Outside Counsel

I am troubled and puzzled by the idea that some HRC supporters are having a difficult time coming around to supporting Obama. Although I found her platform and her record profoundly flawed, and although she has been a disappointment as my senator, the idea of Hillary Clinton is not something I have a problem with. As I said in the early going when ol' Bill ran the first time, my biggest problem with Clinton was that sooner or later I was going to vote for him. In that race, as in 1988, I voted for the African-American candidate, and although I am not the sort of person that believes that people should wait and take their turn (that would make me a Republican), I do think it is worth noting that it has taken a while for both African-Americans and women to develop the sort of electoral bench strength that's necessary to produce successful national candidates.

The Jessie Jackson comparison is useful, I think, because both Senator Clinton and the Reverend Jackson came to the national stage through channels outside the conventional ladder of elected office. Both are highly polarizing figures, with charisma and appeal that is equaled only by the extent to which they are disliked by their opponents. Say this for Jessie's supporters, though-- they understood that although history might have passed their guy by, their interests were best served by turning out and supporting the candidate who stood for the interests and principles they had in common. The African-American voter knows who gets punished when a vote is cast, or not cast, to punish the Democrats.

What makes it odd this time is that Obama was utterly respectful of HRC. True enough, the way she was treated by the media was disgraceful. I'd say that some of that was attributable to the fact that the media has never been particularly kind to the Clintons, but you can't say that Obama was sexist. I'd say that he was running a campaign that was premised first and foremost on the idea that we need to get past those fights, and while I understand that for the women who are passed over for promotion, or are sexually harassed, or are just tired of being treated like 3/5ths of a person that may be hard, I'd say that the reason this African-American candidate was able to accomplish what he has was because, in part, he had the Rev. Jessie come before him. The next woman will have it easier, and if we don't know who that is yet, well, in 1988 Barak Obama was working for the Developing Communities Project (DCP), a church-based community organization on Chicago's South Side. It is strange and ironic that the culture of the United States, founded on enunciated principals of fairness, equality and justice has actually been a history of civil oppression and bigotry. I wish it weren't true, but some notion about the perfectibility of our society makes me a glass half-full kinda guy. A profoundly flawed woman candidate for the Democratic nomination lost. I've seen flawed candidates win and lose, and now, maybe, we have moved past race and sex as being viewed as drags on electability. As I write this it seems like it-- HRC will be remembered as a woman candidate, but she lost as a Clinton, and both of those are positive developments, I'd say.

“Let’s remember who she’s beaten in her career: Rick Lazio and John Spencer.” While I agree that HRC has seemed clumsy in her recent appearances, I think there are mitigating circumstances. First of all, when you are on defense it is hard to not seem defensive. I think this is aggravated somewhat by the fact that the stuff  that they come at her with is so trivial. The email thing is stupid two ways: it was stupid of her to use her own server-- but it is also stupid to make a big deal about it. At this point she has lost one election, and that one she lost for two reasons. First, Barrack Obama was going to be tough to beat; and second, she got lousy strategic advise on how to roll up the delegates she needed to win. I can't help but think that ol' Bill was kept somewhat at arms' length as well, a mistake that poor Al Gore also made. That won't happen a third time. When you have Bill Clinton, you use Bill Clinton.

The other consideration in thinking about the Upcoming is that from what I can see there really isn't anyone in the Republican field who is likely to have much appeal outside of the core third of the probable electorate. I'm sure I will be surprised, but this group of prospective candidates impresses me as even more loathsome than the last batch. I also think that right now, on social issues, the Republican party is reading the country wrong. HRC should resist her somewhat perverse inclination to run to the right, and run as a Democrat.

I am having a real hard time getting my mind around the notion that somehow Hillary Clinton is Fritz Mondale and Barrak Obama is Gary Hart, but that seems to be how it is shaking out. It is interesting that HRC continues to confound conventional polling methodology, and it is extremely interesting that both Clinton and Obama seem to attract highly motivated voters. I still see this as Obama's race to lose, but HRC is making a case. Pennsylvania voters remember: She Voted For The War. When the call came it wasn't at 3AM, it was on the floor of the Senate.

Governor Palin is only slightly more qualified to be President of the United States than my mom. TCA is a restless soul, and when she and my father retired to the Tarheel State she got the itch and went into politics. She was a town council member and then mayor of a town more or less the size of Wasilla, and there was talk at one point of a run for Congress. She passed on that, since it wasn't really consistent with being retired, but there it is. An accident of history, if you will. A Vogue cover and a matter of a few years and it could have been my mom standing there being leered at by John McCain. Of course, my mom's a Democrat, so there's that too. I don't know much more about Governor Palin than anyone else outside of the 49th State, but I'm pretty sure I'd prefer my mom's platform.

This selection really makes me wonder at the cynicism of the Republican party. I suppose it might work-- but I don't think it will. HRC's supporters didn't want just any woman-- they wanted HRC. In the Comments at Lawyers, Guns & Money someone said: "This is all about short-term control of the news cycle, stepping on the Obama speech. This is a tactical choice, not a strategic one. This isn't answering the Biden pick, this is answering the positive press on yesterday's speech.
"This is actually a pretty good window into what a McCain presidency would be like--short term fixes, lurching from crisis to crisis, totally misanalyzing problems and proposing bogus but flashy solutions that don't actually work."

I think that pretty much nails it, and I think there might be a backlash because the pick is so nakedly manipulative.

On the other hand, people are chumps. I have to keep reminding myself of this. Obama is running a campaign for grown-ups, and we've seen that fail time and again. Every four years I think about the SNL Bush-Dukakis Debate. "I can't believe I'm losing to this guy". It speaks volumes about the decline of public discourse that Bush pere now looks coherent, let alone like a statesman.

I'm sure Governor Palin is a lot of things. She seems articulate, and I imagine she is quite a bit more honest than the usual Alaska Republican, admittedly a low bar. On the other hand, the fact that she can stand there and accept this nomination without blushing is troubling. She is probably a lot closer in her beliefs to mainstream America than I am, and that's the most troubling thing of all. I take back saying that she is more qualified than my mom-- TCA would be a far better candidate.

HRC as Secretary of State? A couple of thoughts. First, I'd be a bit surprised if it was a job she was really interested in. She has a sweet deal in the Senate now, and an office in Foggy Bottom wouldn't appreciably improve her visibility. If she is still interested in running for President she has to be thinking that it has been a long time since someone got there by serving in the Cabinet. (It was Hoover, by the way.)

I'm not so sure she's the best qualified for the job, either. I'd like to see someone with more substantial diplomatic and academic credentials. HRC is well-respected internationally, and I suppose I'd have to concede that she has the tools, but the majority of her career has been spent as a corporate lawyer in Little Rock.

And then there is this. At the end of "The Maltese Falcon" Spade and Guttman are negotiating. Guttman has the money, ("Ten Thousand Dollars is a lot of money,") and Spade has the Black Bird. Spade tells them that they need a fall guy, someone to hand over to the District Attorney. He proposes Wilmer, and then Joel Cairo. Cairo, furious, suggests that they turn over Brigid O'Shaugnessy, and then some comedy ensues about a missing thousand dollar bill. When that has resolved, in a moment when Ms. O'Shaugnessy is out of the room, Guttman speaks with Spade.

"Are you sharing with her?"
Spade said, "That's my business too."
"It certainly is," the fat man agreed once more, "but,"-- he hesitated-- "I'd like to give you a word of advice."
"Go ahead."
"If you don't-- I dare say you'll give her some money in any event, but-- if you don't give her as much as she thinks she she ought to have, my word of advice is-- be careful."

Mr. Obama, no doubt you'll take care of the Clintons. My advice? Make ol' Bill Ambassador to the United Nations. The job is perfect for him, and he already has an office in New York. But most of all, be careful.

I think it is probably true that there are no persuadable voters for whom HRC's email issues will make any difference. What troubles me-- really more than the transparency issue, which is a concern-- is that what we have here is a little preview of the coming months. It'll be one bullshit "scandal" after another, with Cokie Roberts weighing in, and the internet humming away, and who has the energy, you know? The whole idea of Clinton "scandals" is largely made up as far as I can tell. Ol' Bill and his Bimbo Eruptions-- irrelevant to the manner of governance under his administration. Whitewater, which the NYTimes fell for hook line and sinker was a nuthin muffin. HRC did not kill Vince Foster in the Drawing Room with the candlestick. Nevertheless, we had a ginned up Constitutional crisis, and even though that didn't work out so well for the Republicans in Congress we are going to go through it all again. First time as tragedy, second time as farce-- isn't the third time supposed to be the charm? Ugh.

Bruce Reed notes, "In the century since the 17th Amendment provided for direct election to the Senate, about 180 senators have been appointed to fill vacancies. When their appointed terms ran out, those senators met with three fates in equal measure. One-third of them ran for election and lost. One-third ran and won. One-third decided not to run at all. So as a general rule, only one-third of all appointed senators win the voters' blessing in their own right, and half of appointed senators who run for election lose their seats." While it is true that this is, by "congressional standards... an astonishingly low survival rate." I'm not so sure that a raw tally like that really tells the whole story. Without going back and doing the counting myself I can't say for sure, but it seems likely that quite a few of the one-third that decided not to run for re-election were appointed as placeholders. There used to be a tradition of appointing the wife of a senator who died in office, for example. (Muriel Humphrey served out the remainder of her husband's term as I recall.) Nate Silver breaks it down more scientifically over the period from 1956.

It is an interesting test for Governor Patterson. My hunch is that when he took the spot on the ticket with Client 9 there was a tacit understanding that if HRC won the Presidency, Patterson would be tapped to take the seat, but I have no basis for that. In any event, Patterson has really stepped up to the plate since becoming governor, and it is pretty clear that he takes the appointment power seriously. It's interesting to think about the fact that in two years New York will have an election that features both Senate seats and the governor's office.

My policy for primaries is to support the most liberal candidate, and up to now that's been Bernie Sanders. The only substantial area where Senator Sanders and I part ways has been gun control-- as a senator from the most rural state in the union this is not surprising-- Howard Dean wasn't great on gun control either. HRC has now said that she favors restrictions on gun show sales and that is a move that leaves me in a bit of a quandary. She is still Scoop Jackson in a skirt as far as her foreign policy goes-- but she is winning me over.

A couple of other Monday thoughts: one reason Donald Trump may be doing so well is that every other Republican running is unlikable. Years ago, in PoliSci 110 my professor, Edward Janosik arranged for the class to attend a Jimmy Carter rally down the road at Genesee Community College. Dr. J was an early Carter supporter, and the event was shortly after Carter's big upset in the Iowa caucuses. (I have no idea why Carter thought Batavia was a place to visit. I'll have to look into that.) Carter was still very much a dark horse, but Dr. J told us that at a minimum Carter's candidacy would mark the end of George Wallace's career as a national Democrat. I have a feeling that Trump's campaign may be the thing that marks the end of the Bush family as Republican candidates, and I am pretty happy about that thought.

Also, what the hell happened to the Bills yesterday? What was that?

There is no way that John Kerry will be as awesome as HRC was.

Howard Dean's leadership of the Democratic party seems to have accomplished several subtle goals-- and if the Beltway insiders are whining, maybe what that tells us is that they still don't understand what Dean has set out to do. First, for the first time that I can recall, every primary has been contested, and every primary has mattered. Dean believes that the future of the Democratic Party must be a 50 state future-- that we can't go on conceding states. Both Obama and Clinton have campaigned everywhere, and this can only benefit grassroots Democrats, particularly in a year like this, with Democrats poised to take some congressional seats that have been in Republican hands for a generation. Pundits are talking about how the fractious primary has damaged the top of the ticket; Dr. Dean knows that the top of the ticket can take care of itself, and that it is on the local level where the Democrats need to build. By staying in the race to the end HRC has, I would say, actually helped the long-term prospects of the Dems.

Second, he has managed, so far, to impose party discipline on the DNC, without looking heavy-handed. The "compromise" that emerged over the weekend was brilliant, and keeps both Michigan and Florida in the fold, where they need to be.

Dean has managed this without self-aggrandizement, because he knows it is not about him. It never was, really. When he ran four years ago he did so out of a commitment to the programs and beliefs that had been traditionally Democratic, that appeared to have been abandoned by the party. I'm sure he was as surprised as anyone that he had that sudden surge in popularity-- it always seemed to me that what he was trying to do was bring the mainstream back towards the sorts of social, economic and foreign policy programs that made people like him-- and like me-- Democrats in the first place.

He's a smart guy, Dr. Dean, and a committed guy. After all the shit he took, he could have decided to go home to the Green Mountain State, and washed his hands of the whole mess. Instead he decided that the Party could still be saved, and that saving it was still the best hope for the country. He took on the thankless job at DNC. He could have turned that into a cult of personality-- others have-- but he didn't. Instead, in the face of constant snipping, he found a way to take back a majority in Congress, and it looks like he is going to be able to shift the tint of the country as a whole. I hope someone remembers to thank him.

In another context altogether King Kaufman writes, "I have a bootleg recording of a concert at which a woman yells out "I love you, Bruce!" After a little cheer dies down in the crowd, Springsteen says, "But you don't really know me."

Kaufman is talking about the fact that we can't know public figures through their portrayal in the media, although it seems as though we do, an interestingly clear eyed observation, and an important one in the context of our civic lives this electoral cycle. It seems that voters are basing their decisions on "character" rather than on any specific policy differences between Barrak and Hillary, or McCain and Huck. This is nothing new, of course, but it is nevertheless disturbing when you consider that we really know very little about what these people are like. When you listen, as we did last night, to the stuff that Huckabee says, it quickly becomes apparent that he is not a particularly deep thinker, for all that he is a very engaging speaker. Hardly a surprise-- his degree is in Divinity, not in anything analytical. McCain, sounding more like Bob Dole every day, likewise has very little of substance to say-- he is platitudinous, nothing more. Really, the only candidates left on the board who say specific things about specific stuff are good old Mike Gravel and HRC. Obama certainly has the intellectual chops, and when called upon to do so he can display them, but he does better at rallies than in debates for a reason-- in debates, specifics win, and Hillary has those. Actually, it is when Clinton gets away from her policy wonk roots that she loses me-- she didn't vote for this horrible war because it was good policy, after all, she did it out of political expedience, or cowardice, or both. That is, I think that's why-- but actually, I don't know. I can't know. Her statements about why she voted that way do not have the ring of truth to me, ("I trusted the President." What! How could you? You have got to be kidding me!) but it is impossible for me to know why she did what she did if what I am basing this on is an assessment of her character.

I get almost none of my news from television, and I wonder if this affects the way I process my political opinions. I read, and I argue with the radio, and both of these encourage a more analytical approach than tv news. Reading and arguing are what we do in our glamor profession-- when you roll in the video monitor at trial, you can see the jury relax, like slipping into a warm bath. They are abandoning their critical reasoning skills when the tape starts to roll, and that means that they are about to start making decisions based on impressions-- like the impressions we have about our politicians. McCain is a straight-talking maverick-- until you look at his voting record. Hillary is a liberal-- until you look at her voting record. I'm not sure what Huckabee is supposed to be-- a bible thumping cracker, maybe, but that doesn't completely fit with his record as governor. Obama is the Black Kennedy, I guess, but who knows what that is supposed to mean. If these are the evaluative criteria that we we use, why would anyone think that voting for people is the way to find leadership that will accomplish anything worthwhile? With democracy you get the government you deserve, maybe, even if it isn't what you think you want.

I'm just shy of old enough to remember this poster, I think, but it is now officially my favorite thing about Joan Baez. Or Mimi Farina, for that matter. I like the update too. It is interesting that sex and sexuality have played such a big role in this election-- HRC, of course, and the Obama Girl. I guess it got overheated with the selection of Governor Palin. It would take a more astute cultural commentator than I am to tease the meaning out of all this-- the fecund former beauty queen with the expensive wardrobe, the Kennedy-esq youth and vigor of the Harvard educated Democrat. What troubles me is that it all resembles 60's Culture Wars redux, and the poster brings that home. The promise of the Obama campaign that has the greatest appeal to me has been the notion that we might get past that. Obama is not a narcissistic Baby Boomer, and hasn't seemed interested in revisiting those fights. Dragging the Weathermen into this election hasn't worked, even as 60's nostalgia. It seems to me that we would be well advised to put the 60's away, but I wonderif that's what's going to happen. I thought it was a positive development when, during the third debate, the two candidates clearly stated their positions on reproductive choice. There was none of the tip-toeing around that has characterized the discussion of this issue in the past. McCain is against it, and said so, and Obama is in favor, and likewise said so. McCain has been on the Hill for so long that he got tripped up on the "litmus test" question, but we knew what he meant. It will be very difficult after this for anyone to argue over what the majority of Americans think about this issue, and the Supreme Court will undoubtedly notice this. Johnson and Nixon were both brought down because they couldn't think of a way out of Vietnam. Their mistake was that they looked to the past for a template, and there wasn't one. Vietnam was a new thing, a proxy war in the post-nuclear age, and they lacked the creativity to deal with it. Similarly, the economic meltdown that we are now in is different from anything we have ever seen-- it is a collapse of liquidity and credit in a global economy, a completely new thing. My sense is that Obama recognizes a truth about America that McCain would never be able to acknowledge-- that ending the Iraq war, and addressing the problem of global terrorism, and restoring the world's economic health are all things that can only be done if we are able to find ways to cooperate with the rest of the world. The notion of American Exceptionalism is a big part of how we got into this mess. Getting out is going to be a bitch. The Republican Party is bottoming out at just about the right time. If we can confine the sniping and the backbiting to the 20% or so that think George W. Bush is doing a hell of a fine job than maybe we have a chance of getting somewhere, but we aren't going to be able to do that if we behave in victory the way that they have.

So, the Boy Scouts are thinking about ending the organization's policy of discriminating against gay kids. Good, if true. It would be nice if this were happening because it is the right thing to do, but...

"About 50 local United Way groups and several corporations and charities have concluded that the ban violates their

non-discrimination requirements and have ceased providing financial aid to the Boy Scouts. An official of The Human Rights Campaign, an advocate for gay rights, said HRC planned to downgrade its non-discrimination ratings for corporations that continue to give the BSA financial support. "It’s an extremely complex issue," said one Boy Scouts of America official, who explained that other organizations have threatened to withdraw their financial support if the BSA drops the ban."

. Doesn't look that complex to me. And you know what? I don't care about motive so much. Do the right thing and motive sorts itself out.

Outside Counsel finds it notable that HRC seems to be running as a foreign policy mavin. Indeed, I cannot recall a Democrat leaning this heavily on foreign policy credibility since Scoop Jackson-- whose hawkishness was similar to Secretary Clinton's.

(An aside. One of the highlights of the State University of New York's Washington Semester Program was sherry at the home of Avril Harriman. Harriman liked to be addressed as "Governor", and we were painstakingly instructed on this point: he favored that title over Secretary because Governor was the highest elected office he had held.)

The Republican field is, I think, running against a chimera: the Barrack Obama that they think of as the Kenyan Usurper. Eight years ago the world economy was in pieces on the ground, and now the various Republican candidates are saying that they want to restore the country. Obviously they really hate black people, and poor people and gay people and just about everyone else that isn't a white rich guy, but that's really not much of a coalition, is it? Bush is a Bush. That should be the end of it. Rand Paul is busily pissing off women, apparently in order to show that Mittens was a piker for only writing of 47% of the population. His base is that kid in your Intro to American Politics class who carried around a copy of The Fountainhead. Cruz is the worst Canadian in history. It is certainly true that the filed is wide open, but crazy, hateful or incompetent isn't a very appealing set of options. And there's more to come!

Governor Paterson has been getting blistered for his appointment of Kirsten Gillibrand to the Senate seat HRC left to become Secretary of State. It seems to me that he more or less had to pick a woman after he made such a point of criticizing the Commission on Judicial Nomination for failing to include a woman on the roster of candidates to replace Chief Judge Judith Kaye. The Judiciary Committee of the New York State Senate is presently holding hearings on the state's merit appointment process, and I am more than a little concerned that they will find a way to screw up a system that has worked well since 1977. It is peculiar that Judge Carmen Beauchamp Ciparick, the senior associate judge on the Court of Appeals, did not make the list, but I don't think that a single event like that can be taken as evidence that the system as a whole is broken. It's a problem that the timeframe within which the Commission operates is so long-- barring an unexpected resignation it'll be four years before there is another vacancy. This makes it difficult to determine if the process that resulted in the nomination of chief judge-nominee Jonathan Lippman, (the presiding justice of the Appellate Division, First Department) is typical, or some sort of outlier. I'd say that a process that has resulted in the appointment of four women, three blacks and one Hispanic to the state's highest Court has been a process that is pretty good when it comes to promoting diversity, and I'd go a step further and say that the process has been friggin' great when it comes down to making quality appointments. The Court of Appeals is a deep bench, and has been for quite some time. I would not be in a hurry to tinker with a process that is pretty clearly working.

Although Brian Higgins' name is frequently floated as a prospective pick to fill HRC's Senate seat, I don't see it. Higgins is a rising star in the House, and is apparently after a seat on the Ways and Means Committee. With a Representative on Ways and Means, and Louise Slaughter chairing Rules Western New York would have a pretty potent delegation-- and one that would probably be more useful to the region than having a junior Senator.

Very flattered to have been asked to participate on a panel with Dr. Anthony Neal, Dr. Patrick McGovern, and Dr. Peter Yacobucci last night at Buffalo State previewing and post-morting last night's Presidential debate. For the most part what we got was what, I think, we should have expected: Trump is a sputtering rage monster, and HRC is capable and knowledgeable. I think she did a good job of letting Trump descend into incoherence, and she seemed to be having fun with it, which softened her a bit. This morning's NPR coverage was a little too close to the sort of equivalency coverage that has been the problem with media coverage in general this election, but at this point there isn't much that can be done about that. One of the things that's fun about this BuffState gig is that I get asked to do stuff like this. I felt pretty Political Science-y talking about survey data and Jerry Ford's Eastern European debate slip and stuff.

I'm not seeing the breakdown by district, but if Lake County isn't in, I don't think HRC can claim to have won Indiana. As I write this I am listening to her speech, and I think she knows she has lost. She's running for VP right now.

This is Five Thirty Eight's electoral map for today. Yesterday had Arizona a bit bluer, and that makes sense to me: Mormons vote, and they are not going to vote for Trump. I feel pretty good about Georgia, too. Atlanta is the capital of Black America, and turnout there is liable to be strong for HRC. It seems to me that the Democratic strategy going forward should be to force Trump to play defense in places like Missouri and Indiana (former EGC states!).

Interestingly, to date the Trump campaign has spent Zero ($0) Dollars on television advertising. I suppose message control is not so important when your message is out of control, but it is notable-- a data point on an election season that saw the guy who ran on a platform emphasizing the corrupting power of money out fund-raise the mainstream candidate. A "self-funding" "billionaire" isn't all that odd, so why would we be surprised that he isn't spending money?

I wonder if it is even possible for the mainstream American press to cover an election intelligently. It all seems like Cokie Roberts murmuring that both sides do "it", whatever it is that day. The effect of this is to normalize stuff that is actually illegitimate by creating false equivalencies. At this point Congressional Republicans seem to be going all in on delegitimatizing HRC. They know they can't win, but with the press complicit they can obstruct her ability to govern. This happens because essentially no-one is prepared to critically analyze the policy proposals embodied by the two parties, and that is, in turn, because the Republican party really has no coherent policies apart from the policies that failed catastrophically during the Reagan, Bush and Bush administrations. It takes Democratic administrations a stone-cold eight years-- nearly a decade-- to undue the damage, and by that time the skein has been lost, and the electorate becomes focused on the trivia that the media reports. Emails, for chrissake. Decades old disproved rumors. The horrible thing is that the cumulative effect of the media's malpractice has resulted-- perhaps inevitably-- in otherwise rational people losing their perspective. My friend Lawrence Brose recalled that during his legal ordeal he found himself wondering, "What happened to my sense of critical acuity?" That's what happens under a barrage of attacks, even if the attacks aren't directed at you. Our collective sense of critical acuity becomes collateral damage. "Just. Make. It. Stop." our mind screams.