Today's Washington Post has an article that discusses "The Downside of Obama Strategy," i.e., that he actually has the audacity to believe that every Democrat's (and, perhaps, every American's) vote should count equally. The article notes (accurately) that Clinton has done better in large, electoral-vote-rich states than has Obama, which has ostensibly provoked fears about the prospects of his winning in November. It doesn't matter that he has received more popular votes than Clinton in contested elections--which allows us to omit Michigan and Florida--and, of course, that he has won more delegates. All that matters, according to a number of quoted Clinton supporters, is the vote in large states. So what we have is an attempt to apply to the nominating process the Electoral College's effective disenfranchisement of those unlucky enough to live in states where they are the political minority and the insane emphasis on a relatively few "battleground" states . One gather that Clinton will lose to Obama in today's caucuses in Wyoming. But, hey, it doesn't matter what Wyoming Democrats think, because they live in a Republican state.

Almost assuredly not. In fact, neither Senator Clinton nor Senator Obama is likely to be even halfway to the required total of 2023 delegates by then, and the delegate difference between them on February 6th is likely to be quite small.

There was a story in the NYT today which repeated an argument Hillary Clinton has been making for awhile -- that only she and John McCain cross the "commander in chief threshold." This argument is meant to stress her experience and readiness for the presidency, but there is a shadow issue that few have noticed although it dogged the first Clinton presidency. That's the relationship between the officer corps and the Democratic party. So far I've noticed one story on this issue in the Washington Times which gave expression to the serious doubts the military has about both Democratic candidates. The conservative and Republican tendencies of the officer corps have been noted but I'm not advancing a Seven Days in May scenario and those tendencies are inherently no more worrisome that the liberal and Democratic tendencies of law professors. The issue is rather whether the gulf between most of the officer corps and Democrats has reached the point where alienation, lack of common ground, and mistrust would lead to unnecessary conflict, misunderstandings, and serious policy mistakes in a Clinton or Obama administration. Remember the opening months of the first Clinton administration -- gays in the military? That conflict featured the military brass drawing on their contacts in Congress to oppose an initiative featured in the presidential election.

The headlines -- most of them, anyway -- are saying that Senator Clinton beat Senator Obama 51% to 45% in the Nevada caucus contest today. Except that some reports say Senator Obama "won," 13 delegates to 12. What's up? There's a debate going on over at Matt Yglesias's blog (and elsewhere, too, I venture to guess -- especially among the spinners).

Well, there are at least three different metrics by which today's contests could be evaluated.

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

If there is one thing that is clear about contemporary America, it is that "democracy" scarcely describes our approach to politics. No, I'm not going to do another attack on our Constitution. Instead, I continue to be interested in the widespread belief that the Democratic primary has gone on "too long" and that something needs to be done to wrap it all up (and, in fact, that it should have been wrapped up weeks ago). As a committed Obamaite, I've not been above such thoughts, but as a slightly more detached analyst, I wonder what exactly is wrong about the current imbroglio, at least if one believes in democracy.

Consider the following: Hillary Clinton and Barack Obama actually have had to visit states like Texas, Wyoming, and Mississippi, which they will certainly not do for the general election. They will also find themselves in North Carolina and South Dakota before too very long. This means, among other things, that they are actually forced to become familiar with issues that might matter to people in those states and address them as, gasp, the equal of Democrats in safe states or the fabled swing voters in the few "battleground states." I'm opposed, of course,

According to the Obama campaign, he won 845 of the 1671 pledged delegates last night, to Senator Clinton's 836. This appears to be roughly consistent, give or take a few delegates, with others' estimates, as well -- see here and here. When added to his previous 63-48 lead, that would give Obama a 908 to 884 lead in pledged delegates. (There are seven more delegates to be chosen from Democrats abroad who voted yesterday.)

Only 1428 pledged delegates are still to be chosen in the remaining primaries and caucuses. Thus, in order to enter the convention with a majority (2025 delegates), Senator Obama would need to win 1117 of those remaining delegates, or over 78 percent. Senator Clinton would need to win 1141 delegates, or 80 percent. Obviously, neither of the candidates is going to secure anywhere close to a majority before the August convention. It is more likely that each will end up with between 1500 and 1700 pledged delegates, i.e., at least 300 delegates short of what they need to win.

For the past couple of weeks I've been blogging about how, regardless of how many states Senators Clinton and Obama each "win" tonight, the Democratic primary system is not like the electoral college -- winner does not take all -- and therefore neither one of them is likely to emerge from today as a prohibitive favorite in terms of actually securing a majority of delegates. Over at Open Left, Chris Bowers has now run some numbers, and he calculates that the largest possible delegate spread between the two candidates after this evening is likely to be no more than 75 delegates, and that as of tomorrow morning both candidates will need to win over 1000 more delegates for a majority -- probably more than 1100 -- with only 1428 pledged delegates remaining to be chosen in primaries and caucuses. Thus, in order to win the nomination without the aid of "superdelegates," either candidate would need to win more than three-quarters of the remaining pledged delegates, something that is virtually inconceivable.

The Democratic Party has just stripped Michigan of its votes at the national convention because, in violation of Party rules, Michigan is holding a primary before February 1. The Party has also done the same to Florida. Under party rules, only Iowa, New Hampshire, Nevada, and South Carolina are allowed to hold primaries before February 1.

Losing both New Hampshire and Iowa can destroy a candidacy. Winning both is a sure path to the nomination.

Unless Barack Obama wins both Texas and Ohio (and adds Pennsylvania a couple of weeks later for good measure), the race will go on, and the controversy about counting delegates from Florida and Michigan will become ever more heated. The Clinton position that the results of the primaries held there in January, in patent defiance of the Democratic National Committee, should be honored, is preposterous. The candidates had pledged to honor the ban by not campaigning there. Obama wasn't even on the ballot in one of those states and certainly didn't campaign. But if Clinton and Obama remain more-or-less tied after the next string of primaries, there will, I suspect, be great pressure to rehold the primaries in a context where both candidates can campaign. This appears fair on the surface, but there is a real paradox in adopting this solution.

Ralph Nader announced today on Meet the Press that he was running for a third time for the presidency. The reaction so far has been predictable.

Democrats, remembering 2000 and blaming him for the Bush Presidency, are annoyed and a little bit frightened that he is injecting himself into the race. Republicans are secretly delighted, in the hopes that he might swing a few close states like Ohio, or dare one say it, Florida, to the Republican nominee.

I think that Democrats have much less to fear this time. Nader's candidacy means something quite different in 2008 than it does in 2000. In 2000, Nader was one of several factors that put George W. Bush in the White House. And in fairness to him, he was only one factor.

My guess is that there is very little chance that Nader will decide the outcome of the 2008 election; he will probably have very small numbers, as he did in 2004. Third parties who do not quickly displace one of the two major parties (as the Republicans displaced the Whigs in the 1850s) tend not to wear well on repeated attempts.

One of the respondents to my previous post points out, altogether correctly, that George W. Bush isn't truly "unaccountable." It's possible, after all, that Congress could impeach him or that it would simply vote to cut off all funds for even one more day in Iraq. Putting to one side the fact that the latter action would be irresponsible in the extreme, any genuine analysis of the notion of the American "constitutional dictatorship" must include attention to the vital role that political parties play in our political system.

Imagine, for example,

that Ross Perot had been elected and then embarked on Bush's policy in Iraq. One wonders if he would have been successful, precisely because there would have been no institutionalized party backing the Texas maverick. Even if he could have initiated some activities using his constitutional commander-in-chief powers, one could well expect that members of both parties would have been eager to engage in oversight and, should he turn out to be so dangerously adventurist as George W. Bush has been, he might well have been impeached. Who, after all, would have had any interest in saving him? Indeed, the impeachment would dramatically demonstrate to Americans the dangers of deviating from the sacred two-party system and succumbing to the blandishments of an "independent."

Last July, I published a piece in the Boston Globe, entitled "No Vice," arguing that we would be better off either without a Vice President at all--we got along without one for 45 of our first 180 years)--or, perhaps more plausibly, waiting until after the election and having the winner, a la the 25th Amendment, nominate a vice president, subject to congressional confirmation. I would, incidentally, also allow the President or Congress to fire the Vice President, but that's another matter for another thread.

I can't help but wonder if John McCain might not find some real merit in the suggestion. Consider his dilemma. It is clear that Mike Huckabee isn't going to be the nominee for president, but his followers might (legitimately?) feel dissed if he isn't chosen for Veep. At best, they might stay home; at worst, they might vote for Obama and actually put some of the Red States in play, especially if Obama chooses, say, James Webb or Wesley Clark as his Veep. On the other hand,

After the criticism leveled at him last week, it is a pleasure to commend David Broder for his extremely interesting article in today's Washington Post on a forthcoming conference at the University of Oklahoma, called by former Sen. and current UO president David Boren, to explore the possibility of a "non-partisan" candidacy for the presidency by New York Mayor Michael Bloomberg.

Thomas Reed Powell, the great professor of law at Harvard in the early 20th century, once memorably said, If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer]. I am afraid that the same can now be said of all too many of our punditry. See, for example, David Broder's column in today's Washington Post, which takes Nancy Pelosi to task for the relative paucity of accomplishment by the Democratic Congress. It ends with a call for "the Democrats to get real about their own record on Capitol Hill. It needs improvement."

I'm like, scratching my head. Barack Obama won the Democratic nomination for president, correct? The nomination will be awarded officially by delegates to the Democratic National Convention, the delegate selection process is over, and the majority of the delegate votes at the convention belong to people who will vote for Obama. Ergo, QED, therefore, ipso facto, a fortiori and you can take it to the bank, Senator Obama will be the nominee.

So Hillary Clinton takes the occasion to announce:

She is the candidate who will be the best president;
She is asking people to continue to donate to her campaign;
She will decide on the future of her campaign in the coming days, based on what the people who voted for her want her to do;
That the voters of South Dakota have had the last word in the primaries, even though the polls in Montana were still open at that very moment;
That more people voted for her than had ever voted for a candidate in a primary -- even though more people voted for Obama than for Hillary Clinton.

A recurrent discussion, provoked especially by Brian Tamanaha in this venue, has involved explanations of judicial behavior. Many political scientists view judges as simply "politicians in robes" who vote to implement their preferred views on public policies. Many law professors believe that judges operate within what Ronald Dworkin termed "the forum of principle." One might, of course, argue, as Jack and I have, that judges can be explained by reference to their "high politics," which is distinguishable from a "lower" kind of politics that focuses, for example, on helping out one's own political party.

Hillary Clinton is evidently running for the Republican nomination for president. Monday, she met with Richard Mellon Scaife -- yes, the very architect and financier of the Vast Rightwing Conspiracy, the man behind the Whitewater hoax, the man who spent millions of dollars promoting the story that Hillary Rodham Clinton had Vince Foster murdered -- now the publisher of a commercially non-viable far right-wing vanity newspaper, and used the occasion to denounce Barack Obama for being a member of Jermiah Wright's church.

Today, I read this in the Washington Post: "[Like John McCain] Sen. Hillary Rodham Clinton's campaign has also started slapping the L-word on Obama, warning that his appeal among moderate voters will diminish as they become more aware of liberal positions he has taken in the past, such as calling for single-payer health care . . . ."

It's not very surprising that a recent poll finds that 28% of Clinton supporters would vote for John McCain if Obama is the nominee, since it has been the Clinton strategy for several weeks now to endorse John McCain over Obama.

Over at the Washington Post, Eugene Robinson gets what is at stake in the 2008 election-- a reconstructive presidency:

Obama's candidacy not only threatens to obliterate the dream of a Clinton Restoration. It also fundamentally calls into question Bill Clinton's legacy by making it seem . . . not really such a big deal.

That, I believe, is the unforgivable insult. The Clintons picked up on this slight well before Obama made it explicit with his observation that Ronald Reagan had "changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not."

This Wall Street Journal op-ed by Steven Calabresi and John McGinnis argues for John McCain on the grounds that he will appoint the judges who will "restor[e] constitutional government" and prevent Democrats from "threaten[ing] the jurisprudential gains of the past three decades, and provid[ing] new impetus to judicial activism of a kind not seen since the 1960s":
The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

I am sure you have all seen the headlines – the big Democratic turn out, the big Obama win, the big Clinton loss, and the religious right’s single-handed miracle of a Huckabee win – but what happened in Iowa last night holds far more secrets about what is to come than those headlines.

I caucused with the Democrats so I will have to limit my comments to what I saw there, although from my understanding, the Republicans go, pledge, pray, vote, and go again -- home to watch the Orange Bowl (Kansas was playing after all). The Democratic caucus procedure is much more involved, but more on that later.

Frank Rich has another excellent column in tomorrow's New York Times on "The Coup at Home," pointing to the erosion of our democracy during the Bush Administration. (He notes that George W. Bush is perhaps not in the strongest position to be giving Perez Musharoff lectures on fidelity to democracy or to constitutional norms in the face of perceived threats to his authority, especially if one can label one's opponents as 'terrorists.")

Following up on Mark's previous post, I think the correct analysis of why a Republican dominated court is unlikely to overturn Roe is not that the Justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with Presidential motivations in nominating particular Justices to the Supreme Court. That is, if you focus primarily on the motivation of Justices after they get on the bench you are looking in the wrong place for an explanation.

Since the failure of the Bork nomination in 1987, it has become clear that Republican Presidents and the party itself would pay a political cost if the Supreme Court appeared ready to overturn Roe v. Wade. Hence they have chosen people who were likely to weaken Roe but not directly overrule it. Ronald Reagan, for example, appointed Anthony Kennedy as a compromise candidate who could win easy confirmation. Kennedy has turned out to be far more moderate than Robert Bork would likely have been, and indeed, one can hardly imagine Robert Bork writing either Casey or Lawrence v. Texas.

SuperTuesday is fast approaching, the closest thing to a national primary we'll likely ever see. It's time to lay down a marker for what we expect from election administrators on Tuesday. No polling place -- not one -- should run out of ballots on Tuesday.

As many of you who regularly read my blog know, I'm not big into politics here. (It's a fascinating, but dirty business.) I've written the rare column about it, but I watched the returns on Thursday's Iowa caucuses with some interest, and I thought I'd write something about it, as the 2008 presidential campaigns got officially underway.

As you all know, Barack Obama and Mike Huckabee were the winners on the Democratic and Republican sides, respectively. Obviously both candidates got a huge boost from winning the first major political contest of the 2008 presidential campaign. But I thought some pundits went a little overboard with the pronounciations they were making, especially about Obama.

Without endorsing either of the three Presidential candidates in the US, and without suggesting any underhanded shenanigans, let me propose a thought about USA '08.

It occurred to me last week while having drinks with a dozen or so industry peers - almost all democrats, mind you. The subject of the conversation somehow shifted to politics and the candidates... and I fully expected the group to be happy about Sen. Obama's advantage over Sen. Clinton. That, however, wasn't the case: No one at the table endorsed Obama.

A Wall Street Journal columnist today suggests that “Obama’s ‘Identity’ Beat Hillary’s ‘Identity.’” His argument is that the Democratic party is dominated by identity politics, and Senator Clinton lost because the race card beat the sex card.

The columnist claims, furthermore, that Obama (influenced by legal theorists at Harvard) sees matters in terms of identity politics, regardless of his professed desire to move beyond it. The columnist writes:
After South Carolina, the campaigns accused each other of playing the race or gender card. Obama deflected this charge. "I don't want to deny the role of race and gender in our society," Obama said. "They're there, and they're powerful. But I don't think it's productive."

I'm not convinced. I think Barack Obama is more inclined to interpret American life in the formal categories of identity politics than is generally thought, or even than would older "conventional liberals" like Al Gore or John Kerry. Legal theorists have been a main source of its ideas; it's hard to imagine that Barack and Michelle Obama didn't hear a lot about "marginalized constituencies" at Harvard Law School. Sen. Obama may not be so conventional after all.

One would think from the recent excitement over the possibility of a bipartisan political movement that Hillary Clinton was running on a platform calling for confiscation of corporate property, reestablishment of the moderately progressive tax structure of the 1970s, the return of all American troops from abroad, the abolition of capital punishment, and (heaven forbid), gay marriage. With the exception of a stray remark by John Edwards, Democrats polling more than 10% continue to run to the right of Richard Nixon. Indeed, judging by their legislative activity this year, the Democrats as a whole have almost no ambition to push any program that is substantially to the left of center. The real issue ought to be why some journalists are so excited about the possibility of a third party that might take a middle position between the party clearly to right of the electorate and the party that on its best day sometimes lurches very slightly to the left.