What is Hillary's End-Game?

With just three primaries left, it is abundantly clear at this point that Barack Obama will be the Democratic nominee for president, yet Hillary has shown no signs that she plans to leave the race any time soon. On the assumptions that she is aware that the race is effectively over, and that she does, in fact, have some reason for remaining in the race other than spite and/or denial, the question becomes, what is she looking to gain? In the extended entry, I discuss what the competing theories are, and how realistic they seem to be.

Running again in 2012: Not gonna happen. Running again in 2012 is a bigger risk for her than running in 2008 was: she's up for reelection in 2012. Running again means giving up her senate seat, whereas in 2008, she's not out of a job after the Democratic Convention. That said, if she chooses to run again, it may mean running a primary against President Obama, wherein she has no argument against him assuming he's done a decent job. Her best arguments, "He is unelectable" or "I've got more experience" are no longer viable claims. If Obama loses in 2008, she has, at minimum, four major hurdles to overcome:

1) Obama proved that she can be beaten in the Democratic primary. If she runs again, whoever challengers her has a ready-made blueprint for how to win;

2) There would presumably be another front-runner, as whoever Obama chooses as his VP nominee becomes his heir apparent in 2012;

3) With Bill out of office for 12 years, and her defeat in 2008, the "Clinton Machine" is dead. She won't be able to rely on a dream team of top consultants, operatives, and fundraisers (for all the good that did her this time around anyway); and

4) Most importantly, half the party will hold her accountable for Obama's loss. Not only will she need to convince Democrats that she's the best candidate (again), but also to forgive her for bloodying up Obama and clearing the way for President McCain.

Obama "assumes" Clinton's campaign debt: As far as I can tell, this theory started when Tim Russert pulled it out of his ass the night of the Indiana & North Carolina primaries. The next day, Huffington Post reported on "the near certainty that the Obama campaign would agree to pay back the $11.4 million she has loaned her own bid, along with an estimated $10 million to $15 million in unpaid campaign expenses."

There are two factors that make this implausible. First, politically, it's a non-starter. The optics of Obama giving the Clintons tens of millions of dollars to drop out of the race would be disastrous for him. Given that a large part of the Clinton's debt is to themselves, this would amount to a multi-million dollar bribe, and would significantly impact his ability to campaign as a new kind of politician who is above making such deals.

Furthermore, the Obama campaign has prided itself on fundraising from its vaunted small-donor base. These donors, presumably, give in small amounts precisely because they cannot give more, and would be incensed at the notion that the money that they believed was going to help Obama would instead go to someone they have actively opposed for the last several months. As Josh Marshall succinctly argued, "That's not what people gave their money for."

Second, however, is the fact that it is literally not an option. According to federal election law, the Obama campaign would be limited to donating $2,000 to the Clinton campaign. What Obama could offer to do would be to ask his supporters to donate money to the Clintons, in order to retire their campaign debt. Given the oft-noted animosity that many of Obama's ardent supporters feel towards the Clintons, that the Clinton's debt is largely to themselves, and that they aren't exactly hurting for money, I doubt Obama supporters feel compelled to help Hillary out.

Clinton for Governor: This theory took off when Newsweek's Jonathan Alter suggested that Hillary accept the Governor's Mansion in place of the White House. No compelling reason is given, however, for why she would either want to be governor or make a good governor. Nor has Clinton herself shown any interest in leaving Washington for Albany. Even if she chose to do so, she would likely have to run against the sitting governor, David Paterson, who has said that he plans to run for reelection in 2010. Besides, does she really want her next career move to be a challenge to an incumbent governor, who, like Obama, happens to be a popular, black, Ivy-league educated lawyer and former professor?

Clinton for Majority Leader: Three problems: Harry Reid, Dick Durbin, and Chuck Schumer. As with running for governor, Clinton's first problem is that someone else already has the job, and they probably want to keep it. While it might make a tempting consolation prize if it were vacant, Harry Reid's been in the Senate for over 20 years, and has been one of its top-ranking Democrats since 1999. He's paid his dues and is unlikely to give up the position he's worked toward for so long.

If Reid were to step aside for some reason, Clinton would still have to out-maneuver Durbin and Schumer, who, in addition to sharing a house in DC, are the second- and third-ranking Democrats in the Senate. As the senior senator from Illinois, Durbin also happens to be one of Obama's earliest and most influential supporters, something a President Obama would take into account in deciding how to weigh in on choosing a new Majority Leader.

Schumer, New York's senior senator, is in his second term as chairman of the Democratic Senate Campaign Committee. In 2006, he helped unseat 6 Republican incumbents, giving Democrats control of the senate, and he is likely to help seat several more Democratic senators in this election cycle. Presumably, all of these new Democratic senators would maintain some level of gratitude for Schumer's DSCC leadership, and would be hesitant to cross him by supporting Clinton in a contested race for majority leader.

Clinton for Cabinet Position in Obama Administration: Of the Big 4 (Defense, Justice, State and Treasury), I have trouble seeing her as being particularly interested in either Secretary of the Treasury, or Attorney General, based on the issues she focused on as both First Lady and as a sitting senator, so I'll assume that she isn't.

She might be interested in Secretary of State or Defense, given her campaign's focus on her foreign policy credentials, and her service on the Senate's Armed Services Committee, yet I don't see these appointments as particularly plausible. Simply put, there is no subject on which she and Obama are more divided than foreign affairs. Most prominently, they've fought over Iraq, Iran, and basic philosophies of negotiation with foreign leaders. Such disagreements would seem to rule her out for either position.

There is, however, one cabinet position for which Clinton seems both well-qualified and well-suited: Secretary of Health and Human Services. As a member of the Senate's Committee on Health, Education, Labor and Pensions since 2001, she is familiar with many of the issues dealt with by the Department of Health and Human Services. Given her intense and long-standing advocacy on behalf of health care reform and children's issues in particular, this seems an ideal appointment for her. Whether she would prefer it to being a senator, however, is anyone's guess.

This leaves me with what I think are the most likely, and most interesting, possibilities for Hillary might be hoping for: Vice President, and Supreme Court Justice.

When it comes to choosing a running mate, there is a strong argument to be made against choosing Clinton, that it is incongruous with his message of moving past partisanship and old political wars. But the negatives, in my view, pale in comparison to the benefits. Though I hate to quote him, Andrew Sullivan makes a compelling case for what he terms the "Hate-Filled Dream Ticket."

The conservative white voters that Clinton has amazingly managed to attract could be combined with the massive infusion of new young votes, internet money, and African-American enthusiasm to create a potential tsunami in the election. Instead of having to pick between the first black president and the first woman president, the Democrats could offer voters both: the first black president and first female vice-president. Worries about Obama's relative youth and lack of Washington experience would be allayed by the presence of the Clintons. The toxicity of the Clinton baggage could be balanced by the hope Obama has inspired.

The Clintons could be deployed to shore up support in some of the Reagan Democrat states, while Obama wins over enough independents to carry the Mountain West and the upper Midwest. California, Ohio, New York, Florida and Pennsylvania could be secured…

And yet I can also see that the new politics Obama represents has provoked a ferocious backlash from the established political class; and his weakness (as well as his appeal) as a candidate is his reluctance to engage in the kind of street-fighting that politics can sometimes — and must sometimes — become. By picking Clinton as a vice-president, he would be pulling a classic American manoeuvre — getting a surrogate to do the dirty pugilism of the campaign, while using his own extraordinary skills to provide a unifying and uplifting overall theme. Picking Clinton would also defuse genuine concerns among older voters that he is just too green to be entrusted with presidential power just yet…

There's also a way for Obama to explain this choice in a way that does not violate — and in fact strengthens — his core message. His model in this should be Abraham Lincoln. What Lincoln did, as Doris Kearns Goodwin explained in her brilliant book, "Team Of Rivals," was to bring his most bitter opponents into his cabinet in order to maintain national and party unity at a time of crisis. Obama — who is a green legislator from Illinois, just as Lincoln was — could signal to his own supporters in picking Clinton that he isn't capitulating to old politics, he is demonstrating his capacity to reach out and engage and co-opt his rivals and opponents. Done deftly, picking Clinton could even resonate with Obama's supporters as a statesmanlike gesture, a sign of the kind of reconciliation he wants to achieve at home and abroad and energize his own party for the fall. It is consonant with his core message: that he can unify the country in a way few other politicians can. It would even help heal the gulf that has opened up between the Clintons and black voters in this campaign. It's win-win all round.

It is the ability of this ticket to reunite the party after the divisive primary that demonstrates how smart a move an Obama/Clinton would be. Given the huge numbers of Clinton supporters who say that they would vote for McCain or stay home rather than support Obama, a number that only went up as the campaign progressed, there are few better ways to ensure that they don’t follow through with their threat of throwing the election to the Republicans. 75% of Clinton supporters, and 60% of Democrats overall want a unity ticket – with numbers like that, it’s hard to deny its appeal. In particular, Clinton’s appeal is to the key demographics that Obama has been unable to attract: working-class whites and Hispanics (and no, Edwards can’t get those same demographics).

Lastly, Supreme Court Justice Clinton: Perhaps the most interesting possibility is for Barack Obama to agree to nominate Hillary to the Supreme Court.

Before stepping on to the national stage in 1992, Hillary had a very successful legal career. After attending Yale Law School, she practiced with The Rose Law Firm for nearly 20 years, becoming its first female partner. Additionally, she has worked as a lawyer for the Children’s Defense Fund, and for the House Committee on the Judiciary during the Watergate Hearings. In both 1988 and 1991, The National Law Journal listed her as one of America’s 100 most influential lawyers.

As Jason Miller argued in yesterday’s Washington Post,

Obama and Clinton have wound up agreeing on nearly every major issue during the campaign; at the end of the day, they share many orthodoxies. Unless the Supreme Court were to get mired in minuscule details of what constitutes universal health care, Obama could assume that he'd be pleased with most Clinton votes, certainly on major issues such as abortion.

Obama could also appreciate Clinton's undeniably keen mind. Even Clinton detractors have noted her remarkable mental skills; she would be equal to any legal or intellectual challenge she would face as a justice. The fact that she hasn't served on a bench before would be inconsequential, considering her experience in law and in government.

If Obama were to promise Clinton the first court vacancy, her supporters would actually have a stronger incentive to support him for president than they would if she were going to be vice president. Given the Supreme Court's delicate liberal-conservative balance, she would play a major role in charting the country's future; there is no guarantee that a Clinton vice presidency would achieve such importance…

Obama could also trust that Clinton would maintain her image as a fighter after
arriving at the court. Her tenacity has never been more apparent. President Obama would engender praise (at least from Democrats) at the prospect of Hillary going toe to toe with Clarence Thomas, Antonin Scalia and Samuel Alito. Clinton's gumption and determination might make her one of the most powerful forces ever on the court, particularly when it comes to swaying other justices when the court is closely divided.

For some context, there have been many Supreme Court Justices who did not previously serve as judges. There is also a long list of influential Justices who were nominated for the Court after careers in the legislature, including, most notably, Hugo Black (a former senator representing Alabama); William Henry Moody (a former member of Congress from Massachusetts, who, in only 2 years on the Court, authored 67 opinions); and Chief Justice Fred Vinson (formerly a member of Congress from Kentucky).

There is even precedent for Supreme Court nominations playing a role in presidential politics. In 1860, Lincoln defeated Ohio Governor, and former Senator, Salmon Chase for the Republican nomination. Fearing that Chase would run against him again in 1864, Lincoln preempted his challenge by nominating Chase to be Chief Justice of the Supreme Court.

Similarly, Earl Warren became Chief Justice only after involvement in two presidential campaigns. As Governor of California, Warren was the 1948 Republican nominee for Vice President, and a candidate for the Republican nomination in 1952. In 1953, Eisenhower appointed his former rival; the Warren Court would go on to be one of the most progressive periods in the Supreme Court’s history.

"Greed - for lack of a better word - is good. Greed is right. Greed works."

According to Robert Mundell, Columbia economist and Nobel laureate, the movie Taxi Driver is responsible for "creating more wealth" than any other movie in history. Why?

The 1976 classic, directed by Martin Scorsese with Robert De Niro as the bitterly alienated protagonist, gave the world De Niro's catchphrase, "You talking to me?", and introduced a young Jodie Foster. But what does it have to do with the world economy?

John Hinckley, the deranged would-be assassin who attempted to kill US president Ronald Reagan in 1981, claimed that he was inspired by it. He said that his action was an attempt to impress Foster. (The movie features a scene in which a mohawked De Niro attempts to assassinate a politician.)

According to Mundell, the wave of sympathy for Reagan that was engendered by the assassination attempt deterred Democrats in Congress from voting against his proposed tax cuts. Because of this accident of history, the US administered a big fiscal stimulas at the same time that Paul Volcker at the Federal Reserve was administering tight money. This, for Mundell, was vital in creating the era of prosperity that followed.

"Taxi Driver is the most important movie ever made from the standpoint of creating GDP," Mundell told delegates. "It's the movie that made the Reagan revolution possible. That movie was indirectly responsible for adding between $5trn and $15trn of output to the US economy."

Personally, I'm skeptical that
a) Taxi Driver is really THE cause that of the Reagan assassination attempt (as opposed to the fact that Hinckley was crazy);

b) that the assassination attempt is THE cause for the tax cuts passing (as opposed to the fact that tax cuts tend to be popular in general, and Reagan had just routed Jimmy Carter in 1980 51%-41% while carrying 44 states); and

c) that the tax cuts are THE cause for that much economic growth (given that Reagan then raised taxes twice starting in 1982, and that the economy grew faster under Clinton than it did under Reagan in any event).

I'd probably choose Wall Street as the biggest wealth-creating movie of all time. God only knows how many future I-bankers were created by watching the Michael Milken/Carl Icahn/Ivan Boesky-inspired Gordon Gekko. True, he was supposed to be a villain, but lots of people didn't (and don't) necessarily see him that way. Plus, this has got to be the greatest monologue in defense of capitalism of all time:

Well, ladies and gentlemen, we're not here to indulge in fantasy, but in political and economic reality. America. America has become a second-rate power. Its trade deficit and its fiscal deficit are at nightmare proportions. Now, in the days of the free market when our country was a top industrial power, there was accountability to the stockholder. The Carnegies, the Mellons, the men that built this great industrial empire made sure of it because it was their money at stake. Today, management has no stake in the company!

All together, these men sitting up here own less than 3% of the company. And where does Mr. Cromwell put his million-dollar salary? Not in Teldar stock: he owns less than 1%.

You own the company. That's right. You, the shareholder. And you are all being royally screwed over by these, these, bureaucrats with their steak lunches, their hunting and fishing trips, their corporate jets and golden parachutes.

Teldar Paper, Mr. Cromwell, Teldar Paper has 33 different vice presidents, each earning over $200,000 a year. Now, I have spent the last two months analyzing what all these guys do and I still can't figure it out. One thing I do know is that our paper company lost $110,000,000 last year, and I'll bet that half of that was spent in all the paperwork going back and forth between all these vice presidents.

The new law of evolution in corporate America seems to be survival of the unfittest. Well, in my book, you either do it right or you get eliminated.

In the last seven deals that I've been involved with, there were 2.5 million stockholders who have made a pretax profit of $12 billion. I am not a destroyer of companies, I am a liberator of them!

The point is, ladies and gentleman, that greed - for lack of a better word - is good. Greed is right. Greed works. Greed clarifies, cuts through, and captures the essence of the evolutionary spirit.

Greed, in all its forms - greed for life, for money, for love, knowledge - has marked the upward surge of mankind. And greed - you mark my words - will not only save Teldar Paper but that other malfunctioning corporation called the USA.

Why Ban Polygamy?

Todd Zwyicki at Volokh Conspiracy has an interesting post:

Here's my thought--the definition of marriage as one man and one woman seems somewhat arbitrary, which is why it is difficult to justify. The primary justification I can see is a Hayekian one of prudential deference to tradition unless there is an extremely strong case for rejecting it. I would distinguish this from what I would understand as a Burkean objection, which I would read as tradition being prescriptive, rather than prudential. But whether this is an accurate distinction is probably a debate for a different day.

So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one.

Now my sense is that the courts simply say that they are distinguishable, but don't say why. They seem to simply say that they are different. And as Eugene's post implies, merely saying they are different without saying why doesn't hold up to scrutiny later.

The difference, as is often the case, is that legislatures often draw arbitrary lines, especially under their police power. But courts should be able to articulated a principled basis for their decisions rather than an arbitrary legislative-style line-drawing.

As I said, I don't have strong feelings on this, so my question is purely intellectual--I'd just like to understand better whether a principled line can be drawn here or whether this is largely arbitrary line-drawing.

Note that this is being framed as an intellectual, rather an political question. I don't imagine that we'll see a push for the country, or individual states therein, to legalize polygamy any time soon, if for no other reason than the fact that there is no sizeable coalition trying to advance that policy. Rather, the question should be seen as, if one supports same-sex marriage but opposes polygamy, what differentiates the two?

One of Zwyicki's commenters takes this notion further, claiming that to the extent that there is a non-arbitrary difference between same-sex marriages and polygamy, it's contrary to what we might expect:

I don't buy into the argument that same sex marriage has any legitimacy over plural marriages. Even today, there are far more people living in countries that allow plural marriages than allow same sex marriage. And, indeed, one of the largest religions in the world (Islam) condones polygamy, and there is some evidence that some, if not all, of the other "great" religions did so in the past. This doesn't even get to the FLDS and their religious doctrines. So, polygamy has a reasonably strong claim under the 1st Amdt. that same sex marriage does not.

As far as I'm aware, while Christianity never explicitly allowed polygamy, both Judaism and Islam have.

An obvious argument against polygamy is that it can be exploitive, particularly in cases where child marriage is involved, but I don't find this particularly compelling. In general, "X can lead to Y; Y is bad; therefore ban X" is pretty weak logic when Y can be prohibited directly. There is no parallel ban on "traditional" (read: monogamous, heterosexual) marriage, despite the fact that many involve various forms of spousal abuse, such as domestic violence and rape (unless you subscribe to Phyllis Schlafly's theory that "[W]hen you get married you have consented to sex. That's what marriage is all about.") Similarly, we could have laws against exploitive acts within polygamy, without banning the practice entirely.

To me, the most compelling difference between the two isn't really an inherent difference, but more a byproduct of history: the United States, and the West in general, have developed an understanding of, and common law rules governing, how "traditional" marriages function. We have accepted policies regarding property rights within a marriage, divorces, the death of a spouse, child custory, taxation and others, all of which are predicated on an understanding of a marriage being between two people.

For most legal questions regarding marriage, there is no functional difference between a marriage between one man and one woman, two women, or two men. It is easy to place same-sex marriages under the system that currently exists for heterosexual marriages, but allowing polygamous marriages would require thinking large swaths of established family law. For example:

*Adding another person to the marriage: Would the three of you have to have a ceremony at the same time? If two people wed, and the wife wants another hubby, does her first husband have to consent? Who is married anyway - a man to each woman, or all individuals to each other?

* When you marry, would there be any way to ensure that your spouse does not bring another person into the union later on? Mr. Zwyicki can surely imagine his discomfort if his wife were to wed another husband.

*What happens when you divorce? What if the second wife only came into the marriage because of her belief that the first wife did a good job of managing the children and keeping the husband's drinking under control, and the husband desires to divorce the first wife? Can the second wife object - after all, it's her marriage at stake, too?

*Have fun trying to divide property at divorce, especially if only one spouse divorces and the others remain married.

*Whose paycheck would count for child support and alimony? If the purpose of alimony is to have the divorced spouse live in the manner to which she was accustomed during the marriage, why would she not be able to get alimony from her sister-wives, if they worked and earned a paycheck?

*Upon whose death does the marriage terminate? If there is one husband and three wives, would the union terminate when the husband dies, when any one person dies, or when there is only one person left?

None of this is to say that such questions couldn't be answered, but just that we don't have widely accepted answers to them now. The fact that same sex marriage, unlike polygamy, can fit into the current legal regime governing marriage isn't a a normative argument against legalizing polygamy, but it does point to a significant difference between the two types of marriage.

UPDATE: Dale Carpenter provides several reasons why polygamy is different than same sex marriage:

*There is nothing in principle that necessarily leads from the recognition of a new type of monogamous union (same-sex unions) to the recognition of polygamous unions. Consider the recognition of inter-racial marriage (a type of monogamous union), which reversed long-standing legal bans on miscegenation and departed from deep cultural disapproval of it dating to colonial times and before. Many warned that reversing miscegenation bans would lead to polygamy, but it did not. To the objection that dyadic inter-racial unions would lead to polygamy, the proper response then was, "Why would it?" One response to the fear that dyadic same-sex unions will lead to a polygamy slippery now is, "Why would it?" Opening marriage to one change because the change seems justified does not mean that opening marriage to every change is justified. Every proposal for reform rises or falls on its own merits. Gay marriage advocates have made extensive (and contested) arguments about why it would benefit individuals and society. It is up to polygamy advocates to do the same.

*From a Burkean/Hayekian perspective, it's relevant that polygamy has been historically tried and rejected in many human societies. We do not write on a blank slate when it comes to polygamy. Lessons have been learned from this experience and those lessons have led us away from polygamy in the West, in part because polygamy as practiced has been seen as inconsistent with liberal values, individualism, and sex equality. SSM has not been tried and rejected and is not inconsistent with, indeed arises from, Western values of liberalism, individualism, and sex equality. While the burden is on gay marriage advocates to show why we should try it, I think actual historical experience with polygamy suggests that the burden on polygamy advocates is much heavier.

*Plural unions have historically most often taken the form of one man having many wives. It seems likely in practice it would take that form in the future. This raises many concerns different from those raised by same-sex marriage, including the greater potential for abuse of women and children. These same concerns do not arise with SSM, which should improve the lot of women and children in gay families (if SSM advocates are right about the benefits, a contestable but separate point).

*Polygamy will likely mean that marital opportunities will diminish for some men, since a few men who are very wealthy or otherwise attractive as mates will have many wives. This constricts the marriage market for less desirable men, which leaves some with no mates at all or delays their marriages as compared to their opportunities in a non-polygamous society. And unmarried men present all kinds of difficulties for societies. By contrast, SSM will mean that meaningful marital opportunities will be available for gay persons. More people will be married. Thus, SSM expands marriage opportunities while polygamy contracts it.

*With polygamy, many basic rules of marriage will have to be changed. For example: if the husband dies intestate, who inherits? How are death benefits split? How are child custody disputes decided if a partner wants to divorce the group? If the husband exits, do the wives remain married to each other? On and on. We could craft answers to these questions, but it will involve a dramatic retooling of marriage as a two-person institution. None of these issues arise with SSM; aside from a few technical matters, the marriage rules remain the same. As a legal matter, SSM involves changes in the wording of statutes that specify “husbands” and “wives” and little more. The basic legal design of marriage as a dyadic institution, embedded in literally hundreds of ways in state and federal law, remains untouched.

Perhaps none of this is conclusive against polygamy nor do I offer it as such. I am sure polygamy advocates have responses to these and other concerns about it. But I do think it suggests that SSM and polygamy present quite different questions of history, experience, logic, and public policy such that we are entitled to treat them as separate issues. We may, despite the concerns and the historical trend against polygamy, one day accept it. But the debate about accepting it will not, I think, turn on whether we have first accepted gay marriage.

Interesting Post-Mortem by Clinton Staffers

The New Republic has a new story up on the Clinton campaign: What Went Wrong, as told through the words of fund raisers, organizers, staffers and advisers.

Before I cherry pick the quotes that best summarize my own explanation, I find it somewhat interesting that there is no mention of the May 2007 memo by Deputy Campaign Director Mike Henry, in which he said that the campaign shouldn't compete in Iowa, instead focusing on New Hampshire and the following states. Henry presciently wrote that

In past presidential campaigns smaller states, like Iowa and New Hampshire, played a more prominent role in securing the nomination. That process was based on the momentum that was created from winning Iowa or New Hampshire. Thirteen of the last 14 major-party nominees have won Iowa, New Hampshire, or both. Senator Clinton's husband is the only exception. But I think this old system is about to collapse and it will happen this year because of the impact of primary elections that are being held on February 5th.
...
After assessing this proposal against core elements of our plan, my recommendation is to pull completely out of Iowa and spend the money and Senator Clinton's time on other states. I believe that the changes to and the volatile nature of setting the Democratic nomination calendar has changed the way the nomination will be won in 2008. I believe the "small state first" approach that we are familiar with, that bases winning nomination on momentum is about to be turned on its' head this year. It used to be protected by party rules and the lack of a national primary day. We no longer have either. The party has no leverage to maintain scheduling discipline and we now have a national primary on February 5th with 20 states choosing their nominee on the same day.

He lists six reasons for his suggestion, three of which proved to be particularly accurate:

2. Dedicating significant funding to Iowa will draw money away from other important states. Spending Senator Clinton's time and money in other states will be more efficient and increase our chances of winning the nomination. And it will improve our fundraising. After the first four states (not including Florida) our campaign will only have $5 - 10M to compete in the 25 February 5th states.
3. Iowans will not be the first to vote. Over 15 states have no excuse early vote or vote by mail programs that allow voters to cast their ballots well before caucus day in Iowa. These states are: Florida, Arkansas, Arizona, California, New Jersey, New Mexico, Oklahoma, Tennessee, Utah, Colorado, Georgia, North Carolina, and Texas.
...
5. Proportional representation is a ticking time bomb that the campaign needs to deal with by campaigning hard in February 5th states now. The campaign should focus on winning a majority of congressional districts in each state. This will limit our exposure to a movement candidate beating us after the early states.

As a result, he nailed the state of the campaign heading into Super Tuesday on February 5th:

Remember all of the states have a rule that you eat what you kill. So if we have a split decision in Iowa. Senator Clinton wins New Hampshire, and Obama or Edwards wins South Carolina. We now enter into the February 5th mega states with no money, little time to raise it, and have to rely on earned media to get our message out. Coverage will be about equal among all the candidates who have survived (for argument sake let's say Obama and Edwards). If we invest the money and time we save by leaving Iowa on a strategy to win majorities in each of the February 5th states we limit our exposure.

The Clinton campaign rejected Henry's advice, however. One week after having his advice vindicated on Super Tuesday, Mike Henry resigned as Deputy Campaign Manager. Clinton, low on funds, went on to be routed in state after state throughout February, too low on funds to compete and not having put sufficient effort and troops in place to organize those states after essentially fighting to a draw on Super Tuesday. Obama ran up large margins of victory in small states and caucuses where the Clinton's didn't compete, banking on coming back in Texas and Ohio. By ceding several contests entirely, however, Clinton let Obama build up a pledged-delegate lead that she was unable to overcome.

To be clear, Henry's strategy was not the same as Giuliani's disastrous gamble of skipping the early states and betting it all on Super Tuesday, largely for two reasons:

1) Giuliani's position in the Republican field was not as dominant as Clinton's in the Democratic field. Despite the media's infatuation with his campaign, Giuliani never managed to put any real distance between himself and the other candidates in terms of either support or fundraising. Clinton started off with much larger initial advantages here, yet Obama was able to catch up. Giuliani was never out in front of the pack to the same degree, and he could not, therefore, afford to let someone else (or multiple candidates, as it turned out) build momentum.

2) Henry's strategy wasn't to skip all of the early states, as Giuliani did, but rather to skip Iowa and move straight to New Hampshire, where Clinton went on to win. He advocated campaigning in all of the early states except Iowa, whereas Giuliani skipped head to Florida and Super Tuesday. Prior to Super Tuesday, Henry still had Clinton competing in Nevada, South Carolina, and New Hampshire, two of which she managed to win despite spending inordinate amounts of time and money in Iowa. Had she used those resources elsewhere, the results may well have been better for her than they were, and Obama's Iowa victory wouldn't have seemed as astounding. No more so than her victory over him in West Virginia, where he didn't compete at all.

As for the Clinton people themselves, here are some of their more persuasive explanations, courtesy of TNR:

"Clearly [Obama] was a phenomenon. He was tapping something really different than anyone had ever seen before. ... Months and months before Iowa, he was getting record crowds. I just think they should have really gone after him back in the summer and in the fall. I know it would have been a difficult decision to make back then. She's the leader of the party, the standard bearer, the big dog. Everyone thinks she's gonna win and walk away with it. Why go picking on Barack Obama? But that's just something the campaign should have done sooner."

"We didn't lay a serious glove on him until the fall. We tried to a little bit, but we weren't successful. We did silly stuff, like talk about David Geffen. It wasn't the substantive contrast we needed to make."

"There was not any plan in place from beginning to end on how to win the nomination. It was, 'Win Iowa.' There was not the experience level, and, frankly, the management ability, to create a whole plan to get to the magical delegate number. That to me is the number one thing. It's starting from that point that every subsequent decision resulted. The decision to spend x amount in Iowa versus be prepared for February 5 and beyond. Or how much money to spend in South Carolina--where it was highly unlikely we were going to win--versus the decision not to fund certain other states. ... It was not as simple as, 'Oh, that's a caucus state, we're not going to play there.' That suggests a more serious thought process. It suggests a meeting where we went through all that."

"Harold Ickes's encyclopedic understanding of the proportional delegate system was never operationalized into a field plan. The campaign inexplicably wrote off many states entirely, allowing Obama to create the lead of 100+ delegates that he has today. Most notably, we claimed the race would be over by February 5, but didn't devote any resources to the smaller states that day and in the weeks that followed, allowing Obama to easily run up margins and delegate counts on the cheap--the delegate margin he will win by."

"Probably our second biggest mistake was much more operational: Making our chief strategist our one and only pollster. It is impossible to disagree and have a counter view on message when the person creating the message is also the person testing the message."

"We would just cringe. Ugh. Such an out-of-touch corporate run kind of campaign--exactly what you'd expect from Mark Penn. He did fine during his time in the Clinton White House. But running a campaign to capture the nomination in a change environment is something he had never done. Just look at what he did for Joe Lieberman!"

"Keeping the same team in place [after New Hampshire] meant that pre-Iowa planning and strategic errors continued nearly unabated, were not corrected. ... Too much damage had been done by the time Maggie Williams took the helm."

"There was financial mismanagement bordering on fraud. A candidate who raised more than a quarter of a billion dollars over the years had to pump in millions more of her own money to stave off bankruptcy."

"We placed a huge financial bet on Iowa and raised its importance by sending senior staff there. And because we didn't plan for a national campaign, we couldn't point to an operation that could withstand an Iowa blow the way Obama could after New Hampshire."

"Penn was preoccupied with the national polls. We were up in the national polls, but Iowa was always a challenging thing for us. Early, early on, our internals showed us a significant number of points behind. ... In Iowa, Penn consistently would show polls that were of the eight-way. That was basically meaningless because it wasn't going to be an eight-way race. The candidates that were the second-tier candidates were not going to reach the threshold [of 15%]. The real race was the three-way. But he always focused on the eight-way when we'd start going over the numbers in Iowa. It was frustrating to the state staff and other people as well. It just showed a lack of understanding and a disconnect."

"Liberal Internationalism"

There's an interesting discussion here over a short piece by Matt Yglesias, author of the recently released Heads in the Sand: How the Republicans Screw Up Foreign Policy and Foreign Policy Screws Up the Democrats, in which Yglesias argues for Democrats should embrace a "liberal internationalist" foreign policy. He argues that despite the Bush administration's international failings,

[Democrats] have not articulated a compelling account of why Bush is failing, or outlined a coherent alternative vision. Instead, Democrats' seem stuck in a futile effort to reduce national-security policy-making to personal characteristics like Barack Obama's vaunted "judgment" or Clinton's oft-mentioned "experience." These are supposed to contrast with Bush's original foreign-policy sin: incompetence. Years of disastrous governance have succeeded in convincing people of at least the last of these assertions, Bush is now the least-popular president ever, and Democrats have seized control of Congress. Yet, with Bush off the ballot, this kind of personalized critique will have little continuing salience and will not convince the public that liberals have the answers the country needs.

Responses to Yglesias are provided by David Rieff, senior fellow at the World Policy Institute and author of At the Point of a Gun: Democratic Dreams and Armed Intervention; Justin Logal, senior fellow at the American Enterprise Institute and National Review columnist; Derek Chollet, senior fellow at the Center for a New American Security and co-author of America Between Wars: from 11/9 to 9/11; and Anne Marie Slaughter, Dean of Princeton's Woodrow Wilson School of Public and International Affairs.

Read This Book Now

I got tipped off to a new book, True Enough: Learning to Live in a Post-Fact Society by Farhad Manjoo by a Nick Kristoff column last month. As Kristoff summarizes it,

Consider the Dartmouth-Princeton football game in 1951. That bitterly fought contest was the subject of a landmark study about how our biases shape our understanding of reality.

Psychologists showed a film clip of the football game to groups of students at each college and asked them to act as unbiased referees and note every instance of cheating. The results were striking. Each group, watching the same clip, was convinced that the other side had cheated worse — and this was not deliberate bias or just for show.

“Their eyes were taking in the same game, but their brains seemed to be processing the events in two distinct ways,” Farhad Manjoo writes in his terrific new book, “True Enough: Learning to Live in a Post-Fact Society.” It’s the best political book so far this year.

Mr. Manjoo cites a more recent study by Stanford University psychologists of students who either favored or opposed capital punishment. The students were shown the same two studies: one suggested that executions have a deterrent effect that reduces subsequent murders, and the other doubted that.

Whatever their stance, the students found the study that supported their position to be well-conducted and persuasive and the other one to be profoundly flawed.

“That led to a funny result,” Mr. Manjoo writes. “People in the study became polarized.”

A fair reading of the two studies might have led the students to question whether any strong conclusions could be drawn about deterrence, and thus to tone down their views on the death penalty. But the opposite happened. Students on each side accepted the evidence that conformed to their original views while rejecting the contrary evidence — and so afterward students on both sides were more passionate and confident than ever of their views.

That’s what we seem to be seeing in the Democratic primaries. Even though the policy differences between the two candidates are minimal, each camp is becoming increasingly aggravated at the other. A Washington Post poll published Wednesday found that more than one-third of Democrats say that they may not support their party’s nominee if it is not their own choice.

Another challenge is the biased way in which we gather information. We seek out information that reinforces our prejudices. One study presented listeners with static-filled recordings of speeches that they believed they were judging on persuasive power. Listeners could push a button to tweak the signal, reducing the static to make it easier to understand. When smokers heard a speech connecting tobacco with cancer, they didn’t try to improve the clarity to hear it more easily. But they pushed the button to get a clearer version of a speech saying that there was no link between smoking and cancer. Nonsmokers were the exact opposite.

If you're interested, check out the following interview with Manjoo and Portfolio writer Jeff Bercovici:

Meta-Messaging: "I Play Nice With Others"

Jerome Armstrong's post this morning hinted at the biggest danger facing Democrats in the likely McCain-Obama general election match up: both candidates will be using the same overarching themes and narratives throughout the campaign. As he notes,

I haven't seen much of a dent being put into McCain's core brand (war hero, reformer, maverick) to date...If McCain is able to leverage that into becoming a "change Republican" he'll have done what Matzzie says, which is pointed out in the above examples: "Sometimes being the first person to adopt a message isn't the winner--your opponent can hijack the dialog in the media and turn it to his advantage."

This misses, however, the other massive overlap between their messages: both lay claim to the mantle of bi-partisanship, of being able to bring people together despite their differences to work out functioning compromises. For Obama, this is encapsulated by his theme of "Unity," whereas for McCain, its in his branding as a "Maverick," as distinct from the ideological, far-right Republicans. As one Republican consultant told the NY Times, "I think that by rook or by crook or by providence or just dumb luck, we nominated the one guy who continually outpolls the Republican brand."

John Heilemann of New York Magazine noted this exact problem in February, quoting Wellesley political scientist Marion Just's summarry of both Democrats' meta-narratives:

"Clinton's meta-narrative," she says, "is that she'll do anything to win; she can't be trusted, she's ethically challenged; she's manipulative, calculating, and programmed." Obama's meta-narrative is decidedly otherwise. "It's the same, in a way, as John McCain's," says Just. "He's authentic, honest, free of taint. Then you add in new, charismatic, and an agent of change."

Heilemann concluded, however, by noting that many of the tactics used by Obama in the primary election wouldn't work against Republicans in the general. He was able to avoid discussing his past drug use, for example, by having surrogates from his campaign attack the Clinton's for any mention of the topic, while decrying "negative politics." This worked in the primary election because it fed into the public's established image of Clinton, yet this won't be the case in a general election match up against McCain.

Rather, what happened in North Carolina, where two Democrats were attacked in commercials that linked them to Obama, and through Obama to Reverend Wright, is likely to foreshadow the next few months. Candidates and political organizations that McCain has no direct control over will viciously attack Obama, McCain will officially denounce them with a knowing wink, and the ads will keep airing, both as paid advertisements and as topics du jour on the cable news channels. McCain will thus get two for the price of one: he'll benefit from the attacks being out there, but he'll simultaneously be able to take credit for taking the high road, which the press will happily cede to him because it plays into his established image. Just look at Slate's coverage of the NC ads:

Today, the North Carolina Republican Party unveiled a new ad criticizing two gubernatorial candidates for endorsing Barack Obama, who, thanks to his association with Rev. Jeremiah Wright, is "just too extreme for North Carolina." But before they even announced it, John McCain had sent a letter to the state GOP chair asking the party not to air it: "The television advertisement you are planning to air degrades our civics and distracts us from the very real differences we have with the Democrats. In the strongest terms, I implore you to not run this advertisement."

It didn't work. Despite pleas from both McCain and the RNC, the state party will still run the ad.

But the fact that McCain tried matters. One of the strongest of Hillary Clinton's dwindling set of arguments is that Obama will be vulnerable to GOP attacks in the general election. Between Wright and "bitter" and the flag pin, he has already given them enough fodder for three elections' worth of attack ads. So if McCain has decided not to make an issue of Wright, that's a big deal. Presumably that means other, equally tenuous lines of attack would also be off limits, too.

Now keep in mind that McCain is no innocent when it comes to exploiting gaffes. He's on the record calling Obama's "bitter" comment "elitist." (Although many would argue those comments are fair game.) And it's possible McCain realizes he doesn't have to exploit something like Wright--that the damage is done.

But if you're willing to give him the benefit of the doubt, this could bode well for future campaign civility.

This will all be exacerbated by McCain's ability to tout his bipartisan bona fides. While McCain supporters will be able to point to McCain-Feingold, McCain-Kennedy, and McCain's leadership in the Gang of Fourteen's Supreme Court compromise, Obama will have a harder time pointing to concrete examples of his ability to actually exercise cross-party leadership (and how can we forget the Hardball interview of flustered Obama-supporter Kirk Watson, who couldn't provide Chris Matthews with a single legislative accomplishment by Obama) . Notably, Obama backed out of working with McCain himself on an ethics bill, as detailed here by The New Republic.

If (when?) McCain and Obama face off in the general election, the central issue will be who, in the publics mind, can plausibly claim the mantle of reform and change. In this battle, McCain will be a much tougher opponent for Obama than many expect him to be.

Several Points In Response to EBL

1) Regarding the judiciary's effectiveness as a campaign issue, I agree that is not necessarily the issue most likely to galvanize liberals because its not as easily understood as any number of us-vs-them, black-and-white issues, though when you look at any issue, you can find gray areas, abortion included. The question is, can Democrats effectively boil it down to "elect McCain and he will appointed bigots and religious nuts to the Supreme Court. Do we really want [insert name here] voting to overturn Roe v. Wade?"

Democrats historically haven't used this as a campaign issue, but they need to. Republicans since Reagan have aggressively done so, and it has paid off, but there's no reason it should resonate more on one side of the aisle than the other, aside from the fact that Republicans are used to hearing about it and Democrats aren't, to which I'd say that you've got to start somewhere. Fight them on it, rather than cede the issue. Yes, they've got a head start, but thats all the more reason to fight back.

2) Your argument that most people think that either the court is too liberal or that it is well balanced is true as far as it goes, but the opposite would also be true: if you add up those who think it is too conservative with those who think it is well balanced, that number drastically outnumbers those who think it is too liberal. McCain is arguing for moving the court to the right, so the more relevant metric, in fact, would be the total number opposed to it moving in that direction, which would be those who want it to stay in addition to those who want it to move to the left.

Furthermore, you write as if making the court more conservative and keeping it static were the same option, but they aren't. If one assumes that the court will change, the relevant question is in what direction do more people want it to move? Even if you assume that somehow we can keep the court as it currently is, McCain's desire to appoint more judges like Rehnquist, Alito and Roberts wouldn't accomplish this, it would move it to the right. Depending on who was leaving the court, replacing five of the seven current justices (excluding Alito and Roberts themselves) with another Alito or Roberts would move the court to the right. More people oppose this than support it, based just on the liberal/conservative metric, leaving aside those who wish the court to stay where it is.

3) When you discuss Kelo, it seems that you're willing to set that section of McCain's speech aside, but it is one of only three cases that he mentions at all. It is one-third of his actual discussion of court cases. If it were one of 20 or 30 or 40, saying "ok, what he says there doesn't make sense, but let's look at everything else" would be more justifiable, but it isn't. He highlighted that case in particular. He could have avoided it altogether, as there was nothing forcing him to bring that case up, but he chose not to. I focused on Kelo because I know that case well and his complaint against it is prima facie based on its result, not its internal logic, which you seem to agree with. While I can't definitively say the Court was correct in the other cases he criticizes, what's relevant is that his criticism has nothing to do with the legal basis for the decisions and has everything to do with their outcomes. You ignore the larger critique here.

4) Regarding Gewirtz/Golder, you mischarachterize what they say when you write "First, as Gewirtz and Golder admit, just because the Justices strike down (or vote against) a piece of legislation does not mean it is judicial activism -- the legislation itself could be unconstitutional." This is incorrect. They define activism as the judiciary overruling the legislature. They say that, in any given case, judicial activism may not be bad and that if a law is unconstitutional, activism by the judiciary is merited.

5) In responding to both Gewirtz/Golder and Miles/Sunstein, you say that their definition of activism is incorrect, but you never an alternative definition. Why is their definition, which is essentially "judicial activism is the judge's propensity to overrule other branches of government, be they the executive (Miles/Sunstein), or the legislative (Gewirtz/Golder), a poor definition? I think it to be a fairly good one, but more relevantly, it is also the definition used by McCain in his speech.

6) Re the lack of a control, that we don't know if Congress was passing particularly egregious legislation, is interesting, but has a couple of problems:
a) Given their definition of "judicial activism," whether or not the laws were constitutional is irrelevant. They are not offering a normative argument that judicial activism is, always and everywhere, wrong. McCain is the proponent of the normative argument here, more or less espousing the same logic in his speech that Gewirtz/Golder uses, namely that, as democratically elected branches of government, the decisions of Congress and the executive have a presumption of legitimacy. If you argue that Congress and the executive branch have made unconstitutional decisions, and that the judiciary is right to overrule them, isn't this really an argument against McCain as well? It seems that it is in favor of judicial activism, and thus undercuts the entire point of his speech.
b) How, from a methodological perspective, can you fix this? What metric could you use to determine whether or not the laws passed are constitutional, other than the judiciary's ruling on this question?

7) As for your "do they vote conservative because they are biased or because their interpretation of the Constitution leads to more conservative rulings," it seems that it is a distinction without a difference. Unless you believe that justices regularly make decisions in bad faith, thinking that their own arguments are weak but that the result they want compels a certain decision, what is the difference between a conservative bias, and an interpretation that regularly leads to conservative rulings? I'd also point you towards (IMO) a provocative post and response at Balkanization along these lines here and here.

8)You're conclusion overstates your case. You write that "the conservative jurist movement is neither out of touch with Americans nor necessarily illogical and that McCain, even beyond the obvious political reasons, is not wrong to advocate his position," yet you never put forward an affirmative argument that substantiates this claim. Even if you believe that you've successfully refused my original post (a point with which I obviously disagree), that still leaves you with a lot of ground to cover because you can claim to have proven McCain correct.

Response to Judicial Activism

I don’t dispute the claim that conservative judges bring together Democrats in a way that will end internecine fighting, but I do question to what extent. McCain’s speech was relatively tame in comparison to what Bush and other prominent Republicans have been saying on the topic, likely due to his desire to at once court the right – the comments about the 9^th circuit come to mind – while at the same time keeping moderates on board. On this latter point, notice how he does not rely on value arguments, such as abortion or gun rights, but rather couches his logic on the checks and balance system almost exclusively. This approach likely won’t galvanize liberals in the same way that saying that abortion is wrong and judges should be against it, if for no other reason than the ideas of judicial activism, strict interpretation, and the appropriate balance of powers set out by the Constitution are not always easy to understand and so individuals might not recognize the implications of what McCain (or Democrats for that matter) are saying.

I do dispute Lang’s overall argument, however (that McCain’s speech indicates that the judges he suggests he’s looking for would be activist, not traditionally conservative) because the surveys upon which it relies appear deeply flawed in their methodology and so cannot be trusted to give the conclusion he asserts.

First, and admittedly somewhat of a tangential point, take his initial use of data: the Gallup poll suggesting Americans believe the Court is too conservative. On its face, this looks to be true: more people believe the Court to be too conservative than too liberal. The problem with this poll is that, because overall the Court is now more conservative than not, it gives the impression that folks are dissatisfied with the Court when indeed it actually reveals the opposite. To explain, consider this spectrum:

SCOTUS

Liberal Neutral Conservative

The Court is currently between the Neutral and Conservative markers (more Conservative than not): 5 conservative Justices (Kennedy being the swing) and 4 liberal ones. 43% of the population believes that this conservative tilt is about right. 21% believe that this conservative tilt is still too liberal. Thus, 64% of the sample (well outside any reasonable statistical margin of error) believes that the Court is either good or not conservative enough. That clearly trumps the 32% who argue that the Court is too conservative. Thus, Lang’s claim that more Americans think the court is too conservative versus too liberal might technically be correct, but the more accurate and telling statement is that more Americans think the Court is either in a good place (as a conservative Court) or too liberal than think it’s too conservative. In this way, McCain’s claim that he’ll continue to pick conservative justices to serve on the Court lines directly up with a majority of Americans (by a significant margin).

Now, I happen to agree with Lang’s comments concerning Kelo and it is here where McCain’s independent (and sometimes Libertarian streak) comes into conflict. It is true that he (and most Americans) disagreed with the outcome. However, at the same time, if he was advocating strict interpretation (or non-activist judges) he would have to abide by the Kelo ruling. I see this more as an episode of political pandering that one of promoting a particular judicial philosophy: the Paleo-Republicans (small government, many Libertarians etc.) were appalled at the decision, regardless of the concomitant judicial philosophy involved. To garner their support, it would be near suicide to argue that Kelo was an appropriately argued decision and should not be overturned by the courts (as opposed to amending legislation to deal with it).

However, extrapolating McCain’s philosophy on Kelo out to a larger sample (in this case that he would actually support judicial activism because conservative judges have proven more activist, not less than liberal ones) is a non-sequitur. The reason for this jump in logic is that, looking at the studies that assert the link, each one has clear flaws that preclude one from determining that conservative judges are more ‘active’ than liberal judges.

The first two studies cited, Gewirtz/Golder and Miles/Sunstein, suffer from the same methodological flaw: they code judicial activism in such a way that ignores much of what the debate is about. Both surveys define activism in a similar fashion: “as how often they have voted to strike down a law passed by Congress and signed by the president,” (quoted from Lang’s post). The problem here is twofold. First, as Gewirtz and Golder admit, just because the Justices strike down (or vote against) a piece of legislation does not mean it is judicial activism – the legislation itself could be unconstitutional. Their description of what constitutes a pattern of such strikes in a way that suggests activism is also problematic. They literally say that a marked pattern of invalidating laws suggests that they are more active. However, there is no control in the experiment; we do not know whether the Congress at the time was particularly adamant in passing legislation that was confrontational with strict interpretive positions of the Constitution. If that’s the case, it’s easily possible that the reason there are such patterns is that one of the other branches was creating a situation favorable for those patterns to emerge, not judicial activism.

The second, and greater problem, with both surveys’ definition is that is misses the other half of the coin. Judicial activism is not merely about striking down legislation that Justices disagree with, though that element does exist. It is also about upholding legislation that Congress (or state legislatures) passes that is of dubious constitutionality. These actually seem to make up the most well-known cases of ‘judicial activism’. For example, Griswold v. CT, Grutter v. Bollinger, and many of the Establishment Clause cases, judicial activism was charged against liberal Justices because they did not strike something down, not because they did. Yet, both of these surveys miss that entire aspect of judicial activism and so, even beyond the potential collinearity between constitutionality and patterns of strikes, it does not follow that conservative Justices are more ‘activist’ in the way the term is actually meant and used.

Finally, the Posner survey tells us almost nothing about whether the Justices are activist or not. Indeed, it seems to suggest that they are motivated by political dispositions (rational according to Posner). However, the survey’s findings do not really tell us that much; if justices are voting on cases in a conservative manner is that because they are politically biased and so vote on the outcome they want? Or is it because their particular judicial interpretation (e.g. Strict Constitutionalists) lends itself to decisions that are usually more conservative than not? If it is the latter case, then I do not see where the problem arises. If it is the former, then I do think Lang has a point that we should be at least somewhat concerned about the dispositions all Justices are bringing to the bench.

Overall then, Lang fails to make the case that McCain’s conception of the appropriate judicial approach is out of touch with ordinary Americans (seems just the opposite). Further, his claim that conservative Justices are indeed more activist than liberal ones does not necessarily follow because the surveys he cites are flawed. As a social scientist, I want to put in the line here about how I would go about redoing those surveys, but for the sake of everyone involved, I’ll ignore my initial instincts. What we can conclude then is that the conservative jurist movement is neither out of touch with Americans nor necessarily illogical and that McCain, even beyond the obvious political reasons, is not wrong to advocate his position.

Judicial Activism: "What the other side does while we play by the rules!"

Before I discuss my critiques of McCain's speech yesterday on judicial activism, as a partisan Democrat, I'd like to request that he continue to give more speeches along these lines.

Given all the internecine fighting among Democrats over the course of the presidential campaign, I can think of few better ways to unite the Democratic party than hearing McCain loudly proclaim his desire to move the Supreme Court rightward. As much as Clinton supporters may loathe Obama and Obama supporters may loathe Clinton (and those numbers will go down drastically over the course of the general election), many will be scared shitless by the prospect of President McCain replacing the aging "liberal" justices (more on that later), Stevens (age 88), Ginsburg (age 75), Breyer (age 69) and Souter (age 68) with "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist." (As an aside, I'm curious why McCain repeatedly leaves out Scalia in naming his model justices...)

For Democrats wanting to show a stark difference between the candidates and the long-term legacy their administrations would leave, it doesn't get much better than this. More Americans already think the Court is tilting too conservative than too liberal, yet McCain has just announced his intention to accelerate this trend.

In general, do you think the current Supreme Court is too liberal, too conservative or just about right? (9/14-16/07)

Too Liberal: 21%
Too Conservative: 32%
About Right: 43%
Unsure: 5%

In his speech, McCain repeats the typical Republican rant against judicial activism:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate and confirm better judges.

...

The moral authority of the judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to cehck the abuses of other branches of government when it cannot even control itself.

Oddly enough, I agree with everything McCain says here. The judiciary is the only unelected branch of government. Unlike the executive and legislative, its legitimacy doesn't come from its representation of the will of the people, of having been voted into office. Rather, its power derives from its integrity. It must maintain its image of being apolitical, of deciding cases based on their merits and according to the laws passed and executed by the elected branches of government, rather than by creating rationales that support preferred outcomes. As McCain argues,

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically -- to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and 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 arguments; they seek to shut down debates by order of the court.

This very notion was explicitly stated by Justice John Paul Stevens, both in, and in response to, the Court's decision in the controversial eminent domain case of Kelo v. New London. In the majority opinion, Stevens wrote that "]n]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power... The necessity and and wisdom of using eminent domain... are certainly matters of legitimate public debate." Speaking before the Nevada Bar Association weeks later, Stevens declared that his own ruling was "unwise," but he "was convinced that the law compelled a result that [he] could have opposed if [he] were a legislator."

McCain, however, chose Kelo of all cases as one of three examples of judicial activism to mention in his speech. In all three cases, however, he attacked the Court's ruling without providing any rational for why they were wrong. They were wrong, it aseems, simply because they produced a result with which McCain disagreed. In each case, he criticizes their conclusions, yet he never engages with their logic, precisely what he accuses activist judges of doing.

In the case of Kelo, Connecticut law specifically allows eminent domain to be used to further economic development. Rather than lobby for Connecticut to change its law, McCain castigates the Supreme Court for upholding it, railing that "in the hands of a narrow majority of the Court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. As the New York Times pithily points out, that definition has, by all accounts, changed considerably: "He did not mention that in 1789 many women could not own property, and African Americans were property, but he did criticize the idea that values evolve over time." Nor did he mention Connecticut's General State §8-186, upon which the Kelo decision revolved: "The economic welfare of the state depends on the continued growth of industry and business," and "that permitting and assisting municipalities to acquire and improve unified land... for industrial and business purposes... are public uses."


Moreover, study after study has shwon that it is the judges McCain declares to be models of restaint and judicial passivity (I guess that would have to be the opposite of activism) that are, by empirical measures, the worst offenders against his own standards.

In a 2005 New York Times op-ed entitled "So Who Are the Activists?" Yale Law's Paul Gewirtz and Chad Golder define a judge's activism as how often they have voted to strike down a law passed by Congress and signed by the president. As they explain,

Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act of "great delicacy, and only to be performed when the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like a reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994 [NB: this was before Alito and Roberts replaced Rehnquist and O'Connor] by our count it has upheld or struck down 64 Congressional provisions.

The results of their study were stark. The percentage following each justice's name is the percentage of those 64 Congressional provisions they voted to strike down:

Thomas: 65.63
Kennedy: 64.06
Scalia: 56.25
Rehnquist: 46.88
O'Connor: 46.77
Souter: 42.19
Stevens: 39.34
Ginsburg: 39.06
Breyer: 28.13

They conclude that "Those justices often considered more 'liberal' - Breyer, Ginsburg, Souter and Stevens - vote least frequently to overturn Congressional statues, while those often labeled 'conservative' vote more frequently to do so. At least by this measure, the latter group is more activist."

In a similar study ("Who are the bench's judicial activists?") Chicago Law's Thomas Miles and Cass Sunstein examined the court's record from 1989 through 2005, looking at which justices were the most "political:"

We examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the EPA, NLRB, OSHA and FDA.

We used clear and simple tests to code the decisions of these agencies as either liberal or conservative. For example, we counted an environmental regulation as liberal if it was challenged by industry as too aggressive, or as conservative if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him neutral, in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him partisan. If a justice regularly voted in favor of agencies, we deemed him restrained, because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him activist, in the literal sense that he frequently used judicial power to strike down decisions of another branch.

Their results?

The Judicial Neutrality Award, for blind justice, goes to Justice Anthony Kennedy. From Kennedy's voting patterns, we are unable to detect even the slightest political tilt. He upholds liberal and conservative decisions at an identical rate -- slightly more than two-thirds of the time. Justice David H. Souter, a fellow GOP appointee, is the runner up.

Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern. When the agency decision is conservative, Thomas votes in its favor 84% of the time. But when the agency decision is liberal, Thomas votes in its favor merely 38% of the time -- a remarkable 46% swing.
Partisan voting can be found among some of the court's most liberal members as well. Justice John Paul Stevens is the runner up -- with a 40% swing.

...

The Judicial Restraint Award for the most humble exercise of judicial power goes to Justice Stephen G. Breyer. Overall, he votes to uphold agency decisions more than four-fifths of the time. Notably, Breyer votes to uphold conservative decisions 64% of the time.

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia. He upholds agency decisions only about half the time. this is an impressively low number. Under established principles, to which all members of the court subscribe, agencies are supposed to get the benefit of the doubt.

Lastly, Chicago Law's Judge Richard Posner and William Landes, in a new paper entitled "Rational Judicial Behavior" examine the votes of all justices from 1937 through 2006. On the basis of their decisions in non-unanimous civil liberties cases and economic cases, they calculated the percentage of cases in which a justice took the conservative or liberal position, and rated them according to their ideology. For the current Supreme Court justices, the following are the fraction of cases in which they took the conservative position, along with their conservative rank out of all 43 justices from this time period.

RANK NAME % OF CONSERVATIVE DECISIONS
1 Thomas 82.2
3 Scalia 75.7
4 Roberts 75.3
5 Alito 74.0
10 Kennedy 64.7
29 Souter 37.4
31 Breyer 37.2
32 Stevens 34.1
35 Ginsburg 31.2

The results are striking: four of the five most conservative members of the Supreme Court over the last 70 years currently sit on the bench (the missing justice, ranking in at #2, was Rehnquist), while the "swing" vote, Justice Kennedy, the 10th most conservative justice. Of the liberals, only Ginsburg cracks the top 10.

As St. John's Brian Tamaha summarizes,

Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal justices; and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican judges over the past eighty years, (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republicans appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed jduges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%)

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That's what the numbers show.

Once put in context, McCain's speech seems absurdly myopic. Given all of his rhetoric, McCain's ideal justices seem to be exactly the opposite of what he should look for in a potential nomination for the Supreme Court. Today's Chicago Tribune aptly sums up the gap between McCain's "judicial activism problem" and his solution for it:

McCain, seeking the Republican nomination for president, is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting U.S. Supreme Court justices and 12 of the last 14 Supreme Court justices were appointed by Republicans. As Pogo once said, "We have met the enemy, and he is us."

A Change of Pace: Nuclear Prolif.

Here is the video briefing that US Senior Intel Officials gave to Congress a few weeks ago concerning the Syrian reactor that the Israelis struck last September. I have it corroborated from other sources that this was indeed the actual video.

McCain on his Judicial Philosophy

The text of McCain's speech on the judiciary can be found here. I'll have comments on it later.

If You Consent To Sex Under False Pretenses, Is It Rape?

An interesting question courtesy of Volokh Conspiracy: what constitutes rape?

First, some background: a controversial case last year in Massachusetts involved a woman who charged her boyfriend's brother with raping her.

She was living with her boyfriend, Duane Suliveres, in the basement of his father's home, reports the Boston Globe. Duane's brother, Alvin, also lived in the house. One morning, when Duane was working a graveyard shift, the woman says she awoke at 3 a.m. to a man walking into her room. It was dark, she couldn't make out who the person was, but naturally assumed it was her boyfriend. She then asked, "Duane, why are you home so early?" No response. The man then climbed into bed with her, took off her clothes and had sex with her. Afterward, the man got up to leave and, once he opened the door, she realized it was Alvin, not Duane.

So, was this rape? The original trial ended in a hung jury in 2006 and then went to the state Supreme Judicial Court, which ruled Thursday that the rape charges should have been dismissed because Massachusetts law clearly defines rape as an act of force. The court may have closely followed the letter of the law, but rape victim advocates are outraged. "The message that the court sends today is ... that a man's ability to obtain sex through fraud with regard to who he is is more important than a woman's fundamental right to control her own body," said Wendy J. Murphy, a professor at the New England School of Law. "It is impossible -- as a matter of fact and law -- to consent to sex with the wrong person."

In response, a state legislature has proposed the following statute be implemented in Massachusetts (emphasis mine):

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment, or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years.

Volokh argues, however, that this law goes too far in trying to correct the problem of how rape is defined:

Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.

So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)

Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).

In a separate post, he also explains why, conceptually, engaging in fraud to obtain sex should be governed differently than fraud to obtain property by quoting Askew v. Askew, 22 Cal. App. 4th 942 (1994), in which the decision states:

Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden, particularly where the statements were made prior to marriage and the marriage lasted more than 13 years. “The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.” Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries....