How is the Obama legacy project going?

This piece originally appeared in my column for Huffington Post Books on July 8, 2013.

Jonathan Alter said recently that the 2012 election was “the most consequential” of his lifetime.  In his new book, The Center Holds: Obama and His Enemies, Alter describes this more in terms of the non-election of Mitt Romney than the re-election of Barack Obama:

AlterEven if Democrats blocked some of Romney’s bills, his election would have vindicated the Bush years and everyone associated with booting Obama, from Karl Rove to the Tea Party. It would have given comfort (and jobs) to those who considered climate change a hoax and the war in Iraq a noble cause. With Obama and his other achievements reversed, Obama’s residency might well have been seen by many historians as a fluke, an aberration occasioned in 2008 by a financial crisis and a weak opponent, John McCain.


Nearly all of Obama’s signature legislative accomplishments — Recovery Act, Affordable Care Act, Troubled Asset Relief Program, Dodd-Frank Wall Street Reform and Consumer Protection Act, GM and Chrysler reorganizations, repeal of “don’t ask, don’t tell” — were during his first two years in office.

Obama’s focused transition to the White House, a chief of staff (Rahm Emmanuel) with strong ties to the House leadership, and the requisite arm-twisting of holdouts on key votes certainly contributed to legislative success, but those were tiny slivers on the pie chart. “Like it or not,” the New Yorker‘s Ryan Lizza wrote in March, “for many years, Washington has been most productive when one party controlled both Congress and the White House.”

Lyndon Johnson’s celebrated legislative achievements were in reality only a function of the congressional election results—not his powers of persuasion. In 1965 and 1966, after the enormous Democratic gains of the 1964 election, Johnson was a towering figure who passed sweeping legislation. In 1967 and 1968, after he lost forty-eight Democrats in the House, he was a midget.

But Johnson’s significant legislative successes — Civil Rights Act of 1964, Voting Rights Act of 1965, Medicare, Medicaid — endured in the years after becoming law because Democrats had large majorities in the House and Senate for the next decade and because Richard Nixon was much more a reformer than his popular legacy would suggest.

Even after their respective years of big congressional majorities, Johnson and Obama both had legislative successes at the margins. Johnson’s Civil Rights Act of 1968 (Fair Housing Act) added enforcement teeth to anti-discriminatory housing laws, and Obama’s American Taxpayer Relief Act of 2012 preserved the expiration of the 2001 and 2003 Bush tax cuts on the highest income-earners.

By the end of 2016 — regardless of what happens in the 2014 midterm elections — Obama’s legislative brag list will be only marginally different than it is today. Congress may or may not pass comprehensive immigration reform, but the prospects for tax code reform, entitlement reform, new environmental legislation, new energy legislation, an infrastructure bank, a jobs plan, or dozens of other priorities fall somewhere between not likely and fatally doomed. There are areas like Obamacare and financial regulatory reform where congressional tweaks could make the laws more effective, but those likely won’t happen either.

The House will almost certainly stay in GOP control until after the 2020 redistricting at the earliest, and Senate Democratic leaders have shown little spine in reforming the rules that allow the minority party to use filibusters and holds to unilaterally shut down legislation and may find themselves in the minority after 2014.

Even if the Obama White House had the machinery to push an aggressive new legislative agenda, doing so would be both unnecessary and counterproductive. There is only so much bandwidth in the administrative branch for absorbing new or different programs, and the Obama administration already has as much as it can handle. The implementation of Obamacare and financial regulatory reform are both enormous undertakings that will take years to absorb, and the implementation of Obamacare is somewhere between off schedule and a big mess.

Presidents, though, do not succeed by legislation alone. A congressional focus of the kind the Obama White House undertook in its first two years would distract from the usual second-term objectives: foreign policy, scandal management and judicial nominations.

Only six months into a second term, it’s far too early to tell what impact foreign policy and scandals (actual scandals — not non-scandals like IRS, Behghazi and Edward Snowden), but President Obama’s is already far behind the pace in leaving his mark on the judiciary. The White House has named only 31 nominees to fill 84 District Court and Court of Appeals vacancies. Of the 23 seats that have been vacant for 18 months or longer, the president has named only nine nominees — mostly in red states where issues important to President Obama like voting rights, Medicaid expansion, etc., are most at risk — effectively writing off many of those judgeships.

Democrats have advanced several arguments for why nominees are getting bottled up in the Senate — most of which are variations of the Senate is laughably dysfunctional — but that doesn’t explain the Obama administration’s failure to identify nominees for even half the current vacancies.  If leaving more than half the judgeships empty is a strategic move by the White House, I can neither imagine an explanation nor have seen an explanation advanced for the upside of such an approach.

There are many things that Obama cannot control about his legacy — whether he gets to appoint another Supreme Court justice, who the next president will be, etc. — but he should use every tool available to leave the broad mark on the judiciary that he is constitutionally required to make.

Nibble on a Politico e-book snack

This piece originally appeared in my column for Huffington Post Books on June 25, 2013.

In the opening anecdote of Glenn Thrush and Jonathan Martin’s The End of the Line, their behind-the-scenes e-book about the last month of the 2012 presidential campaign, we join our regularly scheduled election already in progress:

It was more than an hour after the networks had called the election, and Mitt Romney had not addressed the media or made the traditional concession phone call to the winner.  David Axelrod and Valerie Jarrett were agitated.  Obama’s campaign manager called the Romney campaign manager and got his voice mail.  “He’ll call,” Obama told his team.  Finally, at 12:30 a.m., after much of America had seen the outcome and gone to bed, Obama’s phone rang.  “Hello, Mr. President, it’s Mitt Romney…”

The End of the LinePolitico goes on on a limb to call the series “a new form of campaign chronicle, combining the in-depth reporting of a book with the immediacy of deadline journalism.”  I think that’s largely right, but the depth and immediacy necessarily work at cross purposes.

The e-book is the fourth in the Politico Playbook 2012 series that Politico and Random House published during — and this volume about a month after — the 2012 campaign.  (Politico Playbook is the name of Politico chief White House correspondent Mike Allen’s influential morning tip-sheet, which has quotes and links to news stories that are making the rounds, and — oddly — birthday wishes to D.C. political and media figures.)

The first e-book in the series, The Right Fights Back by Allen and historian Evan Thomas, was published in November 2011 as the Republican primary battle was heating up. It zig-zagged through the Republican challengers’ campaigns and included a lot of gossipy, anecdotal tidbits.

The second, Inside the Circus, also by Allen and Thomas and largely about the campaign for the GOP nomination, included a previously unreported story about Texas Gov. Rick Perry, who had back surgery shortly before jumping into the campaign and was taking pain medication, loudly singing “I’ve Been Working on the Railroad” in a public restroom before one of the Republican primary debates.

The third, Obama’s Last Stand by Politico’s Glenn Thrush, focused on the Obama campaign. The fourth, The End of the Line, focused on the last month of the campaign and was published a month after the election.

If journalism is the first draft of history, the Politico Playbook 2012 series falls somewhere between the first draft and the second.  It lacks the narrative power of, say, Mark Halperin and John Heilemann’s best-selling Game Change.  But Game Change was published 14 months after the 2008 election; three-fourths of the Playbook 2012 series was published during the 2012 campaign.

The major innovation of the series was its availability on platforms like Amazon’s Kindle, Apple’s iBookstore and Barnes & Noble’s Nook. The e-books were inexpensive ($2.99 each on all platforms) and short without being insubstantial (50-60 book pages each). The quality of the reporting — the access, insight, scope, buzz-worthiness, etc. — is what you would expect from experienced campaign reporters like Glenn Thrush and Jonathan Martin, though they were not alone in taking a long-form approach to covering the campaign.

The New Yorker‘s Ryan Lizza produced a thoughtful and timely body of campaign reportage that included several longform pieces and an illuminating piece two weeks after the election that has been uncannily prescient on the Republican Party’s often conflicting efforts to make inroads with a growing Latino population by tackling immigration reform. John Heilemann’s May 2012 New York magazine piece about the Obama team’s framing of the campaign and Michael Lewis’s October 2012 profile of President Obama for Vanity Fair were important, agenda-setting pieces that were little different than short e-books in their length and scope.

A handful of other influential e-books were published during and immediately after the 2012 campaign, including Mother Jones reporter David Corn’s Showdown: The Inside Story of How Obama Fought Back Against Boehner Cantor and the Tea Party in March 2012 and 47 Percent: Uncovering the Romney Video that Rocked the 2012 Election. BuzzFeed reporter Michael Hastings (who died tragically a few days ago in an automobile accident) published one of the first lengthy accounts of the Obama campaign, Panic 2012: The Sublime and Terrifying Inside Story of Obama’s Final Campaign, in January.

The Playbook 2012 series is a breezy, fly-on-the-wall, real-time reporter’s notebook.  Campaign insiders retell and analyze events that we all watched in real-time — the stump speeches, the ads, the debates, and election night.  It is not a definitive history of the election and does not purport to be, but two themes do emerge: Obama’s early success in defining Romney and the Romney campaign’s certainty to the last minute that they were going to win.

The Obama campaign started running battleground-state ads against Romney as soon as the Republican primary ended in May.  By branding Romney so early and with so much available bandwidth to get the message out before voters were sick of campaign ads, the Obama camp established Romney’s brand before Romney could do so himself.

The Romney brand?  Shortly after the election, former Mississippi governor Haley Barbour described the Obama team’s take on Romney as aptly as I’ve seen in The End of the Line:  “This was all personal: that Romney is a vulture capitalist who doesn’t care about people like you, ships jobs overseas, is a quintessential plutocrat, and is married to a known equestrian.”  Exactly.

Thrush and Martin describe Romney’s now-infamous 2008 “Let Detroit Go Bankrupt” op-ed in the New York Times  as “the major impediment to seriously challenging Obama in the industrial Midwest — especially in Ohio” and as the impetus for Romney’s disastrous late-October TV ad that accused Obama of moving Chrysler jobs to China that drew a sharp, public rebuke from Chrysler CEO Sergio Marchionne.

All of the interviews for The End of the Line were conducted either after the election or before but with the understanding that the story would not be published until after the election, so it provides one of the earliest glimpses of the big moments of the campaign with the first layer of spin peeled away.  What emerges is a bizarre dual reality — both campaigns getting increasing confident of victory the closer they got to election day.

One of the campaigns, of course, turned out to be delusional and fantastically wrong — blindly relying on voter-turnout models that reality would not later bear out.

“I totally believed we were going to win,” Romney finance chief Spencer Zwick told the authors, “and I think everyone around [Romney] believed we were going to win.  If anyone tells you that they knew we weren’t going to win, I think they’re lying to you.”

Weeks before The End of the Line was published, I had read Politico and The New Republic‘s stories about the Romney camp’s election-night optimism. Still, it was jarring to see the conviction in Romney pollster Neil Newhouse the day before the election as he predicted wins in Florida, Virginia, Colorado, Iowa and New Hampshire — not in a booster-ish public statement but in a private, all-caps email to the Romney campaign senior staff.

The End of the Line’s real value is in the never-before-published personal anecdotes:  Obama driving Robert Gibbs’ Chevy Volt around the White House parking lot.  White House press secretary Jay Carney doing the “Gangnam Style” dance.  Obama getting drilled in mock debate after mock debate by Sen. John Kerry and then by Romney in the actual first debate.

The e-book shifts between the two campaigns, but the Obama story is a better read.  It’s hard to tell if that’s because Obama’s was the more interesting of the two campaigns to cover, or if the reporters simply had better access to the Obama staffers than to the Romney staffers.

I suspect it’s both.  The bulk of the the reporting on the Romney campaign showed it to be a corporate outfit with a small group of decision-makers.  And there’s no evidence that two of the more significant campaign figures — Romney’s wife Ann and oldest son Tagg — gave interviews to the authors.

Ultimately, The End of the Line is what it is — a $2.99, two-hour, behind-the-scenes read that casts some new reporting into the well of coverage of the 2012 campaign at a time when books like Jonathan Alter’s The Center Holds: Obama and His Enemies (published earlier this month) is just joining the conversation and Mark Halperin and John Heilemann’s  Double Down: Game Change 2012 (coming November) is still a ways off.

Jeffrey Toobin on future of the Roberts Court

This piece originally appeared in my column for Huffington Post Books on June 4, 2013.

Jeffrey Toobin The Oath

Jeffrey Toobin’s 2007 book The Nine: Inside the Secret World of the Supreme Court — the most revealing insider account of the Supreme Court since Bob Woodward and Scott Armstrong’s 1979 classic The Brethren — was the story of how the court of Bush v. Gorebecame a moderating force against the Bush administration on issues like abortion and the legal rights of enemy combatants post-9/11.

In The Oath: The Obama White House and the Supreme Court, which is just out in paperback from Anchor Books, a division of Random House, the veteran New Yorker staff writer, CNN analyst and Supreme Court chronicler finds a court transformed. After 11 years in which which the same nine members served on the court, Chief Justice John Roberts replaced Chief Justice William Rehnquist in 2005 and Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006.

Although the two new justices in the mid-2000s did not change the 5-4 conservative majority on the court, they forged a different kind of conservative majority — one that made an aggressive and confident right turn on issues like affirmative action, search and seizure, campaign finance, and voting rights. (O’Connor, meanwhile, is not so sure the court should have gotten involved with the 2000 election.)

Toobin and I discussed his books and the current state of the Supreme Court earlier this week by email, which I lightly edited below.

In The Nine, you reported that Justice David Souter would eat an entire apple — core and all — every day for lunch when he was on the court. Did you come across any more weird anecdotes in reporting for The Oath?

That the reason Roberts and Obama messed up the oath on January 20, 2009, was because a congressional secretary didn’t download the attachment to an email. The attachment was Roberts’ version of the oath, but the secretary never passed it along to Obama’s staff.

One of the big takeaways from The Oath is that the conservative majority has moved the Supreme Court to the right. Isn’t that just what majorities do — move the court in their own ideological direction?

That is what majorities do — just as the liberal majority in the Warren Court moved the court and the country to the left. My preference on these issues is simple candor. Too often the judges (on both sides) simply insist that they are doing “the law,” which has nothing to do with politics. My view is that law, especially constitutional law, has everything to do with politics.

Do you think the record numbers of vacancies in the district courts and the D.C. Circuit reflects more a dysfunctional Senate confirmation process or Obama’s lack of interest in the courts relative to other priorities?

Hard to separate out the two. I think Republican obstruction is probably the bigger factor, but Obama’s lack of interest in the subject of judicial appointments is one of the mysteries of his presidency. It does appear that he is taking a more aggressive tack, with a group of nominees to the D.C. Circuit soon to be unveiled. But the lost opportunity of his first two years in office, with 60 Democratically controlled Senate seats, will never be recaptured.

The big decisions from the current term will be delivered in the next few weeks. What decisions are you most interested in seeing?

There are four huge cases still to go. Fisher on affirmative action, Shelby County on the future of the Voting Rights Act, and the two same-sex marriage cases about the Defense of Marriage Act and Proposition 8. The first two cases will be an important signal of how the court will address the great question of twentieth century law — race. And the second two will tell us about a great issue of the twenty-first — gay rights.

What issues do you expect the court will take up in the next term?

When Republicans recaptured statehouses in the 2010 midterms, they set about restricting abortion rights in new and inventive ways. By next term, several of these issues will arrive before the justices. And many of them have never addressed abortion on the court. Also, the Roberts court seems determined to undo racial preferences and affirmative action, and any issues left open this term may soon return.

Aside from his Obamacare decision, do you see Chief Justice Roberts positioning himself to preside over a court where he may not always have a conservative majority?

Tell me who wins the 2016 presidential election, and I’ll tell you the answer to that question. The ideological breakdown of the court is stable and likely to remain that way for the rest of Obama’s term. (I expect Ginsburg will retire and be replaced by someone like-minded, probably Sri Srinivasan.) The real question is who will replace Scalia and Kennedy, who will both be in their eighties under the next president.

Given the strong odds that a Democrat elected president in 2016 would have an opportunity to shift the court from a conservative to a liberal majority, if one of the conservative justices passed away and left an open seat, do you think the Senate confirmation process could simply shut down and leave the court with eight justices for a term or longer?

I don’t see how that would be possible. Supreme Court appointments are sufficiently important that the Democratic majority in the Senate would force Republicans to engage in an actual talking filibuster, and those cannot go on forever. Refusal to allow a vote on a Supreme Court nominee would almost certainly result in the Democrats changing the rules in the Senate to restrict filibusters on judicial nominees. So I don’t think Republicans could hold up Supreme Court nominees indefinitely.

You wrote a profile of Justice Ruth Bader Ginsburg a few months ago in The New Yorker. Did you get the sense from talking to her and the people around her that she would likely retire at the end of this term?

Not this term. And probably not next term. But very possibly in the third year of Obama’s second term.

In The Oath, you quote Justice Stephen Breyer as saying: “It is not often in the law that so few have so quickly changed so much.” Do you think a liberal majority anchored by Justices Breyer, Elena Kagan and Sonia Sotomayor would be more inclined to preserve the court’s recent conservative decisions like Citizens United on the basis of precedent or reverse them?

Hard to speculate about something that is really way off and may never happen. My sense is that the liberals would try to limit various decisions they don’t like (such as Citizens United) and possibly overturn them down the line. But it would be a long process.

The Nine and The Oath are essentially a two-volume history of the Supreme Court since 2000. Are you planning on writing another volume?

Not immediately and probably not for my next book. But the Supreme Court is a great subject, and it’s not going away. For better or worse, I don’t think the court (and the reading public) have seen my last word on the subject.

Wait, they’re seriously calling it ‘Game Change 2: Electric Boogaloo’?

Heilemann Halperin

Sadly, no.  But that would have been awesome.

Penguin Press announced today that John Heilemann and Mark Halperin’s book about the 2012 campaign will be called Double Down: Game Change 2012, that it will be published in fall 2013, and that HBO has already optioned the film rights.  After Game Change became a massive hit for HarperCollins in 2010, Heilemann and Halperin jumped to Penguin for a reported $5 million advance for their 2012 campaign book.

I’m looking forward to Heilemann/Halperin’s take on when the Romney people realized they were going to lose.  Alexander Burns of Politico reported shortly after the election that “[t]he Romney campaign entered the last week of the election convinced that Colorado, Florida and Virginia were all but won, that the race in Ohio was neck and neck and that the Republican nominee had a legitimate shot in Pennsylvania[,]” and Noam Scheiber of The New Republic obtained some of Team Romney’s errant internal polls, but I have not yet seen an in-the-room account of the “oh fuuuuuudge” moment.

I assume the Romney campaign knew the weekend before the election when Nate Silver and Intrade were both moving strongly in favor of Obama winning Ohio and getting re-elected, but I suppose it’s possible that they were wearing their RDF goggles all the way to election night.

Three politics books for early 2013

Here’s a roundup of several early-2013 politics books with publishers’ descriptions:

Fred KaplanJanuary 2.  Slate columnist and Pulitzer Prize winner Fred Kaplan’s The Insurgents: David Petraeus and the Plot to Change the American Way of War (Simon & Schuster) looks to be one of the first important books of 2013 — with glowing blurbs from national security heavies like George Packer, Tim Weiner and Peter Bergen. (And probably a tacked-on postscript about the Paula Broadwell scandal that led to the resignation of CIA director David Petraeus).

The Insurgents is the inside story of the small group of soldier-scholars, led by General David Petraeus, who plotted to revolutionize one of the largest, oldest, and most hidebound institutions—the United States military. Their aim was to build a new Army that could fight the new kind of war in the post–Cold War age: not massive wars on vast battlefields, but “small wars” in cities and villages, against insurgents and terrorists. These would be wars not only of fighting but of “nation building,” often not of necessity but of choice.

Al GoreJanuary 29.  Former Vice President Al Gore’s The Future: Six Drivers of Global Change (Random House), looks like a prescriptive along the lines of Thomas Friedman and Michael Mandelbaum’s That Used to be Us but with a global focus.  The Future is oriented around six “emerging forces”: economic globalization, digital communications, shifting international power, sustainable growth, scientific advances, and the disruption in the relationship between people and the environment.

With the same passion he brought to the challenge of climate change [in An Inconvenient Truth], and with his decades of experience on the front lines of global policy, Al Gore surveys our planet’s beclouded horizon and offers a sober, learned, and ultimately hopeful forecast in the visionary tradition of Alvin Toffler’s Future Shock and John Naisbitt’s Megatrends. In The Future, Gore identifies the emerging forces that are reshaping our world.

UPDATE: The untitled Chuck Todd book was cancelled. April 9. NBC News White House correspondent Chuck Todd‘s as-yet untitled book about Barack Obama (Little, Brown):

Chuck Todd draws upon his unprecedented inner-circle sources to create a gripping account of Obama’s tumultuous first term and campaign to win another. And not only does he give us the most revealing portrait of this fascinating president and his struggles, Todd also seeks to define what “Obamism” really is, what the president stands for, and how his decisions have changed — and will change — American politics for generations.

April 30.  Bloomberg View columnist, MSNBC contributor, and The Promise author Jonathan Alter‘s The Center Holds (Simon & Schuster) is a behind-the-scenes narrative about the 2008 campaign.

In this sequel to his bestselling The Promise, Jonathan Alter digs into the back story of the campaign and Obama’s performance as president. This will be the most penetrating account of how Obama won or lost the election and how he confronted the implacable forces arrayed against him—a sluggish economy, vicious partisan opposition, his own failures as a politician and communicator.