So’s Your Old Man!

The Democrats have finally come up with a defense of their (and the New Jersey Supreme Court’s) mind-boggling, rule bending discovery that statutory deadlines are not, well, deadlines. Eugene Volokh provides links to the relevant postings and a nice summary of the argument, and thus I will repeat neither here.

Briefly, on Saturday the New York Times published an article arguing that candidate Forrester missed the same statutory deadline to have his position on the ballot changed that the Democrats missed in replacing Torricelli’s name, and that his lawyers made the same arguments then that the Democrats are making now.

Josh Marshall calls the Republicans “ridiculous hypocrites.” Blogger Mark Kleiman is especially incensed at what he sees as Republican hypocrisy, duplicity, etc., and says everyone else has been “sandbagged” and “snookered” by the Republicans claiming to be “shocked — shocked!” at misbehavior they engaged in themselves, and he throws down the gauntlet:

So the right blogosphere may now be assumed to be aware of the new development. Now we get to see how many right-bloggers pass this news along to their readers, and what if any comments they have on having been snookered.

Fair enough. In my confessional, hypocrisy is about the only unforgiveable sin. If these blows land, they hurt, and — to mix a metaphor — if we are cut by the shattering glass of our house collapsing we should have the honesty to join Eugene Volokh (see link I referred you to earlier) saying “Ow!”

Having said (and believing) all that, I don’t think it is hypocritical or otherwise out of order to point out that the defense raised by Marshall, Kleiman, and others is not really a defense at all. It’s a “So’s your old man!” argument that the Republicans, “ridiculous hypocrites” that they are, are just like the Democrats. It’s the Nixonian/Clintonian defense (“They all do it”). And, by the way, legally irrelevant.

There is a principled argument available to the Democrats here. They could actually mean their states rights argument that the federal courts have no business second guessing state supreme courts on the meaning of state laws, even where federal Constitutional rights are implicated (such as the Article 1, Section 4, grant of authority to state legislatures, not courts, to set the rules, not the administrative advice, for federal elections). I know neither Mark Kleiman nor Josh Marshall. (Kleiman is a friend of Eugene Volokh’s, and that’s enough to convince me that, whatever his politics, he’s a good fellow.) Perhaps they both adhere to this principled position. Or some other one. But if so, I doubt they would be joined by many on the left if their principles led them in the future to adopt a position that was partisanly incorrect.

It will be replied, with some accuracy, that Republicans and conservatives have also proved themselves willing to shed principles when it is convenient. Unfortunate, but true. There is, however, still a difference: increasingly, liberals don’t believe in principle in principles, clear rules expessed in plain text. Republicans and conservatives for the most part do. Because they believe in principles and rules, they are even more hypocritical than Democrats when they abandon them, but for the same reason I believe they are at least somewhat less likely to do so. I believe that, not simply partisanship, is the real significance of the findings in an article in yesterday’s Washington Post, “Other Than Republicans, Few in N.J. Feel Outraged. As for ‘Switcheroo,’ Voters Cite Scandals in Both Parties.”

ADDENDUM (10/7/2002 01:40pm) – I’ve been thinking a bit more on this, and I’d like to add a couple of things. It seems to me that my argument concerning Republican-Democratic differences over principles and rules is subject to two criticisms.

First, I could be simply flat wrong. That is, one could maintain that there is no difference at all, that both parties scrap principle and ignore rules with equal alacrity when it’s in their interest. Although I think that on balance there is a difference, reasonable people could certainly disagree. The Republicans engaged in world-class hypocrisy, for example, when they went in cahoots with the NAACP to create “majority-minority” districts, i.e., racial gerrymandering, because they stood to benefit, and did benefit, from compacting large numbers of blacks into “their own” districts so that the surrounding “bleached” districts would be more likely to elect Republicans.

In any event, Republican politicians are not as different in this regard from Democratic politicians (and vice versa) as the parties’ respective fellow-travelers of pundits, law professors, intellectuals, etc., are from each other. Increasingly the parties seem to me to have very different intellectual styles (I hesitate to call them cultures). Insofar as that’s true, surely the Republicans (and again, not so much the politicians as the professors, pundits, and policy makers in their orbit) put more emphasis on the reality and centrality of principles rather than pragmatism; core values rather than multicultural, subcultural, differing values; neutral standards rather than situational relativism, etc., than do Democrats. It’s no accident (as we conspiracy theorists say) that liberals are much comfortable with and adept at “construing liberally” than conservatives. Very few postmodernists vote Republican.

Second, it could be argued that the differences I’m stressing are purely rhetorical and have no substance, that these admittedly different “intellectual styles,” as I’ve just labeled them, have no relation whatsoever to how anybody actually behaves. But this is simply another way of restating the liberals’ disinterest in principles and rules. Not believing them to be binding, they don’t believe anybody really believes them to be binding.

In short, I think the degree to which liberalism has as a matter of principle jettisoned principle and joined the school of Stanley Fish is seriously under-appreciated.

UPDATE (10/7/2002 11:40PM) – According to Eugene Volokh, it now appears possible that Forrester may not have been guilty of hypocrisy or inconsistency after all.

Say What? (2)

  1. Dean Esmay October 7, 2002 at 1:59 am | | Reply

    No one in this life is ever completely free of hypocricy.

    That’s no reason not to try.

  2. Henry Hanks October 8, 2002 at 11:46 am | | Reply

    Looks like another case of good-old-fashioned Times bias instead of hypocrisy.

Say What?