "can you believe them?" protestations of opponents, who came to realize they were bringing knives to a gun fight. That is, until Karl Rove rode into town and strode up to the bar. "Bush's Brain" took politics-as-litigation to new -- and deeply disturbing -- depths. The Republicans didn't give a partisan, polarizing inch on war, wiretapping, trickle-down-taxes, environmental regulations, and global warming. They have contempt for anyone who reaches across the aisle.
Unlike Bill and Hillary, "W" isn't a lawyer. But he plays one -- on the campaign trail and in the White House. As a policy maker, Clinton tended to triangulate. Bush politigates. On the campaign trail, he sailed with swift boats. In office, he used and abused intelligence to sell the war in Iraq and slam Ambassador Joseph Wilson, a witness for the prosecution. Politics-as-litigation runs through the Republicans' approach to power. The "unitary theory of the presidency" and "signing statements" are based on the arguments of lawyers (like John Yoo), who simply ignore evidence of the Founders' views of the Executive Branch.
Not surprisingly, then, Hillary Clinton inherited the wind -- and reaped the whirlwind -- of Politigation. During her entire presidential campaign, she exhibited "tenacity" and a "relentlessness and refusal to say die." She's a "killer" lawyer, the kind you'd hire if someone stole your mother's inheritance. Hillary reserved the right to take the decision of the Democratic National Committee allocating delegates to Florida and Michigan to the convention floor -- the way a tough lawyer threatens to sue. After the South Dakota and Montana primaries, she said "I rest my case," neither granting nor waiving any ground. And then used all means at her disposal, including withholding an endorsement, for maximum advantage. Perhaps to gain help retiring her debt. Or the vice presidency. Or a seat on the Supreme Court. Or some as-yet-to-be-determined-something. It now seems clear she was as likely to concede last Tuesday night as Johnny Cochran at the end of the O.J. trial.
The Clintons can't understand why saying "Jesse Jackson won South Carolina twice" provoked charges that they were "playing the race card." Surrogates like James Carville repeatedly wondered why Obama supporters couldn't get a thicker skin. In their day, the Clintons and their surrogates would have been right -- after all, isn't a campaign a war? But the ground had shifted under the Clintonistas' feet.
Pundits focusing on the mistakes of Hillary's campaign have it wrong. The Clintons have been the Clintons. It's the game that changed -- a fact presciently understood by the Obamanistas. This was no longer high stakes litigation funded by the fat cats. It's the internet, stupid. And just as fat cats are giving way to netizens, Politigation is giving way to a new approach.
Barack Obama has touched a nerve in the American electorate. It isn't simply an embrace of "change." Or enthusiasm for an "outsider." As the Republicans discredited politics-as-litigation by applying it to governing, Obama connected with people who have become as sick of it as they are of courtroom torts, contortions, distortions, and divisions. People who are ready to say, with the poet John Milton, "Litigious terms, fat contentions, and flowing fees."
Political hardball is not something that started with Bill Clinton nor will it end with George W. Bush. But Americans want -- or think they want -- the case to be over. No more fighting, no more partisanship or polarization: the flowing fees and costs of Politigation. No more leaders who wag the dog, bluff, bludgeon, bluster or muster outrage. Americans think they're ready to move on (though not necessarily at the dot org website). They like Barack Obama because he is the "Un-litigator".
"Politics ain't beanbag," as we all know. But In 2008, the country seems ready to leave litigation behind and embrace a Harvard-educated, mixed-race, liberal let's-make-a-dealer, who says "we all can get along." Someone who looks and sounds like a stylish facilitator -- more "fancy attorney" than "shark." Someone who can bring the era of Politigation to an end. Let's hope he's a rainmaker. And that at least for awhile, the country doesn't need a litigator-in-chief.
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Loved the article! . . . Yes, it is the game that changed and not the players. . . . Bush simply became OVER-RIPE, and began to really STINK UP THE PLACE, and America said 'NO MORE OF THIS KIND OF CRAP EVER AGAIN!". Slowly but surely we will get all those old horrid nasty players out of the game - - starting this November!
I liken the Clinton -Obama primary to the Maginot line verses Blitzkrieg. The French perfected trench warfare, the strategy of the previous war only to to see Hitler use a new strategy and France was conquered in a week! The Mark Penn strategy of winning the key battleground states was their "Maginot line". Obama's "a delegate is a delegate" was his blitzkrieg. He is not "we all can get along" as much as "together we can do anything and be anything". It's not working together as much as winning together. Damn those Obama guys are good.
Obama used litigation to become an Illinois Senator.
He's just as much of a politigater as the rest.
Being an early Hillary supporter, I would cringe whenever she went on the attack needlessly
After New Hampshire, I thought Hillary had found a reason why it was not that good an idea to constantly be on the negative..
So ironic that at the end she was ringing as populist as John Edwards was early on. THAT was the role that was made for Hillary, to win all the way with.. That negativity turned off a lot of people.
In that respect, she also seems to have overlooked something very carelessly, - people are so largley underestamating how absolutely furious this country is with this administration, gas prices, the war, and everything Bush has done and is doing to us.
The Media may forgive the right, but Americans are going to have a hard time ever forgiving these bastards. Just watch and see.
You nailed it. I'm a litigation secretary and I've literally had the helicopter circling the building, waiting to take the papers to Court, and the lawyer writing the papers would NOT put down the editing pen. This was after keeping a team of people working on the brief round-the-clock, 24/7, with lawyers from out of town assisting, for WEEKS. The deadline was missed. The case was lost. The fate of the lawyer? She became a federal court judge.
I find your tone "they think" a bit insulting. What do you mean "they think"? Trying to show your superior intellect or do you just insult without thinking? I'll put it to you plain and simple jack, the Clinton's lost. Bill is a disbarred lawyer. Hillary was a Walmart shill. The country has been raped and wants payback. If corporate America thinks we're going to sit by and watch the Presidency stolen a third time has another thing coming. People like you are going to have to find real jobs. That's what I "think".
What a great analysis.
This reminds me of the Daniel Quinn quote: "The future will not be created by old minds and new programs, but new minds, and no programs."
The Clintons and Carvilles and Harvey Weinsteins and the Manhattan Chattering Classes and the Washington Commentariat have struggled to understand that it's not that we'll stop have rich, powerful, connected people - it's simply that they won't be able to run everything, Louis XVI style.
And that, my friends, is causes for quite a bit of optimism.
If he's not a litigator then he'll need one. Republicans in the House are already drawing up articles of impeachment against him and planning to bring back the special council law. Obama will be lucky to make it through the swearing in ceremony before they start trying to get him thrown out of office. Republicans perfected the full frontal attack against Clinton and they will use it again against Obama. No force in the universe can stop them.
We should bring back the special counsel law. When used correctly, and not abused, it works. Right now, we have a real live despot in the White House. He has installed an Attorney General who flatly refuses to follow the law. He did it with the help of Schumer and Feinstein, who need to be thrown out on their butts.
Hopeless:
Out of sheer curiosity, where do you get your information? How on Earth do you draw up articles of impeachment on someone who *has not been elected to the Presidency* yet?
Cheers
LF
Thanks. As Obama has said, the Clintons learned the wrong lessons from the battles of the 90's. Politics doesn't need to be a scorched-earth war. Practicing it as such for the past sixteen years is one of the reasons that we're in the mess we're in. Can you imagine Republican Senator Dirksen helping Democratic President Johnson pass the Voting Rights Act of '65 in today's toxic environment?
LOL. Wait until Obama gets scorched. Do you think the Clintons created the "toxic environment"? Hell no -- they dogged Bill from the time he was governor and nothing he did in terms of compromise and attempting to work with the GOP made one bit of difference - they still impeached him over blowjobs from a groupie that we only learned about through an illegal wiretap.
Unlike the hapless and saintly Carter, the Clintons fought back the only ways they could. And yes, they learned the wrong lessons from it - and the lesson they learned was "trust no one" - since not even your own party can be relied on to come to your aid when being attacked by the GOP. Just recalling Joe Lieberman's pompous dithering over whether to vote for impeachment is enough to make one realize how the Clinton mindset came to be what it is.
The historical moment will be much different for Barack. Barring a total screwup by the Dems - who are nevertheless capable of screwing anything up - he will win POTUS and the Dems will win more control of Congress, and with real Democrats and very few if any Dixiecrats. But nevertheless, he will find himself in their meatgrinder day in and day out.
I agree with Joe Wilson -- we don't want to "work with" the GOP. They gleefully define bipartisanship as date-rape, and would add "ending with murder and eating of the evidence" if they were honest about how
This has the analytic depth of a high school report.
Clinton's political strategy is neither novel nor "of the past." It's simply politics (and fairly effective, considering how close the primary was).
Obama is not bringing about any sort of "change." He has already demonstrated that most things he does are based on political calculation.
I like Obama, and his and Clinton's policy stands are almost identical, but the author's here ignore the fact that what really made Obama possible is George W Bush.
George W Bush and the Republican disaster helped mobilize record numbers of voters for Obama AND Clinton.
The only thing that will separate Bill Clinton's triangulation from whatever Obama does is the context. Clinton had Congress against him (to put it mildly), while Obama should have a solid majority.
But it's still politics.
Clinton had Congress, the Supreme Court, and the Media against him. Barack will have Congress with him, a somewhat chastened Supreme Court still causing trouble, and a media that will start attacking him the minute he attempts anything remotely progressive. So long as he's a poster boy for multiracial harmony they know they can't touch him. As soon as he talks about raising taxes we'll see how quickly he comes to understand the Clinton siege mentality.
All the signs are there. Already phony leftie would-be-i
This time around, I think we are better organized to defend him. But it's still going to be nasty.
Brilliant post. Thank you.
Perhaps you ought to read up on just how Barack Obama got where he is today before you start tossing around accusations of litigiousness. If politics ain't beanbags, Chicago politics is an Uzi. It's the reason he was able to win--figure out the arcane (and often nonsensical) rules of the game, and exploit them. His people are masters at this. And it's a good thing. Who cares if the Clintons were lawyerly in their approach to winning. They won didn't they? Aren't we better off having minds like that on our side?
Maybe YOU should read up on how Obama got where he is.
NO, YOU should!
Isn't that a stupid way to leave the comment?
I read about his first state election, and StephenDedalus82 is correct. Obama connived and exploited the local petition rules to his advantage to eliminate the competition, rather than actually campaign against them.
It was underhanded, but technically fair. And that's politics.
ManyColored, This is how Obama got where he is. David Axelrod used his expertise to get Obama elected the same way he did Deval Partick. It's called Politics using "race-baiting" and "character assassination".
"She, (Hillary Clinton), spent hours that day in the epilepsy ward at Rush Presbyterian hospital, visiting children hooked up to machines by electrodes so that doctors might diagram their seizure activity and decide which portion of the brain to remove. “She couldn’t stop talking about what she had seen,” Susan Axelrod recalled. Later, at Hillary Clinton’s behest, the National Institutes of Health convened a conference on finding a cure for epilepsy. Susan Axelrod told me it was “one of the most important things anyone has done for epilepsy.” And this is how politics works: David Axelrod is now dedicated to derailing this woman’s career."
"When the first major profile of Axelrod appeared in Chicago magazine in 1987, three years after he left a high-profile job as the lead political reporter for The Chicago Tribune to work as a political operative, the article (“Hatchet Man: The Rise of David Axelrod”) began by comparing him to an “exotic rodent.”
For Obama, because of Senator Hillary Clinton’s far-greater experience and establishment backing, this is a particularly essential project. “If we run a conventional campaign and look like a conventional candidacy, we lose,” Axelrod says.
Read it here.
http://www
You miss the point. Minds like the Clinton's are not on our side. They are on their side, the side that must always win regardless of how the rules are bent or broken in the winning process. I have not seriously studied Obama's rise in Chicago politics, but if he used rules in place to disqualify his opposition or force them to concede, more power to him.
Love the post. The Clintons need to learn the mantra - don't hate the playa, hate the game.
As a multi-racial black man of white, african-american and cuban descent I was struck by how my relatives and friends reacted to the Clinton's tone deafness on race during the campaign. Right after the SC primary they had differing reactions:
My white relatives/friends were in two evenly split camps - it was racially insensitive, it was not race based at all. My mother believed it was racially motivated, but fair game.
My african american relatives/friends (including my wife) were all in agreement - Bill Clinton had decided to use race as a wedge, and had crossed the line into unacceptable territory.
Most of my latino relatives/friends agreed that it was race based, but many of them thought african americans were overracting.
Almost everyone thought he used badly chosen words that would not be helpful to his wife.
You're describing the single most important reason why the Clintons couldn't run for dog catcher without turning half of the electorate against them. Every political process includes a period where facts get mediated (not just where do we agree, but what are our areas of agreement, but which disagreements are reasonable, and so on). The Clintons approach this process with the unyielding tenacity of ivy-league-trained litigators (which they are). And so bona fide messes like Michigan and Florida, where the original decision makers had literally no awareness of the damage they were about to cause (including, of course, the famous Harold Ickes), get transformed into cause celebres of undiluted self-righteousness (ie. the poise a litigator must adopt), while those on the other side are Mugabe-like or worse. This insane posturing turns momentary opponants into bitter (and sometimes lifelong) foes. The Clintons could have avoided so many problems this year if they'd simply toned it down a bit.
I've spent decades as a litigator, and you don't know the half of it. Law is a dirty, dishonest, corrupt profession. But it's not alone.
Most professions or fields in this country are corrupt. Theft is the norm. People sell 20-year annuities (and get a 10%+ commission) to trusting old ladies, taking most of their money. Construction fires Americans and replaces them with truckloads of cheap illegal immigrants without skills to maximize profit. Even veterinarians are now charging $500+/hour for Fluffy's routine check-up. The banks make loans they know will never be repaid, then hide the worst loans inside a bundled package and sell the whole package to Europeans. Defense makes defective weapons and charges 10x the cost to the government. Interest groups get politicians to give them taxpayer money, then kick-back some to the politicians. We mostly worship the people with money.
We can hold ourselves to a higher standard and get rid of this corruption. But it is a system-wide corruption which is allowing our country to be destroyed. All of the major institutions in this country are corrupt, not just law and politics. A good place to start change would be to elect Obama, a man with integrity, and say we are done with the hucksters and hustlers.
Fine article. If we want a more civil country, we need to have more civil leaders.
Corruption is systemic and it's an outgrowth of greed, which is seen somehow to be a proper value by so many people who equate it with capitalism and the "pursuit of happiness.
Thanks for telling like it is--from an insider.
It starts in elementary school---parents doing kid's home work for them or paying specialists $50,000 to shoe horn them into Ivy League institutions. What would be the values of these people who learned cheating with mother's milk.
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