Outside Counsel

Joe Biden is 72 years old. Granted, he is a young 72. I like Joe Biden, but I like Bernie Sanders more. My only Bernie Sanders objection is that I feel sort of bad voting for an old white guy. In any event, I doubt that Joe Biden is going to run, because it is not in his nature to be a spoiler. Maureen Dowd somehow got a hold of a story about Beau Biden's deathbed plea to the Vice President, but things that Maureen Dowd says shouldn't be taken seriously. Joe Biden is not going to run for President.

Dear Ms Sullivan:

I'd say that among the greatest failures in the history of Times are the way the publication treated the Clintons- and the way it covered the run up to George W. Bush's war against Iraq. I'm inclined to think that the common denominator might be access or the lack of it. The Clintons recognized back in Little Rock that the press was no friend. Like a lot of liberals they also recognized that although the story that they thought was important was government, the press was bound to be more interested in personalities. This has proven to be true, and as a result we find that Hillary Clinton is not inclined to open up to the people who have made careers out of rubbing her face in shit that any person would spend a lifetime trying not to think about. Maureen Dowd is almost certainly among the worst: as Ms Dowd herself might put it, she acts as though she is the head cheerleader Bill dumped to date Hillary, the honor roll dweeb. (Actually, that in a nutshell is every Maureen Dowd column.) Contrast this with the warm tongue bath Judith Miller gave to Scooter Libby. It must have been thrilling to have that kind of access, and I guess when the facts are too good to fact-check doing so might have seemed downright unpatriotic.

Here's how to cover Hillary Clinton's campaign: what does she say? Fact check it, and report on that. All campaigns should be covered that way. I shouldn't have to say it, but really, NYTimes, seriously, Ms Sullivan, news is different from gossip. Gossip is what the NYTimes ran up to President Clinton's impeachment. News is why he wasn't recalled- because President Clinton had a pretty good record as President, and that was all anybody really cared about. Let me make you a proposition: send MoDo to Paris for the next little while, and get someone whose mind hasn't been in high school for the last 40 years write about politics.

Cheez Louise,

William C. Altreuter

I will let you know if I hear back. 

Every now and then I meet someone who I can't figure out. "There must be more," I think. "What lies beneath that exterior that I'm not seeing?" Frequently in this situations I will ask someone who knows the person better, and very often what I'm told is, "That's it. What you are seeing is what X is like."

This is not to say that these Sphinxes have no rich inner lives, or that their lives aren't as complex or messy as anyone else's-- it is just that sometimes I can't see what the person is actually like. It is a blind spot -- which means that the issue is my perception, not some mysterious attribute of the person I am trying to understand, and certainly not a willful effort on the part of that person to be pointlessly obscure.

I think something like this may be why so many people seem to have a Hillary Clinton problem. (I also think that the problem many, many people have with the Clintons generally is, at base, a Hillary Clinton problem, but that's a different discussion.) I am hard pressed to think of a public figure that we know more about, and yet here we are, puzzling over the question. Dude, we know what she's like, and there really doesn't seem to be anything sinister or twisted about her, except for the part about her wanting to be President. That part-- the idea that she has the focus and energy to work towards that goal-- is a little hard to get one's mind around, but it's hardly a unique quality. As we speak there are quite a few people running around who want to be President. Does anyone compare Lindsey Graham to a Shakespeare villain? In fact, in my life I've known quite a few people with a singular focus and determination, and although some of them have been artists, most of them were merely focused and determined to make money. Hillary Clinton is not an ordinary person-- whatever that might be-- but she's pretty open about her life, even though being open is a potential vulnerability, and even though being open has got to have caused her a great deal of personal pain.

I'm not over the Iraq War vote-- that was a bad choice, and it was made, I think, because she didn't want to be criticized down the line. Oh well, that fear is responsible for a lot of bad choices that people make, perhaps especially United States Senators. Iraq War vote notwithstanding, there is no call that I can see to think that Hillary Clinton is some kind of Lady Macbeth, and I'm surprised that so many people seem so confident that their blind spots about her are really some sort of penetrating insight. She is all there, in front of us, an open book.

I'm with you, Roger Tilton of Nashua, New Hampshire. From the date she cast her vote I have been writing to my senator asking her to explain how someone from New York could have been so wrong. "If I knew then what we know today," isn't good enough-- what did you think you knew then, that the European Union and the UN and all those other people (including me) didn't think they knew?

Mr. Tilton asked her “right here, right now, once and for all, without nuance” to call her 2002 vote “a mistake.” “Until we hear you say that, we’re not going to hear all these other great things you’ve said,” Mr. Tilton said.

Faced with a choice between Senator Clinton and any of the Republicans out there, I will vote for Senator Clinton. Short of that, my first question of any Democrat running is going to be, where were you when the most important question of the last ten years came up? How did you vote when America's standing in the world was on the line? And if you got it wrong, why should we believe you'll have the courage to get it right next time?

I feel a little sad about this, actually. I want to like Hillary Clinton-- I like the idea of Hillary Clinton. But this was a simple call, I think. It shouldn't have been hard for a New York senator to have gotten this one right-- and yet, somehow, they both dropped the ball. Schumer gets a pass from me-- he's been there on judicial selection, and he remains the sole elected official I have ever voted for who promised to do something that would have a direct, positive effect on my life-- and then did it. Senator Clinton has really not distinguished herself in any way that benefits me. She has proved to be a capable player in the Senate, which is nice for her-- but what it means as a practical matter is that she has established that although she may be principled, she has the same backbone as John Kerry. Who needs that? What do your principles even mean when you lack the fiber to cast a simple vote?

Edwards, Richardson, Obama. Probably not in that order. Dodd, Biden, Clinton-- only if that's all that is between us and President McCain.

At a conference late last fall I fell in with a couple of guys from Mississippi. Nice fellows, they were fans of Trent Lott, but were convinced that Hillary was a lock for the Democratic nomination. One of them even seemed inclined to vote for her. This is what happens when you get outside the People's Republic of New York-- you hear other points of view. I can't quite get my mind around the inconsistency contained in the notion that Lott and Clinton are politicians that it is possible to like at the same time, but maybe that's because the Hillary Clinton that exists in my mind isn't the one that other people see. In spite of it all, I think of Senator Clinton as something of a liberal-- maybe even more liberal than ol' Bill. Of course, come to think of it, ol' Bill wasn't all that liberal; one of the things that made the Republicans so furious with him was the way he kept stealing their ideas. It's hard to look at anything Hillary has done as a senator, or before, that marks her as particularly liberal, either, come to think of it. I'm still furious that she voted to authorize the war on Iraq. Chuck Schumer did, too, but he can point to a long list of other things, like safeguarding the federal judiciary, that lead me to forgive him.

I do not think that Senator Clinton is a lock for the nomination-- the fact that she is thought to be is really more of a symptom of the Democrats' lack of ideas. Who else is there? You just know Lieberman wants to run-- he hasn't got it out of his system yet. Kerry, too, only this time he'll run the campaign he should have two years ago. John Kerry is doomed to fight the last war for the rest of his life. And right on schedule, here comes Al Gore, back from the wilderness. I could go for Gore, who actually does have a record to stand on, and ideas that I can get behind. The obvious template is 1968 Nixon. I wonder if Gore can pull it off. Scott Fitzgerald got it wrong, of course, American lives are all about the second act. We love reinvention, for the most part, but is Gore prepared to pretend, as Nixon did, that he has changed in some fundamental way? What was Gore's sin? Sarah Vowell says, "[Gore] was widely perceived as arrogant. If you know something, you're not smart. You're a smarty-pants. It's annoying. People get annoyed with your knowledge. It goes back to high school, to not doing your homework ... 'There's something I should know, I don't know why I should know it but someone knows it and I don't. So I'm going to have to make fun of him now.'" The Partly Cloudy Patriot suggested that self-deprecation would help, but I wonder if that will carry the day. Beyond that, even at a time of national crisis, with the country mired in an unpopular war, Nixon needed help-- he needed a weak opponent and George Wallace to split the vote.

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.

The smart money for the over-under at Lawyers, Guns & Money was 8 percentage points. I was in the car when the polls closed in Pennsylvania, and when I heard that the turnout favored women, I was glad I hadn't followed my gut and taken the under. HRC attracts a motivated group, there's just no getting around it. I know a lot of women who feel very strongly that this is the candidate they have been waiting a lifetime for, and I guess what that means is that Obama isn't really going to have much of a choice. Hillary can't win, and won't quit, and that means that she is the only choice that can be made for VP. It could work. It unifies a closely divided base, and there is no doubt in my mind that Clinton would be better in a debate than anyone McCain is likely to pick-- and better than Obama would be. Bill Richardson will be disappointed, and probably a few other people too, but there just doesn't seem to be any other choice that will secure a win in the general. I could live with Senator Clinton as VP- she has established herself as a good colleague in the Senate, and although to me that is damning her with faint praise, when it comes time to push the next legislative agenda, she'd be good to have in the trenches. Actually, in the "friends close/enemies closer" sense, she'd be better to have as VP than chairing a committee. It'd give New Yorkers an interesting opportunity to find a replacement (now that it won't be David Patterson). As I've said often, I like the idea of Hillary Clinton-- and as VP she'd be more conceptual. Too bad if neither one of them wants to do it that way-- it is is pretty clear that this is a compromise the rest of us can live with.

Frank Rich on Clinton sex scandals. Actually, on Bill Clinton sex scandals. 1992 was a long time ago, but few things have changed. Ol' Bill still makes Republicans froth at the mouth, and Hillary does too. For some reason these people seem to think that sex is the way to get other people to dislike the Clintons. Oh, and just for fun I went back and had a look at the 1992 Democratic Primary. You know, people act as though Hillary's talk of a "vast right-wing conspiracy" was Easter Bunny stuff, but do the math. The Gennifer Flowers story was brought to us by Rupert Murdoch's Star Magazine. (Later, of course, CBS and the NYTimes had good fun with it, because Liberal Media.) Going into the convention the delegate count stood thus:

• Bill Clinton 3,372
• Jerry Brown 596
• Paul Tsongas 209
• Penn. Gov. Robert P. Casey 10
• Rep. Pat Schroeder 8
• Larry Agran 3
• Ron Daniels 1
• Al Gore 1

Now, think back. Do you recall Jerry Brown, or Paul Tsongas hammering, or even mentioning, O'l Bill's sexual adventuring? What about Pat Schroeder? No? Me neither. It's not that it was a non-issue: surrogates made references to it-- but for the most part the focus was on policy and "electability". My remark at the time was, "What I hate about Clinton is that in November I'll be voting for him."

I mention all of this now because it seems as though a dependable conservative tropism is to insist that something will work even after it has been conclusively established that it will not work, it has never worked, and it always ends badly. It's not just wars. It's climate science-- or the way they talk about science generally. Think about economic policy. Try this one one for size: every time the question of raising the minimum wage comes up conservatives howl that it will cause layoffs and unemployment. Of course it doesn't. So here we go again, the people who are always wrong about pretty much everything are going to talk about sex. The sex that Bill Clinton had, the sex that married gay people have, all the sex. Good luck with that.

In Dana Point, California for the American Trucking Association's meeting (I know, it's a whirligig existence, init?). The luncheon speaker today was Howard Fineman, Newsweek’s Chief Political Correspondent, Senior Editor and Deputy Washington Bureau Chief. Since I don't really follow tv news or read Newsweek much, I'm not really familiar with this particular pundit, but once he got past the hack jokes, he was pretty good. (Bill Clinton, Al Gore and Hillary Clinton are summoned before g-d. Blah, blah, blah, blah, blah blah, Hillary says "I think you are sitting in my chair". C'mon, just because it's old doesn't make it vintage.) I asked him if he thought the Republican nominee was going to come from the current pack, and why he thought Bush/Cheney/Rove had done such a poor job of succession planing. He reckons that Bush will probably ultimately favor Thompson, but that the old man likes Romney-- because Bush pere is tight with Romney's coreligionist, Brent Scowcroft. Okay, whatever-- the more interesting part was the second part, which made some sense to me. After brushing the Cheney part lightly aside ("He figures he's already been president for eight years, who needs more?" Budda-bump.), he opined that for Bush it was never about the Republican Party-- it was personal. He wanted to avenge a perceived wrong to his father, and he wanted to show that he wasn't the fuck-up that people reckoned him. He likened Bush to Nixon in that regard-- Nixon was for Nixon, not for the Republicans-- he thought the Republican Party had been screwing him over for his entire life. (I'd add that just because he was paranoid didn't mean he was wrong.) For Rove, who thought himself the second coming of Mark Hanna, there was a miscalculation as to the potency of the immigration question. It wasn't so much that Rove didn't have a plan-- it's just that the plan didn't work. I have a little bit of a problem with that-- I don't see any evidence that anyone was being groomed, at any time-- but it may be that they just got caught short on their timing.

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.

Interesting piece on the reasons Hillary Clinton's campaign failed. Loss of momentum from Iowa was critical, but you really can't criticize the decision not to start there earlier: she'd have taken a drubbing if she'd made her move there before she locked up her Senate re-election. The fund raising issues suggest that the campaign did not learn-- as Obama did-- from the lesson taught by Howard Dean, who looks more and more visionary. Instead of expanding the base of contributors-- and the base of supporters-- Clinton raised money the old fashioned way, from fatcats. Apparently Harold Ickes understood how to count delegates: why his counsel was ignored was probably the key failure of the campaign, but the real question is the one that mystified me about the Dean campaign: where'd all that money go? Apparently big spending is a hallmark. She spent $30 million to get re-elected, which is crazy money, when you think about it: quickly, without looking, who ran against her?

Evan Bayh was never going to set the world on fire-- his name has been showing up on lists for too long. If he was going to run, he would have run sometime before this. That said, I'm not so sure that it all comes down to Barack Obama and the junior senator from New York. Edwards is an intriguing thought, for one thing. He hung in to the bitter end last time, and might do it again this go-round. I have a nagging suspicion that he was deliberately under-used by the Kerry campaign, perhaps because Kerry was concerned about being over-shadowed, or maybe because Kerry didn't want to make Edwards the heir apparent. Kerry still might run, and he has a case: he got more votes than any other losing candidate in history, after all. I am inclined to think that coming in second is like losing the Super Bowl; as John Elway observed it doesn't mean you are the second best team, it means you are the worst. Even so, Kerry has demonstrated that he is tough to kill.

I like the idea of Hillary Clinton better than the reality, I'm afraid. She voted for this awful war, and I can't get past that. This morning on NPR she brushed it off: "If I knew then what we know now". At best the is begging the question, but I'm afraid that it is probably worse. Like just about every other Senator (sorry Lincoln Chaffee-- you were right) I think she was afraid to go on record against a popular president, and popular opinion. As I have said in the past, as the Senator from New York this was a free vote-- even if things had gone differently, New Yorkers wouldn't have punished her for voting against the war. She was voting for Iowa, unfortunately. I have yet to see anything that would have changed my view of the situation in Iraq at that time, and it is pretty clear that the evidence really amounted to Colin Powell's PowerPoint. Since that wasn't good enough to convince the UN, I can't think of why it should have been good enough to persuade the United States Senate-- and that, to my mind, puts anyone who voted for the war pretty much off my list. If there were some other accomplishment that Senator Clinton could point to it might change my mind about her, but I'm not seeing anything.

There's no shortage of Democrats that want to be president. I watched a little of Joe Biden last night-- he'll be around. There'll be others.

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 am delighted to report that Michael Bérubé has reactivated his blog. Today he links to this excellent discussion on the cynicism of the Palin nomination, which captures precisely what I have been trying to articulate.

"The Palin pick was the most crassest, most bigoted decision that I've seen in national electoral politics, in my--admittedly short--lifetime. There can be no doubt that they picked Palin strictly as a stick to drum up the victimhood narrative--small town, hunters, big families and most importantly, women. Had Barack Obama picked Hillary Clinton, there simply is no way they would have picked Sarah Palin. To the McCain camp, Palin isn't important as a politician, or even as a person. Her moose-hunting, her sprawling fam, her hockey momdom, her impending grandmother status are a symbol of some vague, possibly endangered American thing, one last chance to yell from the rafters "We wuz robbed." Lineup all your instances of national politicians using white victimhood to get into offices--Willie Horton, White Hands, Sista Souljah, Reagan in Philadelphia etc.--they were all awful no doubt. But I have never seen a politician subject an alleged ally to something like this."

The whole piece is that good.

 Interesting article on Yale Law Professors Amy Chau and Jed Rubenfeld. A couple of thoughts:

The text messages depict students who believed going to Chua’s house would score them a clerkship. Faculty members I spoke to have mixed feelings about it all. “There’s a weird schism among the students where they want the place to be utterly transparent and utterly equitable,” mused one who is sympathetic to that critique, “but they also want to keep the prestige and privilege that the place affords.” Three other professors told me that Chua is the victim of overzealous zoomers who have confused the natural hierarchy of achievement — and Chua’s right to favor whomever she wants — with a social-justice outrage. “There are a lot of mediocre students at Yale who were superstars in their little county fairs, and now they’re in the Kentucky Derby and they’re not winning their races and they feel like it’s unfair because other students are doing better,” says one faculty member who thinks the dean, Heather Gerken, was too deferential to students in how she handled the small-group affair.

Bullshit. As the lede notes: 

Yale Law, the top ranked in the country, is both intellectual hothouse and finishing school for the American elite,... Yale Law is not only the place where Bill and Hillary Clinton met and that has graduated four sitting Supreme Court justices. It promises intimacy, and is half-jokingly referred to as Montessori law school. Only 200 students enroll each year, less than half of Harvard’s 1L class. In turn, these students are set afloat on even smaller boats of 16 to 18 students — the “small group” — captained by a single faculty member who introduces them to the world of the law and of Yale Law School.

There are no law students at Yale that fit the description of  county fair superstars. Some may be legacy types, like Bart Kavanaugh, but even Bart was carefully selected by an admissions committee that knew what it was doing. 

 Chua’s insecurity about her place at the law school has not been unfounded, though many of her colleagues seem awed by her public profile. “Jed is very much a figure in the intellectual life of the school,” says a male professor. “Amy, not at all. Has there ever been a more famous Yale Law professor than Amy Chua? No. On the other hand, she has no capital at the law school because she’s not an important scholar.”

I can't think of a field where "scholarship" as such is more over-rated than law. Although this is slowly changing the fact is that most legal scholarship lacks anything like methodological rigor.

She had heard rumors that Rubenfeld slept with students. Last summer, when the Guardian asked Rubenfeld if he had sexual relationships with Yale students, he responded, “I have never had a sexual relationship with one of my students.” (Until the late ’90s, such relationships weren’t forbidden by the university.)

You could drive a truck through that answer.

 Another night, the student says, she sat at one end of the table as Rubenfeld asked the students about rape. He said he was working on an op-ed for the New York Times challenging how rape was adjudicated, especially on campus, and he wanted to know their take. If they were drunk, would they have sex with someone who was also drunk? What would they do if their partner wanted them to do something they weren’t comfortable with during a sexual encounter? The statistic that one in five women had been raped — was that true in their experience?

What was I saying about methodological rigor? This is straight-up sexual harassment and has no relationship to scholarship whatsover.

 

 

 

I don't know if there is actually an answer to the question of what would become of Merrick Garland's Supreme Court nomination in the event the Senate fails to take it up before this coming January 20. It's never happened before, of course. One might argue that since the Senate is a continuing body the nomination would likewise remain pending until withdrawn or acted upon. On the other hand, although the Executive function is certainly continuing, that function is personal to the individual holding the office, and the nominating power might be argued as being personal as well. It is a quirk, and quirks can be difficult to account for in 7,591 words (including Amendments). One of the things I tell my students is that in drafting the Constitution-- or, really, in drafting any sort of law-- there is an implicit assumption of good faith on the part of those charged with enforcement. Congress is presumed to act in accordance with its duties and responsibilities, judges are presumed to enforce the laws, and so on. Fallibility is why we have different roles assigned to different governmental branches, but actual malfeasance-- well, that's pretty unusual. Actual, open bad faith, which is what we are dealing with in Judge Garland's situation, may be Constitutionally unique. I can't come up with another example, although I suppose there may be one. In any event, I expect that the point is moot. In the event that the lame duck Senate fails to act, I would think that the most likely prospect is that Judge Garland will withdraw as nominee, and allow the incoming President to make her own selection. Doing so would be a show of good faith by the judge, who almost certainly would like to avoid precipitating a Constitutional dilemma. What that would mean, of course, is that one of the very first things an incoming President would have to do is make a new nomination, and won't that be interesting? Were I Hillary Clinton I'd be inclined to simply re-nominate Judge Garland, but there are other intriguing possibilities. I kind of like the idea of Mr. Justice Obama, for example. Either one, actually. UPDATE: Get used to an eight person Supreme Court.

It seems important to me to note that Hillary Clinton has done something that no woman has ever done before. We'd be remarking on the historic nature of her accomplishment a lot more if it had happened eight years ago; it is still a great achievement, and no less so because she has been so despicably and unjustifiably maligned over the entirety of her public life .

It's early days yet, but based on present form it looks like Hillary Clinton will probably win the Democratic nomination, and should roll in the general election. It's not so early that New York Democrats aren't sizing themselves up in the mirror and thinking that being a senator would be pretty sweet, but I haven't seen anything about who plans on having a run at it. The way it would go would be that when HRC resigns her seat, Elliot Spitzer picks a replacement-- and then there'd be an election scheduled for the following November. Presumably Mark Green would run, since it is an election and there is a rule that says he has to run for everything. Andy Cuomo might want to have a whack at it, but there is an Albany dynamic at work there which might trip that up. Al Sharpton likes to run for things, too. There are a lot of congresspeople who might want to move up, but right now New York Democrats have pretty enviable seniority in the House, and it would be a high stakes gamble to risk that.

This would be an interesting time to be a dark horse, but it would take money and delicate diplomatic skills. You would want to be anointed by the Clintons, but since Spitzer gets to make the call, you would have to have a foot firmly planted in that camp, too. I don't know who is out there that meets that description, but I guarantee there are people out there working it.

Okay, enough. Our language is filled with colorful expressions, but they deserve to be used properly and the Paladino campaign, among its other sins, is guilty of twisting useful turns of phrase out of their useful meanings. This first came to my attention during the now infamous, "I'm going to take you out, buddy," confrontation between Carl and NY Post reporter Fred Dicker. Paladino accused Dicker of being a "stalking horse" and a "bird dog" for Andrew Cuomo. As they say in The Princess Bride, " I do not think it means what you think it means." Per Wikipedia, "a stalking horse is a person who tests a concept with someone or mounts a challenge against them on behalf of an anonymous third party. If the idea proves viable and/or popular, the anonymous figure can then declare their interest and advance the concept with little risk of failure. If the concept fails, the anonymous party will not be tainted by association and can either drop the idea completely or bide their time and wait until a better moment for launching an attack." In politics in is generally used to mean a candidate who runs as a sort of surrogate for another-- Wesley Clark was said by some to have been a stalking horse for Hillary Clinton, for example.

A bird dog is a sandwich made of a chicken strip placed in a hotdog bun and typically topped with honey mustard, popular in  South Carolina.  No, wait, that's another kind of bird dog. Again, per Wikipedia, "a Bird Dog is a person who is paid a referral fee for locating and promoting business opportunities for someone else." Alternatively a bird dog is a free-lance baseball scout. In 1985 we were in the second row at Shea for opening day behind some people who knew Neil Allen from his Mets days. He jogged over and chatted with them for a bit about another player then in the low minors, and Allen mentioned that he knew a Bird Dog scout who might be interested in the player.  That's how "bird dog" is used properly.

Now comes Rabbi Yehuda Levin, erstwhile Paladino supporter, who says that Carl has “folded like a cheap camera” on the question of gay rights. Although the image is charmingly retro, what the rabbi means is that Carl folded like a cheap suit. C'mon people-- this campaign is too amusing to be spoiled by this kind of sloppiness.

UPDATE: I suppose the case could be made that Carl was accusing Dicker of being a stalking horse in the sense that he was reporting about Paladino's affair to see if that was a topic that Cuomo could exploit; and I guess you could stretch bird dog to fit that meaning too.  I think the word he should have used was "catspaw".

Jonathan Chiat:

The Bush administration cratered because it was filled with hacks, ideologues, and business cronies and led by a mental lightweight. Many people believed that for the Republican Party to recover, it would have to develop a governing class that grasped science and evidence. It is safe to say that this has not exactly transpired. The Trump administration will make the last failed Republican presidency look like an age of reason.

I really can't get my head around the naked anti-intellectualism of this election. I am also dumbfounded that so many people apparently don't recall what happened the last time we elected a nitwit surrounded by gonifs. And hey, news media: stop acting so surprised. You had a big hand in normalizing Trump, and in demonizing Hillary Clinton.

Over at Big Pink I am somewhat surprised that I am cast in the role of HRC defender, so I decided to have a look back and see what I have said about the Democratic nominee in the past. I pretty much stand by all of it, I think. I was (and remain) angry about the Iraq War vote, but have been otherwise generally in her corner. Looking it all over I'd say I have been mostly right about Hillary Clinton, and won't have to strain my back trying to square where I am with where I've been.

I also note that I have made the same quip about ol' Bill way too many times. I'll not be trotting that one out again.