Monday, January 12, 2009

Guilty In The Court Of Public Opinion

In the very gracious welcome that Mark extended to me, he also linked to an interesting post by E. D. Kain over at culture 11 regarding the controversy that swirls around Governor Blagojevich's decision to appoint Roland Burris to President Elect Barack Obama's vacated senate seat. What intrigued me so was not that Kain's opinion represents I would say the minority on this issue, but instead the driving force behind his argument:

Burris, who received his appointment from embattled Illinois Governor Rod Blagojevich after years of failed elections, has not been connected in any way with the seat-for-sale controversy. Nevertheless, Democrats in Congress have shown that guilt by association is enough to sidestep the law. What they forget is that despite the nature of the offense, despite his alleged corruption, Rod Blagojevich is, like every other American citizen, innocent until proven guilty.
He has not been removed from office, nor has he been relieved of his duties, one of which happens to be appointing a qualified individual to the United States Senate.

(Bold added for emphasis)

The defense of Blagojevich that he is entitled to the same rights as everyone else in this country, that he is innocent until proven guilty, is one that I've heard before, put forth by my fellow blogger at CFLF, Dr. Gail:

Rod Blagojevich is, indeed, innocent until proven guilty. It’s hard to imagine an innocent explanation for some of the allegations in the complaint, but he’s entitled to his day in court. He has not resigned his position as governor and, regardless of his motivation for refusing to resign, he is still the governor. It seems that everyone is so
busy piling on that they forget that.

To be fair, this is a reasonable opinion to have; after all, one of the great tenets of this country is the concept of innocence until guilt has been proven in the court of law. At the same time, in the realm of the political sphere, I also happen to believe that it is also inherently wrong.

One of the few positive aspects of this entire Blagojevich debacle is that it allows us to study the concepts and repurcussions of political guilt under unusual and revealing circumstances. Typically, when scandal arises, either the politician involved owns up to it and resigns, or fights it and either wins or loses. There are of course countless examples outside of these two basic templates, but a confluence of events have driven this specific scandal and its slowly unfurling aftermath under a microscope. These include a stubborn Governor who refuses to resign, and at the same time is terrible at defending himself, the highest profile senate seat open and up for grabs, controversy as to the confidence in said governor, etc.

What all of these things have conspired to do is bring to light another court not established by the constitution, nor any other formal document of governance; the court of public opinion, specifically how it relates to the political world.

Think about it for a moment. Paris Hilton is a banal airhead, Brittany Spears is a terrible mother, OJ actually is a murderer, and not only is Michael Richards not funny, he's also a bigot. Whether you admit it or not, there are pretty good odds that you have in your own mind judged some public figure in one way or another; Michael Jackson's a creepy pedophile, Michael Moore is a sensationalist socialist blowhard, etc.

And there's nothing wrong with that (or, there might be depending on your value system, but legally there's nothing wrong with that). As Americans we enjoy both the freedom of speech, and as a result, the freedom of thought. This is also one of the reasons why innocent until proven guilty is such an important protection provided by our legal system. When the punitive fate of a person relies upon public opinion which so easily jumps to that of mob mentality, evidence and facts are all too easily ignored in favor of storming the castle with torches and pitchforks.

This establishes a mechanic in which the populace are free to think and feel towards any one individual according to how they choose based upon the evidence available to them, specifically those veins of evidence that they choose to believe. We are all free to believe Michael Jackson is a big ol' pede, but in a court of law thankfully this allegation must be proven using more than simply the evidence provided in supermarket tabloids.

The mob is free to condemn and hate and treat that person however they please in accordance with the law of the land, but only through the courts can legal punitive action be taken. Mel Gibson may be an anti-Semite, and we are free to boycott his movies and hamstring his film career as a result, but we can't lock him up for it.

But let us apply this mechanic to the political realm. Politicians are as accountable to criminal and civil courts as any other American citizen (one hopes, anyway), but for them this court of public opinion takes on a different form. This is naturally because ultimately their political livelihood is dependent upon the opinion of the constituency since the electorate can choose whatever criteria they please in casting their vote.

Because this court of public opinion has no established and documented structure, it can be tough to pin down standard operating procedure, but usually it operates not unlike the established courts in this country. First you have the trial for guilt, typically played out in the media. Media coverage drives this phase of the trial, and ultimately we as a populace elect to either buy what we are being sold, or not.

Once that is done, we decide if and how to punish the politician for it (this is assuming that the politician doesn't first resign. This would be I suppose the equivalent of entering into a plea bargain). The most definitive instance would be the outcome of that politician's election, though this doesn't always play out as such.

For example, let's take a look at President Elect Barack Obama, and a potential scandal that would sink many a politician; prior drug use. When he first threw his hat into the ring, there had been some ado made regarding the Illinois Senator's drug use in the past--in fact he actually wrote about it in his published memoirs, Dreams of My Father. Guilt in this instance was easily obtained despite the fact that he had never been brought up on drug charges in a court of law; Barack Obama in his past did in fact snort some coke and smoke some weed and you would have a hard time finding someone who didn't know and believe this.

But as far as punitive action, the court of Public Opinion decided to give the presidential candidate a pass--aside from a few off hand remarks from surrogates supporting other candidates, the issue never developed into a major campaign theme, and polls consistently indicated that people just didn't care and weren't using the indiscretion in making their decision on whom they would prefer occupied the Oval Office for the next four years.

Looking back, we know that the President Elect was forgiven his prior drug use by the mere fact that he is the President Elect, thus making this the public opinion equivalent of Jury Nullification. Another example of political Jury Nullification in the political arena may be seen in the impeachment of President William Jefferson Clinton. Though he was impeached and brought to trial, not only was he aquitted in court, he was also ultimately forgiven by the public as evidenced by the fact that he left office with an approval rating of 65%.

Mentioning Clinton also brings up another important point; not always are politicians afforded the ability to have their day in court with election day serving as a venue. In such instances, public polling often serves in the stead of an official election. Which brings us back to Rod Blagojevich, his own court of public opinion, the final verdict and punishment, and what that means in the case of Roland Burris.

Blagojevich opted to make things difficult because he didn't do what I think most politicians would have done in his place--resign, or at the very least, step aside while the ongoing investigation resolves itself. Not every politician does this whenever they are arrested or even being investigated, but the severity not only of the allegations, but the evidence presented to the court of public opinion in the form of the transcripts already released by Special Investigator Fitzgerald I believe created an environment wherein most politicians would have gone for the public opinion plea bargain.

But he didn't, and unfortunately for everyone, the Illinois legislature simply couldn't impeach him fast enough to take from him the legal power to appoint the next US Senator from Illinois.

The resulting problem is thus. In the court of Public Opinion, Blagojevich was found irrefutably guilty, with approximately seventy percent of his constituency believing his term should be prematurely ended either through resignation or impeachment. Further, a majority are also of the opinion that his appointment to the Senate be blocked.

What happened?

The scandal hit, and Blagojevich was found almost immediately guilty based upon the sheer audacity of the evidence at hand. The public, not able to vote him out of office in time, and unable to impeach, essentially opted to make Blagojevich's punishment a severe vote of no confidence. Given the nature of his crimes, the very last thing he should be entrusted with is appointed the senate seat in question given that he was caught red handed trying to auction the thing off.

When Senator Reid (and believe me, Democrat and liberal I may be, I am no fan of Reid's) said that Burris would carry with him a "taint", he was essentially correct--given the judgement of the court of public opinion, it would be difficult if not impossible for Burris to come into office with the confidence of the people he is supposed to represent.

That Senator Reid is highly inept in many political areas himself has only managed to confuse things even more.

But it is there in the open, despite the ruling of official courts; Blagojevich is a servent of the people, and the people feel that he greatly betrayed that trust. It is the will of the people that he not be allowed to further betray that trust by filling the very same senate seat that kicked this entire ordeal off in the first place. Unfortunately the people were not adequately armed to take the drastic actions necessary in such a short time to prevent Blagojevich from making the appointment if he so chose.

It was, in fact, a legal appointment. But also is there legal justification for blocking the appointment in the Senate as well. As stated in the Constitution, Article I, Section 5, Paragraph 1:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Of particular import is the first bit, "Each House shall be the Judge of the... Qualifcations of its own Members..." Sure, it's up for interpretation, but it also gives both the House and the Senate the wiggle room necessary to block incoming members, though, as I'm sure you would agree with me, this should only be done in moments of extreme circumstances.

Thus the appointment is legal, but federal attempts to block that appointment do also have a basis in law.

How this specific situation ultimately ends is anybody's guess. Again, while Reid may know how to get reelected, and how to win the job of Senate Majority leader, there are definitely areas where he has the political instincts of an intoxicated mule, and the power play that ensued between himself and the embattled Illinois governor is a good example.

As for Burris, whether he is qualified or not is irrelevent. What is relevent is the fact that he was appointed under circumstances that lacked the confidence of the people, and as such fails in the court of Public Opinion. In truth, he's not guilty of anything, but instead yet another victim in Blagojevich's corruption, but there are more than enough grounds for which his appointment should not stand.

Getting out of the weeds, there is a greater point to all of this, though. Or perhaps just a desire for awareness. People in the public eye are not merely subjected like you and I to the rule of the courts, whether we think it fair or not. For celebrities, their lives under the jurisdiction of the court of Public Opinion is incidental, a price that must be paid for a life of fame and fortune. For politicians it is a necessity, a by product of this two century long experiment in democracy and freedom of thought and expression. At times the court of public opinion isn't fair. Consider Truman who left office with approval ratings in the twenties, and whose legacy was only salvaged decades later by the good graces of history.

But while public opinion may not be fair from time to time, while its courts are not bound by law or carefully deliberated edict, they are just as binding, and just as important to the integrity of this democracy, for public opinion is nothing more and nothing less than the will of the people enacting that most important principle of this country; that of self-governance.

[Ed. Note: block quotes fixed due to Blogger's terrible publishing software]