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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.

KY Race Tied in Internal DemCherry Picked Poll

[ 0 ] November 3, 2008 |

Yeah, yeah, I know; probably about as reliable as the “tie” that Rick Davis sees in Iowa. Nevertheless…

Word from the Lunsford campaign is that someone is robocalling in the late hours pretending to be from the Dems. Hardly surprising or unexpected, but still slimy.

…adjusted; the numbers cited weren’t internal, but rather were the most optimistic of recent polling.

Bellwether Battleships

[ 0 ] November 3, 2008 |

The Iowa class battleships (Wisconsin, New Jersey, Iowa, and Missouri) have a chance to go as a bloc this year. This has happened more often than you’d expect; all four went for Clinton in 1992 and 1996, for Reagan in 1980 and 1984, for Nixon in 1968 and 1972, for LBJ in 1964, and for Ike in 1952. In comparison, the South Dakota class (South Dakota, Indiana, Alabama, and Massachusetts) have only voted as a bloc twice; 1980 and 1984.

Here are my predictions:

Obama 378
McCain 160
Senate+8
House+20

May God strike me down if I’m wrong on the Presidential call; seriously, it would be a lot less painful than living through four years of McCain-Palin…

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…

Scrambling for the lifeboats

[ 12 ] November 3, 2008 |

A friend of mine was telling me today that the US Attorney’s office in Denver has just hired several fairly high-ranking Department of Justice lawyers as Assistant US Attorneys. What’s notable about this is that it’s very strange for high-ranking DOJ types to take AUSA positions out here in flyover country, instead of getting some white-shoe law firm gig or something along those lines. An AUSA job is a nice catch for a fresh-faced recent law grad, but for somebody who has been a muckety-muck in the DOJ it’s a big step down.

The reason is simple: under the Bush administration, a lot of high-ranking DOJ positions went to people with, shall we say, dubious resumes but excellent ideological credentials. Now they can’t get good private sector jobs, so they’re getting the best jobs they can find in the government, using those ideological connections while the getting is good.

Of course in a world where the former Attorney General of the USA can’t find a job, it’s not surprising that a lot of his underlings can’t either.

Kind of ironic dontcha think? I always thought it was the latte-sipping libruls who couldn’t get jobs in the “real world.” Or at least that’s what my email inbox indicates.

Update: To be clear, these are people high up enough that their jobs are political appointments, i.e., they’ll be replaced by a Democratic administration.

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.

OMG!!! Exclusive!!!! Must Credit LGM!!!

[ 39 ] November 2, 2008 |

Zomblog has unearthed a shocking conspiracy:
I have been “granted full permission to use the images and transcriptions on this page freely and without restriction.” As such, let me call your attention to this pair of virtually identical images. The first is the Weather Underground logo; the second, nearly identical image belongs to the Obama campaign. Only a fool could deny the shocking similarities between the two. Indeed, let me draw your attention to the following components of what now must be regarded as the Ayers/Obama empire:

We’re through the looking glass, people, and it’s worse than anyone ever could have imagined. Zombie also points out that both the Weather Underground and the Obama campaign freely use the word “audacity”. I don’t want to alarm anyone, but the term “audacity” also appears no less than twelve times in chapter seven alone of US Army Field Manual 3-0. This can only mean that the Weather Underground has already successfully seized control of the United States Army!!!!!11!!1! Has anyone investigated the connections between David Petraeus and Bill Ayers? No one is safe!!!

Media members and bloggers are granted full permission to use the images and transcriptions on this page freely and without restriction!!!!!!!11!!1!1!!!! Spread the word!

UPDATE: According to Real Clear Politics at this very moment (9:35 Eastern) Barak Hussein Osama is ahead by 6.9 points. 6.9!!! That’s just one decimal place off from… well, you know. When did they add sexual perversion to the pro-terrorist communist platform?!?!!!?!

Someday she might thank me for this…

[ 10 ] November 1, 2008 |

If anyone thought I was above using my daughter’s humiliation to make a serious political point, you were wrong.

…I should add, for the curious and concerned, that Audrey survived the collision with nothing more serious than a bloody lip…

We… Uh, We Entrusted This Guy with Our Foreign Policy?

[ 32 ] November 1, 2008 |

This, from Larry Eagleburger, is perhaps the most pathetic walkback that I’ve ever seen:

You are witnessing something quite unique—a man who’s about to talk to you while he has his foot in his mouth. I made a serious mistake yesterday. I was quoted correctly. I wasn’t thinking when I said it—in fact, I was discussing foreign policy, and this was in that context. And I was just plain stupid. And if I have given the flim-flam artist Barack Obama some success with this, I am deeply apologetic. I did not intend it.

In fact, if you look at this carefully, on the question of experience for example, Sarah Palin has been a governor, she has executive ability, she knows energy issues. Now you tell me what Barack Obama has ever done in the way of executive business, doing anything in the executive field. He has been in the Senate for some two years and he has been there half of the time and seldom votes on issues.

I’m sorry, I made a terrible mistake.

Should have claimed that you were off your meds, Larry.

Big Fights on Old Questions

[ 43 ] November 1, 2008 |

How important is Gallipoli to Australian identity?

A row has erupted between Australia’s PM Kevin Rudd and his Labor predecessor Paul Keating over the importance of Gallipoli, a WWI battle site in Turkey.

Mr Keating dismissed as “nonsense” the view that a new Australian identity was forged in 1915 at Gallipoli, where 300,000 troops were killed or injured.

Mr Rudd disagreed saying: “It’s part of our national psyche, it is part of our national identity.”

Not being Australian, I can’t definitively comment on the importance of Gallipoli to national identity. However, Gallipoli does have a few of characteristics that mark it as critical national symbol. First, it was indeed an enormously costly battle, one of the first such fought by Australia. Second, it was a defeat; for some reason, defeats seems to produce national psychic markers more than victory. Finally, it was a defeat that could be blamed on the British. Australian national identity has little to do with any conflict against the Turks, but much to do with distinguishing Australia from Great Britain. The perceived British betrayal of Australia at Gallipoli would seem to provide this distinction, and thus provide the grounds for the creation of a real Australian national identity. I understand that the Dieppe Raid plays a similar, if more understated, role in Canada. Of course, Gallipoli is also crucial to Turkish national identity; Mustafa Kemal rose to prominence as a commander at Gallipoli, and this line is about as singular a distillation of the role of battle in modern nationalism as I can imagine:

I don’t order you to fight, I order you to die. In the time it takes us to die, other troops and commanders can come and take our places.

As is this, apparently inscribed on the Attaturk memorial in Canberra:

Those heroes that shed their blood and lost their lives… you are now lying in the soil of a friendly country. Therefore rest in peace. There is no difference between the Johnnies and the Mehmets to us where they lie side by side here in this country of ours… You the mothers who sent their sons from far away countries wipe away your tears. Your sons are now lying in our bosom and are in peace. Having lost their lives on this land they have become our sons as well.

In a rather more serious dispute:

A high-ranking Japanese military official was dismissed Friday for writing an essay stating that the United States had ensnared Japan into World War II, denying that Japan had waged wars of aggression in Asia and justifying Japanese colonialism.

The Defense Ministry fired Gen. Toshio Tamogami, chief of staff of Japan’s air force, late on Friday night, only hours after his essay was posted on a private company’s Web site. The quick dismissal seemed intended to head off criticism from China, South Korea and other Asian nations that have reacted angrily to previous Japanese denials of its militarist past.

Actually, it’s the Japan Air Self-Defense Force, not the Japanese Air Force. Anyway, in addition to claiming that Roosevelt tricked the Japanese into attacking Pearl Harbor, General Tamogami asserted that many East Asian countries have a positive view of Japanese behavior in World War II (maybe he’s thinking of Indonesia?), and that Korea was “prosperous and safe” under 35 years of Japanese colonial rule. The article was apparently submitted for an essay writing contest on a website, and won General Tamogami $30000. Hope it was worth it…