The Faculty Lounge

Bob Barr For President? Dems Cross Fingers

For months he's been tinkering with the idea, and now he may be ready to take the plunge.  Bob Barr, a former Congressman from Georgia, could end up as this year's Libertarian presidential candidate.  Wouldn't it be interesting if he brought back the 1988  Libertarian presidential nominee - Ron Paul, of course - as his running mate?

Barr has been a curious enough figure in politics over the years - beyond his cameo role in Borat.  He led the charge in the impeachment of Bill Clinton.  For years he was an ultra-conservative.  More recently he has become more clearly libertarian, going so far as to join both the Libertarian Party and the ACLU.  He has been particularly exercised about the extension of government power through the Patriot Act.

Obviously, Barr isn't going to win anything.  What makes Barr's candidacy interesting is the possibility that, if McCain will tacks too far to the center, some conservatives might abandon the Republicans.  It won't necessarily take a lot of votes to make a difference.

My view of the 2008 race is that one simply cannot reach conclusions about anything this early in the game.  But from the point of view of Democrats, a Barr candidacy only seems destined to help.

Saving Sergeant Hagel (VP Brackets For Politics Nerds)

NCAA brackets are always loads of fun - the perfect way to break gambling laws and feel good about it.  (Back in the day, Justice Rehnquist ran the Supreme Court tourney out of his chambers.)  Now, for political junkies, comes Congressional Quarterly's VP Madness (GOP Edition) - a bracket where voters get to pick preferred VP candidates from suggested pairs.  No gambling here, just votes, but it's still gets your juices flowing.  They start with 32 possibilities, and Round 1 offers some intriguing choices, including: 

Sergeant Hagel v. Secretary Rice (I'm picking Rice - and saving Hagel  for Obama's ticket)

Joe Lieberman v. Jeb Bush (did one of them have to drop out this early?)

JC Watts v. Charlie Crist (this mismatch really does remind me of the NCAA first round)

Photo: Sergeant Chuck Hagel, 1968.  Additional Chuck Hegel military pics here.

H/T Sarah Stevenson

SCT Upholds Indiana Voter ID Law

In a 6-3 decision released this morning the Supreme Court upheld an Indiana law that requires voters to produce a photo id in order to cast a ballot.  Its not an easy decision to digest.  Justice Stevens authored the lead opinion, joined by CJ Roberts and Justice Kennedy.  Justices Thomas and Alito joined Scalia's concurrence.  Souter, Ginsburg and Breyer were in dissent. 

Couple points to note, however.  Civil rights groups had lined up with Democrats to oppose the Republican inspired measure on the ground that the burdens imposed will discourage poor, elderly and minority voters from participating in the political process - all without delivering any counterbalancing benefits to the state.  One of the primary motivations behind the law is the asserted need to deter in-person voter misidentification.  The problem is, as pointed out by Justice Souter, not a single instance of this type of voter fraud has been recorded in the history of Indiana elections.  Ever.  But real problems, such as absentee-voter fraud, duplicate registrations, and the like, go unremedied.   

The decision leaves room for future "as applied" challenges - an increasingly favorite strategy for disposing of controversial cases - but those challenges are difficult to win, and certainly don't leave much promise for the tens of thousands of Indiana voters who are now disenfranchised, just in time for the state's May 6 primary.   

Access Crawford v. Marion County Election Board here.  More from Rick Hasen, (Loyola Los Angeles) who authored an amicus brief in support of the challengers, at Election Law Blog.

-Kathleen A. Bergin

Gore For President. And No, I Am Not Joking.

Weeks ago I argued that Gore was more likely than Hillary to score the Democratic nomination.  I continue to believe this is true - and that every time Hillary lands a punch, as she did to a non-negligible degree in Pennyslvania - it brings Al Gore all that much closer to the Democratic nomination.  Let me be clear: I am not predicting that Gore is actually likely to get the nod - only that he is more likely than Clinton to do so and that his odds are on the rise.   

Why does he make sense?  Hillary's successful efforts in Pennsylvania and Ohio suggest that Obama may have real trouble with these important states.  And polls show that many blue collar Dems will vote McCain.  But Hillary is loathed - seriously and totally hated - by large segments of America.  And given her campaign's approach to race in this campaign, it is far from clear that she could fully reconstruct the traditional Democratic coalition.  (Not for nothing, John McCain is hanging out with Hank Sanders near the Pettus Bridge in Selma.)  And let's be candid: a superticket, featuring both candidates, is at least as likely to lose voters than it is to win them over.  Not that either of these folks seems eager to try it out.

But the toughest reality of all is that, in a year of total discontent with Republicans, there are a flock of other Democrats who could probably win this thing.  Now, neither Obama nor Hillary would ever tolerate being displaced by a Joe Biden, Tim Kaine or even John Edwards.  After all, they've put their hearts and souls on the line for the nomination - and supporters might well feel betrayed if either surrendered the nomination to a non-candidate.  They could only step aside for Democratic royalty, for someone truly unique.  A former vice president.  A Nobel prize winner.  Obama and Hillary could, if they chose, hand the keys to Gore and leave the Democratic coaltion not only intact, but enlarged.

I've long supported Obama, and I continue to see him as the best choice for the job.  But I've been troubled by my anxiety that both he and Hillary would be headed for a November train wreck.  Recently I've been floating this Gore idea to friends.  Many people dismiss it initially as unrealistic.  But the more they ponder it, the more they get excited.  A certain depression has set in among Democrats who have not strongly aligned with the two existing candidates and the prospect of a Gore candidacy offers a lot of hope.  If, in a few weeks, the balance of superdelegates remains uncommitted and Hillary stays in the race, pressure is going to rise for a solution.  And you can bet that John McCain is praying that Al Gore isn't it.

Update: At RealClearPolitics, we now see that Steven Stark of the Boston Phoenix is also starting to think Gore.

Osama Obama: Invidious Racism?

Very recently, I heard someone refer to Barack Obama as "Osama Obama."  My response was that the comment was clearly racist, but another person disagreed, arguing that it was a legitimate way to express a founded anxiety over the political views of the Democratic front-runner.  At worst, in their view, it was a veiled critique of his ties to Islam. I'm not very sympathetic.  In my view, this comment is expressly designed to target Obama's difference.

The most salient part of his difference, within the perceptions of most non-African-Americans, is his race: he is seen to be non-white.  Of course, that is a highly contestable claim in its own right, resting on many problematic ideas which include: the notion that whiteness is a recognizable and agreed upon state; the presumption that whiteness is the pure, natural state of personhood which is sullied when a person has "non-white" ancestors (thus, for example, few white people contest whether he falls into the category of "non-white" or "black" - only whether he can be termed "white"); the idea that one's race is legitimately assessed by anyone other than the person himself;  and a failure to account for the empirical fact that many members of the group to which he has been assigned - African-Americans - do not see him as black in some essential way.

He is also identified as different because of his middle name - Hussein - which some see as a proxy for the fact that his father was Muslim and, in the minds of some, he remains essentially Muslim.  This essentialness depends on the idea that he either: a) is still a Muslim, but denies it; b) has deep sympathy for Muslims, or Muslim-related issues, because of familial ties; and/or  c) he is religiously different, which means either he is non-Christian or, in the new patois of the Bush era, he is a non-Judeo-Christian.  Perhaps the Osama title is designed to suggest that, based on his heritage, he cannot be counted on to support the political and social positions dominant among this newly discovered Judeo-Christian community.  Or, to be far more generous than I'm inclined to be, perhaps this is just a convenient rhyme with Obama that highlights what some Jews and evangelican Christians see as his sympathy for the plight of Palestinians.

My own feeling is that some staunch supporters of Israel believe that, because Obama is (seen as) black, he is presumptively likely to view Palestinians as oppressed.  I think that, deep down, these folks recognize that Palestinians are in fact oppressed - by the actions of multiple countries, for sure, but central among them Israel - and they assume a person with strong ties to another community that has has a long history of oppression will be be open to such such claimsmaking.  This does not mean that all black candidates are disqualified, but they must be extra- extra- rigorous in sending substantive and symbolic messages that they are Israel Right or Wrong types.

The question is, does it matter?  Is this title ever anything other than an appeal to Americans' basest insticts to fear and hate the other?  I cannot see any way in which this name-calling can ever advance good political judgment.  George Bush has been a staunch ally of almost all Israeli policy in the last eight years; would it be useful or appropriate to call him Bushstein?  Do we consider it OK to call our conservative black Supreme Court justice Uncle Thomas? 

Perhaps some folks would call Obama "Osama" even if he were a white Christian with liberal views - but I doubt it.  In my view, the name isn't cute or funny.  It's just political hate speech.

Watch Chelsea Clinton Live From Drexel Law This Afternoon

Chelsea Clinton will be visiting Drexel Law this afternoon to chat with our law students in her typical Q&A format.  We will be webcasting this conversation (which is expected to last a bit over an hour) starting a little after 4pm EDT.  Those interested in hearing a potential future president take on a flock of feisty law students can watch here.

Update: the above link only served for the live feed.  A recording of her visit can be found here.

New York Judges Go To Court For A Raise - But Will It Work?

Judith Kaye, the Chief Judge of the New York Court of Appeals, will file suit today arguing that the state legislature's failure hike judicial pay violates state law.  The argument, as best as I can understand it, is either that the effective drop in salary over the past decade - when judges last received a bump - constitutes a threat to an independent judiciary or that, by tying judicial raises to legislator raises, the legislature has breached the mandated separation of powers.  A fuller discussion of the issue is here.

I don't know New York law, but my instinct is that this is aloser from a legal point of view.  Judges in New York still receive six figure salaries, from top to bottom on the food chain, and while that may be inadequate, it's hardly a starvation wage.  And combined with the status, and power, associated with these positions, its hard to argue that it will result in an unqualified and ineffective judiciary.  It also seems hard to believe that there is some substantive right to judicial raises that the legislature is undermining.

I take it, however, that this is a publicity maneuver - strategic litigation where the goal is a legislative solution.  The problem is that judges are relatively unsympathetic characters.  First off, anyone making $100K or more isn't going to be particularly appealing to the great majority of the public that earns far less.  In any case, people perceive being a judge as an honor; anyone who hates the salary can feel free to choose  more lucrative options.  Perhaps, though, the target audience isn't the general public but the legal establishment.  Maybe the goal here is to highlight an issue that many lawyers don't know about, and emphasize that the quality of their litigation is under threat.  Kaye may really be seeking to harness the powers of powerful New York attorneys to lobby for a raise. 

After watching what happened in Pennsylvania, however, Kaye (and the state legislators) best be careful.  If the public feels that judges are overreaching, voters may punish the legislators who facilitated raises.  I believe that there are excellent reasons to pay judges well - not least of which that good salaries may help build a more talented judiciary, to some extent - but I'll be watching closely to see if this litigation stunt pays dividends for anyone. 

He Who Does Protest Too Much: Scalia and Washington Grange

Justice Scalia is fond of excoriating his more centrist colleagues for blurring the line between politics and judicial decision-making. The decision to strike down a Colorado measure that discriminated against gay, lesbian and bisexual individuals was "an act, not of judicial judgment, but of political will," he wrote in his dissent to Romer v. Evans.  Seven years later, again in dissent, he called the decision to strike down Texas’s anti-sodomy law in Lawrence v. Texas "the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

There are those of us who think Scalia does protest too much, that his rulings are at least as transparently right-leaning as those he rejects are, in his view, transparently left.  After all, if the majority in Lawrence took sides in the culture war over gay rights, as the accusation stands, then Scalia did too.  He just came out on the other side.

Last week the Court decided Washington Grange v. Republican Party, and once again Scalia found himself in dissent. Having read and re-read the decision nearly a dozen times, I can’t help but conclude, once again, that it is Scalia himself who stands guilty of blurring the lines between politics and law. Its not so much that I disagree with his rationale, or his conclusion. Much to my surprise, I agree with Scalia on the merits of the case. That said, I can’t find a way to reconcile his dissent in Washington Grange with what he’s written in other First Amendment cases.

Let me explain.

Does Gore Have A Better Shot Than Hillary?

I think so.  Howard Kurtz at the Washington Post notes that many pundits have written off Hillary.  But he says that he's not ready to declare the race over yet - what if Hillary scores a big win in Pennsylvania?  Fair enough, Howard, and indeed what if  national polls show Obama slipping into free fall as well?  Both of these things could happen and might throw uncommitted superdelegates into a tizzy.  But I'm not sure they'd move to Hillary; I think it's just as likely they'd switch to the Democrats' resident Nobel Laureate. 

Here's why.  Many  Democrats worry that Hillary cannot galvanize the entire Democratic base.  Among other things, her support among  African-Americans will be weaker than normal for a Democratic presidential candidate unless she runs with Obama.   And why would Obama run as the VP with a woman he beat in the primaries?  If superdelegates abandon Obama, it will be out of hard-nosed realism: a surfeit of evidence that he cannot win.  But that realistic outlook doesn't take you to Hillary - who is highly unpopular among large segments of the American population (for reasons both good and bad).  It takes you to Al Gore - quite possibly with Obama on the ticket as part of a brokered deal.  The biggest critique of any backroom dealing among superdelegates is that this process undermines democratic choices, but that argument would be softened if Obama reaches an agreement to join a Gore/Obama ticket and he asks his delegates to vote for Gore.  (Obviously, this would only happen if it appeared that Obama simply could not muster a majority for the convention.) 

I'm not saying this will happen.  Most likely, Obama will plow through these tough times - and try to stay tough through October, waiting for a McCain implosion.  But the race has gotten more and more complicated of late.  And I'm not sure that Hillary is the beneficiary of these disruptions.

(Image from BuzzFlash.)

Eliot Spitzer: Commentary And Primary Materials

Belle Lettre has a good list of interesting posts on Eliot Spitzer here.

As always,  sometimes, the Smoking Gun has the primary documents here and here.

Update:  I'm behind the curve.  The "sealed" complaint is here.

Alabama's Finest Moment: The Airbus Air Force Contract

The Air Force has announced that an Airbus/Northrop Grumman consortium won a massive contract to provide 179 air tankers.   The NY Times (and everyone else) calls it a shocker:

The Air Force, in a stunning upset against the Boeing Company, awarded a $40 billion contract for aerial refueling tankers on Friday to a partnership between Northrop Grumman and the European parent of Airbus, putting a critical military contract partly into the hands of a foreign company....“We are outraged that this decision taps European Airbus and its foreign workers to provide a tanker to our American military,” the Washington State delegation said in a joint statement. Boeing planes are assembled outside of Seattle. “This is a blow to the American aerospace industry, American workers and America’s men and women in uniform,” the statement added.... “This isn’t an upset,” said Loren B. Thompson, a military analyst at the Lexington Institute, a Washington-area research group. “It’s an earthquake.”

Well, maybe not so much.  The folks in Washington State, Chicago, New York and DC might have been blindsided.    But there was plenty of American support for this decision - and I'm betting a lot of it was coming from the little state that could: Alabama.  The Washington Post hints as much and the Mobile Press Register reports at length about how the contract may generate up to 6500 jobs in the state.  I have to think that Senators Jeff Sessions and Richard Shelby  pushed hard behind the scenes on this one.  Governor Bob Riley was, shall we say, ebullient:

"To say this is a great day for Alabama is a monumental understatement.  This will go down in history as one of our greatest days."

Nader Names Former Public Defender As Running Mate

How easy it would have been to miss the news that Matt Gonzalez, a former San Francisco County public defender, has agreed to serve as Ralph Nader's running mate on the Green Party ticket.  Obviously, nobody - not even Gonzalez - is taking this candidacy seriously.  But as a former public defender myself, I have a particular affection for the guy.  He's a beer drinking poet who lived (and perhaps still lives) in a shared apartment in a middlin' part of SF.  He is exactly the kind of person who should have no shot at getting elected to anything, and certainly has no business becoming a permanent Wikipedia trivia feature.  Unlike Barack Obama, whom we're told hides a life-long laser-like ambition and drive, Matt Gonzalez seems the sort of fella who has been waiting for a bong hit all day.  Is that what we need for a Veep?  Perhaps not.  And God knows we don't need Ralph Nader for anything other than entertainment at this point.   But for those of us brought up on Richard Linklater flicks, Matt Gonzalez seems like a candidate out of Hollywood.  Or perhaps Texas.

Could The Texas Primary Turn The Lonestar State Blue?

One of the remarkable things about this primary season is that Clinton and Obama are contesting some states that rarely receive signficant attention from Dems in either the primary or general election.  Thus, few Texans have probably ever seen a political campaign ad for a Democratic presidential candidate.  Why would a Democrat ever waste the money on a Lonestar ad buy?  But this year, those ads are bouncing around the airwaves.  (Isn't that a quaint expression, given that almost everyone now ignores those free airwaves and purchases them via cable?)  This introduces an interesting question: is it possible that the very act of advertising and campaigning in Texas today could have a noticeable effect on the percentage of Texans who either vote, or are open to voting, Democratic this fall?  One interesting question will be whether these primary campaigns at least soften pro-Republican preferences to the point that McCain is forced to spend some amount of time or effort in the state.  No rational Democratic finalist would have spent millions on Texas in the general, but with the money now sunk, it might make sense to translate the investment into some value this November.

Obama and the White Vote

"[T]here is no faster way to a society in which race doesn’t matter than to stop talking and acting as if it does."

The Boston Globe’s Jeff Jacoby wrote these words in defense of Barack Obama whose been remarkably adept at minimizing the relevance of race to his campaign.  To Jacoby, this is a good thing, and precisely what makes Obama "infinitely preferable" to candidates like Jesse Jackson or Al Sharpton whose campaigns were built around "racial grievances."  Jacoby continues:

The sooner we resolve to abandon the labels "black" and "white," the sooner we will be a society in which such racial labels are irrelevant. And what better moment to make such a resolution than this one, when white Americans by the millions are proving that the color of a person's skin is no longer a bar to anything in this country - not even the presidency.

Can we really draw this much from Obama’s cross-racial appeal?  Jacoby offers Obama’s success as proof that White voters have finally transcended race.  But it might show something less triumphant.  Perhaps White voters, some of us at least, see in Obama the hope of racial redemption.  Perhaps we support Obama not because we’ve risen above race, but precisely because we have not.  In the words of Dan Payne, maybe we're drawn to Obama because he's a Black politician "who doesn’t talk about discrimination, thus absolving white people of guilt for the prejudices he undoubtedly faced."