Thoughts on the debacle [With A Response From John]

Our friend Roger Magnuson is one of the most prominent trial lawyers in the Twin Cities. A prolific author, Roger has written numerous articles and books on a variety of legal topics. His most recent works includes a chapter in New Developments in Securities Litigation, discussing security law litigation and compliance strategies. (Click here to read “Aggressive Securities Law Litigation and Compliance Strategies.”)

Roger is also the author of Barracuda Bait: New and Growing Litigious Risks to American Businesses, in which he shares insights from a dozen memorable cases and describes how companies faced with litigation can take advantage of unusual ways to “bite back.”

Last night Roger wrote to John and copied me, taking up one side of an argument conservatives are going to have in the coming days. I thought it would be of interest to readers and Roger has kindly given us permission to publish his message, which I am posting below verbatim, including the compliments and smiley face:


For what it’s worth, a few thoughts on the debacle.

As I mentioned in our intermittent club pub conversations on the subject of Moderate Mitt, I never thought he would have any real chance of beating the worst president imaginable. I never thought otherwise at any stage of the campaign.

While I respected your always incredibly informed political acumen, the simple truth for me is that wets never win. Never. Or as I mentioned to Herman Cain in LA a few months back, you never beat a demagogic vision with no vision.

Put another way, if I tried high profile cases using consultants like Stuart Stevens, I would spend boatloads of my clients’ money, and end up lamenting that it seemed impossible to lose because we had such great arguments, and ultimately blame the stupid fact finders and the demographics of the jury and their “baggage.” We’ve both seen our share of big firm litigators in that mode, haven’t we, thankfully usually on the other side.

I only know one way to win these arguments: by putting overwhelming intellectual, moral and affective pressure on the other side until my metaphors imprison and prevail. Get the theory and attack and define relentlessly, albeit of course with charm. 🙂

My almost visceral reaction to a relatively smart and decent guy was his manifest propensity to lose the unlosable.

Demographics? They haven’t changed much since the 2010 shellacking of the Democrats, ditto the so-called tipping point or 47 per cent.

What happened is in my view less complicated.

1) Romney let himself get defined early in the same brutal way we would define a litigation adversary early and often. The definition largely stuck and there was no early response, and no aggressive defining of an opponent who was a walking, talking incredibly rich target.

2) Romney organized a colorless and utterly insipid convention the point of which was to establish that he wasn’t as bad as the other side made him out to be and he really loved and some of his best friends were women.

3) Romney’s campaign then stumbled forward on a benign, six basic metrics referendum on the economy tack, leaving a treasure trove laden rich armory of munitions undeployed. Obamacare, the explosive issue of 2010 ignored. Social issues tied to huge avenues of attack on Obama viewed as too controversial, foreign policy neutered, Dukakis competence thought able to carry the day, all from the conventional Tory playbook, without sharp edges or ideological vision.

4) When he finally showed a pulse in the first debate and acted like he could almost be a decent trial lawyer, he got an immediate bump in the polls, and, immediately, lapsed back into a play it safe, sit on a lead, be nice and bipartisan mode. He couldn’t even do the Benghazi battle.

5) His everybody loves this country, reach across the aisle close was the final insipid wetness.

I hated to be Nate Silver but Mittens never had a chance against a terrible President with the silliest of demagogic campaigns.

So John, if we’re ever on opposite sides of major litigation again, please retain consultants like Stevens. It might be my only chance…

Love that Power Line!

JOHN responds: As always, Roger puts his case strongly, but I don’t agree with it. Let’s take his propositions one by one. First, “wets never win.” This canard is treasured by many on the right, but it simply isn’t true. Wets win all the time. Eisenhower was a wet. Nixon was a wet. George H.W. Bush was a wet, and he won one of the biggest landslides of all time. George W. Bush was a wet, and he won twice. Richard Lugar is a wet, and he would have been re-elected easily if GOP primary voters hadn’t decided to replace him with a candidate who couldn’t resist instructing Hoosiers about the will of God.

Second, Roger’s thesis apparently is that the party should have nominated a full-throated conservative instead of Romney. To which the simple answer is, who? Herman Cain? Newt Gingrich? It seems obvious to me that Romney was the strongest candidate we had this year, and ran a better race than any of the more-conservative alternatives would have.

But Roger’s point can be tested in another way, by asking: how did hard-core conservatives fare in 2012? If they won consistently, then perhaps we could give credence to the idea that Romney was too moderate. But of course they didn’t. Todd Akin? Richard Mourdock? Are they conservative enough? And how about better candidates like Mia Love (lost), George Allen (lost), Allan West (apparently lost, is demanding recount), Michele Bachmann (won by her narrowest margin ever). There is zero evidence that what voters were looking for this year was full-throated, uncompromising conservatism.

Third, Roger says that Romney ran a lousy campaign. A losing presidential candidate always gets such criticism, since running a political campaign is much like calling football plays; everyone is an expert. Probably there isn’t much point in defending the Romney campaign, since all that history will record is that he lost. But let’s at least note that some of what Roger says simply isn’t true. Romney didn’t ignore Obamacare; on the contrary, he and Paul Ryan attacked Obamacare and pledged to repeal it in every speech they gave. They ran principally on the economy, as they should have, and in my opinion did so effectively.

Fourth, Roger dismisses my concerns about demographics by saying that the demographics were the same in 2010, and yet Republicans did well. Of course that is true, but there are obvious differences between turnout in a presidential year and turnout in an off-year. An estimated 88.7 million people voted in the 2010 midterm election, compared with more than 118 million who voted on Tuesday. Presidential elections draw a broader and generally more moderate electorate than midterm elections, where intensity counts for more.

The bottom line, in my view, is that conservatives make a very serious mistake if we try to blame what happened this year on Mitt Romney. Romney is an extraordinarily able man who ran, in my opinion, a good, effective campaign and represented the conservative movement well. In any event, he was by far the best candidate we had. Sure, you can quibble with his tactics, as always. But we are fooling ourselves if we think that this was a disastrous year for the GOP because of Romney’s campaign tactics, or because we nominated Romney instead of, say, Rick Santorum.

STEVE adds: For the record, I’m with John on this.