Tuesday, February 8, 2011

The Political Appeal of Hopeless Fights

I won't be giving any predictions about how the Supremes will rule on ACA. But I will disagree with Adam Serwer's analysis of GOP actions, responding to Laurence Tribe's claim that one should not predict SCOTUS votes will be based on politics, not principle:
Yes. That's what we're predicting. By "we," I don't just mean liberals, I mean people like Virginia Attorney General Ken Cuccinelli who are focusing on Justice Anthony Kennedy as the one person whose vote needs to be won. They wouldn't be fighting this battle if they didn't think they could win it.
Really? I can think of quite a few reasons that Cuccinelli and other Republicans would fight this battle even if they thought it was hopeless. For one thing, there's the Tea Party approval for every step of it, from the initial decision to file the suit, to actually filing it, to arguing it, to the appeals...for a state AG, that's a lot of great media hits. For another, it allows Republicans to fight on territory they're real comfortable with ("tyranny"), as opposed to having to get down into the complex issues surrounding health care. Plus it gives conservatives, especially if they lose, an excuse to focus on one of their very favorite themes, court bashing.

Generally, there are usually lots of incentives for politicians to fight hopeless fights. They get all the publicity and none of the responsibility. Hopeless court fights are great, because they promise to stretch out for years, with no obligation to put together complex legislation (which could actually harm their constituents if enacted), or deal with the consequences of a victory.

I'll add one thing: while I again won't make any prediction about the outcome, I'll point out that everyone involved has a strong incentive to act as if the lawsuit has a good chance of winning. For Republicans, the whole point is lost if people don't take it seriously. For Democrats, it's a good chance to raise money off of the fear that a future president and Senate will undermine the post-New Deal constitutional order. Hey, even pundits are implicated. Tribe notwithstanding, the odds are that those who don't think there's a real possibility that the court could toss out part or all of ACA just won't write about it, while those who do think it's likely will.

Anyway, the main point here is that hopeless fights are often a politician's best friend. Especially those not especially interested in governing.


  1. Another fine post. I'm reading Eric Foner's "The Fiery Trial: Abraham Lincoln and American Slavery" and found the following excerpt (p. 294) from a November 14, 1864 Chicago Tribune editorial written as the 13th Amendment was being debated: "events have proved that the danger to...freedom is from the states, not the Federal government."

    It's not true that everything in American history revolves around the Civil War, but it's close.

    One of the ongoing intellectual battles in American public life is over the meaning of "freedom", "liberty" and "tyranny". Foner documents how the events of the Civil War drove changes in how Lincoln, and many Americans, understood the nature of the Union and the role of government.

    Conservatives tend to see the federal government as the greatest threat of "tyranny", while overlooking the "tyranny" of state and local governments (governments that are often more easily susceptible to corporate influence and local business elites).

    Among other defenses of the ACA is the notion that it ends the "tyranny" of insurance companies and states like---picking not entirely at random---Texas and South Carolina that have a bias against equal rights and citizenship for all.

  2. I'd say you're absolutely right -- and not quite right.
    You're absolutely right about why this is a winner even if Cooch et al. lose. He in particular does all the political point-scoring you describe. But that doesn't mean he and his allies are fighting a battle they know they'll lose -- it means they're fighting a battle they see as win-win.

    They win? They win. They lose? They proved themselves champions of the troops' values and they win.

  3. Steve,

    I have no disagreement with you (or Adam Serwer) about whether they think they'll win in the courts, or whether they actually have a good chance of winning. Just saying that the fight makes sense even if neither of those things are true.

  4. As far as the judicial outcomes on ACA are concerned, the anti-Obama (and I mean that exactly) has one win at the moment, not two. The fact that the judge in the first case did not recuse himself despite his obscene financial and political entanglements with Cuccinelli, renders that particular decision meaningless. It should get them both disbarred, but otherwise it's just a legal joke.


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