Every day (or close to it) until November 4, a series of writers and thinkers will discuss the election over instant messenger for nymag.com. Today, The New York Times Magazine's Matt Bai and The Nation columnist Patricia J. Williams argue over what an Obama presidency might mean for the judiciary and abortion, the current role of religion in government, and whether homeowners aren't partly to blame for the financial crisis.
M.B.: I read that very good piece in our paper about the judiciary under Bush. Something you've watched closely, no?
P.J.W.: Yes, the composition of the judiciary is one of the things that will be most important and transformational. And the article started with one of the most interesting ways in which the judiciary's thoughts will be important: It's not just about abortion, but about how personhood is created. If a full, righted human being exists at the moment of conception, this has all kinds of implications that pit a woman's body against that of her "unborn child" even if that designation refers to blastocytes…
M.B.: So do you expect a President Obama, should he be elected, to apply a pro-choice litmus test? What kind of judges are we going to see?
P.J.W.: No, I don't expect Obama to do a litmus test. He's much too complicated a legal thinker for that. But I do think that he'll reject flatly theological designations in this debate. He'll appoint people who have a more traditional regard and respect for the range, the plurality of ways Americans think about the limits of bodily integrity.
M.B.: I suspect most Americans would appreciate that. Even quite religious Americans I talk to seem to have grown weary of a theological brand of government. Liberals assume that the more religious you are, the less you want to see a separation of church and state, but my sense is that's too broad a generalization.
P.J.W.: People have long referred to this as a woman's "choice," but I think in recent years there's been some recognition that it's deeper and more complicated than that. And aside from abortion, the specter of parents choosing "designer babies," now that that technology is proceeding apace — this has brought a new level to the complexity.
M.B.: Right — technology is changing all of these debates, or should. It's one of the ways in which boomer leaders seem to be somewhat retro. To hear them talk, nothing around these issues has changed for 30 years, but of course everything about them has, and in a very short time.
P.J.W.: Bioethicists and disability-rights activists have also entered this debate: The potential ability to predict risk for certain conditions from DNA — long before pregnancy — this has given new dimension to the prospect of a Gattaca-like future. And this removes the obsessive focus from abortion — it's a revisiting of a very old problem — a kind of eugenic impulse on the one hand, in tension with a free-market ideology that would make self-improvement a matter of the market. Who can afford designer genetic intervention, etc. Traditional religion gives way to a reconsideration of foundational moral and ethical precepts.
M.B.: I guess that's the battlefield for the next 100 years. Personally, I don't feel like I could have improved on my kids. But they're very small. I may feel differently when my son starts playing baseball.
This issue of judicial appointments is interesting to me, because Obama has staked his vision on this more bipartisan — or post-partisan — approach. The main question is how he lives up to this at, say, the cabinet level and in his congressional relations, but the judiciary is another area where the cultural divide has really grown extreme and contentious.
P.J.W.: One of the things that troubles me most about Bush's appointments is not just that they've been arch-libertarians, but that they have been inconsistent ideologues. They are libertarian free-marketeers for some things, but simultaneously allow monopolistic and oligarchic accumulations of power that subvert optimal market operation. So they seem more partisan than judicious. Activists for particular wealth interests rather than the anti-activists they tell us they are. This is particularly true when it comes to consumer rights, women's rights, and labor rights; but also with regard to disability rights, protection of health through regulation of pharmaceutical companies. And lord knows, in permitting the ungodly consolidation of our media outlets.
M.B.: Well, but that can be said of the entire hyper-conservative ideology, right? There's very little consistency in any extreme ideology, right or left. The more extreme you get, the harder it becomes not to undermine your own principles.
P.J.W.: I guess you could say that inconsistency is there. But I have evangelical and fundamentalist friends who adhere to a consistent set of principles even when it leads them to conclusions that are personally uncomfortable. They're rigidly consistent, and thoughtfully so — I may not agree, and they may not even like what their moral frame guides them to do, but they don't do what's convenient or self-interested. And that's the difference.
M.B.: Yeah, I get that, but evangelism isn't necessarily a political extreme. It can be just a religious framework (though we sometimes forget that now). I mean, the inconsistency of the arch-libertarians is, to me, no more surprising than the liberals I know who live by a code of complete tolerance but who easily employ the word "redneck" and would happily tell rural Americans how they should live. Ideologies in the extreme all end up in the same basic place. This is why fascism and communism are essentially indistinguishable at the margins.
P.J.W.: But most evangelism and fundamentalist Protestant movements in the U.S. purportedly adhere to a concept of the Inerrancy of the Word. That's all I'm referring to. And many of the judges appointed in the last eight years say they adhere to a parallel kind of strict construction of the constitution.
M.B.: Agreed. I guess I'm just saying, as one who didn't live through the sixties, that from my vantage point and I think to many in my generation, there's "the Word" on one side and the antiwar, anti-establishment dogma on the other. I think this is what Obama has been gingerly trying to get at for the last two years — that rigid ideologies left over from the last century aren't up to the complexities of this one. Which is more or less where you started out.
P.J.W.: I hope you're right about the generational divide. Though Sarah Palin is younger than Obama, isn't she? A lot of the power of evangelical megachurches is recent; its expansion is based on a throwback but not directly tied to the Vietnam era either.
M.B.: I think the megachurches are largely about community and are largely constructive, but that's a debate for another time, I guess … as is Sarah Palin, because I can't even get started on my annoyance with her anti-elitism shtick…
If Obama wins, what will be the role for legal scholars on the left like you?
P.J.W.: If Obama wins … hmmm. I don't know that our role will change. I'm basically doing the same interrogations that I did when Clinton or Carter was president. And what will not change with an Obama presidency — despite the huge global sigh of relief — is the on-the-ground mess that's been growing for decades. Just in the area of race: It's very significant at the symbolic level to have an African-American president, but that doesn't erase the nightmare of our incarceration rate — and about 90 percent, is it? (or more?) are AA or Latino.
M.B.: Yes, this is the fear of a lot of African-American leaders I've talked to — that Obama makes it harder, in some ways, to raise these issues. Al Sharpton is very thoughtful about this. He told me the success of politicians like Obama makes the role of civil-rights leaders even more important, not less so.
P.J.W.: Or that despite the dizzying ponzi schemes that are at the root of our economic collapse, it's being figured in some sectors as a problem of lending to too many African-Americans — were that there were enough to make that kind of difference!
M.B.: Yeah, I don't think African-Americans are a very fair scapegoat there. Though I do think there is something to the larger idea that the housing collapse was only partly about greed and partly, too, about people willing to take unreasonable risks to attain something close to the American dream that was handed down to them.
P.J.W.: I did a column recently detailing this, but just before Eliot Spitzer went down in flames, he did a very eye-opening piece about how the Bush administration blocked the state of New York's attempt to prosecute discriminatory lenders and credit practices. In fact, the Bush administration prohibited states from enforcing their consumer-protection laws against any bank that was not strictly within state. So I don't think this is mostly about excesses of the American dream. This was a complete blocking of ordinary and long-standing consumer-protection laws. The administration's stance was so extreme that it was protested by all 50 states' attorneys general and all 50 states' banking directors.
And that was a very bipartisan group, as you can imagine.
M.B.: Yes, I saw that piece, and it was important. But I do think there is some distinction to be made between consumers who were swindled in fine print and those who simply took the best deal a bank would give them in order to buy a house they couldn't afford. It's a fairness issue, because an awful lot of Americans made wise choices that sacrificed their own ambitions to the reality of their circumstances, and they ought not to be screwed for it. I know that's not a popular sentiment, but it's important to understand.
P.J.W.: There are certainly greedy purchasers and people who overextend stupidly, but statistically that's not what this collapse is about — take a look at some of these contracts. They're filled with very old scams, scams that used to be illegal. Hidden clauses that allow enormous balloon payments; subsequent modifications that change from fixed to variable rate; rate increases that exceed all definition of usury; forms of insurance that protect one's creditors but don't give you a dime — but that don't reveal that with anything like clarity.
In the wake of Katrina, a lot of people discovered that that's the kind of insurance they bought — the insurance companies pay the banks the mortgage but don't give the homeowner a dime. It's one reason why so many homes remain unrepaired. And it's a form of insurance that used to be illegal or much more heavily regulated.
For a complete and regularly updated guide to presidential candidates Barack Obama and John McCain — from First Love to Most Embarrassing Gaffe — read the 2008 Electopedia.