Listen to the CAFE Insider podcast
July 2, 2020

CAFE Insider Newsletter #78

Dear Reader,

Not everyone is cut out to be a good leader. Depending on the institution, advanced leadership may demand eloquence, empathy, expertise, genius, courage, or any number of other qualities that one may not be born with and cannot easily acquire. And of course, good leadership always requires common sense and decent judgment. Also integrity. In a perfect world, people with deep deficits in these areas would never rise to a supervisory position, much less to the top of a large and complex organization.

But this is not a perfect world, and flawed people are imposed on the rest of us all the time, whether because of favoritism, discrimination, nepotism, myopia, or dumb luck. Sometimes bad leaders are responsible for choosing their successors, which can lead to a vicious cycle of crappy leadership.

But all is not hopeless. There are strategies that even terrible leaders can employ to at least mitigate the harm they might otherwise cause. And the good news is these practice points can be followed by anyone, even if corrupt and dimwitted.

Say, for example, you happen to ascend to the U.S. presidency even as you lose the popular vote because, among other things, you are a talented demagogue, know how to exploit racial and other divisions, your opponent is deeply unpopular, a foreign power interferes in the election, and the FBI director gives you a last minute gift. I know it sounds crazy, but please don’t fight the hypothetical. Now suppose further you don’t have in great supply any of those qualities I mentioned above (eloquence, empathy, expertise, courage, and so on).

What to do?

Well, there are many basic best practices that even an unfit, hapless, and accidental leader can embrace. I’ll just briefly mention three that come to mind for no particular reason.

First: Read. Yes, read. This presumes basic literacy, but I think we can allow ourselves to make that assumption here. By read, I don’t mean novels or history books. That may require intellectual curiosity that we should not presume in our hypothetical unfit leader. I mean read the most important documents that your staff prepares for you, especially if they have your name on it, if they were specifically prepared for you. That goes double if the document could relate to the safety of actual human beings. One example might be the President’s Daily Brief, which fulfills those criteria. “Reading is Fun(damental)” was a cute children’s literacy campaign when I was growing up. Every leader should remember it. Presidents too. That way, you might learn in real time that the Russian Federation is offering bounties to the Taliban for killing U.S. soldiers. Just by way of example.

Second: Vet what you say. We all misspeak, misremember, get things wrong, and unintentionally offend. That can’t be helped in impromptu settings, especially if you lack judgment and intelligence. But many leaders, by virtue of their position, make prepared statements too. These can be speeches or press releases, or in the age of social media, tweets. These are not impromptu. And because they are not impromptu, they can be vetted. When I was U.S. Attorney, for example, I considered every single tweet I posted to be an official statement, which 3-5 people vetted before posting. Every single one. This simple practice might, for example, help you avoid tweeting a video in which your supporters shout, “white power!” People don’t like racist presidents; it’s best to keep that sort of thing to yourself and off Twitter.

Third: Be available. Again, availability does not require any particular talent or skill or expertise. Thus, it is a perfect mitigation strategy for the unfit leader. Being easily reachable by smarter people who work for you enables the development of better policy and also the undoing of mistakes you might have made by, for example, not vetting what you say (see point 2, supra). Twenty-four/seven availability is the standard M.O. for leaders of nation states, especially. Whatever you may think of the leadership of Barack Obama or George W. Bush, they were always reachable by staff, like during 9/11. If you make it a practice to be reachable, like while playing golf surrounded by Secret Service agents with mobile devices, your racist tweets need not remain on the Internet for many hours as your staff tries to do damage control.

Three basic practices – read, vet, be available. They may not save your job or your presidency, as the case may be, but they can make life a little bit better for you and the people you purport to  lead.

Be safe and be kind.

My best,

Preet

Who Is John Roberts?

By Sam Ozer-Staton

On Monday, Chief Justice John Roberts delivered the decisive vote in a Supreme Court decision that struck down a Louisiana law designed to restrict abortion access. It was the latest in a series of surprising votes from Roberts, who in recent weeks has sided with the Court’s four-member liberal wing to expand LGBT rights and protect DACA recipients. Since the retirement of moderate Justice Anthony Kennedy in 2018, Roberts has become the Court’s pivotal “swing” vote. But as early as his confirmation hearings in 2005, Roberts has painted himself as an institutionalist who “calls balls and strikes” — a claim that has been the subject of impassioned debate since the moment Roberts joined the bench.

Roberts’ concurrence in June Medical v. Russo, which quashed conservatives’ best chance at chipping away at Roe v. Wade in a generation, centered on the importance of stare decisis — “the legal term for fidelity to precedent,” which, Roberts writes, “requires [the Court] to treat like cases alike.” Since the Lousiana law in June Medical imposed a similar burden of access to abortion as the Texas law challenged in 2016’s Whole Woman’s Health v. Hellerstedt, Roberts determined that the Court was bound by precedent to strike it down.

That outcome infuriated conservatives and was celebrated by liberals and pro-choice groups. Yet Roberts’ opinion has also caused some progressive legal commentators to push back against the emerging narrative of the Chief Justice as an ideological moderate. Following the June Medical decision, Slate’s Dahlia Lithwick called Roberts’ concurrence “classic Roberts — cloak[ing] a major blow to the left in what appears to be a small victory for it.” According to Lithwick, Roberts’ opinion appeared to protect the institutional integrity of the Court while simultaneously providing a roadmap for conservatives to undermine abortion rights “so long as they ground the laws in better pretextual arguments.” Or, as Lithwick paraphrased, “Lie better next time.” For Lithwick and others on the left, Roberts is still the same man who authored the opinion in Shelby County v. Holder, the decision which gutted the Voting Rights Act of 1965, and who joined the majority in Citizens United v. FEC, which opened the floodgates to dark money in federal elections.

The question of Justice Roberts’ intentions — and the actual extremity of his conservatism — has been hotly debated since he first burst onto the national scene in 2005.

In July of that year, Roberts was nominated by President George W. Bush to fill the seat vacated by retiring Justice Sandra Day O’Connor. While Roberts’ nomination was still pending before the Senate, Chief Justice William Rehnquist died, prompting Bush to instead submit Roberts’ name for the bench’s top position. At the time, the 50-year-old Roberts had served just over two years as a judge on the D.C. Circuit Court of Appeals. Besides a sterling academic resume, a decade in corporate law, and stints as a young lawyer in the Reagan and H.W. Bush administrations, there was little indication of how Roberts might operate on the Court.

In a hearing before the Senate Judiciary Committee on September 12, 2005, Roberts said that he had no overarching jurisprudential philosophy. Comparing the job of a judge to that of an umpire in baseball, Roberts famously told the committee:

If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.

Despite being impressed with Roberts’ intellect and temperament, many Democratic Senators expressed concerns that his thin record was hiding a more radical conservative ideology. Senator Chuck Schumer (D-NY), after meeting with Roberts multiple times, ultimately voted against him. He told NPR at the time, “Because there were not enough questions answered or documents provided, we’re still unsure of how to answer the central question — who is Judge Roberts? We’re left playing a bit of a game of blind man’s bluff.”

Roberts ended up being confirmed on a 78-22 vote. It was one of the slimmest margins ever for a Supreme Court Justice at the time, but it would be considered a landslide today. Senator Pat Leahy (D-VT), who was at the time Ranking Member of the Senate Judiciary Committee, voted to confirm Roberts. In an interview, Leahy said, “Is he going to be an ideologue? I’m convinced in my own mind he will not be.” Leahy was joined by 21 other Democrats, including the outspoken liberal Senator Russ Feingold (D-WI).

Are we now any closer to answering the question: Who is John Roberts? In your view, has Roberts adhered to his stated commitment of calling “balls and strikes”? Let us know your thoughts by writing to us at [email protected], or reply to this email.

FOLLOW

Ben Rhodes served as President Obama’s Deputy National Security Advisor. Now he provides foreign policy analysis with the crew of former Obama staffers who run Crooked Media. As the country reacts to the recent news around President Trump’s (lack of) response to reports of Russian bounties for U.S. troops, Rhodes provides necessary context and clarity about foreign policy decision-making. Follow him @brhodes.

*To listen to Insider content on your favorite podcast app, follow these instructions*

— This week’s episode of Stay Tuned, “Between Two Prosecutors Part II,” features Manhattan District Attorney Cyrus Vance Jr. who returns to the pod for a discussion of the Black Lives Matter protests, calls to defund the police, and more.

— In this week’s episode of CAFE Insider, “The Judiciary Speaks,” Preet and Anne discuss the Supreme Court’s abortion decision, the Trump administration’s push to overturn Obamacare, the latest in the Michael Flynn saga, and the House Judiciary Committee hearing about the politicization of the Department of Justice.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Sam Ozer-Staton, David Kurlander, Noa Azulai, Calvin Lord, David Tatasciore, and Matthew Billy.

Stay in the Know

Get the CAFE Brief - which includes analytical essays by former SDNY organized crime chief Elie Honig, a concise recap of the week’s biggest legal stories, historical look-backs that help inform the present moment, and a roundup of the week's content at CAFE.

Thanks For Joining Us!

As a member of the CAFE community, you'll get occasional updates on promotions, live events, and new content. You can always update your email preferences in our preference center

An error occurred while processing your email. If this persists please email us at: [email protected]
x