Best American Magazine Writing 2013

by The American Society of Magazine Editors

  Weeks before his death, Christopher Hitchens, no more a fan of LDS than of any other denomination, wrote that “we are fully entitled” to ask Romney about the role of his religion in influencing his political formation. Of course we are. Romney is not merely a worshipper sitting in the pews but the scion of a family dynasty integral to the progress of an American-born faith that has played a large role in the public square. Since his youthful stint as a missionary, he has served LDS in a variety of significant posts. The answers to questions about Romney’s career as a lay church official may tell us more about who he is than his record at Bain, his sparse tenure as governor, or his tax returns.

  The questions are not theological. Nor are they about polygamy, the scandalous credo that earlier Romneys practiced even after the church banned it in 1890. Rather, the questions are about the Mormon church’s political actions during Mitt Romney’s lifetime—and about what role Romney, as both a leader and major donor, might have played or is still playing in those actions. To ask these questions is not to be a religious bigot but to vet a candidate for the nation’s highest job. Given how often Romney himself cites his faith as a defining force in his life, voters have a right to know what role he played when his faith intersected with the secular lives of his fellow citizens.

  As we learn in The Real Romney, Mitt Romney has performed many admirable acts of charity for members of his church in dire straits. But the flip side of this hands-on engagement is whether, in his various positions in the church, he countenanced or enforced its discriminatory treatment of blacks and women, practices it only started to end in earnest well after he had entered adulthood. It wasn’t until 1978, when he was in his thirties, that blacks were given full status in his church—an embarrassing fact that Romney tried to finesse in his last campaign by speaking emotionally on Meet the Press of seeing his father join Martin Luther King on a civil-rights march. (The Boston Phoenix would soon report that this was another lie about his past.) In the seventies, Romney’s church also applied its institutional muscle to battling the ratification of the Equal Rights Amendment for women. And these days, no major faith puts more money where its mouth is in battling civil rights for gay Americans. Its actions led Stuart Matis, a faithful graduate of Brigham Young University who’d completed his missionary service, to commit suicide on the steps of a Mormon chapel in 2000 in anguished protest of his dehumanized status within his religion. Unchastened, the Mormon church enlisted its congregants to put over Proposition 8 in California in 2008. Mormons contributed more than $20 million to the effort and constituted an estimated 80 to 90 percent of the campaign’s original volunteers. Romney, who endorsed gay rights when running as a moderate against Kennedy in 1994, has swung so far in the other direction that he ridiculed gay couples when pandering to South Carolina Republicans a few years ago. (“Some are actually having children born to them!” he said with horror.) Did some of his yet undivulged Mormon philanthropy support the Prop 8 campaign?

  Even if these questions yield benign answers, we know that Romney’s faith has contributed to his self-segregation from the actual “real streets of America.” His closest circle comes from within his faith, and while there’s nothing wrong with that, the fact remains that today the American Mormon population is still only 1 percent black. (Those recent television promo spots marketing LDS as a fount of diversity are a smoke screen.) Much as the isolating cocoon of Romney’s wealth can lead him to dismiss $347,327 in speaking fees as “not very much” (to take just one recent example of his cluelessness about how the other 99 percent lives), so the demographic isolation imposed by his religion takes its own political toll. When he’s forced to interact with the America beyond his hermetically sealed Mormon orbit, we get instant YouTube classics like his attempt to get down and rap with black voters on Martin Luther King Day four years ago by quoting “Who Let the Dogs Out?”

  Given Romney’s maladroitness as a retail politician, the failure of even his own fans to convey any enthusiasm for him, and the 75 percent of his party that questions his conservatism, it’s hard to fathom how he kept being judged inevitable by so many observers just as he was losing two of the first three election-year contests. Even a normally hardheaded, data-driven analyst like the Times poll maven Nate Silver couldn’t resist being swept up by this narrative, going beyond the numbers to write in a January 16 post that the 90 percent odds given a Romney nomination by the betting market Intrade “may if anything be too conservative.” (Six days later, after South Carolina, Silver wrote, “Perhaps, then, there is profound resistance among Republican voters to nominating Mr. Romney after all.”) Much of the Romney inflation, naturally, has to do with his good fortune in having such a splintered and screwy scrum of opponents. Often we’re told that he “looks like a president” (that would be a pre-Obama president). We also hear constantly about his message discipline, his organization, and his money—attributes that matter more to political consultants and the pundits who pal around with them than to an angry electorate trying to dig out of a recession. To the political class, Romney is the most electable candidate because his mealy-mouthed blandness is what will lure that much-apotheosized yet indistinct band of moderates and independents to his side. But as Michael Kinsley long ago joked that Al Gore was an old person’s idea of a young person, so Mitt Romney is a political hack’s idea of an electable conservative president. Voters may have another view, and certainly did in South Carolina, where exit polls found that those who most valued a candidate’s electability rallied to Newt.

  But if the power of Mitt’s money and the power of pack journalism helped contribute to his status as indestructible, the power of denial at the higher reaches of the GOP did even more so. The Republican establishment has been adamant in insisting that economic populism and class warfare do not infect their own ranks and that economic inequality is strictly a lefty and Democratic gripe. If that’s the case, then Romney’s strong identification with the 1 percent stigmatized by Occupy Wall Street would indeed present no problem. But a January Pew poll found that a majority of both Republicans and Independents now join Democrats in feeling that there are “strong conflicts” between the rich and poor in America; a recent NBC News–Wall Street Journal survey found that Republican voters were just as likely as Democrats to blame “Wall Street bankers” most of all for the country’s economic problems. It’s hardly a stretch that some of that blame might attach itself to Romney, especially after Gingrich turned a spotlight on his Bain résumé.

  When the battle over Bain broke out in New Hampshire, both the Romney campaign and the right were blindsided. “Perhaps the most striking thing about the current fight over Mitt Romney’s career in private equity is how little we knew about it,” wrote Byron York, the conservative columnist at the Washington Examiner, adding that Romney’s “business experience has not been the topic of long and detailed public examination and debate.” He, like many of his cohort in the Fox echo chamber, seemed unaware that Romney’s Bain record has been debated for nearly two decades, starting with his 1994 battle with Kennedy (who engaged “truth squads” of downsized workers from a Midwestern Bain-owned company to stalk Romney). That record has been examined repeatedly by mainstream journalists ever since.

  Even as the Republican establishment continues to prop up Mitt, it remains in denial about his long-term prospects. Romney rationalizers argue that Gingrich’s blunderbuss assault on Bain was a blessing in disguise, for it will force Romney to come up with an airtight defense before the fall. But Romney has been trying since 1994 to formulate answers to questions about his Bain career, his vast wealth, and his leadership role in his church. If he hasn’t found them by now, it’s because he doesn’t have them. And so his preferred route has been just to avoid tough questions altogether—and confrontation in general—by sticking to manicured campaign events as immaculate as his Brooks Brothers shirts. He tries to shun mainstream-news-organization interviews, and dropped the “Ask Mitt Anything” sessions with voters that were a staple o
f his 2008 campaign. Even straightforward interviews with sympathetic interlocutors like Fox News’s Bret Baier and the radio talk-show host Laura Ingraham throw him into a tizzy, if not a hissy fit. Remarkably, he received high marks for months for his steady demeanor and discipline in the Republican debates, but as we now know, all it takes is a tough question about his own biography to prompt a stammering answer and robotic herky-jerky head movements suggestive of a human-size Pez dispenser. His belated efforts to go on the attack against Gingrich often make him sound like an adolescent tattletale. In Romney’s best debate, last Thursday, he was still outshone by the also-ran Rick Santorum.

  To escape the twin taints of Bain and his one-percenter’s under–15 percent tax rate, some Republican elders are urging Romney to “stake his campaign on something larger and far more important than his own business expertise” (the Wall Street Journal editorial page) or, as Fred Barnes suggested more baldly, to find “a bigger idea to deflect attention from Bain.” But even Mitt’s own spokesman, Eric Fehrnstrom, once described him (to the Des Moines Register) as “not a very notional leader.” Romney is incapable of an arresting turn of phrase, let alone a fresh idea. Running on empty, he resorts to filling out his canned campaign orations with lengthy recitations of the lyrics from patriotic anthems. (“Believe in America” is his campaign slogan.) Take away the bogus boasts about “job creation” at Bain and the disowned Romneycare, and what else is there to Mitt Romney? Mainly, his unspecified service to his church and his perfect marriage. That reduces him to the stature of the Republican presidential candidate he most resembles, Thomas Dewey—in both his smug and wooden campaign style and in the overrating of his prospects by the political culture. Even the famously dismissive description of Dewey popularized by the Washington socialite Alice Roosevelt Longworth—as “the little man on the wedding cake”—seems to fit Mitt.

  No Republican has ever won the nomination after losing the South Carolina primary. No incumbent president since FDR has won reelection with an unemployment rate higher than 7.2 percent on Election Day, and ours currently stands at 8.5 percent. No candidate with a 58 percent disapproval rating—especially Newt—is likely to win a national election, even for dogcatcher. But surely someone has to be nominated by the Republicans, and someone has to win in November.

  “This race is getting to be even more interesting,” said Romney when conceding to Gingrich in South Carolina. As always, it’s impossible to know whether he really meant what he said or not, but this much is certain: He will continue to be the least interesting thing about it.

  Slate

  WINNER—COLUMNS AND COMMENTARY

  Writing with what the National Magazine Award judges called “wit, zeal, and occasional outrage,” Dahlia Lithwick explores the state of mind of the U.S. Supreme Court in the days before and after its decision about the Affordable Care Act, a.k.a. Obamacare. Lithwick correctly predicted that the court would uphold the law (though she got the point spread wrong), but, more important, she explains what the decision meant. In doing so, she also demonstrates what sets magazine journalism apart—the power not only to place events in context but to tell stories that survive the news cycle. That Lithwick was writing for Slate—a digital-only magazine—is also notable. In fact, this was the first time an online magazine won a National Magazine Award in competition with print magazines.

  Dahlia Lithwick

  It’s Not About the Law, Stupid and The Supreme Court’s Dark Vision of Freedom and Where Is the Liberal Outrage?

  It’s Not About the Law, Stupid

  Next week the Supreme Court will hear arguments over the Affordable Care Act, what many people know as Obamacare. The mainstream opinion is that this is unquestionably the most important case of this term. That opinion is no doubt supported by the attention it will receive—six hours of argument over three days. But amid all the throat clearing, odds making, and curtain raising that surrounds next week’s health-care case, it seems worth noting what is in dispute and what’s not. So let’s start by setting forth two uncontroversial propositions.

  The first proposition is that the health-care law is constitutional. The second is that the court could strike it down anyway. Linda Greenhouse makes the first point more eloquently than I can. That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’s Commerce Clause power, and all the conservative longing for the good old days of the pre–New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.

  So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week, and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’s and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those justices will be bound by seventy years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.

  Professor Randy Barnett, the intellectual power behind the entire health-care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—“without breaking a sweat.” I suspect that’s right.

  If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’s healthcare law that they would risk a chilly and divisive 5–4 dip back into the waters of Bush v. Gore and Citizens United.

  Oddly enough that turns more on what we think about the case than what they think.

  The court likes to pretend it’s completely above public opinion, inured to the momentary zigs and zags of the polls. But most of us know that nothing could be further from the truth.

  Consider a couple of relevant data points:

  We know that the court took a huge public opinion hit after Bush v. Gore and again after Citizens United. But that doesn’t necessarily help the administration. Because in this case the American public believes the health-care law is unconstitutional. The most recent polling I have seen shows that over 50 percent of the American people—including many who benefit from popular provisions of the law—still believe it’s unconstitutional.

  Part of this goes back to the administration’s abject failure in defending the constitutionality of the law over the past two years. Of course the public thinks the law is unconstitutional. They never heard a single word defending it. And I am willing to lay odds that if the public broadly supported ACA, we would not be having a six-hour conversation next week suggesting that the court would strike it down. The challengers’ greatest weapon in this case was momentum: A series of lower courts, and then an appeals court, signed off on the argument that this was a fundamental incursion into basic liberty. Then, suddenly, the case seemed plausible.

  On the other hand, I’d suggest that there is an equally powerful countervailing force at work on the justices. Because, as it happens, the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution. For over a decade now, the justices have been united in signalin
g that they are moderate, temperate, and minimalist in their duties. From Chief Justice Robert’s description of himself as just an “umpire” and his speeches about humility and the need for unanimity, to Stephen Breyer’s latest book, Making Our Democracy Work—a meditation on all the ways the courts depend on public confidence. Roberts even nodded at that court-wide anxiety by devoting most of his 2011 State of the Judiciary report to issues of recusal and judicial integrity, and by reversing his own policy on same-day audio release, in order to allow the American public to listen in on the health care cases next week (albeit on a two-hour delay). That means that the court goes into this case knowing that the public is desperately interested in the case, desperately divided about the odds, and deeply worried about the neutrality of the court. (Greenhouse points to a Bloomberg News national poll showing that 75 percent of Americans expect the decision to be influenced by the justices’ personal politics.) To hand down a 5–4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—prove that 75 percent correct, and erode further the public esteem for the court. Justice Clarence Thomas doesn’t worry much about things like that. I suspect Chief Justice Roberts and Justice Kennedy worry quite a lot.

  If I am right about this, some justices may believe that this isn’t a fight worth having. Not now and not over this issue. Recall, even absent the health-care case, the 2011 and 2012 terms will represent two of the most divisive and incendiary terms in recent memory. The court isn’t just hearing the health-care case this year. It also heard a Texas redistricting case, and the Arizona immigration case. Next year it will hear the Texas affirmative-action case, and very likely a case that will question the entire existence of Section 5 of the Voting Rights Act. Oh, and next term, the court may well have to contend with a gay-marriage case, and at the rate state legislators are passing patently unconstitutional abortion regulations, it’s not unlikely the court will be revisiting Roe soon thereafter.