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The history which bears and determines us has the form of a war rather than that of a language: relations of power, not relations of meaning.
--Michel Foucault, Power/Knowledge
Michel Foucault would have been fascinated by late-twentieth-century presidential campaigns.
--Lynne Cheney, Telling the Truth
Since the late 1980s, when they discovered with horror certain French-derived theories of social science and literary analysis that long before then had taken root among left-leaning academics in the United States--essentially replacing Marxist dialectics as weapons of intellectual struggle, in reaction against the failure of radical politics in the 1960s--American conservative intellectuals have held these particular theories under siege. In such books as Tenured Radicals (1990) by New Criterion managing editor Roger Kimball, Illiberal Education (1991) by ex-Reagan White House domestic policy adviser (and former Dartmouth Review editor) Dinesh D'Souza and Telling the Truth (1995) by ex-National Endowment for the Humanities chairwoman and future Vice Presidential spouse Lynne Cheney, and in innumerable interviews, stump speeches and talk-radio tirades, representatives of the American conservative movement have denounced the exponents of these theories for attempting to lure students away from traditional cherished academic ideals like objectivity and truth toward a cynical, despairing view of history, politics, literature and law.
So we can assume that participants in this decade-long conservative jeremiad did not foresee that at the end of that decade their colleagues in the Republican Party would wage a campaign to win a close presidential election in ways that would seem to confirm, in virtually every respect, the validity of the theories they had been railing against--and moreover, that as part of that campaign, their allies would espouse and promote to the public the very essence of these same reviled theories. However, if we look closely at the theories in question and at the facts of Republican behavior in Florida, we will see that this is exactly what happened.
The theories in question are those derived from the works of French philosophers Michel Foucault and Jacques Derrida. Their conservative critics tend to conflate the ideas of the two men, and then to muddle things further by presenting both as synonymous with postmodernism; in fact, though they worked in distinct fields and did not even like each other (Foucault once called Derrida "the kind of philosopher who gives bullshit a bad name"), their theories do have analogous aspects that make it not difficult to confuse them.
Foucault was a philosopher of history who posited, basically, the impossibility of achieving an objective and neutral interpretation of a historical event or phenomenon. Derrida is a philosopher of literature, founder of the notorious school of deconstruction, who suggested the impossibility of achieving a stable and coherent interpretation of a literary text, or any text. In both cases, the (putative) fact of the indeterminacy of the interpretive act leads to the conclusion (or has the assumption) that whatever interpretation comes to be accepted--the official interpretation--must have been imposed by the exercise of political power (though in deconstructionism this latter point has been elaborated and emphasized much more by Derrida's American disciple Stanley Fish than by Derrida himself). It is this shared assumption that any official interpretation, whether of human behavior or the written word, has been arrived at through a process of power competition and not through the application of objective, neutral and independent analysis (because there is no such thing) that has so agitated conservative intellectuals.
In her book Telling the Truth, the wife of the man who was to become Vice President of the United States following Republican Party political and legal maneuvers in Florida uses a book that Foucault edited called I, Pierre Rivière as the starting point for a critical examination of the philosopher's ideas. Pierre Rivière was a Norman peasant boy who in 1835 brutally murdered his mother, a sister and one of his brothers with a pruning hook. Foucault and a group of his students at the Collège de France compiled a collection of documents relating to the case. What the documents revealed to Foucault was not an overarching thesis that illuminated the cause and meaning of Rivière's shocking act--not, in other words, the unifying concept or constellation of concepts that academic analysts typically grope for in their research and thinking--but, on the contrary, a welter of conflicting and irreconcilable interpretations put forth by competing, equally self-interested parties, including doctors, lawyers, judges, Rivière's remaining family members and fellow villagers, and Rivière (who wrote a memoir) himself.
In other words, as Cheney puts it, the documents were important to Foucault "not for what they tell of the murders, but for what they show about the struggle to control the interpretation of the event." Or, as she quotes Foucault as saying, the documents form "a strange contest, a confrontation, a power relation, a battle among discourses and through discourses." The reason he decided to publish the documents, Foucault said, was "to rediscover the interaction of those discourses as weapons of attack and defense in the relations of power and knowledge."
"Thus," Cheney concludes, "I, Pierre Rivière is a case study showing how different groups construct different realities, different 'regimes of truth,' in order to legitimize and protect their interests."
The Foucauldian mode of analysis does not meet with any approbation or sympathy from the Vice President's wife. In fact, she goes on to say that Foucault's ideas "were nothing less than an assault on Western Civilization. In rejecting an independent reality, an externally verifiable truth, and even reason itself, he was rejecting the foundational principles of the West." Therefore it seems a pretty good joke on her that it turns out to be the perfect mode for analyzing how Republican Party strategy in Florida was developed and implemented.
In fact, I might suggest that if Michel Foucault had not confected them already, his concepts of "discourses" and "a battle among discourses" ultimately to be decided by power would have to be invented before this signal event of American political history could be properly understood.
When former Secretary of State James Baker arrived in Florida on November 10, 2000, three days after the election, dispatched there by Lynne Cheney's husband to take charge of the Bush campaign's effort to secure the state's Electoral College slate and thereby the Oval Office, George W. Bush's initial lead of 1,784 had already been reduced by an automatic machine recount to 327, and the Gore campaign had requested manual recounts in four Democratic-leaning counties: Miami-Dade, Broward, Palm Beach and Volusia. It appeared self-evident, from the tales both of the Palm Beach butterfly ballot and of the difficulties encountered by minority voters in getting to the polls and attempting to cast their ballots, that by the intention of Florida voters who had gone to the polls, if not by the actual counted results, Gore had won the state (which, of course, is why the media had awarded it to him early on election night in the first place), and it seemed a lot more likely than not that manual recounts in counties favoring Gore, or even a full statewide manual recount, would alter the actual results in Gore's favor, despite the fact that the absentee ballots, which usually favor Republican candidates, were yet to be counted. On top of all that, Gore was leading in the national popular vote, and it came as news to many Americans that a presidential candidate could win the popular vote and lose the election. (Prior to Election Day, Bush campaign strategists, believing it likely that George Bush would win the popular vote but lose in the Electoral College, had developed a strategy to try to discredit the Electoral College, and thus perhaps gain support from Democratic electors.)
Clearly, what Secretary Baker had to do in order to insure Bush's election to the presidency was to stop the requested manual recounts, or any manual recounts, from taking place. Since Florida election law explicitly permits manual recounts, and there is a long history of them being conducted in the state for elections to offices at various levels (though not previously the presidency), including one race of Republican Senator Connie Mack, and given the situation just described above, what Baker encountered first of all in Florida was a severe public relations problem. In advance of Republican lawyers making a legal case in various courts against the manual recount process, Baker had to make a case to the American public as to why a perfectly legitimate process that had been employed many times before in Florida and elsewhere across the United States to decide close electoral contests, should not be used to resolve the closest Electoral College contest in 114 years. He needed to participate in what in Foucault's word is a discourse, by presenting an alternative to and challenging the Gore campaign and Democratic Party stance that the Florida vote was so close and so rife with proven and potential irregularities that only careful manual recounting could decide it fairly, as well as what we might call the underlying and perhaps more threatening Democratic contention that Gore had actually won the election and required only the additional step of targeted manual recounting to prove it.
The discourse (in the looser sense of a narrative) widely presented by Secretary Baker at his first press conference, on November 10, had several parts. He immediately tried to convey the sense that George W. Bush had already effectively won the election. "The American people voted on November 7. Governor George W. Bush won thirty-one states with a total of 271 electoral votes. The vote here in Florida was very close, but when it was counted, Governor Bush was the winner. Now, three days later, the vote in Florida has been recounted. Governor Bush is still the winner," he began. Wielding that assumption as his predicate, he attacked the Gore campaign for attempting to "unduly prolong the country's national presidential election," introducing the phrases "endless challenges" and "unending legal wrangling" when the election dispute was all of three days old. Then he attacked the process of recounting itself, particularly manual recounting, saying that "the more often ballots are recounted, especially by hand, the more likely it is that human errors, like lost ballots and other risks, will be introduced. This frustrates the very reason why we have moved from hand counting to machine counting." He stressed the importance of getting "some finality" to the election and accused the Gore campaign of "efforts to keep recounting, over and over, until it happens to like the result." Finally, he argued that a continued struggle over the presidential election would jeopardize America's standing in the world. By November 14, he was tying it as well to the stability of American financial markets.
Former Secretary of State Warren Christopher, Baker's equivalent in the Gore camp and someone no doubt unfamiliar with the writings of Foucault (and therefore not having the term discourse at his disposal), referred to Baker's argument about America's standing in the world as a "self-serving myth," and Baker did not raise this canard again. Neither did he again raise the matter of endangering US financial markets.
The next day, November 11, at a press conference announcing that the Bush campaign had filed suit in the US District Court for the Southern District of Florida to block the manual recounts requested by the Gore campaign, thus becoming the first of the two campaigns to initiate "legal wrangling" (a number of private lawsuits related to the election had already been filed but none yet by the Gore campaign itself, something Baker took pains to submerge), Baker dramatically escalated his attack on manual recounting. For a number of reasons, it is worth quoting the central paragraph of his formal statement in full:
The manual vote count sought by the Gore campaign would not be more accurate than an automated count. Indeed, it would be less fair and less accurate. Human error, individual subjectivity and decisions to "determine the voter's intent" would replace precision machinery in tabulating millions of small marks and fragile hole punches. There would be countless opportunities for the ballots to be subject to a whole host of risks. The potential for mischief would exist to a far greater degree than in the automated count and recount that these very ballots have already been subjected to. It is precisely...for these reasons that our democracy over the years has moved increasingly from hand counting of votes to machine counting. Machines are neither Republicans nor Democrats--and therefore can be neither consciously nor unconsciously biased. [Emphasis added.]
Clearly, Baker and the Bush camp had decided to place a demonization of hand counting at the core of their electoral discourse. That this was a purely calculated discourse, and one in no way sincerely embraced, is child's play to demonstrate.
Manual recounting is the method used by the United Nations for settling disputed elections around the globe, and it is also countenanced by the United States when our representatives get involved in observing the resolution of electoral conflicts in other nations. A majority of American states either mandate or permit manual recounting when the differential between the machine vote totals for opposing candidates is within a certain margin. Candidate Bush, while governor, had signed just such a bill in Texas that established the same "intent of the voter" standard set by Florida. Until this particular situation in Florida arose, requiring this particular discourse, no Republican politician I am aware of had ever risen to denounce manual recounting (on the contrary, any number of Republican politicians had taken successful advantage of manual recount provisions), nor have I found any literature on the subject that appeared in the conservative journals. Moreover, the Bush camp gladly accepted the results of manual recounts in Florida when those went in their favor, as the results did in Seminole County, and they had considered plans to contest machine results in Iowa, Wisconsin, New Mexico and Oregon if things did not go their way in Florida. Manufacturers of the punch-card voting machinery used in Florida were also on record as saying that hand counting was a more accurate method of gauging votes than using their machines.
Conservative writers like Cheney, D'Souza and Kimball, who have attacked Foucault, Derrida and their allies, have done so in the first place because of these thinkers' extreme skepticism about the possibility of objectivity in human affairs. Cheney complains in Telling the Truth about "how discredited ideas like truth and objectivity have become," and accuses her ideological adversaries of aiming at "discrediting the objectivity and rationality at the heart of the scientific enterprise." (Ironically, she goes on soon after that to take Al Gore to task for criticizing, in Earth in the Balance, the cold-blooded scientism of British philosopher Francis Bacon.) D'Souza, referring to the predominantly deconstructionist English department that had been assembled by Stanley Fish at Duke University, wrote that "the radical skepticism cultivated at Duke and elsewhere is based on the rejection of the possibility of human beings rising above their circumstances" (he recounts that Fish, in an interview D'Souza conducted with him, denounced Cheney for "the error of objectivism").
The Republican campaign to demonize the hand counting of votes in Florida was nothing less than an all-out assault on this cherished ideal of the conservative movement, however, an assault as withering and uncompromising as any ever waged by Foucault or the deconstructionist movement. For what was Baker saying, in essence? That it is impossible for human beings to hand count votes accurately and honestly, citing as reasons the inevitability of "human error" (machine error is obviously to be preferred), the danger posed by "individual subjectivity," the "potential for mischief" (read, deliberate cheating by Democratic canvassing boards) and even the possibility of people being not only consciously but "unconsciously biased"; at the same time he exalted the superiority of "precise" machines over humans--even machines as grievously and laughably flawed as those that produced the "dimpled," "pregnant" and "hanging" chads.
Machines--even the worst, most malfunctioning of them--are capable of being objective, but people are not, in other words. People are incapable of "rising above their circumstances." Did Foucault ever put the case better himself? Has Stanley Fish? Has anyone?
It is safe to say that James Baker probably did not realize that he was challenging, and perhaps fatally undermining, core conservative doctrine when he advanced these arguments in his no-holds-barred effort to secure Florida's electoral votes for George W. Bush. And, for the conservative intellectual cause, there was worse to come. Soon Baker and his allies would take a further broad step down this road. They would begin impugning the fundamental American ideal of objective, neutral and fair-minded jurisprudence.
The Republican Florida discourse can be summarized even more simply and more baldly than it has been above. It was, or became: Manual recounting is untrustworthy and subject to manipulation; therefore, in attempting to force hand counting, the Democrats are trying to steal the election. (The Democratic Florida discourse was the obverse of this: Careful manual recounting is more reliable than machine counting; therefore, in attempting to stop manual recounting, the Republicans are trying to steal the election.) Such was Jim Baker and the Bush camp's basic pitch to the American public, and it became more and more explicit and fervid (or perfervid) as time went on.
Let us recall that in Foucauldian theory it is power, the possession and wielding thereof, that determines what discourse prevails in any given contest, or confrontation, or battle of discourses--and not the relative merit or cleverness of the argument. Conservative thinkers detest this part of the theory with equal or greater vehemence, because it is customarily deployed against institutions and systems they revere and are closely allied with--for instance, corporations and corporate capitalism. Cheney, struggling to explicate Foucault, complains about "the idea that reality is nothing more than a social construct, a tool that allows dominant groups to exercise power."
So, following Foucault, it would not be enough for James Baker simply to promulgate the argument that the Gore camp was trying to steal an election that neutral, precise voting machines had already indicated they had lost. To prevail, under Foucauldian theory, the GOP discourse--competing as it was with one that on the evidence and on experience was more plausible--would have to be imposed by an exertion of institutional power. And in fact an examination of the tactics used in the Republican War for Florida reveals that Republicans used, or were prepared to use, every conceivable lever of power--administrative, legislative, judicial (and not excluding extra-institutional mob rule)--in order to prevail; and that they prevailed because every single one of the controlling levers of power, from the Florida Governor's and Secretary of State's offices to the US Congress, from the Florida legislature to the US Supreme Court, was controlled by them, and was used ruthlessly.
Florida Secretary of State Katherine Harris, co-chair of the Bush campaign in Florida, was the point person in the Republican effort to delay and forestall completely, they hoped, any manual recounting. There are, remember, conflicting statutes regarding the deadline for manual recounting, one of which stipulates that any manual recounts not finished and submitted to the Secretary of State's office by the statutory deadline for certification, November 14, "shall be ignored," and another (chronologically more recent) indicating that they "may be ignored." And there is also an obvious conflict between this statutory deadline and the provision allowing requests for manual recounts to be made up to seventy-two hours after Election Day, since the amount of time then remaining before the deadline (three to four days, including a weekend) would not be sufficient for many Florida counties to complete such recounts. In interpreting an ambiguous and contradictory corpus of election law, Harris chose in each instance to follow a course redounding to the benefit of George W. Bush and the disadvantage of Al Gore. She refused to extend the deadline to allow time for the manual recounts requested by the Gore campaign, refused requests by Broward and Palm Beach counties to have their manual recount results included in the statewide certification after the deadline, issued a ruling questioning the legality of such recounts that temporarily delayed them from proceeding, and refused to grant an extra two hours to Palm Beach County to meet the extended deadline of November 26 mandated by the Florida Supreme Court, or to include any of the recount results the Palm Beach canvassing board had achieved so far.
After the Florida Supreme Court ruled on November 21 that hand counts must be included in the Secretary of State's certification, and extended the deadline, the Republican War for Florida shifted "to the ground," that is, to the places where actual hand counting was being done, or contemplated, by the canvassing boards. Republican tactics were summarized thus by the Los Angeles Times:
The Republicans were on the defensive, so their style was more confrontational: Challenge every disputed ballot and, if necessary, challenge the boards themselves. Build a record of inconsistent standards for court. If that leads to delays, so much the better. [Emphasis added.]
The New Republic described a Republican "ground operation" that involved, besides "now-infamous faux grassroots protests," visits to recount centers by "GOP luminaries," and that emphasized the blatant hypocrisy of the operation: It recounted Michigan Governor John Engler falling asleep during his service as an observer, and then going outside to "blast" the process, and New Jersey Governor Christine Todd Whitman getting along "swimmingly" with the canvassing board, even complimenting them on how well they were running things, then leveling "the obligatory attacks into the microphones."
The New Republic noted a crucial difference between the Gore and Bush camps: The Gore campaign chose anonymous lawyers specializing in arcane voting law to act as their observers, whereas the Bush campaign let loose a "rotating cast of big name pols." This was because the Bush campaign was less interested in trying to insure the fairness of the recounting process than in undermining it by propagandizing their discourse about its alleged inherent unfairness.
It could be said that the Gore effort in Florida foundered in a number of ways and places, two of which were certainly Palm Beach County and Miami-Dade County. In Palm Beach County, in the words of the Los Angeles Times, "Republicans crushed the Democrats." There was more than one reason that the Palm Beach canvassing board missed the new November 26 certification deadline (when Katherine Harris certified Bush as having won by 537 votes), but here is how the Los Angeles Times summarized what happened: "Endless delays, false starts and court challenges by Republicans meant the full recount didn't begin until Friday, November 17."
In Miami-Dade, the county with the largest voting population in the state of Florida (and the largest black vote), Republicans succeeded in preventing manual recounting from taking place at all. (The Miami Herald recently reported that by its own assessment of the undercounted votes in the county, Gore would have netted another forty-nine.) Members of the Miami-Dade canvassing board, and particularly its chairman, David Leahy, had been ambivalent about doing a recount from the start. The board first decided against doing one, then reversed course. The recount started on November 20; but the very next day, the Florida Supreme Court issued a ruling setting the new certification deadline at November 26. Believing that the board did not now have the time to conduct a full recount, Leahy persuaded the other board members that they should count only the 10,750 "undervotes" (ballots cast on which the punch-card tally machines had not detected any vote for President). The board then moved upstairs to a smaller room, where there were machines that could separate out the undervotes from the rest.
There, members of the board confronted what Time called a "mob scene" and "GOP melee." A group of several dozen or more Republican protesters, most of them apparently from out of state, many of them paid Capitol Hill staffers recruited by House majority whip Tom DeLay for the Florida effort (this being one of the Republicans' faux grassroots protests), directed from a Republican electronic command center in a Winnebago outside the building and by leaders on the scene with bullhorns, engaged in "screaming...pounding on doors and...alleged physical assault on Democrats," according to Time. When Miami-Dade Democratic chairman Joe Geller emerged from the room carrying a sample ballot, he was pushed and shoved by many protesters screaming, "I'm gonna take you down!" Simultaneously, longtime GOP operative Roger Stone was overseeing phone banks urging Republicans to storm downtown Miami, and Radio Mambi, a right-wing Cuban-American radio station, was inciting the Miami community into the streets. Outside the room where the canvassing board was meeting, members of the rampaging crowd were threatening that as many as 1,000 reinforcements, including a large contingent of angry Cubans, were on the way to join them. As Time put it, "just two hours after a near riot outside the counting room, the Miami-Dade canvassing board voted to shut down the count."
Leahy later denied that the board had been intimidated into inaction by the rioters, but his claim that their bullying and threats of violence had no effect at all on the board's reversal of its previous decision hardly seems credible. In any case, saturation propaganda and near-mob rule were only two of the weapons that Republican strategists had rolled out onto the field of battle in their War for Florida. (I won't even get into the report of a mysterious state police roadblock that intimidated some on their way to the polls on Election Day.) They also had under way a lawsuit seeking to have a federal court invalidate the manual recounts on the grounds that they violated Article II, Section I of the US Constitution, which gives to the state legislatures the power to regulate presidential elections; this lawsuit and others, including arguments which would end up being decided by a 5-4 majority of the US Supreme Court, were being handled by Theodore Olson, a party lawyer who had been active in efforts to discredit President Clinton while he was in office; Olson is a past president of the Federalist Society, a conservative Republican legal organization that normally seeks to severely limit the intrusion of federal power into state matters. And just in case the Republican cause lost in both the Florida and the federal courts, the Republican-controlled legislature in Florida was prepared to intervene and certify its own competing slate of electors. In fact, on December 12, just before the US Supreme Court issued its decision and made the action moot, the Florida House of Representatives did just that. A few days before, Baker, in an interview, had refused to stipulate that the Bush camp would heed a US Supreme Court ruling that went against them rather than turn to the legislature; and on other occasions Baker had appeared to invite its intervention. Beyond that, if the matter went to Congress for final arbitration, the Republicans were more than prepared to flex their majority muscle there. Tom DeLay had circulated a memo on Capitol Hill that a Republican Congressional aide characterized as saying: "Congress can prevent Al Gore from becoming President no matter what."
A final Foucauldian note. Foucauldian theory holds that the way of the rich and powerful will prevail, the less powerful or powerless will lose out (which is partly why the theory has been embraced by the left as a successor or adjunct to Marxism, and is so abhorred by the right). Punch-card voting machines are far less effective in recording votes correctly than optical scan machines. A dimpled or pregnant chad is created when insufficient force is used on the punch tool or when plastic T-strips used in balloting are too worn or rigid to allow chads to pass through; if the ballot is improperly aligned, and only one side of the chad is punched loose, that results in a hanging chad. These problems don't exist with optically scanned ballots, and as an obvious result, only about three out of every 1,000 optically scanned ballots in the Florida election recorded no presidential vote, compared to some fifteen out of 1,000 punch-card ballots, The New York Times reported.
Optical-scan voting machines tend to be more prevalent in the wealthier, and Republican-leaning, precincts and counties of Florida, the Los Angeles Times observed, and punch-card machines more prevalent in the less wealthy and more Democratic areas, simply because the wealthier counties can better afford the more expensive optical machines (the punch-card machines are not only less effective to begin with, but many of them are also old and worn out). Looked at one way, the manual recounting efforts were an attempt to correct a discriminatory imbalance in access to electoral power between rich and poor (and black and white) in Florida; and Republican forces were determined, in every possible way, to thwart this attempt.
American conservative thinkers, as discussed, have also directed considerable intellectual ire at the deconstructionist movement. In dissecting Paul de Man, the Belgian émigré who founded American deconstructionism at Yale in the 1970s, Roger Kimball pejoratively ascribes to him "the thought that language is always so compromised by metaphor and ulterior motives that a text never means what it appears to mean." D'Souza, confronting Derrida and de Man, says that they labored "to discover ingenious, and sometimes bizarre, contradictions which render the work 'radically incoherent.'" Lumping deconstructionists together with "postmodernists, structuralists, poststructuralists, reader-response theorists," D'Souza says that "they are embarked on a shared enterprise: exposing what they say is the facade of objectivity and critical detachment in such fields as law, history, and literature."
Lynne Cheney finds the apparent migration of deconstructionist methods of textual analysis and thinking to the field of law extraordinarily disturbing. In Telling the Truth, she traces the origins (to her own satisfaction, anyway) of critical legal studies, feminist legal theory and critical race theory--academic movements that hold that the law is not in any way neutral but is crafted to favor the interests of a dominant (white, male) elite--to deconstructionism. She claims, for instance, that "one of the primary purposes of CLS [critical legal studies] is to destroy any illusions that might exist about stability and objectivity in the law by deconstructing its arguments," and goes on to assert: "The heirs of CLS, such as those in the critical race theory movement, take a giant step further. As feminists have done, critical race theorists not only attack the notion that the law is disinterested, they advocate using the law to promote their own interests." [Emphasis added.] In other words, Cheney sees the notion that legal texts have no stable, permanent, inherent meaning (a deconstructionist notion) and will therefore be interpreted according to the practical interests of those doing the interpreting, and not other criteria (a leftist political notion), as dangerously subversive of our legal system.
If the objectivity and disinterestedness of the law, however, are bedrock conservative doctrine, then James Baker, and his associates and conservative columnist sympathizers like William Safire, once again challenged and compromised that doctrine in the Florida presidential election imbroglio. The idea that law is (on the whole) neutral, objective and disinterested necessarily implies that the judges who interpret it are (on the whole) neutral, objective and disinterested; there is no conceivable syllogism whose conclusion is that our legal system is (more or less) objective and fair that can have as a premise that our judges are not and are not capable of being so. Yet this was the blatant premise of Republican commentary as an assortment of legal cases relating to the election wound their way through the Florida court system. Just as Republican operatives and commentators trashed the integrity of the county canvassing boards simply because they were under Democratic control, they also used the fact of their being Democratic appointees to attempt to discredit--often in advance--the decisions of various Florida judges, from the circuit level up to the state's Supreme Court. The clear implication was that Democratic judges would necessarily, either reflexively or by calculation, rule in favor of the Democratic candidate. They could not be trusted to be disinterested and objective.
In addition to being a monumental betrayal of the conservative movement's stated intellectual principles, this line of argument creates another problem for its Republican promoters: It tends to discredit in advance the decisions of Republican as well as Democratic judges. For if Democratic judges cannot be trusted to be evenhanded and judicious, what logic can be called forth to argue that Republican judges can be? They are also human. They are also partisan. They also owe something to the people who selected them. The theory unavoidably predicts that judges appointed by Republicans will rule, in a biased and partisan manner, against Democratic candidates and causes when occasions to do so arise.
It is doubly ironic, therefore--and doubly troublesome, one would think, for the integrity of the conservative cause--that this is exactly what happened when the case called Bush v. Gore reached the highest court in the land. On Friday, December 8, the Florida Supreme Court, in a split 4-3 decision overruling a decision by lower court judge N. Sanders Sauls, ordered an immediate manual recount of all presidential undervotes throughout the state. The next day, a 5-4 majority of the US Supreme Court (all the members of this majority conservative appointees of either Richard Nixon, Ronald Reagan or George Bush) ordered the manual recount halted. This action was widely perceived at the time, by people on both sides of the battle, as a body blow to Al Gore's remaining chances of garnering Florida's electoral votes. It would inevitably push the recounting process, were it to resume, up against the December 12 "safe harbor" date (the time by which electors needed to be chosen in order to remain immune to Congressional challenge) and possibly even make it impossible to finish by December 18, the date on which the Electoral College was to cast its vote. Regarding this majority decision, issued by five judges who have pontificated widely in their writings and speeches about the virtues of "judicial restraint," Justice John Paul Stevens wrote in his dissent: "To stop the counting of legal votes, the majority today departs from...venerable rules of judicial restraint that have guided the Court throughout its history."
The Court did not, as we know, allow the recounting process to resume. The following Tuesday, December 12, the same 5-4 majority ruled that manual recounting under circumstances then prevailing in Florida would be unconstitutional. In an unsigned per curiam opinion (the judges said to be the primary authors of this opinion, Anthony Kennedy and Sandra Day O'Connor, clearly did not want their names on it), the majority (whose members in the past have been indifferent to, if not outright scornful of, equal protection claims)--relied principally on an equal protection argument, that it would be unfair to count ballots in different counties according to different standards (e.g., to count only hanging chads in one, but also dimpled chads in another). The argument speciously ignored the fact that the Florida ballots, prior to any recount, were already counted differently, and that the very purpose of recounting was to correct for this discrepancy. It also skirted the fact that ballots are counted differently all across the United States, and that a logically consistent application of the Court's principle would invalidate the entire presidential election.
Justices David Souter and Stephen Breyer had tried, in oral argument and behind the scenes, to work out a compromise position whereby the Justices would send the case back to the Florida Supreme Court and ask it to set a uniform standard for the manual recounts. But according to the per curiam majority, it was too late for this, because there would then not be enough time to meet the "safe harbor" deadline of December 12. This argument ignored the fact that it is the very essence of a "safe harbor" clause that it allows but does not require a certain self-protective action; the Electoral Count Act of 1887 stipulates that states that send electors by then chosen according to rules in place Election Day cannot have those electors rejected by Congress, but it does not mandate that the states behave that way. The argument also glided past the fact that there is nothing in Florida election law explicitly requiring that the state abide by that date, either; the majority opinion in this regard relied entirely on a virtual aside in the first Florida Supreme Court decision, to the effect that it thought the legislature intended the state to meet the deadline; the majority could not cite any actual, germane Florida statutory law--because there isn't any.
Thus did a Republican Party strategy to delay the manual recounting of votes in Florida as long as possible finally achieve its goal by furnishing the rationale for a conservative Republican Supreme Court majority to stop the recount process there for good. Thus did a Supreme Court majority that had been pursuing an aggressive states' rights jurisprudence prior to this decision intervene in a matter of state law in a heavy-handed and unprecedented way; in a category of dispute, furthermore, whose ultimate resolution the US Constitution unambiguously gives to Congress; and in a situation, finally, that even a modicum of "judicial restraint" would have called for it to avoid. Thus did a group of conservative Republican judges--unelected judges, to use a well-worn Republican refrain--choose the Republican candidate for President over the Democratic one, rather than the voters of Florida or the American people. Thus was James Baker's discourse--his "regime of truth"--finally imposed.
A further irony here is that the behavior of the Democratic judges who were involved in the Florida presidential election struggle overwhelmingly refuted Republican predictions of reflexive ideological bias. County Circuit Court Judge Terry Lewis, a Democrat, twice ruled in favor of Republican Secretary of State Katherine Harris, the first time upholding her enforcement of the certification deadline of November 14, the second time upholding her decision to declare a winner without including any hand recounts. Circuit Judge Nikki Clark, who handled the lawsuit involving the question of whether to throw out some 15,000 absentee ballots in Seminole County because of technical violations of the law by Republican canvassing board officials and operatives, had been particularly impugned by Republican commentators. She was black, she was a former legal aid attorney, she was not only a registered Democrat but had been an aide to the state's former Democratic Governor Lawton Chiles, and she had recently been passed over for a promotion by Governor Jeb Bush. But in the event she ruled decisively against throwing the ballots out, as did her fellow Democratic judge who handled a similar case concerning absentee ballots in Martin County. The November 16 decision of the Florida Supreme Court, all Democrats except one independent, to allow manual recounts in Palm Beach County (and tacitly allow the effort already under way in Broward County to continue), was unanimous; but the December 8 decision ordering manual recounts of all the undervotes in the state was a 4-3 split, and the court unanimously upheld virtually all the lower court decisions that went against Democratic interests, with the single exception of the finding by Circuit Court Judge Sauls rejecting the Gore campaign's contest. (Sauls, advertised as a Democrat, is actually a Republican appointee who switched registration from Democratic to Republican, and has run as a "nonpartisan" candidate for re-election in Democratic Leon County.)
"What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed," Justice Stevens wrote in his dissent in Bush v. Gore. "Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land." [Emphasis added.] According to a January 22 article in USA Today detailing the lingering bitterness between the two opposing factions within the Supreme Court over the Bush v. Gore decision, at an election night party on November 7, Justice Sandra Day O'Connor became "visibly upset" when network anchors first awarded the state of Florida to Al Gore. The story went that her husband was heard explaining the couple wanted to retire and that his wife preferred that a GOP President appoint her successor. The paper said that people close to the Justices had confirmed the essence of the story (which was also reported in the Wall Street Journal and Newsweek). Justice O'Connor, it would seem, experienced difficulty rising above her circumstances.
I am not an adherent or admirer of the theories of Michel Foucault, Jacques Derrida, Paul de Man, Stanley Fish or their associated movements. On the contrary. I received my education before these theories came into vogue, at a time when it was still commonly if not universally assumed on campus that the purpose of academic study was to acquire useful and verifiable knowledge in a variety of fields, not excluding literature and politics (my two fields of study). I personally believe that literary texts, while they can (and will, if they are any good) have subtleties and profundities and even contradictions that will stubbornly resist one-dimensional analysis, do have meaning--and that the better the writer, the clearer that meaning is. I believe that while the world and human nature are infinitely complex, there is, within limits, such a thing as objective truth. Since first hearing of the ideas of deconstruction and Foucault, I have counted myself among their skeptics and detractors.
So I did not undertake to write this essay to demonstrate, as it might seem, that the Republican War for Florida in all its aspects--in its ideology, in its concrete actions and, perhaps above all, in its success--lends credibility to these theories, though it has been most interesting to discover the extent to which it does. No, I am far less interested in the remarkable symmetry between what happened in Florida and the theories of Foucault and Derrida about how history and the social construction of reality work, than I am in the stunning asymmetry between Republican Party statements and actions there and the professed ideological principles of American conservatism.
In Florida, to win the presidency, the Republican Party betrayed what its intellectual spokespeople allege are among conservatism's highest ideals. To discredit the manual recounting process that they feared would result in the election of Al Gore, Republican representatives like Jim Baker propagated, in effect, the doctrine that human beings are incapable of being fair and objective in their interpretations of reality. To discredit judicial decisions that went (or simply might go) against their interests, they propagated, in effect, the doctrine that law does not have even a dimension of neutrality or disinterestedness but is from beginning to end an exercise of raw political power in disguise. Both of these are doctrines that their intellectual spokespeople like Lynne Cheney claim to oppose and despise--doctrines that according to her, are nothing less than "an assault on Western Civilization." And, to compound the moral dilemma they were creating for themselves and their movement, these representatives proceeded to conduct themselves in ways that lent support to the validity of these same cynical, anticonservative doctrines. A party that for a long time has professed adherence to principles of states' rights and judicial restraint played federal judicial intervention as its trump card to insure the election of its candidate. Will it ever be possible, in our generation anyway, to take its intellectual pronouncements seriously again?
As a proximate result of its relentless War for Florida, America's conservative party has taken control of the presidency and all the powers attendant on that office. We shall see what comes of that. But as another, perhaps longer-lasting result of that implacable war, the intellectual and moral pretensions of contemporary American conservatism lie in tatters, like so many discarded chads on the floor of a county canvassing board meeting room.
If a critic's clout can be measured by the ability to make an artist's name, the most important art critic in America today is clearly Rudolph Giuliani. Just over a year ago he excoriated the Brooklyn Museum of Art for including in its "Sensation" show Chris Ofili's Holy Virgin Mary--the elephant-dung-decorated painting of an African BVM, which the mayor found "anti-Catholic," blasphemous and disgusting--and turned Ofili himself into a sensation overnight: One collector, I heard, complained that the media attention had driven Ofili's prices so high he couldn't afford him anymore. If I were Jake & Dinos Chapman, represented by a perverse sculpture of deformed and weirdly sexualized children, I would have been seriously peeved, and if I had been Richard Patterson, whose Blue Minotaur, a profound meditation on postmodernity and the heroic tradition, got no attention at all, I would have wept.
You'd think the mayor would have learned to stay his theocritical thunderbolts, but once again he has gone after the Brooklyn Museum for including an "anti-Catholic" work--Renee Cox's Yo Mama's Last Supper--in the new show of contemporary black photographers, "Committed to the Image." He's even suggested that what New York needs is a "decency commission," which got big laughs all around, since the mayor, a married man, is openly carrying on with his mistress, upon whom he has bestowed police protection worth some $200,000 annually at taxpayers' expense. As the whole world now knows, Yo Mama is a five-panel picture in which Cox appears naked, as Jesus, surrounded by male disciples--ten black, one white--at the Last Supper. As an artwork it's negligible, glossily produced but awkwardly composed and, to my eye, rather silly. Cox is thin and beautiful; the men, in robes and caftans, are handsome and buff--apparently the first Christians spent a lot of time in the gym and at the hair salon, getting elaborate dreadlocked coiffures. Unlike the figures in Leonardo's Last Supper, which are highly individualized and dramatically connected, the figures here are generic and stiff. My eye kept going to the limited food on offer: bowls of wax-looking fruit (did they have bananas in Old Jerusalem?), rolls, pita bread. Was the Last Supper a diet Seder?
If you want to see visually haunting work at "Committed to the Image," there's Gordon Parks, Albert Chong, Imari, Nathaniel Burkins and many others. LeRoy W. Henderson's black ballet student, dressed in white and standing in front of a damaged classical frieze, interrogates the Western tradition much more deeply than Yo Mama does. Mfon's self-portraits of her mastectomized torso, a meditation on beauty, heroism and tragedy expressed through the female body, lay bare the high-fashion hokiness of Cox's costume drama. For fan and foe alike, the interest of Yo Mama appears to be political. Cox describes her art in ideological terms ("my images demand enlightenment through an equitable realignment of our race and gender politics"), and she has been quite pungent in defending it. As with The Holy Virgin Mary, the mayor hasn't actually seen it, nor had the numerous people who sent me frothing e-mails after I defended government support for the arts on The O'Reilly Factor.
Even the New York Observer's famously conservative art critic, Hilton Kramer, who usually delights in withering descriptions of pictures he hates, apparently felt that depicting Christ as a naked black woman was so obviously, outrageously anti-Catholic he need say no more about the photo before embarking on his usual rampage. It would be interesting to know where the offense lies: Is it that Cox as Christ is naked, black or female? All three? Two out of three? If one thinks of Catholics, the people, there's nothing bigoted about any of this. (Like Ofili, Cox is Catholic--as are most perpetrators of "anti-Catholic" works.) There is no ethnic stereotyping of the sort on view, for instance, on St. Patrick's Day, when the proverbial drunkenness of the Irish is the butt of endless rude humor, especially from the Irish themselves. While we're on the subject of ethnic stereotyping, it's worth noting that in a great deal of Christian art, Jesus and the disciples are portrayed as Northern Europeans, while Judas is given the hooked nose and scraggly features of a cartoon Jew.
But if what is meant by anti-Catholic is anti-Catholic Church, why can't an artist protest its doctrines and policies? The Church is not a monastery in a wilderness, it's a powerful earthly institution that uses all the tools of modern politics to make social policy conform to its theology--and not just for Catholics, for everyone. It has to expect to take its knocks in the public arena. A church that has a 2,000-year tradition of disdain for women's bodies--documented most recently by Garry Wills (a Catholic) in his splendid polemic Papal Sin--and that still bars women from the priesthood because Jesus was a man can't really be surprised if a twenty-first-century woman wonders what would be different if Jesus had been female, and flaunts that female body. And a church with a long history of racism--no worse than other mainstream American religions but certainly no better--can't expect the topic to be banned from discussion forever.
At the Brooklyn Museum, Yo Mama's Last Supper is in a separate room with its own security guard. On Sunday afternoon, it attracted blacks, whites, Asians, parents with small children, older women in groups, dating couples, students taking notes--le tout Brooklyn, which is turning out in large numbers for the show. I asked one black woman, who described herself as a Christian, what the picture meant to her. "It shows Life as a woman," she said. "It's beautiful." Her friend, who said he was a Muslim, liked the picture too.
If only I could get the Mayor to review my book!
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Show George W. Bush you support RU-486. Make a donation in W.'s name to the Concord Feminist Health Center (38 South Main Street, Concord, NH 03301) and help it buy the ultrasound machine this method requires. The center will send the President a card to let him know you were thinking of him when you wrote your check.
Does The Marshall Mathers LP--in which great white hip-hop hope Eminem fantasizes about killing his wife, raping his mother, forcing rival rappers to suck his dick and holding at knife-point faggots who keep "eggin' [him] on"--deserve Album-of-the-Year honors? This is the question before members of the National Academy of Recording Arts and Sciences (NARAS), who have, since nominating Eminem for four Grammy awards, received unsolicited advice from a bizarre constellation of celebrities, journalists and activists ranging from Charles Murray to British pop singer (and Eminem collaborator) Dido.
Bob Herbert of the New York Times took the opportunity to deplore not just Eminem's lyrics but the entire genre of rap music for "infantile rhymes" and "gibberish." In a more nuanced report, Teen magazine asked, Eminem: angel or devil? and discovered that 74 percent of teenage girls surveyed would date him if they could. The Ontario attorney general even attempted to bar Eminem from entering the country for violating the "hate propaganda" section of the Canadian Criminal Code.
But the most vociferous and persistent criticism of Eminem has come from an odd combination of activists: gay rights groups like the Gay and Lesbian Alliance Against Defamation (GLAAD) and family-values right-wingers like James Dobson's Focus on the Family. They all argue that Eminem's album threatens not only the objects of his violent lyrical outbursts but also, in GLAAD's words, the "artist's fan base of easily influenced adolescents who emulate Eminem's dress, mannerisms, words and beliefs."
In the face of all this attention to Eminem's "hate speech," even the usually taciturn NARAS is doing some public soul-searching. The academy's president, Michael Greene, recently said, "There's no question about the repugnancy of many of his songs. They're nauseating in terms of how we as a culture like to view human progress. But it's a remarkable recording, and the dialogue that it's already started is a good one."
As I have been forced to sit through all this Eminem-inspired hand-wringing over the physical and psychological well-being of faggots like myself, I've wondered just how good that dialogue really is. For one thing, so much of what has been said and written about Eminem has been political grandstanding. For example, Lynne Cheney, not usually known as a feminist, singled out Eminem as a "violent misogynist" at a Senate committee hearing on violence and entertainment. Eminem's lyrics, she argued, pose a danger to children, "the intelligent fish swimming in a deep ocean," where the media are "waves that penetrate through the water and through our children...again and again from this direction and that." Pretty sick stuff. Maybe it comes from listening to Marshall Mathers, but maybe it's the real Lynne Cheney, of lesbian pulp-fiction fame, finally standing up.
GLAAD, for its part, argues that Eminem encourages anti-gay violence, and it has used the controversy over Eminem's lyrics to fuel a campaign for hate-crimes legislation. While GLAAD and Cheney have different motives, both spout arguments that collapse the distance between speech and action--a strategy CatharineMacKinnon pioneered in her war against pornography. Right-wingers like Cheney and antiporn feminists like MacKinnon have long maintained such an unholy alliance, but you would think gay activists would be more cautious about making such facile claims. After all, if a hip-hop album can be held responsible for anti-gay violence, what criminal activities might the gay-friendly children's book Daddy's Roommate inspire? Because the lines between critique and censorship, dissent and criminality, are so porous and unpredictable, attacking Eminem for promoting "antisocial" activity is a tricky game.
Thankfully, GLAAD stops short of advocating censorship; instead it asks the entertainment industry to exercise "responsibility." GLAAD launched its anti-Eminem crusade by protesting MTV's heavy promotion of Marshall Mathers, which included six Video Music Award nominations and a whole weekend of programming called "Em-TV." After meeting with GLAAD representatives in June, MTV's head of programming, Brian Graden, piously confessed, "I would be lying to you if I didn't say it was something we struggled with." Liberal guilt aside, MTV nonetheless crowned Eminem with Video of the Year honors and then, in an attempt to atone for its sins, ran almost a full day of programming devoted to hate crimes, starting with a mawkish after-school special on the murder of Matthew Shepard, called Anatomy of a Hate Crime, and concluding with a seventeen-hour, commercial-free scrolling catalogue of the kind of horrific and yet somehow humdrum homophobic, misogynous and racist incidents that usually don't make it into the local news.
Perhaps understandably, Eminem's detractors still weren't satisfied, but given the fact that Eminem is one of the bestselling hip-hop artist of all time, what exactly did they expect from MTV and the Grammys but hypocrisy and faithless apology? And what do they really expect from Eminem--a recantation? Does anyone remember the homophobic statements that Sebastian Bach of Skid Row and Marky Mark made a decade ago? Point of fact: Marky Mark revamped his career by becoming that seminal gay icon, the Calvin Klein underwear model, and Bach, long blond locks still in place, recently starred in the Broadway musical Jekyll and Hyde. All of which just goes to show, if hunky (and profitable) enough, you can always bite the limp-wristed hand that feeds you.
Meanwhile, the dialogue among Eminem's fans has been equally confusing. Some, like gay diva Elton John (who's scheduled to perform a duet with Eminem at the Grammys) and hip-hop star Missy Elliot, praise Eminem's album as hard-hitting reportage from the white working-class front. They argue that his lyrics are not only excusable but laudable, because they reflect the artist's lived experiences. This is, as London Guardian columnist Joan Smith pointed out, a "specious defence." Should we excuse Eminem because he is, after all, sincere? Should we ignore his own genuinely violent acts--like pistol-whipping a man he allegedly caught kissing his wife? Others, like Spin magazine, have defended him as a brilliant provocateur. Far from being about realness, they argue, Marshall Mathers is parody, a horror show of self-loathing and other-loathing theater, a sick joke that Eminem's fans are in on. They point to how he peppers his rants with hyperbole, denials and reversals, calling into question not only the sincerity of his words but also their efficacy. For example, he raps about how he "hates fags" and then claims he's just kidding and that we should relax--he "likes gay men."
I don't know if Eminem really likes gay men, although I'd sure like to find out. What is clear from listening to Marshall Mathers is that he needs gay men. When asked by MTV's Kurt Loder about his use of the word "faggot," Eminem said, "The lowest degrading thing that you can say to a man when you're battling him is to call him a faggot and try to take away his manhood. Call him a sissy, call him a punk. 'Faggot' to me doesn't necessarily mean gay people. 'Faggot' to me just means taking away your manhood." Of course, using the word "faggot" has this effect only through its association with homosexuality and effeminacy, but there, really, you have it. Homosexuality is so crucial to Eminem's series of self-constructions (he mentions it in thirteen of eighteen tracks) that it's hard to imagine what he would rap about if he didn't have us faggots.
Eminem is, in his own words, "poor white trash." He comes from a broken home; he used to "get beat up, peed on, be on free lunch and change school every 3 months." So who does he diss in order to establish his cred as a white, male rapper? The only people lower on the adolescent totem pole than he is--faggots. This strategy of securing masculinity by obsessively disavowing homosexuality is hardly Eminem's invention, nor is it unique to male working-class culture or hip-hop music. Indeed, Eminem's lyrics may be more banal than exceptional in the way they invoke homophobic violence.
Marshall Mathers reworks the classic Western literary trope of homosexuality, which manifests itself as at once hysterical homophobia and barely submerged homoeroticism. It reflects the kind of locker-room antics that his white, male, suburban audience is well acquainted with. So too were Matthew Shepard's killers, Aaron McKinney and Russell Henderson, and the perpetrators of the hate crimes MTV listed (who were, not so incidentally, almost all white men), and, for that matter, the Supreme Court, which recently held in the Boy Scouts' case that homophobic speech is so essential to boyhood that it's constitutionally protected. Herein may lie the real brilliance of Eminem as an artist and as a businessman. In a political culture dominated by vacuous claims to a fictive social unity--tolerance, compassionate conservatism, reconciliation--he recognizes that pain and negativity, of the white male variety in particular, still sell.
So does Marshall Mathers deserve Album of the Year? Well, I probably wouldn't vote for it, but if it does win, that would be perfectly in keeping with Grammy's tradition of rewarding commercial success. And where might a really good dialogue on homophobia, violence and entertainment begin? It might look at why The Marshall Mathers LP proved to be so pleasurable for so many, not despite but rather because of its violent themes. It might start by seeing Eminem not as an exception but as the rule--one upheld not just by commercial entertainment values but by our courts, schools, family structures and arrangements of public space. As Eminem says, "Guess there's a Slim Shady in all of us. Fuck it, let's all stand up."
They distort. They decide.