Posted Tuesday, Oct. 28, 2008, at 7:39 PM
No Ring. On to the DNA test! ... 1:22 P.M.
Everybody's Pitching In (7)! Barbra Streisand is doing her part [in a non-profit, non-endorsement way of course] ... 1:15 P.M.
Are we sure that when Obama was talking about judge-led "redistributive change" that "the real context" for his remarks was the inherently limited debate over Charles Reich's "New Property"--i.e. whether government benefits (like welfare) could be denied without various procedural safeguards like as hearings--as Emily Bazelon argues ? Didn't Harvard Law Prof. Frank Michelman famously attempt to import into the Constitution John Rawls' Theory of Justice --in order to require the provision, not just of procedural rights, but of actual welfare benefits ? My memory might be off, but I think he did ! Obama was certainly talking broadly enough to include this ambitious, unsuccessful liberal effort:
[T]he supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the warren court it wasnt that radical ... it didnt break free from the essential constraints that were placed by the founding fathers in the constituion at least as it has been interpreted and the warren court interpreted it generally in the same way that the constitution is a document of negative liberties
Since Obama is rejecting the idea of pursuing "redistributive change" through the courts, what difference does it make whether this change was narrow and procedural (Reich) or dramatic and substantive (Michelman)? Answer: It matters because Bazelon's version minimizes the extent to which liberal legal activists actually wanted to redistribute wealth through the courts --and might one day again if they think they can get away with it. That possibility seems very remote, I agree. But as David Bernstein argues , it can't be completely discounted despite Obama's criticism of judge-led redistribution, because Obama's criticism was largely pragmatic, and the pragmatic equation could change:
There are two basic possibilities. One is that Obama might believe that appointing far left Justices to the Court would be unlikely to accomplish much in the long-term, and could ultimately harm the progressive agenda, and his own presidency, by reviving "unelected judges imposing their will on the American people" as a Republican campaign theme. The other possibility is that Obama, intoxicated by victory, and having the very healthy ego that all successful politicians have, will decide that the election of a very liberal African-American president, along with large Democratic majorities in the House and Senate, signals that the social and political winds have shifted sufficiently that the Supreme Court could successfully launch an activist liberal agenda , and he will nominate justices accordingly. But there is nothing in either Obama's radio remarks, his voting record in the Senate, or his public statements on judges to suggest that he objects in principle to the equalitarian "living Constitution" of Brennan, Warren, et al., and there is much to the contrary. [E.A.]
Wednesday, October 29, 2008
Obama Infomercial: Effective! (And I hate Real People). ... Made Obama seem normal. .... Huge gap between what he says he'll do ("restore fairness") and his actual initiatives (tax credits). ... Was that Joe Biden or his SNL caricature saying "Whoa!"? .... 5:40 P.M.
Who Let Rachael Larimore in? Slate 's quadrennial exercise proving that just because you're open about it doesn't mean it's not embarrassing is up . Slate is voting 55-1 for Obama over McCain, with one additional vote for Bob Barr. With those numbers, it's getting hard to agree with founder Michael Kinsley:
No doubt it is true that most journalists vote Democratic, just as most business executives (including most media owners) vote Republican, though neither tendency is as pronounced as their respective critics believe.
Not "as pronounced" as our "critics believe"? You mean Sarah Palin thought it would be 56-1? How much more pronounced could it get? ...
Memo to Don Graham: As long as we're going with the O by a 55-1 margin, why not drop the now-ludicrous MSM-style pretense of non-partisanship and reap the financial rewards of partisanship that available on the Web-- like, say, the Huffington Post ? ... P.S.: Slate itself is a bad name, in this respect, since it implies a blankness, a void of strong preferences that (fortunately) isn't there. But I guess it's too late to change that. ... 4:37 P.M.
Shocked, Shocked for Barack! The cheapest out if your'e a previously McCain-friendly pundit who wants to endorse Obama is to say you like McCain but can't vote for him because you're revolted by his campaign . It's an out elaborately developed by Joe Klein at Time , and it's an out Anne Applebaum takes in Tuesday's WaPo . Applebaum claims she's not reacting against McCain's "campaign" but rather to "institutional" deterioration in his "increasingly anti-intellectual, no longer even recognizably conservative" party. But all the examples she cites come from his campaign (Palin) or campaigning that's not even his (Sean Hannity's anti-Obama telecasts).. ...
The problem with the "I'm repulsed" argument is that while it's eminently respectable it's unserious. The campaign will be over soon. There is no reason to think McCain has actually changed what he wants to do on, say, immigration. Applebaum doesn't offer even a speculative argument as to why, with the election safely behind him, President McCain would have to truckle to his party's anti-amnesty contingent. That's because he wouldn't. He'd be much more likely to make immigration the basis for his first and perhaps only foray into bipartisanship--in effect, truckling to the pro-legalization forces. Nor has McCain "spent the past four months running away" from his longstanding immigration position. He's spent the past two months reasserting it .
I think Applebaum knows this. She's not a fool. If she really thinks that McCain's pre-campaign immigration policies--or his budget policies, or his torture policies--are right for the country, then she should be for McCain. Even if he's trying to win by running anti-Ayers ads. Even if his supporters "repulse" her. It's hard to believe that this repulsion isn't a convenient cover for some unstated, perhaps unconscious, pro-Obama imperative (or maybe simply for the imperative to come to a decision). ... 2:54 A.M.
Tuesday, October 28, 2008
If you're looking for evidence of a "Bradley"-like effect--in which preelection polls can be wildly off--one place to look is the polling on Ward Connerly's Civil Rights Initiative in Michigan. According to Connerly (in answer to an email query)
Some polls had us losing by 10 points the weekend before the election. We won by 16.
Results here . ... It seems clear, in that case at least, voters told pollsters the respectable PC answer they thought pollsters wanted to hear. ... Barack Obama was one of those campaigning (in radio spots) for the respectable PC side that lost. ... P.S.--Is McCain Yorty? Sherry Bebitch Jeffe argues (as have others) that there was no Bradley effect in Tom Bradley's 1982 gubernatorial race--the alleged ur- example. In Bradley's 1969 mayoral race against Sam Yorty , on the other hand .... 5:07 P.M.