Monday, May 12, 2008

Looking Ahead to McCain-Obama

The defenders of freedom are not those who claim and exercise rights which no one assails, or who win shouts of applause by well-turned compliments to liberty in the days of her triumph. They are those who stand up for rights which mobs, conspiracies, or single tyrants put in jeopardy; who contend for liberty in that particular form which is threatened at the moment by the many or the few. – William Ellery Channing

In This Week's Sift:

The Horse Race. Can we finally stop talking about Obama-Clinton and focus on Obama-McCain? The trick for Obama is to make the campaign focus on issues. The trick for McCain is to focus on Obama.

Judging McCain's Judges. John McCain outlined his judicial philosophy last Tuesday. Any Clinton supporter who's thinking about sitting out the fall election should pay attention.

Short Notes. Life in Baghdad. McCain and the environment. Stamping out wizardry in Florida's schools. And what IOKIYAR really means.

The Horse Race
After the Indiana and North Carolina primaries, the major media proclaimed the Democratic presidential race over. During the coverage of those primaries Tuesday night, official media spokesman Tim Russert said: "We now know who the Democratic nominee is going to be." And suddenly, it was now OK to point out that Hillary Clinton had no chance to win the nomination.

Wednesday morning the Obama-supporting blogs were too exasperated by the media group-think to be grateful that the major pundits were finally agreeing with them. OpenLeft's Chris Bowers was typical:
I spent a good amount of time last night ranting about how the national media called the nomination campaign for Obama after the North Carolina and Indiana results, even though their logic for doing so could have been applied at any point in the campaign since the Wisconsin and Hawaii nomination contests on February 19th. ... Essentially, since February 19th analysis of the campaign revealed that Clinton had virtually no chance of closing the delegate gap, and pretending otherwise was just an exercise in kabuki-theater where Obama was ritually gutted by the national media for the amusement of a reality-ignoring pundit elite.
Anyway, the media still mostly refuses to move on and consider the McCain-Obama race, because it's much more interesting to speculate on whether Hillary will exit gracefully or pull the whole Democratic Party down on top of herself, a la Samson. Clintonites seem to think that calls for her to withdraw are sexist, a charge that I'm sure puzzles supporters of male ex-candidates like Dodd, Biden, Edwards, and Richardson. You lose, you leave -- what's strange about that? The bizarre thing in this story isn't that she's being urged to stand down, but that her candidacy continued to be taken seriously after she lost ten straight primaries and caucuses in February.

Moving on to McCain/Obama: It's really clear how this race is going to go. If it's decided on issues, Obama wins. McCain can't defend his position on the war. Nobody other than McCain and a few neocons wants a new war with Iran. His economic policy, like Bush's, boils down to don't-tax-the-rich -- and that's been working so well for the rest of us. He promises to nominate more judges like Alito and Roberts, and Justice Stevens will be 92 by the end of the next president's term, so Roe v. Wade is pretty much history if McCain gets in. His health care plan (which I described last week) amounts to the claim that the insurance companies would work miracles for us if government only got out of their way.

Play campaign consultant for a moment: Do you see anything here he can run on? Each of his positions has a small-but-dedicated constituency that could put him over the top if the rest of the electorate divided. But none is close to being a majority view. And they're all virtually identical to positions identified with George W. Bush, who has the highest disapproval rating ever recorded.

McCain isn't suicidal, so we can conclude that he won't run on issues. Like every conservative candidate since Reagan, he'll run on image. He's the maverick and Obama is the out-of-touch liberal. He's a war hero and Obama is a wimp. He's a patriot and Obama hates America. Obama is the candidate of homosexuals, of angry black radicals like Jeremiah Wright, of bomb-throwing hippies like William Ayers, and of Osama bin Laden. (Did you know he's a Muslim? I read it on the internet.) Again and again, we'll hear from "ordinary" Americans saying things like: "I don't know what it is about Obama, but there's something just not right about him. He's not like everyday folks." (Hint: He's black. Maybe that's the problem.)

That strategy is the subtext of Time's advice in McCain's 7 Steps to Beating Obama. The steps revolve around destroying Obama's image, and say not a word about issues. The question is whether McCain can throw this mud without dirtying his own image. And that largely depends on whether he continues to enjoy the complete adulation of the media. If he can still be portrayed as the upright, straight-shooting candidate while saying things like "It's clear who Hamas wants to be the next president," then he might pull it off.

Judging McCain's Judges
If anything will bring Clinton-supporting women to Obama in the fall, it's going to be their fear of John McCain's judicial appointments. Obligingly, McCain outlined his judicial philosophy in a speech at Wake Forest on the same day as the North Carolina and Indiana primaries. The headline-making quote from this speech was:
I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me.
McCain's people deny the characterization of his prospective presidency as George Bush's third term. But when it comes to judges, he proudly says that he will model his choices on Bush's choices.

And that's not all he says. If you have the time, read or watch the whole speech on the McCain web site. Far from being "maverick" or "moderate" in any way, the speech is a classic conservative rant against liberal "judicial activism". An excellent critique of the speech -- making a number of the same points I'm making but in more detail -- was posted by OpenLeft contributor Lang. The Balkinization blog has a number of comments: notably by Jack Balkin and Andrew Koppelman. My own opinions about so-called judicial activism haven't changed since my Wide Liberty essay of 2005.

Somehow, no matter how many Republican presidents we have or how many judges they appoint, Republicans can still run against the judiciary. (Eli on FireDogLake claims the root cause here is that Republicans hate the law. Judges and lawyers are just symbols of that underlying curse of legality.) Of the current Supreme Court, for example, only two justices were appointed by Democrats (Ginsberg and Breyer, both by Clinton). Ford appointed Stevens. Reagan named Scalia and Kennedy. Thomas and Souter are the responsibility of Bush the First, and Roberts and Alito can be charged to the account of Bush the Second. Given that Republicans have held the White House for 5 of the 7 terms since 1980, that's probably typical of the federal judiciary as a whole. If there's a problem with our judges, it's a problem that Republicans have caused.

The most disturbing part of McCain's speech comes early. After praising the Founders and the checks and balances they established to keep government in line, McCain notes that "There is one great exception in our day" to the success of the check-and-balance system. Is it the Bush administration's overwhelming abuse of executive power? Its defiance of Congressional subpoenas? Signing statements that "interpret" laws to say whatever the president wants them to say? Specious legal opinions that the Justice Department writes to circumvent our treaty obligations not to torture? Creating a law-free zone in Guantanamo ? Holding an American citizen in solitary confinement for three and a half years and driving him virtually insane before charging him with any crime?

What could this "one great exception" be? None of the above. It's "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Other than that, McCain thinks checks and balances are working fine.

McCain gives several examples of this "abuse of our federal courts" -- one of which is incoherent. He cites the Kelo case in which a woman's home was taken by eminent domain so that a private developer could build on the site. By a 5-4 majority, the Supreme Court refused to intervene and the seizure went forward. Now, McCain may not like the way this case turned out -- I'm not sure I do either -- but it's an example of judicial restraint, not judicial activism. "Real activism," McCain says, is democratic and tries to change the hearts and minds of the electorate.
By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their argument; they seek to shut down debates by order of the court.
Well, Kelo was an example of elected officials exercising their judgment. But rather than undoing that decision via the ballot box, McCain wanted the courts to undo it. Somehow, failing to undo a local government's action is "judicial activism".

This up-is-down reasoning is typical of such rants. Lang cites a Yale study of the 64 cases from 1994-2005 where the Court struck down federal laws. The researchers totaled up how often each justice voted in favor of the "activist" position to strike down a law. By that measure of activism, the conservative judges were far more activist than the liberals. Conservative Clarence Thomas voted with the law-overturning majority 66% of the time and liberal Stephen Breyer 28%, with judges lining up in between in almost exactly conservative-to-liberal order.

McCain's speech also denounced "airy constructs the Court has employed" in contrast to "the clear meanings of the Constitution." He obviously intended to imply that the right to privacy (which protects a woman's right to choose to have an abortion) is such a construct. But conservatives always fail to note other legal constructs. The words "executive privilege" appear nowhere in the Constitution. And the notion that corporations have the same legal status as persons and so can claim the full Bill of Rights -- that's a construction of the Supreme Court as well. And no one can find a quote from the Founders that remotely resembles the Bush administration's theory of the unitary executive.

A true constitutional minimalist (somebody who denounces every constitutional interpretation not specifically envisioned by the Founders) could start an interesting discussion and raise the general level of debate in this country. But that's not at all what McCain is doing. He, like President Bush before him, wants the courts to be a weapon for conservatism. He's in favor of aggressively conservative judges, and only applies the negative frame of "judicial activism" to decisions that he disagrees with.

Short Notes
Linking to myself: Thursday I wrote an essay slightly too long for the Sift -- Pirate Treasure: Why oil and democracy don't mix. It explains why Iraq's oil wealth is a hindrance to its becoming a democracy, not an asset -- and why that should have been obvious from the beginning. It's on my Open Source Journalism site, and I posted it as Pericles on DailyKos. I also recently preached a sermon at my Unitarian church in Bedford, Mass. It's called Some Assembly Required, and you can find it on my religious blog Free and Responsible Search.

Sunday's Washington Post described the everyday life of an Iraqi businessman who the reporter has known since before the invasion. His family lives in exile in Jordan; he won't live in the house he owns in an upscale neighborhood. The dangers of the Saddam era are past,
But in this post-Saddam time, other threats impose themselves. Material ostentation draws kidnappers, political engagement invites assassination, and time spent outside the seeming safety of four walls carries the risk of being caught in the middle of horrific violence. In 2006, Yousif's cousin, an engineer, "was driving in the street, and they shot him," Yousif recalled when I met with him in Baghdad in March. The family has no idea who killed the man, or why, or even if there was a reason.
Monday's Washington Post describes McCain's environmental record as a "balancing act". Someone with less media admiration than McCain might be described as inconsistent or flip-flopping. In the 12th paragraph they do get around to noting that the League of Conservation Voters gives his environmental voting record a 24 rating, as opposed to Obama's 86.

The Onion quantifies a trend many others have wondered about: There are now only four acceptable things a candidate can say without offending someone. The Onion News Network has a video report on John McCain's plans to save the government money by disbanding the Secret Service and defending himself.

A substitute teacher in Land o' Lakes, Florida claims to have lost his job after being accused of "wizardry". He did a magic trick for his students, making a toothpick vanish and reappear. If they don't crack down now, I guess, somebody will saw a student in half.

Cristina Page on Huffington Post combined state-by-state data from the National Campaign to Prevent Teen and Unplanned Pregnancy with NARAL's state-by-state ratings on how pro-choice or pro-life a state is. Conclusion: In pro-life states teens are more sexually active, more likely to have had sex before age 13, and more likely to have four or more sexual partners. This pattern has been noted by a number of observers and comes up in a variety of statistics, but somehow never becomes common knowledge: States where abstract "family values" are politically popular are usually states where actual family values are in bad shape. As of 2005 (the most recent stats I could find) Massachusetts and Connecticut still had the lowest divorce rate in the nation, with Arkansas and Oklahoma the highest (not counting Nevada, which does a lot of divorces for out-of-staters).

The latest anti-evolution tactic recently failed in the Florida legislature. The creationist Discovery Institute is pushing an "academic freedom" bill to protect public-school teachers who argue against evolution in their classrooms. Their online petition warns against "self-appointed defenders of the theory of evolution who are waging a malicious campaign to demonize and blacklist anyone who disagrees with them." But the St. Petersburg Times doubts the bill's premise: "most of the evolution-related pressure being put on science teachers is aimed at those who want to teach the scientific consensus about evolution, not those who want to teach the 'full range of scientific views' -- which would presumably include the fringe notion that evolution is not backed by strong evidence."

Internet acronyms can be frustratingly obtuse, but one I recommend learning is IOKIYAR: "It's OK if you're a Republican." Senator Vitter frequents a house of prostitution? So what? IOKIYAR. Larry Craig makes a gay pass at a policeman, but he can stay in office because IOKIYAR. McCain breaks campaign finance laws he helped write? Never mind, IOKIYAR. Jerry Falwell blamed America for 9/11 every bit as much as Jeremiah Wright did, but IOKIYAR. Rush Limbaugh's drug problem? IOKIYAR. The latest example is Cindy McCain's tax returns, which she recently pledged that she will never release. Of course, the "liberal" Washington Post complained in 2004 when Theresa Kerry tried the exact same maneuver. ("There may well be nothing of great note in Ms. Heinz Kerry's tax returns other than the scope of her wealth. But with her husband seeking the presidency, her financial dealings, as well as his, ought to be as open as possible. Keeping her returns private would set a bad precedent.") And what do you think the reaction would have been if Hillary hadn't included Bill's income in her disclosures? But never mind, Cindy. IOKIYAR.

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