In Praise of Flip-Floppers (Part III)

In my last two posts I scrutinized the tendency for voters, the media, and politicians to use flip-flopper critiques indiscriminately. Common usage is indiscriminate in part because it seems to accept without question that position changes by candidates are always a result of pandering, when in fact other, justifiable reasons may be the cause in any given case. Common usage is also indiscriminate because it denounces position changes by candidates for office without paying attention to how the constitutional features of the office influence the validity of the changes.

Given these defects, why does the flip-flopper critique remain so common? I have a few guesses:

First, perhaps voters and the media use the critique in an attempt to simplify the candidate selection process. Position changes complicate candidate identities, and complexity makes it harder to brand and distinguish candidates. By discouraging position changes, the critique facilitates voter choice.

Second, perhaps voters use the critique because they know that electoral mandates are difficult to enforce intra-term. If a candidate elected on one platform changes her position on a matter once in office, it is always possible for the electorate to vote her out upon the expiration of the term. But there is little that can be done until then. And in the meantime the official may work to create laws that reflect her new, unpopular position. Maybe voters scrutinize candidates for position changes to reduce the risk of this scenario. The flip-flopper critique, in other words, fulfills a vetting function, weeding out those candidates who are most likely to change positions in an unforeseeable manner.

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Low Profile Cases Show Supreme Court at Its Best, Justice Kagan Tells Students

Look to United States Supreme Court cases that don’t make front-page news if you want to see the workings and qualities of the court at its best, Justice Elena Kagan suggested in a session with more than 225 Marquette Law School students Tuesday.

Asked by a student to provide reasons to have faith in a divided court that often votes predictably, Kagan said, “I think you should have that faith.” She called the court “an inspiring institution” whose members struggle conscientiously with difficult issues.

Kagan, who joined the court in 2010, visited the Law School to take part in judging the annual Jenkins Honors Moot Court Competition for students. She also took part in an “On the Issues with Mike Gousha” conversation for an hour, answering questions from Gousha, the Law School’s distinguished fellow in law and public policy, and from students.

Kagan, of course, did not discuss pending matters before the Court, but, in a wide-ranging and informal conversation, she discussed the way the Court works, her perspective as a woman lawyer, her personal background, and other matters.

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JAG Corps Work Can Be on the Battlefield as Well as in the Courtroom, Houck Says

What is the United States Navy looking for in the lawyers it selects for the Judge Advocate General’s Corps? Not surprisingly, Vice Admiral James W. Houck, Judge Advocate General for the Navy, answered, “We’re looking for good lawyers.” But, he added, a few other qualities are important: Being a good team player and being willing to take on difficult assignments, sometimes in difficult places.

Houck described the work of the JAG Corps and his own career at an “On the Issues” session Thursday with Mike Gousha, distinguished fellow in law and public policy at Marquette University Law School.

JAG Corps positions have become highly sought, especially in today’s difficult job market for lawyers, Houck said. He described the corps as “a world-wide law firm” with 2,300 employees. The initial commitment of a lawyer joined the corps is for four years, but more than 90% seek to serve longer. And “people stand in line” for assignments in a place such as Afghanistan, Houck said.

He said the JAG Corps has had a good association with Marquette and there have been at least seven Law School grads in the corps in recent years.

The role of lawyers in the Navy is far broader than many people realize. Members of the JAG Corps work both as prosecutors and as defense lawyers in military judicial proceedings and they provide legal help to members of the Navy and their families. But, Houck said, they are also involved in combat issues that put them on the frontlines of combat. Those issues can include advising commanders on what is a legally valid target or an acceptable risk of collateral damage. “Lawyers are integrated in ways people would never imagine,” Houck said.

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