Patterico's Pontifications

1/25/2010

Obama on Process vs Policy

Filed under: Law,Politics — DRJ @ 10:13 pm



[Guest post by DRJ]

In law school, one of the first things a law student learns is the difference between procedure (form or process) and substance (policy):

“Substantive law and procedural law are the two main categories within the law. Substantive law refers to the body of rules that determine the rights and obligations of individuals and collective bodies. Procedural law is the body of legal rules that govern the process for determining the rights of parties.”

My theory — and it’s based largely on observation so it could certainly be wrong — is that liberals prefer substance and conservatives prefer process. Specifically, liberals want society to promote substantive results such as making sure people have food, housing, health care, etc. Conservatives want society to promote procedures such as making sure people have equal opportunities to schools and jobs.

I believe one of the many reasons candidate and President Obama appeals to so many Americans is that his rhetoric promises both substance and process. His recent Diane Sawyer interview shows how Obama tries to appeal to both:

“In Diane Sawyer’s interview with President Obama today, she asked him if going forward all the conversations should be on C-SPAN.

“I think your question points out to a legitimate mistake that I made during the course of the year,” the president said, “and that is that we had to make so many decisions quickly in a very difficult set of circumstances that after awhile, we started worrying more about getting the policy right than getting the process right.

“But I had campaigned on process,” the president continued. “Part of what I had campaigned on was changing how Washington works, opening up transparency and I think it is — I think the health care debate as it unfolded legitimately raised concerns not just among my opponents, but also amongst supporters that we just don’t know what’s going on. And it’s an ugly process and it looks like there are a bunch of back room deals.

Mr. Obama said, “I think it’s my responsibility — and I’ll be speaking to this at the State of the Union — to own up to the fact that the process didn’t run the way I ideally would like it to and that we have to move forward in a way that recaptures that sense of opening things up more.”

ABC’s Jake Tapper describes this as a “remarkable admission,” and it is remarkable because Obama finally acknowledged he has not kept his promise of transparency. However, it’s also classic Obama as he embraces both process and substance.

The American legal system is based on the premise that process is more likely to yield justice. That’s why American laws are based on process — the rights of due process and equal protection — instead of a promise to reach the specific end result of “justice.” I think America’s political system is better served by people who believe that, too. As a lawyer, President Obama knows the persuasive value of promising fair and equal process but his political actions show those aren’t his goals.

— DRJ

22 Responses to “Obama on Process vs Policy”

  1. I think his proposal to pay off student loans is a good example of substantive results set against the procedure of building credit by paying what you said you would pay and the procedure of using a free market to establish the value of goods.

    happyfeet (e9e587)

  2. is nk all good it seems he’s not been around

    happyfeet (e9e587)

  3. I think he may be unhappy with the last Abdulmutallab post.

    DRJ (84a0c3)

  4. its just like single payer. Tell the public youre trying to “increase competition” and they rightly like it. Tell them the truth, that it’s anti-competition, and they rightly reject it. Obama campaigned and has governed on style while trying to hide the substance.

    chaos (7c068a)

  5. thanks, DRJ – I missed that

    happyfeet (e9e587)

  6. That’s a good example, chaos, although I think it’s more accurate to call it process than style. For instance, we could have laws that say everyone must drive safely (substance) but instead we have driving laws that set forth specific speed limits and traffic signs (process). The point is that if we follow specific procedural rules, we are more likely to be safe than if we just tell everyone to drive safely.

    DRJ (84a0c3)

  7. DRJ – Another example is Obama’s emphasis on structural racism rather than outright racism. If outcomes are different, that must mean racism is present even if it cannot be identified. It is structurally present. It’s just another reason for the race pimpage industry to justify its existence.

    daleyrocks (718861)

  8. My theory — and it’s based largely on observation so it could certainly be wrong — is that liberals prefer substance and conservatives prefer process.

    I think that’s right. In the courts, for example, literalism in statutory interpretation is relatively popular among conservatives and absolutely anathema to liberals.

    The upshot is that we get some great Scalia-vs.-Breyer/Stevens matches.

    Well, that’s part of the upshot, anyway. The other part is that when a client asks a lawyer, “If this goes to court, who will win?” the lawyer’s answers will often be far less than meaningful, because the lawyer and the client can’t have any confidence that courts will respect what the statute actually says.

    Alan (07ccb5)

  9. What you (quite generously, I think) describe as Obama trying to appeal to both those who want process and those who want substance, DRJ, I interpret as simply another case of Obama lying. A discussion of whether he’s focused on process or substance necessarily has as its premise that he’s genuinely and earnestly committed to one, or the other — or to something, anything — in good faith. And I think that’s a mistaken premise.

    He is in that sense exactly like Bill Clinton, in that he can lie convincingly, and without a moment’s regret or self-doubt. It’s as reflexive and natural to him as breathing. What he actually thinks or believes cannot be determined by anything he ever says — only by what he does. And when one analyzes what he does, it’s clear that — again, like Clinton — his overriding goal is the gathering and maintenance of political power, and especially its associated glory, unto himself.

    The 2008 presidential campaign proved that Obama is better at achieving that goal than was Hillary Clinton, but Obama’s lack of results in office — and his overall stumble-footedness since Election Day — suggest that he’s far less agile a politician than Bill Clinton was. (Thank God for the Twenty-Second Amendment.)

    I tried, for a long time after Obama took office, to give him the benefit of the doubt on this, and to continue presuming that he is a serious person of substance and decency, a patriot who is merely badly misguided and unwise. I no longer believe that. His oath of office was just another convenient and necessary lie, a piece of showmanship and celebration rather than any sort of binding commitment.

    Beldar (58d462)

  10. I think you’re probably right, DRJ, with your general observations about substance vs. procedure and Democrats vs. Republicans. I’m only quibbling about trying to apply that analysis to Obama because I believe he lacks devotion to either, or any, genuine principle.

    Beldar (58d462)

  11. I think the agenda is the principle.

    happyfeet (e9e587)

  12. Beldar,

    If it helps, I don’t think Obama does — or wants to do — many of the procedural things he advocates. He talks the talk but I don’t think he walks the walk.

    DRJ (84a0c3)

  13. Beldar –
    I’ve always felt that Obama is a Chicago machine politician, which makes his failure to rise to the demands of the Office of the President disappointingly predictable.

    Apogee (e2dc9b)

  14. Other than that he demonstrates many of the indications of NPD, what could go wrong?//sarc

    AD - RtR/OS! (a1830d)

  15. It all relates back to the “do something” disease. Liberals play (or is it “prey”) on the portion of the electorate that holds such a mindset. “Hey, you take all of this money in taxes from me . . . DO SOMETHING for me, now!” For the sake of grabbing and trying to maintain power, liberals — as the past 24 months have repeatedly demonstrated — promise just about anything.

    Who the hell wants a “process” politician, when the “policy” politician will make sure that everything gets done? The only thing YOU are required to do is vote for them once every 2, 4, or 6 years; then, sit back and watch the benefits come rolling in. Call it “couch potato politics”.

    Icy Texan (858a9a)

  16. It’s the continuous “Tempting of America” that Bork referred to in the book of that title — bend the process just this one time, or read things into it that its framers didn’t intend, to produce the desired outcomes.

    It’s a something of a trademark of modern liberalism, but no ideological sect is immune to it. Hell, Bork himself gave in to it in a big way.

    Thomas L. Knapp (f1a580)

  17. Obama shows no respect for process or policy. Remember his statement about being ready to “rule” on day one. That’s what he is doing.

    The Constitution guarantees three rights – life, liberty and property.

    Life? His administration is working toward a healthcare system that would deny patients treatment (life) if they show less value to the “the greater good. ” On the subject of abortion, his attitudes toward life are clear.

    Liberty? His industrial, educational, healthcare and energy regulations all focus on restricting choice regardless of public opinion. When Cap & Trade failed to win Senate approval, Obama threatened to impose it by fiat through the EPA. He opposes gun ownership and could never get it through Congress. Watch it appear as a health issue. Voting rights are only for minorities.

    Property? His stated goals on redistribution of wealth amount to government seizure of private property. Look at the auto industry bankruptcies. Using taxpayer money and the full force of government, Obama looted assets rightly belonging to bond holders, assumed liabilities and rewarded the UAW for driving the industry into the ground. Look at the mortgage bailouts and cram downs. Who pays for them? Taxpayers and depositors.

    Obama has no respect for the US Constitution, the Law or the American People.

    arch (24f4f2)

  18. And when one analyzes what he does, it’s clear that — again, like Clinton — his overriding goal is the gathering and maintenance of political power, and especially its associated glory, unto himself.

    Clinton, however, had had more experience as governor and in losing his first re-election campaign. He knew that you had to produce some sort of results. He began as far to the left as Obama, even more so with gays in the military, but quickly backed off when he ran into opposition. His appointments were as bad as Obama’s. The anti-military tone of his administration was more tolerable at the time because, except for Somalia, we were at peace. When Somalia blew up, he backed off there; witness the overture to Barry McCaffrey after he was insulted by a lefty staffer (who is probably running some major division of Obama’s DoJ).

    The difference is that Obama has no experience. The Chicago Annenberg Challenge was a disaster. He is even more of a leftist and is less flexible than Clinton, as least so far.

    I also think Obama is even more narcissistic than Clinton, if that is possible. Clinton got bashed around in the campaign by the press over Gennifer FLowers, and the draft. Obama got nothing but love and kisses. If the press, in self preservation, goes after him later this year, he may react with rage and disbelief. If so, look out for some nasty surprises.

    Remember the Elian Gonzales and Ruby Ridge and Waco excesses ? We could see a lot more of that from Holder’s minions. Napolitano has not changed her mind about tea party people. I could see some aggressive action against anti-administration demonstrations, for example.

    Mike K (2cf494)

  19. Sorry DRJ, ‘substance’ trumps ‘process’ every day and for both sides, not just the liberals. Both sides are willing to twist and interpret process in a favorable way to help them get the substance they’re looking for. And both sides are willing to be hypocrites on process if that helps get them the substance they’re looking for (see Bush-v-Gore, GOP bribes to lawmakers and manipulation of voting procedure to help pass GOP legislation, b****ing about filibusters during Bush term).

    To the extent conservatives focus on process, it is because they (wrongly) think that is an effective defense against liberal attempts to pursue their desired substance. Actually, it just makes conservatives look silly and petty to the general public which doesn’t much care or pay attention to the way things are done, only that they are. If nationalizing every bank ended the recession, there would be support for doing so, with little complaining about how process was abused.. just as most people care less about how we’re kept safe from attack, only that we are kept safe.

    steve sturm (369bc6)

  20. “Life? His administration is working toward a healthcare system that would deny patients treatment (life) if they show less value to the “the greater good. ” On the subject of abortion, his attitudes toward life are clear.”

    It appears as if his administration isn’t working on health care that much. That’s congress.

    imdw (9af31a)

  21. > I believe one of the many reasons candidate and President Obama appeals to so many Americans is that his rhetoric promises both substance and process.

    Ah, but…
    Can Obama Make A Rock So Big He Can’t Lift It?

    IgotBupkis (79d71d)

  22. […] quote shows he has finally abandoned the pretense of being all things to all people by appealing to process and substance. Instead, he returned to his Democratic roots and is focusing on substance — that is, he […]

    Patterico's Pontifications » “Because I’m the President” (e4ab32)


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