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From the Wingnutosphere….

[ 8 ] October 28, 2008 |

I dearly hope that the Right Blogistan plays a key role in the reconstruction of the Republican Party:

1) Who do you think is going to win the election?

A) John McCain: 53% (39)
B) Barack Obama: 47% (34)

2) Do you think Sarah Palin has been a plus or a minus to the ticket?

A) Minus: 9% (7)
B) Plus: 91% (68)

3) How do you feel about Sarah Palin as a candidate?

A) I really like her!: 80% (61)
B) She’s so-so.: 12% (9)
C) I’m not a big fan!: 8% (6)

4) The Republican Party did poorly in the 2006 election and even if McCain wins is on track to do poorly again in this year’s Congressional races. If you had to choose between these two options, do you think that’s because they were…

A) Too conservative: 9% (7)
B) Not conservative enough: 91% (67)

And You’ll Be Forced To Marry a Box Turtle!

[ 0 ] October 28, 2008 |

Steven Calabresi waxes hysterical and ludicrously implausible:

If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.

Admittedly, not all of these are equivalent. The idea that the Constitution says nothing about the size of punitive damage awards, for examples, is held by such un-American Trotskyites as Antonin Scalia and Clarence Thomas, and it’s hilarious to see Calabresi get finished complaining that Obama’s judges will write their notions of economic policy into the Constitution and then claim that his own right-wing economic views can magically be found in penumbras and emanations from the 14th Amendment. At any rate, some of these positions would in my view be defensible, others would not, some are just crude, unserious demagogy (“mass freeing of criminal defendants?” “a federal constitutional mandate of affirmative action wherever there are racial disparities”?) but for most of these the idea that the median Supreme Court justice would support such judgments after an Obama administration is silly. One can say the same thing for the idea that “the left” is poised to “capture” largely Republican-dominated federal courts. And the whole piece is based on idiotic claims that to disagree with Steven Calabresi’s highly contestable views is to reject constitutionalism altogether.

Anyway, on how does Calabresi justify his claims that Obama would pack the Supreme Court with justices that would have to turn right to see Thurgood Marshall? By, like many Drudge-driven hacks before him, quoting his (perfectly accurate) claims that the Warren Court wasn’t particularly radical, while leaving out some rather key information, such as his skepticism about the courts as tools of social reform. The idea that Obama is going to appoint a bunch of judges far to the left of the current mainstream is, for better or worse, almost entirely unfounded. And I somehow doubt that this attempt to create panic about the possibility that after winning the popular vote in 4 out of 7 elections the Democrats might get more than 2 Supreme Court appointments is going to be very politically effective either.

Spackerman is Making Sense

[ 24 ] October 28, 2008 |

Right. Selig was unequivocally right not to want to have the World Series determined by a 5 1/2 inning game, and I can’t believe that any serious Phillies fan would want to win the World Series that way.

Does anybody here know how to play this game?

[ 29 ] October 28, 2008 |

Bizarre situation in Philadelphia, where the fifth game of the World Series has been suspended after six innings and the game tied (it will resume tomorrow night). Apparently the ownership of both clubs agreed with the commissioner’s office that no game would be less than nine innings. This is a basic modification of the rules of the game, which consider any game official after five innings. The really bizarre part is that it doesn’t appear the managers or the players were aware of this agreement until it was just enforced. This is pretty amazing, given that all kinds of tactical decisions turn on whether a game can be called after less than nine innings.

On the other hand, the regular rule for inclement weather is one that makes no sense in the context of a potentially championship-deciding game. So I can see the argument for making an ad hoc modification in the official rules. But it would be nice if they had told the people actually playing the game what the rules were.

Dean Barnett, RIP

[ 0 ] October 27, 2008 |

Condolences to his friends and family.

This Song is Dedicated to Ted Stevens

[ 0 ] October 27, 2008 |

Note: “21” should read “85”.

Stevens Convicted

[ 23 ] October 27, 2008 |

Good times.

The more immediately pressing question, of course, is whether the conviction will matter in Stevens’ bid for re-election. Ordinarily, I’d be inclined to repeat my usual pessimistic assertions to the effect that Stevens could be videotaped at a bull moose bukakke party and still be re-elected in November. But these days, I’m feeling unusually hopeful.

So today, I raise a glass of Pruno in Ted’s honor.

Bloomberg’s Term Limit Extension

[ 21 ] October 27, 2008 |

Mr. Trend doesn’t like the New York City Council’s decision to permit Michael Bloomberg to run for a third term. I’m not really persuaded by the arguments against, however. A couple points:

  • Term limits (especially term limits this short) seem, for the reasons Dana cites, highly unlikely to have progressive implications over the long term. Obviously, this isn’t true in every individual case (imposing term limits on congressional committees in the 40s and 50s would have had progressive effects), but in general diminishing expertise and involuntarily retiring popular, effective leaders is not likely to enhance the cause of good progressive government. If Bloomberg has to benefit to get rid of a bad policy I can live with that, especially since it’s not clear to what extent the alternatives would do a better job.
  • I would give arguments that prior referenda represent some sacred Will of the People that shouldn’t be amended by mere elected officials exactly the same weight I would give them when Rick Warren makes them about Prop 8: i.e. none whatsoever. This is a representative democracy; so long as the legislation is otherwise constitutionally valid I don’t think rules created by referenda require any special deference beyond their rightness on the merits.

The bottom line for me is this: talk about a supposed “deep contempt for democracy“aside, Bloomberg actually has to run for re-election; he’s not being re-appointed to a third term. If the term limit extension is truly a high priority for New York voters and they strongly oppose it, they’re free to vote him (and the councilors that supported the extension) out of office. If the voters prefer Bloomberg to remain in office — whether because they support the extension or because they see the issue as trivial — I see no good democratic argument for why they shouldn’t be allowed to have their way.

Double Standards

[ 0 ] October 27, 2008 |


In any case, deadly threats aimed at abortion providers – unlike, for example, bombs planted in opposition to the War in Vietnam – remain a live fact about life in the United States. So when Sarah Palin refuses to call clinic bombers “terrorists,” it’s hard to take seriously her pretended moral outrage about the fact that Barack Obama served on a foundation board with someone who had been an anti-war bomber (never involved in a fatal incident) thirty years earlier.

And one might add that it’s perhaps even more instructive that having served on some foundation boards with an ex-terrorist with zero deaths on his cv is supposed to be disqualifying for one candidate, but apparently his opponent can actually boast about Henry Kissinger’s endorsement of and active involvement in his campaign.

Thinking About 2012

[ 0 ] October 27, 2008 |

Justin Gardner summarizes Newsweek’s numbers:

If John McCain is not elected president, which one of the following three possible candidates would you be most likely to support for the Republican presidential nomination in 2012?

Romney: 35%
Huckabee: 26%
Palin: 20%

This doesn’t really surprise me; Romney’s perceived strength on economic matters probably makes him the most compelling candidate to Republicans right now. Nevertheless, I would be kind of surprised to see Romney get the 2012 nomination. First, I have some doubt that Palin will actually run. Second, I suspect that, even if Palin does run, Huckabee will be the candidate to beat. He was the only Republican to actually improve his image during the primary campaign, and he now has a Fox News platform with which to connect to the base. Most importantly, he’s insanely likable; I watched his show the other day and couldn’t help but to identify with him. It’s fair to say that neither Mitt nor Sarah score high on the likability quotient.

Of course, the fact that John McCain has an enormous lead in California makes this entirely moot…

An Army of Pulitzers

[ 1 ] October 27, 2008 |

So many choices…

When Your Own Brand is Worthless, Just Steal Another?

[ 0 ] October 27, 2008 |

Guest post by Law Prof.

Apparently, it’s gotten to the point where McCain don’t expect enough people to be motivated to pay attention to his own (frankly uncreative) logo — that star between two arrow-like lines. So yesterday McCain’s own ad campaign was prominently displaying Obama’s trademark flag-sunrise. (See the screen-cut from Unfortunately for McCain, that is what we in the intellectual property legal field call “trademark infringement.” While few people are likely to be confused once they click-through to “speak out”, as the ad requests, it doesn’t eliminate the initial confusion. If Burger King ran a similar web ad with McDonalds’ trademark equally prominent and BK’s equally hidden, BK would be creating initial interest confusion (and I think that there might be an argument even if the ad said “tell Mickey D that you like your hamburger broiled not fried”). First Amendment law protects a lot of speech, but won’t protect against such confusion even in political speech, methinks. The key is that everything in TM law is to be considered in consumer/observer context — and, in the context of web ads, TM owners run all sorts of odd pitches and requests for “taking a poll” just to get people to click a link. And people often do respond with an immediate, almost instantaneous, mouse-click. Many people are likely to click through to the next page before realizing that it’s not an Obama ad – especially in the midst of a heated election cycle. TM control becomes even more powerful in this context. Of course, all that the Obama campaign could do in this situation is seek a Temporary Restraining Order (or ask the ISP to pull the ad). But, more importantly, when it’s one week until the election and you know that your own trademark won’t inspire people to act, it’s time to call it quits.