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Deep Thought

[ 0 ] November 4, 2008 |

People who think that Obama will win aren’t taking the inevitable last-minute release of the Whitey Tape into account.

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What Produces The Lines

[ 6 ] November 4, 2008 |

In response to the inequities and inefficiencies of American voting on this election day, I would like to reiterate that the decentralized, frequently underfunded American voting is crazy.

Election Day Sounds

[ 6 ] November 4, 2008 |

In pondering what music would fit the election results, Carrie Brownstein goes for the relatively optimistic and celebratory. A good instinct, and one I think I’ll share when it’s called. But for victims of an indefensible war and arbitrary torture policies, perhaps some anger combined with the enthusiasm and relief is called for as well?

Palin and Special Needs

[ 2 ] November 4, 2008 |

I don’t think that Palin deserves much credit for her purported support for assistance to special needs children, for the reasons Mark Schmitt has memorably discussed. Harold Pollack, however, argues that Palin isn’t even rising to the level of Miss America conservatism; her policies actually won’t provide useful help at all.

Dodged Bullets

[ 7 ] November 3, 2008 |

Perhaps the most puzzling phenomenon of the Democratic primary campaign was the frequently heard argument that the candidate of Mark Penn would be the one most likely to advance a bold progressive policy agenda and stick to it. I, myself, am quite happy that Penn will not be advising the next President.

One thing to add to Matt’s broader point is that 1994 was the culmination of the Republican realignment in the South that was made inevitable by the Johnson administration. It won’t happen again to remotely the same extent in 2010 because, er, it’s already happened; there aren’t a lot of easy seats held by nominal Democrats in the south for the Republicans to pick off. To argue for a timorous agenda based in 1994 would be silly; the Dems were going to lose seats then no matter what, and there’s no reason to believe that had Clinton been (even more) centrist this could have been avoided.

What A McCain Court Would Be (And What It Wouldn’t)

[ 8 ] November 3, 2008 |

Since we haven’t heard much about the courts in this election, I suppose it’s worth noting that given the likely retirements of Ginsburg (75 year-old cancer survivor), Souter (69, hates D.C. and isn’t crazy about the job) and Stevens (in college when the word “damn” could generate national controversy; may have seen Cap Anson play live) and the fact that the other federal courts are already stacked with Republicans, a McCain presidency would have far-reaching and very bad consequences for the judiciary that would extend for decades. If you don’t believe me, believe the usually Panglossian Jeffrey Rosen.

Since an Obama win that would preserve the current conservative majority for a while is more likely, it’s worth pointing out that while his overall argument is correct and useful I think Rosen is actually overreaching a little. He writes:

It’s true that certain kinds of conservative nominees would change the Court more dramatically than others. Activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile, would be far more likely to challenge Congress and to strike down a range of federal regulations, from health care and the environment to the economic bailout. By contrast, deferential conservatives, who believe in judicial minimalism across the board, would generally uphold laws passed by Congress as well as the states.

Leaving aside the fact that it’s primarily liberals, not conservatives, who use the “Constitution in Exile” label, I still think that this is misstating the impact of conservative appointments to the courts. I’m not worried about even a McCain-fortified Court ruling major New Deal regulatory programs unconstitutional, and even if they were to do so this would work out about as well as it did in 1935; the Court is not going to survive a struggle against strongly committed legislative and popular majorities. They might overturn Roe and a few other Warren/early Burger precedents explicitly, but will no embark on a major challenge to the basic framework of the federal government. A more conservative court would be much more likely do more of what’s it already doing. Not to overturn the Civil Rights Act on commerce clause grounds, for example, but rather to interpret statutory language in ways that make it much more difficult to bring lawsuits (and hope that, as with Ledbetter, institutional veto points can prevent legislative majorities from responding.)

Which bring us to the second problem, which is relevant no matter who wins the election: the conflation of “minimalist” and “deferential.” One has nothing to do with the other. O’Connor, an arch-minimalist if there ever was one, is also about as far from “deferential” as you can get. And this is precisely what caused Rosen to miss the boat on Roberts. As Alito and Roberts demonstrate, it’s perfectly possible to be a formal “minimalist” and a doctrinaire conservative “activist.” And precisely because minimalists are less likely to make bold pronouncements or explicitly overrule precedents, they’re likely to accomplish similar things while insulating the court from political retaliation. And because they aren’t attached to grand jurisprudential theories, minimalists are also likely to be if anything more consistent about reaching conservative policy outcomes.

In other words, if anything Alito and Robetrs are more dangerous to American progressives than Scalia. Whoever is appointing the next round of federal judges, it’s important to remember this and not be distracted by implausible fears of a “Constitution in Exile” returning.

Election Picks

[ 0 ] November 3, 2008 |

Just for fun, I guess it’s time to make some election calls:

  • President: Obama 326, McCain 212 (Obama gets all Kerry states + NM, CO, NV, OH, VA, IA, NC)
  • Senate: Dems +7
  • House Dems +31
  • Regardless of the outcome, Mickey Kaus will claim that voters really prefer divided government, and their top priorities are draconian immigration policies and busting teacher’s unions.

Somehow, I feel most confident in that last one…

The GOP Didn’t Always Pulled Out, But It Never Aplogized

[ 7 ] November 3, 2008 |

Nice to see that the GOP is abandoning most of its efforts to retain/take House seats in New York State. Even better, they wasted a lot of money here before doing so. This includes normally solidly Republican Staten Island; whatever the morality of his various actions, the country does owe Vito Fossella one big favor…

The Folly of "Fetal Rights" Initiatives

[ 0 ] November 2, 2008 |

Sarah Wildman explains.

It should also be noted that Colorado’s ridiculous Prop 48 — which would give constitutional rights to a zygote — is favored by John McCain and is also extremely unpopular. Nonetheless, I somehow doubt that after McCain loses both Colorado and the election we’re going to get a series of thinkpieces about the GOP needs to abandon their unpopular positions on abortion if they want to win. Although it must be conceded that failing to pick Tim Kaine was a devastating blow to the Democrats’ chances this year…

The "Town Hall" Pre-Emptive Whine

[ 18 ] November 2, 2008 |

I believe that this crap was also a centerpiece of McCain’s SNL appearance yesterday. Of course, the idea that McCain had to run a dishonest campaign centered around inane trivia because Obama wouldn’t agree to the precise debate schedule he requested has always been risible on its face. But it’s particularly hilarious to see The Dean swallow the whining given that 1)there was a town hall debate, 2)McCain performed abysmally, and 3)as Steve says, the McCain campaign continued to be centered around idiotic guilt-by-distant-association smears and the claim that a 39% marginal tax rate McCain supported less than a decade ago is “socialism” while 36% is “America first” after the magic of the town hall debate happened. If this “stop hitting yourself” argument seems plausible to you, it’s probably a sign that your op-ed slot needs to be turned over to someone capable of basic reasoning.

Homophobia is Not A Means of Advancing Gay and Lesbian Rights

[ 41 ] November 1, 2008 |

To echo what Rob (and Henry) have said, it’s worth drawing a distinction here. Reasonable people can argue about “outing” in the sense of, say, a newspaper publishing reliable information that a politician with rabidly anti-gay views is in fact gay or lesbian. While I agree with Rob that I don’t have a lot of sympathy for a politician who wants to make the consensual sexual choices of adults a major political and public policy issue and then gets outed, I’m not really crazy about even this. Homophobic positions are equally bad on the merits whether they’re advanced by heterosexuals or not, and a cursory examination of justifications for discussing various irrelevant aspects of the lives of public officials will show that “hypocrisy” justifications tend to become pretty weak tea — it gets so that anybody who’s ever appeared in public with their spouse is completely fair game. Basically, I would say that I probably wouldn’t publish such information in most cases and don’t think it’s really relevant to anything, but there’s at least a fair argument to be made in such cases.

But the anti-McConnell ad is another matter entirely, completely beyond any reasonable justification. The salient fact is that the ad is disgustingly homophobic. It’s just directly trying to mobilize anti-gay sentiment against McConnell, which is beyond any progressive pale. Fighting bigotry with bigotry isn’t a defensible position, and of course the ad isn’t even trying to do the former. Nobody should want to unseat McConnell this way.

Studs Terkel

[ 7 ] November 1, 2008 |

R.I.P.

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