Archive for October 6, 2008

Virginia Firmly Blue

On the heels of record voter registration in the state, SurveyUSA puts Barack Obama up by ten points. Rasmussen gives him a two-point lead, but the message is the same. The fifty state strategy worked.

“Activist Judges”: Surprising No-One, Palin Doesn’t Get It

Our Gal Yesterday, Alaska’s very own Sarah Palin (long may she remain there) continued her culture war parade of hits, breaking out an eminetly predictable rant against “activist judges.” Palin’s invocation of this tried-and-true far-right talking point – that the Supreme Court is in fact the most dangerous branch – comes against a backdrop of renewed conservative and media focus on the federal judiciary. It’s good that Sarah Palin is finally giving the judiciary the attention it deserves.  Word is, she can even name a Supreme Court decision other than Roe now (Kelo: yawn, what a shocker). But Sarah Palin’s rant against “activist judges,” like so many conservative talking points, understates the depth of the issue and betrays a not-so-shocking lack of insight into the functioning of the separation of powers in American democracy.

For one thing, the federal judiciary is, at least to some extent, meant to be an activist branch. If the Supremacy Clause is to have any meaning, at least since Marbury v. Madison the constitutional structure of the United States explicitly contemplates counter-majoritarian limits on the political branches. Namely, neither Congress nor the President can act in contravention of the Constitution. No matter how many votes they muster to do it, the President can’t establish Scientology as the official state religion, nor can the Congress outlaw handguns, nor can a state prevent women from holding jobs. Arguably, these are the easy cases: where a political branch clearly oversteps its constitutional powers, few would contest the Supreme Court’s right to slap it back into line. The hard question, of course, is where rational minds can disagree about the constitutional validity of executive or legislative action. Accusations of an “activist judiciary” are most salient when the Supreme Court acts based on a tenuous, new, or debatable reading of the Constitution.

There can be no doub that an “activist” ruling, compelling extreme social consequences based on a loose interpretation of the Constitution, can bring chaos and threaten the constitutional order. When the Court stakes its legitimacy on a tenuous constitutional claim, it risks a constitutional crisis and creates political baggage, as elections are made and lost on the political outcome of its decision. While there are good reasons for the Court to strike an activist tone, they are few and vastly outnumbered by the bad reasons. To the extent that Sarah Palin ignores the potential for a positive “activist” ruling, though, Palin misunderstands our constitutional history.

When the Court handed down its unanimous decision in Brown v. Board of Education, 347 U.S. 483 (1954), and ended the practice of racially segregated schooling, it reversed a series of decisions that had strayed from the intention of the Framers of the Fourteenth Amendment, who had clearly considered segregation to be forbidden by the Fourteenth Amendment. The historical pedigree and legitimacy of its opinion, though, was lost on a generation that had largely grown up viewing blacks as inferior, and had understood the law to not affirmatively oppose this categorization. Brown provoked, in Southerns’ words, “massive resistance”: the National Guard was deployed to ensure peaceable integration, billboards and hastily written hate letters called for the Justices’ assassination, and the Court’s docket for twenty years would be filled with cases of school boards actively opposing the mandate of the highest court in the land. If there was ever an “activist” decision, it was Brown v. Board – and yet, today, not one of us could say that it wasn’t worth it. Brown redeemed the nation, at least partially, from the sin of slavery, and signalled the beginning of the end of institutionalized racism. And it accomplished all this at least a decade before the political branches would have undertook the same goal. There is such a thing as a positive and morally right activist judiciary.

Of course there is such a thing as a negatively activist judiciary. But Sarah Palin isn’t willing to think hard enough, or credit the intelligence of her audience enough, to attempt to draw a principled distinction between positive and negative judicial leadership. In her mind, the “activist judiciary” is a more respectable way of saying three simple words: “down with Roe.” It’s time for Palin, and the religious right, to say what they mean, and stop miseducating our citizens about the role of the Supreme Court. Either Palin doesn’t understand the Constitution, doesn’t respect it, or she just doesn’t care. Whichever it is, it doesn’t reflect well on her or her ideological peers.

UPDATE: Bush is lost too. In a recent speech, he begged judges to “apply the law as written,” citing that as the only difference between activist and non-activist judges. No; constitutionalism fail. Appellate courts sit in judgment of the law and the facts, as required by our constitutional system. Judges are duty-bound to ignore the law “as written,” when what’s written is unconstitutional.

Comments Slow to Process…

For some reason, the comment moderation software is holding all comments by new users. I’m working on it, and I’ll approve new comments by hand ASAP.

Learn to Write Like a PUMA!

Anyone out there still read the PUMA sites? You, too, can learn to write as incomprehensively as them, all in one easy lesson.

McCain Cuts Hearts, and Pays the Price

Surrendered honor.

The McCain camp just performed the political equivalent of spitting into the wind, with predictable results. When John McCain made the decision to take his campaign negative earlier this year, I hypothesized that it might backfire and cost him his prized “bipartisan maverick” mantle; yesterday, I argued that McCain’s decision to go hyper-negative would almost certainly go astray. Sitting here on Monday morning, there’s every reason to believe that McCain’s “new direction” has already backfired, as an expert parry by the Obama campaign becomes a new offensive. Earlier this weekend, Obama’s campaign, in a dramatic break with the proud Democratic tradition of taking assaults lying down, had already released a response ad. The ad, “This Year,” may rank as the best & most effective of the season:

By incorporating multiple dormant media narratives about McCain (“erratic in a crisis,” capitalizing on the blowback from the “hold the campaign” stunt) and deploying tried and true Republican rhetoric in the service of that goal (“out of touch,” evoking McCain’s eight house), the Obama campaign expertly weaves together subtle inroads of attack while deflecting the McCain camp’s smears and refocusing the election on the economy. Republicans had every reason to fear that a negative campaign would reinforce voters’ negative impressions of John McCain; the Obama camp just made that nightmare a reality.

Of course, that’s why the lion’s share of the Republican attacks are coming from Sarah Palin, and not John McCain. Who better to smile while twisting the knife? As usual, Palin’s rhetoric (“palling around with terrorists”) evokes the worst of the American politics; the belief that liberals all hate America and love terrorists, a divisive culture war misconception that Obama took great lengths to rebut in his DNC acceptance speech. Have we so quickly forgotten that truly bipartisan, fundamentally American message?

Thankfully, the answer is, “no.” Immediate media reaction to Palin’s smear ranged from shock to disgust. The Alaska governor, of course, did not need help tanking her favorability rating: she was already ranked fourth of all four ticket-headers, a nasty weight that continues to drag McCain down.

So much for swiftboating redux… but the Democrats, in a positively bizarre display of guile, are poised for a counterattack. Both McCain and Palin sit on top of multiple scandals of their own.

And someone just took notice.

Starting his negative campaign first merely guaranteed that McCain would reap the whirlwind of media coverage of the new, dirty campaign, and have his name tied to the new direction. Deploying Palin to deliver some of the most offensive attacks of the campaign cycle clinched that for sure, and made sure that any Obama counterattack would pale in comparison, slipping under the emotional radar by appearing retaliatory, rather than preemptive. He cut hearts; the cards were in play, he invited a response, and he got one. Enter KeatingEconomics.com.

McCain’s “new campaign direction” took the form of a nasty stump speech by Sarah Palin, and a promise of a few web ads. Obama just met this threat with a fully-integrated media campaign, a new catchphrase, an “introductory” ad directing viewers to a new website, all geared towards “exposing” a fresh scandal, heretofore undiscussed by the media. If McCain cut hearts by taking his campaign hyper-negative, the Obama campaign just passed him the Queen of Spades.