I attended the GOP Attorney General Debate in Roanoke Tuesday evening between John Brownlee, Ken Cuccinelli and Dave Foster.
You never quite know what to expect out of a intraparty downticket debate. I’ve been to ones that have been interminably boring as candidates spent all their time agreeing how horrible the other party’s nominee is.
Yet I’ll never forget a GOP Lieutenant Governor debate in 1993 when Mike Farris and Bobbie Kilberg continued a bitter exchange that had begun on stage with a half hour of verbal pyrotechnics in the hallway outside the auditorium after the event had officially concluded.
The decibel meter on Tuesday evening never reached the Farris-Kilberg level. But I left the event with the impression that I had not witnessed just another debate. And this was almost entirely related to how the performance of John Brownlee shaped the evening and my perception of the other two candidates.
At times, Brownlee displayed a level of political talent and skill that belied his stature as a political novice, running for office for the first time. Yet he also offered an interpretation of how the Attorney General should employ a “moral filter” in reaching decisions that not only differed sharply from Cuccinelli and Foster, but represented an entrely new conception of the AG’s role in Virginia. And I am not certain how this conception would play out in the course of a campaign.
By contrast, Ken Cuccinelli, often portrayed in the media as an ideological lightning rod, came across as measured and pragmatic. I left feeling that Cuccinelli could learn something from Brownlee’s understanding of the kind of message that is likely to drive a general election choice in an AG’s race. But I also thought that Cuccinelli is far less likely to adopt new positions in the heat of battle that might throw the entire race off kilter.
Dave Foster came across as a thoughtful, witty and intelligent candidate, though I still guess that much of the political oxygen in the race is likely to be sucked out by Cuccinelli and Brownlee. His best hope seems to be either a train wreck involving both of them or a brokered convention in which neither Cuccinelli or Brownlee can find their way to a majority.
In my opinion, Brownlee did a superb job explaining how he would frame a general election choice against the Democrat’s presumptive nominee, Steve Shannon, and why his background as a U.S. Attorney was especially relevant. He argued that the public has come to expect (even if some argue that it is not the essential part of the job) that the Attorney General will serve as Virginia’s top prosecutor and as overall advocate for the public against bad guys and illegal practices. In terms of the more conventional administrative part of the position, he maintained that the varied responsibilities of the U.S. Attorney and his work with a range of federal, state and local agencies was excellent preparation for the AG’s leadership of the people’s law firm. It is, he said, essentially the same job.
Cuccinelli rightly pointed to his success in Fairfax, where he is the only Republican State Senator left standing, as testimony to his electability and as the model for how he’ll pursue a statewide campaign. He reminded the audience time and again that you can stay true to conservative principles, run on issues such immigration, property rights, life, and lower taxes and win, even in Democratic leaning districts, if you explain yourself clearly and have a reputation for keeping your promises.
Foster also pointed to his electability, noting that he had won two elections for School Board in the “People’s Republic of Arlington.” He also claimed that with the economy as the key issue in the 2009 campaign, his legal experiences working with businesses lent him the best grasp of the regulatory issues that were crucial to a company’s decision to locate or remain in a state.
I felt that Brownlee had a clear advantage in this part of the debate. He recognized that a statewide campaign needs an overarching theme that often goes beyond the particular set of issues with which your candidacy might be associated. And he did an especially good job in weaving his own background as a military officer and a prosecutor into a broader political appeal. Moreover, he has developed through his courtroom experience an enviable capacity for succint arguments and effective sound bites.
Brownlee derided Cuccinelli as only a regional candidate. And while this, I think, is clearly wrong inasmuch as Cuccinelli has a statewide base, it touches on a matter to which he should pay some attention. The AG campaign won’t simply be the Fairfax contests writ large. In downticket statewide races, voters often get to know only one or two key themes of a candidate. And Cuccinelli would do well to take a page out of Brownlee’s book and think about how his set of issues can be woven together into a compelling theme that can frame a statewide candidacy.
Foster’s attempt to focus the AG’s race on business issues points to what should be an element of any GOP campaign platform, but I do not think that it would have the same level of popular appeal as Brownlee’s.
If the debate had simply ended here, I would declared Brownlee the winner on points.
Yet at a crucial moment, the debate turned in an unexpected way in which Brownlee provided an opening for Cuccinelli and Foster (and perhaps for the Democrats in the fall if he receives the GOP nod).
The key exchange occurred when the moderator, Jay Warren , asked each of the three what they would do if they disagreed personally with a law that had been legitimately passed by the legislature.
The question indirectly touches on a key tension in the role of Virginia’s Attorney General. While the AG’s job is to be the attorney for the state and state agencies, he is also an independently elected official sworn to uphold the U.S. and the Virginia Constitutions. And there have been times where an Attorney General has sincerely believed that a law passed by the legislature or an action by a state agency is truly not constitutional. In this regard, the AG must figure out a way to ensure that the state is represented, even if the AG’s office itself might wind up on the other side of the matter.
Well, Cuccinelli answered the question by affirming that he would be guided by the Constitution. He acknowledged that, on occasion, the legislature might pass bills that regarded as unconstitutional and it would be his responsibility as an independently elected official to make this judgment. Yet he would be guided by the Constitution and not his pers0nal likes or dislikes about the legislation.
Brownlee articulated a position that was, in part, perfectly consistent with Cuccinelli’s about the responsibility of the AG to uphold the Constitution. But then he took it a step further. He asserted that as Attoney General he would also have to utilize a “moral filter” and that he should not enforce legislation that was clearly immoral.
Both Cuccinelli and Foster understood right away that Brownlee had potentially dug himself a hole and declined to follow his lead. I think that Cuccinelli intutively knew that Brownlee’s position was akin to one that conservatives have consistently criticized liberal judges for holding: substituting their own moral judgment for a strict reading of the constitution.
Cuccinelli reiterated that the Attorney General has to be guided by the Constitution. If the General Assembly passed or considered legislation that was personally discomforting but constitutional, Cuccinelli maintained that he would work with his political allies to develop legislative countermeasures.
Foster’s criticism was even more direct, saying that he did not believe it was the Attorney General’s role to overturn the will of the popularly elected representatives of the people when they acted constitutionally and that he uncomfortable with the prospect of an Attorney General using his own moral filter to respond to legislation.
It seems to me that Cuccinelli’s and Foster’s positions are not only far more traditional, but are far less less likely to cause problems in the November election.
This point was reinforced when Warren asked Brownlee about some of the critical judgments that bar groups had made of him when he had offered his name for a federal judgeship. Brownlee averred that he considered these criticisms a badge of honor and that he had underestimated how thoroughly some of the groups that review and comment on nominees are controlled by a liberal ideology.
Cuccinelli slyly noted that the entire legal profession tilts toward the left, but that there usually is some measure of objectivity to the evaluations of judicial fitness, leaving open the question of whether their judgments of Brownlee were ideological or substantive.
In the end, the GOP nomination will not be won this year on debate performances, but on the success of each candidate in mobilizing grassroots supporters to attend the nominating convention in Richmond. And the conventional wisdom is that it will not be easy to derail Ken Cuccinelli.
In terms of popular appeal, Brownlee exhibited plenty of what the stockpickers call “upside potential.” Even with the misstep on the “moral filter” last evening, I believe that Brownlee’s experience in the U.S. Attorney’s office and his evident political skills w0uld make him a formidable candidate. This is why many Republicans are giving him a very serious look.
But he still has an uphill climb. Ken Cuccinelli is a very smart political figure and is likely to pursue the task of turning out supporters for the convention with the same determination and efficiency that he has run his campaigns in Fairfax. Figuring out how to defeat him at a convention is no small undertaking.