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and the Speaker of the House did not speak to each other for WALDMAN: And Huntley-Brinkley. What we’re really talking about a year and a half directly. So there’s a difference, but to go to is a period when there was a sense of journalism that spoke to Michael’s distinction, it’s more of a symptom than a cause the whole country, that was more or less regarded as fair, and of the larger divide. that facts were more or less regarded as facts. And that was I S SAC HARO FF: American government has traditionally depended unusual. In the 1800s that was not the way it was. Newspapers upon two different things, which both are in short supply right were highly partisan. Among the challenges to making the kind now. One is people who rise above the partisan divides in the of compromises that inevitably are necessary, there must be institution and are the deal brokers, and there seem to be fewer some basic agreement on facts, and so this especially is chalof those due to the decline of the center. lenging on things that involve short-term pain and long-term The other is that there seems to be less identification with the gain. As I look at the whole panoply of things affected by the institution than with one’s party. If you look at the separation of polarization and dysfunction right now, you know, budgets powers, there is a Senate that has an understanding of its role, and come and go, taxes come and go. But climate change is different. a House in the same way, and a presidency organized around the We will look back on this era as a time when our political sysexecutive in opposition to the Congress and to the judiciary. That tem was unable to grapple with a looming catastrophe, and one seems to have broken down. There seems to be willingness to dis- reason is there is no more shared space where people can perable the various institutions in favor of an immediate partisan suade the media that something is a problem and force political objective. The causal stuff is hard to figure out because there’s actors to do something about it. so many factors: that life is more transparent, that our sources YOU N: One thing that’s happened is that the people’s expectations of information are more available. The monopoly of informa- of Congress at this point are so low that it’s become a self-fulfilltion under Walter Cronkite was a terrible thing. I learned about ing prophecy. No one expects Congress to govern anymore. So the Vietnam War from Walter Cronkite, but that can’t be the the more interesting question to your average voter is: Did my right image to hold onto in this era. representative back down out of a negotiation? BAU E R : One thing about the kind of polarYou have Planned Parenthood and the NRA ized debate that has most gotten my both with their ideological purity tests, “As I look at the whole panoply attention is what I call a negotiating on which ideally you want your caninflexibility clothed in high moral didate to score 100 percent. You of things affected by polarization and principle. At a keynote recently have political parties suggestdysfunction—like budgets and taxes— delivered at a conference (I ing their own versions of the won’t identify which party), the purity test, and it becomes climate change is different. We will look fundamental choice put to the this spiral in which you start back on this era as a time when our political audience was that there were to wonder: Are we going to lose large issues facing the couna certain amount of democsystem was unable to grapple with a try, and the choice was between racy in our democratic instilooming catastrophe.” standing up for the Constitution or tutions because more and more surrendering. Increasingly there is a responsibility gets pushed onto —Waldman view that the large national issues that we less accountable institutions are dealing with are essentially a zero-sum game. such as administrative agencies, executive Therefore you’re not splitting the difference when you compro- action of various kinds, and the courts? Is Congress meant to mise, you’re giving up, you’re losing. To defend that point of be just an ideological battlefield? view there is an impulse to adopt a very stern moral tone so that G I N S B E RG : Let me call attention to three issues, which in the last the refusal to negotiate is not being unreasonable, it is being 20 years were positions of principle on both sides, where there’s principled. That has to do with the way in which arguments now been a sea change. Number one is immigration, number are increasingly framed around issues that Tom Edsall calls two is same-sex marriage, and number three is the gun debate— “the age of scarcity.” We don’t have the resources to allocate though still current, the goalposts are really different from where fairly among all of the potential participants. And therefore, they were. So if we were having this discussion a few years ago we polarized debate is a negotiating strategy, but it’s an anti- would say we’re locked in concrete, that there will be no compronegotiating strategy, and it serves a function in this particular mise because people have their principles. Through the electoral political environment. wars, discussions, whatever it is, the debate shifted. C AI R N C ROS S : It’s also important to remember where you stand on B A U E R : That is true, but in two of three cases, and to some this depends on where you sit, which is to say the filibuster is a big degree the third, what really shifted was public opinion, and problem if you support an administration that’s trying to move it drove the two parties together because if there’s one thing judicial nominees through or whatever the case may be. It’s not we expect from our political actors, it’s a keen sense of survival. if it’s a prior administration. But the tables always turn, so radi- So it’s no shock that we’re moving toward immigration reform, cal change to this system or reform for reform’s sake needs to be that we’re moving toward acceptance of gay marriage, but it’s approached with some level of caution. not a result of reasoned discourse over time in which both parWALDM AN : I’ll say for the record that presidents should be able to ties sat down and listened closely to each other. It’s a result of make judicial appointments regardless of what party they are, and a fundamental change in the electorate’s judgment that has that will be for the record even when there’s a Republican presi- moved the political actors. dent or a Democratic president. That’s not really a way to make P I L D E S : With that, I want to thank everybody and particularly our courts, let alone the rest of the system, work. the people who came in from out of town. It’s a real tribute to But I want to go back to something Sam said. I want to strongly their commitment to these issues and to NYU. This is the bigdefend Walter Cronkite. gest issue, I think, in democracy, and these are some of the G I N S B E RG : Brave. best people to talk about it.

NYU Law Magazine 2013  
NYU Law Magazine 2013  

The annual magazine from NYU School of Law.