Every four years we vote for president -- and fight like idiots over pollsters and prognosticators.
I don't know Nate Silver from Adam, but I have been in the business of public predictions for 15 years. In that time, I have been asked to make maybe a thousand predictions about legal events and issues, from the outcome of pending Supreme Court cases to the impeachment of a president to verdicts rendered by jurors in capital cases. I will never forget this moment: On March 31, 1997, on my first "official" day as a legal analyst for CBS Radio News, on the very first day of jury selection during the Oklahoma City bombing trial of Timothy McVeigh, I was asked on the air by a local reporter, "So, Andrew, is he going to be found guilty?"
It's been like that ever since. Sometimes I have accurately predicted the outcomes of a trial. Sometimes I have been dead wrong. Many times, more so recently, I have refused to make a prediction at all, saying only that that there are too many random factors at play to make any sort of prediction worthy of much value to the rest of the world. The more I have learned about life and the law, in other words, the more I have come to understand how little I know about why certain things happen the way they do. I'd like to think that's the beginning of wisdom rather than just an acceptance of life's randomness.
Predicting legal events, by rights, should be easier than predicting something as unwieldy as a national election. There are far fewer variables in play. There are only 12 jurors who deliberate in a capital case. There are only nine justices on the U.S. Supreme Court. There are only 100 senators who get to vote on a judicial nominee. There are only a handful of federal circuit courts. There is only one First Amendment. But just think, for example, about how many of us -- on all sides of the ideological spectrum -- were dead wrong this June about the justices and the Affordable Care Act? It's still more art than science.
Political analysts -- the folks who pore over the polling data to tell us who is likely to win an election -- would likely agree. What distinguishes the law from politics or economics or math or science, they would likely argue, is that with the latter disciplines you can soak yourself in numbers, statistics, and charts. There is no mathematical equation to define the scope of the Commerce Clause, they would contend, but if you have enough raw data about early voting in a certain district you should be able to come up with a formula that tells you which candidate is more or less likely to win.
Yes and no. I have no problem with political predictions. I can take or leave them. They give comfort to people looking for a sign. But I have little use for political predictions which are designed to have some sort of cynical impact upon the races they purport to predict. And I have even less use for people who cannot tell the difference between the two. So while I have absolutely no standing to make any political predictions about the 2012 election, and while I have no standing to evaluate the merits of this cycle's most controversial predictors, I thought the following few points were worth sharing as we near the 75-hour mark before Election Day.
Dead Flies. The pre-election predictions of partisans like Karl Rove and David Axelrod, or anyone else with skin in the game, aren't all put together worth two dead flies. I suppose journalists repeat these predictions so that the rest of us can look back after the election and see how wrong this people were. And I suppose that these voices are "experts" in the sense that they have personal insight into the inner workings of campaigns. But the idea that they are going to subvert their party allegiances in the name of accuracy, that they are going to be candid against self-interest, is absurd. Shut it down.
Random acts. No prediction, by a computer or a person, can factor into the equation all the random acts of nature and destiny that will impact voting (and an individual's vote) between now and the time the polls close on Tuesday. We all should have been harshly reminded of this immutable truth this past week with the presence (and now the aftermath) of Hurricane Sandy. It sounds silly to say, because it's so self-evident, but the election won't be determined by polling data. It will be determined by votes. People still have to vote. And vote accurately. And have their votes counted fairly.