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Archive for November, 2011

Team Obama is gearing up it’s flipflopping ad campaign against Romney, including this extended web video, a sure preview of things to come.

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Romney is going to face a barrage of similar material from his detractors on the right, including this novelty from Jon Huntsman:

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If I were Romney, I’d be studying the way John Kerry attempted (and largely failed) to respond to very similar attacks in 2004.

Remember that windsurfer?

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And this one?

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Kerry largely declined to respond to the attacks, just as he did with the lethal Swift Boat campaign. Kerry’s “stay above the fray” approach proved a disaster, and when he did respond he was awkward and defensive. (Romney and Kerry share a buttened-up persona that could easily produce that same result this time around.) If Romney is smart, he’ll take these attacks head on. Whether he can survive the primaries seems to me an increasing challenge: The conservative hard core values dedication to principle, real or perceived, above nearly everything else. To wit: The Manchester Union Leader’s endorsement of Newt Gingrich over Romney.

We look for conservatives of courage and conviction…We don’t have to agree with them on every issue. We would rather back someone with whom we may sometimes disagree than one who tells us what he thinks we want to hear.

Zing.

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My take on the GOP primary field, on air down under with Australian Public Radio and  John Barron, host of the ABC’s “Inside America” program.

My interview segment begins at around 9:00.

For interesting insight on how US politics are viewed from Australia, follow John on twitter @JohnBarronABC

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In the emerging tradition of our GOP debate awards, we announce these superlatives in the wake of the CNN/foreign policy debate this evening at DAR’s Constitution Hall in Washington D.C.

Tom Clancy Sum of All Fears Award: Tie, Newt Gingrich and Michele Bachmann, for both mentioning the danger of a single nuclear weapon being smuggled into the country and blowing up a major city. James Cromwell is ready for your support, though I hear he supports Dennis Kucinich.

Dietrich Bonhoeffer They Will Eventually Come for You Award: Ron Paul, in response to Newt Gingrich “You can still provide security without sacrificing our Bill of Rights.”

Yellow Piece Trivial Pursuit Historical Reference Award: Close race, with Rick Perry taking the ultimate prize. Santorum invoked Abraham Lincoln’s suspension of Habeas corpus (albeit obliquely) whereas Perry more directly cited the Monroe Doctrine and our still standing national policy of protecting the hemisphere.

George W. Bush Nicknaming Award: Herman Cain, for “Blitz.” Who turned it neatly by responding to the candidate as “Cain.”

Misplaced Jack Kemp Enterprise Zone Award: Rick Perry, for arguing that turning the Middle East into a free trade zone would eliminate the threat of nuclear war in the region. Not sure how it works, but some might say that applies to the Kemp idea as well.

I’ll See Your Pinochet Chilean Model And Raise You/Friendly Dictator Award: Mitt Romney, for praising the regime of Indonesian dictator Suharto during the 1960s.

Do Not Trust The Light At The End Of The Tunnel Award:  Jon Huntsman, for noting that “listening to the Generals” did not pan out so well for Lyndon Johnson in 1967.

Nixon-Kennedy Actual Debate Award: CNN and Wolf Blitzer. At moments, we actually had direct, substantive debate over policy issues between people who were competent to discuss them. Blitz was willing to moderate in a way that allowed the candidates, even the “second tier” of the lot, to engage — e.g. the prolonged exchange between Romney and Huntsman over Mideast policy. Notably followed by Gingrich’s pontificating.

Ogden Nash Alliteration Award: Michele Bachmann, for “highly in hock” as a description of our fiscal state with China. Although she mixed the metaphor by suggesting the high hock was only a matter of Monopoly money.

Mr. Christian’s Pitcairn Islands/Lost Reference Award: Rick Santorum, for referencing the lack of American engagement in the crisis of government in Honduras. A point of personal privilege here: My parents were Peace Corps volunteers in Honduras, and watching the events unfold there left us all saddened. Santorum rightly pointed to this as a missed opportunity where American diplomatic pressure could have done much more.


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“The thing speaks for itself.” Res Ipsa Loquitur is a standard legal term, one of the Latin standbys every lawyer holds in their back pocket. A rather vapid phrase, these three words often find themselves standing in for actual argument: When we are already persuaded, things speak for themselves; when we have no substantive argument, we say “just because.” Res Ipsa is in this sense the relative of the most brutal of William F. Buckley’s rhetorical putdowns: Ipse Dixit-ism, “It is because it is.”

I was reminded of the broader danger of Res Ipsa in a recent conversation with a brilliant young attorney. We were discussing politics, rhetoric, and the tendency of the left to expect that simply by stating things they will persuade. Example: “There is a massive income disparity in our nation.” A fact. But not an argument. For those who already believe it is a social and moral problem that there is a huge income disparity, the statement implies that political and legislative actions should therefore be taken. For that audience, Res Ipsa Loquitur. For everyone else not already persuaded, there is only a question mark. It is a classic problem of political communication; to return to WFB, who from his very first moments in the vanguard guided the conservative movement to its modern success: “The truth does not necessarily vanquish…The cause of truth must be championed, and it must be championed dynamically.”

Down with Res Ipsa, with Ipse Dixit.

As lawyers, though, we often fall back on these rhetorical feints — and with so many lawyers in politics it’s no wonder that the concept of “It speaks for itself” is so common. Law, as a discipline, is constantly in the practice of denying its rhetoricity; never quite comfortable with the fact (yes, fact) that law is ultimately, and only, about the process of persuasion. Constitutions and laws do not, actually “speak for themselves,” they require people to read them and interpret them. Cases are applied to situations; cases are also overturned. Judges and lawyers and politicians disagree.

If the law spoke for itself we would have nothing but 9-0 Supreme Court decisions.

But we don’t. The truism is not true; if it walks like a duck and quacks like a duck…it is not Res Ipsa that makes it a duck. It is argument. We have to be persuaded that the walk is like a duck’s walk; we have to be persuaded that the quack is a duck’s quack. Law all too often denies the process of persuasion and shoots to the conclusion, assuming the connections are already made.

“There is a massive income disparity in our nation” is, for the progressive left, a walking and quacking duck. But stating things, however often and emphatically, does not an argument make (see, e.g., Ed Schultz). As WFB said — truth does not necessarily vanquish. And getting away from the mentality that Things Speak For Themselves would be a great start.

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No Such Thing As Not too Big To Fail Award: Rick Santorum. Not just American banks, but European nations, namely Italy. Italy, indeed, is not too big to fail.

Lorne Michaels Thanks You Award: Rick Perry. We are sad you cannot remember the third agency you will eliminate, but Bill Hader is not.

Highfalootin’ Vocabulary Award: Tie, Jon Huntsman for “metastasizing” European economies; also Newt Gingrich’s college “precis.” Who’s the professor now?

Katie Couric Gotcha Journalism Award: Maria Bartiromo. Herman Cain bobbed and weaved on the sole question about Cain’s sexual abuse allegations, but Maria pushed. GOP audiences now boo gay soldiers, dying people without health insurance, and any discussion of sex abuse.

Dartmouth College v. Woodward Memorial Award: Mitt Romney, for his unwavering support of corporations as people.

Laserbeam Focus Irony Award: Rick Santorum, for invoking Bill Clinton’s signature phrase.

Duke of Windsor Royal Family Odd Admission Award: Herman Cain, for crowning Princess Nancy (Pelosi).

Fred Dalton Thompson high expectations award: Rick Perry. Please. End. It. Soon.

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In the wake of Cain’s rhetorically disastrous response to allegations of sexual harassment from his time at the National Restaurant Association, his defenders are trying to get their sea legs. Or decide if they want to stay on the ship.

To my surprise I learned today on POLITICO that Cain’s defenders now include Northwestern University Law Prof. Stephen Calabresi, a co-founder of the Federalist Society. In his defense of Cain, Calabresi illustrates in bright relief the blurring of the line between attacks on the much maligned Mainstream Liberal Media for having the nerve to cover this story (e.g. Ann Coulter’s “occupy POLITICO” effort), and more implicit and personal attacks on Cain’s female accusers.

In Calabresi’s case, we see the legal term “slander” to describe what’s happening to Cain. As opposed to “libel,” a vital legal distinction. Slander applies to spoken statements as opposed to printed, permanent ones — that’s libel. If it’s slander we’re talking about, the attack is on the women who are speaking to the media about what they say happened; this is opposed to attacking the media itself for publishing their statements. Calabresi and others on the right see an opportunity to have it both ways, though.

Shades of  Clarence Thomas: Was the “high tech lynching” the media’s fault, or was it Anita Hill’s.

Read my comment, first published in POLITICO on Nov. 1, 2011.

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