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Law

What’s Next: The Court

Before the election, some Republicans were trying to gin up some controversy by imputing obscure and extreme judicial views on Barack Obama – focusing especially on remarks he made in July 2007, described here by The Hill:

“[Chief] Justice Roberts said he saw himself just as an umpire,” Obama said. “But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be,” Obama said, adding that justices should understand what it’s like to be gay, poor or black as well.

Steven Calebrisi, founder of the Federalist Society, wrote a very influential piece appearing in the Wall Street Journal in which he combined the most extreme possible interpretations of the statement about empathy (first taken out of context) with a somewhat bizarre (but politically very useful for the McCain camp) interpretation of remarks Obama made in a 2001 radio interview about the Warren Court. This led Calebrisi to the grandiose conclusion that:<

Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation’s courtrooms.

Putting aside the fact that Calebrisi did not find it necessary to raise his voice against those who used his own legal theory – that of the unitary executive – to actually and explicitly place the president above the law, Calebresi’s concern here is misplaced, as I think you can see just by reading the passage above from The Hill.

But if Calebresi’s half-assed op-ed doesn’t help us understand who Obama would appoint to the Court, then what does?

After all, Supreme Court appointments can be a president’s greatest legacy – affecting policy for many years after a president has gone.

Potential Supreme Court Justices

Obama, as a former constitutional law professor, has obviously put a great deal of thought into who he might appoint to the Supreme Court. Many names have been floated – politicians like Jennifer Granholm, Janet Napolitano, Hillary Clinton, and Ken Salazar; academics such as Harold Koh, Elena Kagan, and Cass Sunstein as wel as a number of current judges. With Ruth Bader Ginsburg and John Paul Stevens likely to retire during Obama’s term, and David Souter wishing – according to Jeffrey Toobin, author of The Nine – to withdraw back to the19th century lifestyle he enjoys in New Hampshire away from the Court, Obama could get three – and if Obama is reelected in 2012 – even four nominations to the Court. Justice Scalia will undoubtably do everything possible to avoid retiring during Obama’s presidency, but he is getting older as well – and would be 80 by 2016. Justice Kennedy would be 80 as well – but he does seem to so enjoy being the swing vote that it is hard to see him ever leaving the Court.

Superficial factors in choosing the justices

  • Any justices Obama appoints will undoubtably be younger than is traditional – as Bush recently appointed two conservatives in their 50s in Roberts and Alito.
  • It is also likely that, as the Supreme Court has traditionally been factionalized by race, religion, and gender – from the mid-1800s when there was a “Jewish seat” on the Court and a “Catholic seat” to focus on keeping women and African Americans since the 1980s – Obama will want to appoint at least one woman and on Hispanic to the Court.

The Dynamics of the Court

Obama has spoken of how Justice Warren – as a former politician – was able to win majorities by winning over the other justices. Jeffrey Toobin, writing about the Court over the past decade, has described Sandra Day O’Conner having a similar role during her tenure. In fact, since the Court’s founding, former politicians have had a way of dominating the stately and apolitical Court – beginning with John Marshall. Which is why the first appointment Obama makes should be a former politician – probably a woman. Especially if John Paul Stevens, the unofficial leader of the liberal wing of the Court, retires, Obama will want a strong personality to take his place. As Janet Napolitano is the favorite to become Attorney General, that leaves Jennifer Granholm, Governor of Michigan and a former state attorney general as the most logical choice.

Beyond this first choice of a female politician, Obama’s options are more open.

For his second nomination I would reccomend an academic – Elena Kagan, dean of Harvard Law, or Harold Koh, dean of Yale Law, would be the logical choices here – as both are young and prominent liberals in academia. Koh’s name has apparently been generating real buzz as a potential Obama pick.

Certain to be on any short list is Cass Sunstein is an important legal scholar and a close friend of Obama’s. He recently wrote a book with the conservative economist Richard Thaler about libertarian paternalism.

There is one potential candidate I have not heard mentioned though – and especially if Scalia were to retire from the bench, this former Scalia law clerk, former Reaganite, and former libertarian would be the perfect choice – Lawrence Lessig, whose innovative work founding Creative Commons and now the Change Congress movement, and whose influential work on internet law, copyright and corruption have made him a legal star.

Libertarianism v. Liberalism

With these four appointments, Obama could profoundly alter the Supreme Court’s ideological make-up – by replacing the traditional statist liberals and Rockefeller Republicans on the Court making up it’s current left wing with a charismatic pragmatist, and other liberal, and two libertarian-influenced liberals.

Categories
Election 2008 McCain Politics

Palin 2012

A liberal friend of mine thought it was preposterous that Sarah Palin could have a legitimate shot at the 2012 Republican presidential nomination. And if it was true, he thought it was a suicidal move.

He cited the fact that Palin was dragging McCain’s polling numbers down, her numerous Alaskan scandals, her constant flubs in interviews, and “speeches that could only impress a six-year old.”

I disagree with him on her speechmaking ability – in my opinion, her Republican convention speech was electrifying. It was a truly impressive performance – even without taking into account that this was her first time on the national stage. Her appearance certainly electrified the conservative base – and inspired Democrats to donate to Obama in heretofore unprecedented numbers.

Her issues interviewing I think can be fixed with some more time in the limelight and less “handling.” She was much better in the Charlie Gibson interview than in the Katie Couric one – even if her answers in both were similar content-wise – because she bs’ed with confidence to Gibson, even if everyone watching could tell.

But her ability to tell such shameless falsehoods with conviction – or perhaps, her lack of interest to know that she is telling lies – has helped to make her a star in the Republican party. She can really give it to Obama – she’s tough – they say. McCain usually seems somewhat ashamed of himself when he goes overboard. This shameless quality will help her in interviews later – as she polishes her style and continues to develop her political personality.

If she is seen as the person who brought McCain down – then that will hurt her. But if that sentiment can be pigeon-holed as merely what “the media” is saying – then the Right will be perfectly fine to right this off as more media bias against attractive Republican women.

As for her numerous Alaskan scandals – they say only two things can end a political career – a dead girl or a live boy. I’m not sure how that aphorism gets de-genderized to fit Palin – but none of her scandals fit. Plus – given the context of Alaskan politics, Palin’s dipping into state funds has been modest.

Which is why conservative strategist Patrick Ruffini is asking if Palin will be the Howard Dean of the Republican Party in the next few years – the unofficial leader of unabashed conservatism who will lead the party out of the wilderness. Marc Ambinder, politics reporter for The Atlantic, explains the many reasons Palin will be well-positioned come 2012 including this one – which is the strongest:

The Republicans are going to want someone willing to really go for Obama’s throat, and be able to do it with a smile.

Remember how hated Hillary Clinton was in 1994? In 1998 even? Yet, ten years later she was almost able to coast her way to inevitable victory – winning over, in the end, many of the same figures who had most hated her while she was First Lady.

Sarah Palin turns off liberals – and scares them. She invigorates Republicans. Independents loved her inititially, and then turned against her as she proved to be inept and shallow. But a few years will give her enough time to develop some gravitas.

I’m certainly not rooting for Palin – but it would be wise not to underestimate her.

Categories
Election 2008 McCain Politics The Clintons

Fun Fact About McCain #5: Bad Blood with Hillary?

John McCain has a history of bad blood with Hillary Clinton.

Half true. Yes, McCain told a joke in poor taste back in the 1990s about Hillary Clinton, Janet Reno, and Chelsea; and yes, by John McCain’s rules of interpreting the phrase “lipstick on a pig“, he called her a pig quite a few times; and yes, he has laughed along with the crowd during the primary when Hillary was called a “bitch.” But they seem to get along well. So – I guess Hillary is a tough woman who doesn’t take the McCain’s insults seriously.

Categories
Election 2008 Humor Politics Videos

The Palin-Clinton Press Conference on Sexism – Live from New York on Saturday Night

[digg-reddit-me]

Saturday Night Live’s excellent season opener. If only the rest of the show had been so good.

Categories
Election 2008 Obama Politics The Clintons

Reconciling With Hillary

Just wanted to get on record before Obama announces his pick – my money is on Hillary Clinton, although the smart money would be on Joe Biden, and the real dark horse being Al Gore ((Because Tim Kaine, Jack Reed, Evan Bayh, Kathleen Sebelious, Chet Atkins, and the rest of the lesser lights being too boring to speculate on.) – that despite my initial strong opposition to a Vice President Hillary Clinton (as demonstrated by this and this), I’ve reconciled myself to the idea recently. If it helps Obama win, I’m certainly for it – and as Obama clearly told the Clintons, “No.” initially, I don’t think giving her the nomination now shows weakness. Rather, by including such a prominent and powerful former opponent, it demonstrates strength.

So, now I’m on record – if Obama thinks Hillary Clinton will help him win more than the other candidates, then choose Hillary.

Yes, her connections to the past may muddy his “Change” message and Bill’s sordid connections may prove to be a distraction – but overall, she has demonstrated a political strength that could help unify the party and allow her to speak to groups that Obama has not been able to effectively reach out to yet.

And she’s a fighter. We need someone to take on this new Rovian McCain.

Categories
Election 2008 McCain Obama Politics The Clintons

The Last Hillary 2008 Supporters: A Journey Into the Surreal World of the PUMAs

[digg-reddit-me]A puma, like the PUMAs
[Photo by victor+.]
Every once in a while, I try to check out that hidden corner of the blogosphere where Hillary Clinton supporters still live.

Over the course of the Democratic nomination, most of the online energy went to Barack Obama, Ron Paul, John Edwards, Dennis Kucinich, and Mike Gravel. The conservative opinionsphere jumped from Giuliani to Romney to, finally, reluctactly, McCain. The liberal opionsphere seemed to weigh the pros and cons of Edwards and Obama for some time, finally coming down decisively with Obama after Iowa. Hillary Clinton, in all of this, had few web proxies.

There were some – like MyDD and Taylor Marsh – but eventually, after the stalemate of February 5th and the string of twelve consecutive wins by Obama, a new mini-opinionsphere grew out of Hillary Clinton’s campaign. Mainly, they were women who had taken every slight against Hillary as a personal insult; some just had a deep and abiding distrust of Barack Obama, for whatever reason. What was most perplexing to me is that this movement finally bloomed the moment Obama had taken an insurmountable lead. Despite the win in Ohio and half of the Texas two-step, and the win later in Pennsylvania, Obama never fell behind after his string of victories in February, and never even came close. And any clear-eyed analyst could see from that point that the nomination was Obama’s to lose.

But a certain segment of Hillary supporters found strength and popularity in denying the inevitable, in railing against reality.

Given the way this movement was born, it is unsurprising that small things – like Barack Obama’s mathematical clinching of the nomination or Hillary Clinton’s concession endorsement of Obama (a commentor pointed out that Hillary has yet to use the word “concede”) – would stop it. These PUMAs (Party Unity, My Ass) – as the acronym-prone, former Hillary supporter, and now die-hard anti-Obama activists now call themselves – continue to this day. Some of them, like Larry Johnson, play on fears, racial stereotypes and resentments and do their best Sean Hannity impressions. Others seem to be working full-time creating new acronyms, groups, and catchphrases. The newest and coolest catchphrase is “NObama, NOvember.”

Oddly, the arguments that are made tend to go like this:

  • Obama cannot win in November, which is why we need Hillary to be the nominee;
  • Let’s work hard to make sure Obama doesn’t win in November.

I have yet to see any acknowledgment from the PUMAs that Obama has won the Democratic nomination – and Hillary conceded it – unless you count the continuous references to stolen elections and the end of democracy as we know it. The closest I saw to an acknowledgment of Obama’s historic victory was at HillBuzz where – after suggesting that “we” would have to vote for Newt Gingrich over Obama – she wrote:

So, in the fall, barring a surprise Clinton re-entry into the race, it’s McCain over Obama for us.

In this world, there still is a chance for a surprise Hillary re-entry! Befitting the surreal world in which these blogs exist, many are still convinced that Hillary Clinton will be the Democratic nominee, if only she is given a chance.

A group called The Denver Group has been formed to take action regarding the Democratic Convention in Denver with two of it’s primary goals listed as:

  • Speeches allowed by supporters of Senator Clinton on behalf of her candidacy.
  • A genuine roll call vote with Senator Clinton as a legitimate candidate. [Emphasis aded.]

In her personal blog, Heidi Li, one of the founders of The Denver Group writes, speculates on recent news:

As Senator Obama looses support, he may well be more and more afraid that if Senator Clinton’s name is put in nomination at the Democratic Party’s convention, then Senator Clinton might actually win the nomination.

It is unclear what Ms. Li means by Obama’s loss of support – as most recent polls show him leading John McCain by significant margins. But items like these aren’t acknowledged in PUMA-land.

HillBuzz tries to explain how her fellow Hillary devotees are feeling, and what is motivating them to oppose Obama so strongly:

Our loyalty is to Hillary Clinton, personally, because we believe in her and her goals. We are no longer to the Democratic Party, because we stopped believing in it on May 31st. Whoever came up with the idea to steal 4 of Clinton’s delegates in Michigan and give them to Obama is responsible for this – you can thank that person in November…

We’re hard pressed to think of anyone Obama could run against that would force us to choose him over the opponent. At this point, after the way Obama’s campaign has treated us, and continues to treat us, we’d vote for Gingrich over Obama. And he divorced his wife while she was dying of cancer. But, we trust Gingrich to protect this country and respect its values and traditions…

So, in the fall, barring a surprise Clinton re-entry into the race, it’s McCain over Obama for us. [My emphasis added.]

It’s worth pointing out that the writer of this piece only refers to two non-self-referencing facts: Newt Gingrich’s tawdry personal life and the May 31 compromise that split the Michigan vote. There is no talk of policy; there is no discussion of what an Obama or McCain administration would look like. Instead, the writer is trying to make two points:

  • Obama didn’t treat “us” well – a highly dubious point on it’s own;
  • And “we” will vote for anyone except Obama to punish him.

An ancillary reason to trust Gingrich and to not trust Obama is that we need a president who will “protect this country and respect its values and traditions.” I’m sure elsewhere in the PUMA opinionsphere someone has listed the reasons why Obama doesn’t want to protect his country and doesn’t respect it’s values and traditions.

Balancing out this vision of Hillary as messiah is a visceral hatred of Barack Obama, as demonstrated in this oft-repeated phrase:

Obama simply cannot be trusted. Obama cannot be trusted on any issue. Obama cannot be trusted by his friends. Obama cannot be trusted by his enemies. Obama cannot be trusted.

This Hillaryis44 post repeats this same phrase three times and Larry Johnson and many other PUMAs have taken it us as a slogan to go alongside NObama, NOvember.

PUMAs and Projections

The John Birch Society so feared the efficacy of Communist subversives, that they created a secret society that mimicked the imagined Communist subversive threat. Republicans believed that CNN was a far left organization pushing the Democratic agenda under the guise of objectivity – so they created Fox News to take on the same role for the Republican party. American history is replete with examples of groups who deliberately mimic their enemy’s imagined tactics.

The movement that grew out of Hillary Clinton’s losses proves to be yet another example of this trend in American history. The PUMAs (Party Unity, My Ass) seem to have embraced the (real and imagined) aspects of the Obama campaign that led them to reject Obama’s candidacy:

  • They explicitly see Hillary Clinton as a messianic figure, the only one who can save the Democratic party. (See above.)
  • They deliberately disrespect and attack those demographic groups that did not support Hillary in the primaries. (Remember when Hillary was introduced by a man attacking “the latte-drinking, Prius- driving, Birkenstock-wearing, trust fund babies crowding in to hear [Obama] speak!”)
  • They have adopted the right wing talking points used to attack Obama. (This might be unfair, as it could have been Hillary surrogates themselves who gave the right wingers like Sean Hannity these talking points – so while Obama supporters did adopt certain right-wing talking points about Hillary to use against her, Hillary supporters may have invented the talking points against Obama and given them to the right-wing.)
  • Although they started out defending the role of superdelegates as those people who have the best interests of the Democratic party at heart, they now attack them for being un-democratic (and un-Democratic) – which is something Obama surrogates never came close to doing, but Clinton supporters constantly accused them of doing.
  • Many – though not all PUMAs – have resorted to race-baiting and gender-card-playing, at least on occasion. (The constant rumors of a Michelle Obama ‘Whitey’ video come from one of the founding PUMAs.)
  • They take umbrage at the smallest slight and impute near evil motives on every move that Barack Obama takes. (Which to be fair, is something some of Obama’s supporters did do – Andrew Sullivan for example.)

The key lesson I take away from this journey into the alternate reality that the PUMAs live in is this: they are a force to be reckoned with and a force that will remain in politics for some years – at least as long as Barack Obama is in the national political arena. To paraphrase Michelle Goldberg’s excellent piece in The New Republic exploring the crisis in the women’s movement that Hillary’s campaign created, the psychic wound irritated in this hard-fought primary is not Obama’s fault, but it is his problem.

Obama has already taken steps to woo Hillary Clinton’s supporters – and he will win most of the 18 million over to his side. Within those big Democratic states that Hillary Clinton won in the primary, Obama now has a sizeable lead over McCain (and in many, he also had a large lead over Hillary before the primaries ended). But there are some – and they are organized, they are angry, and they are wealthy – who will continue to fight until past the end. And there are many others who will be sympathetic – remembering how Hillary’s campaign made them feel.

If Barack Obama is elected in 2008, expect to see a PUMA or two sneak into Congress. And expect a few Congresswomen and Senators to ally with them. Hillary herself will keep her distance.

Unless Obama is able to somehow heal this particular psychic wound, the PUMAs will continue to cause him problems. It’s hard to say what impact these PUMAs will have. But if it is true that all it takes to change the world is a small group of dedicated people, then the PUMAs will be able to have an impact – as they are small in number and large in dedication.

Categories
Election 2008 Obama Politics The Clintons

Not Too Close To Call After All…

And so Hillary Clinton wins another one with just enough to justify her staying in the race.

8.6% according to the final results.

Three months ago, I called on Hillary Clinton to withdraw from the race for the good of the Democratic party. In many ways, that argument is stronger today than it was then. The New York Times, who I excoriated at the time for endorsing Clinton, essentially un-endorsed her today. Obama’s lead is greater across the country now than it was at the time each of these states voted. But he lost his moment to ascend to the presidency on hope – Ms. Clinton made sure to sabotage that balloon before it got off the ground.

What Obama has run is a smart campaign – one which yesterday’s loss has done nothing to derail.

But Ms. Clinton has proved again that she is a fighter and that when her back is to the wall, she can avoid losing. Her base of support is strong, if limited. And she will fight another day.

It’s time for Obama to figure out how best to use Ms. Clinton’s presence in the race to his advantage.

Categories
Election 2008 Giuliani New York City Obama Politics The Clintons

Hillary running to be president…of 9/11

Ben Smith at the Politico also picked up on one of my observations from my post about last night’s debate:

Hillary… brought up 9/11, more or less unprompted, three times so far in the debate, a level not seen since Rudy Giuliani dropped out in January.

The three examples:

“For Pastor Wright to have given his first sermon after 9/11 and to have blamed the United States for the attack, which happened in my city of New York, would have been just intolerable for me.”

Later:

“If I’m not mistaken, that relationship with Mr. Ayers on this board continued after 9/11 and after his reported comments, which were deeply hurtful to people in New York and, I would hope, to every American, because they were published on 9/11, and he said that he was just sorry they hadn’t done more.”

And:

“I certainly would not meet with Ahmadinejad, because even again today, he made light of 9/11, and said that he’s not even sure it happened and that people actually died.”

She’s not at the “a noun, a verb, and 9/11” level yet – but then she just started playing this card last night…