The days of the dead

Ian Ayres

The days of the dead (Oct. 31, Nov. 1, and Nov. 2) have special importance this election year. In some Catholic traditions, the three days are times to contemplate three after-life destinations. Halloween, Oct. 31, is a time to contemplate those who have gone to hell. All Saints Day (or All Souls Day), Nov. 1, is a time to contemplate those in triumph who have gone to heaven. And All Souls Day, Nov. 2, is a time to contemplate those still in suffering who are still in purgatory.

Here's hoping the upcoming election can this country out of the purgatory of divisiveness that we seem to find ourselves in.

Posted 1:45 PM by Ian Ayres [link] (14) comments

The Real Swing Voters

JB

Washington, D.C. (BP)-- As the election nears, all eyes are on the key group of voters who will decide who becomes President of the United States-- the nine members of the United States Supreme Court.

"In 2000 we discovered that regular voters are just plain stupid," Justice Anthony Kennedy explained. "Too many of them kept voting for the wrong person. As a result, it's become our unsought duty, every four years, to decide who becomes president."

"Having the Supreme Court pick the president is completely consistent with the original intentions of the Framers," Justice Antonin Scalia declared. "The Electoral College was created because the Framers didn't want the president picked by the hoi polloi. They wanted the president picked by elites. Well, there ain't nobody more elite than us, baby!"

As the election nears, questions still remain about the Justices' votes. Will Chief Justice Rehnquist be well enough to make it to the polls? Will Sandra Day O'Connor, the Court's swing Justice, vote for Bush as she did in 2000, or will Bush's fiscal policies cause her to stay home?

Polling of the Justices has been extremely haphazard because of the small sample size, but pollsters are confident that their work is scientifically sound. The latest Gallup poll, for example, shows a decisive 5-4 vote for Bush with a margin of error of plus or minus 9.

Of particular concern is the fact that Justice Clarence Thomas, the Court's youngest member, may not be easy to poll because he owns a cell phone. But a spokesman for the Gallup organization was unconcerned about the Thomas factor: "Because he's a minority, he probably won't get to vote anyway."

Still other pundits were worried about the effect of the recent tape from Osama Bin Laden. "They needn't worry," Justice Kennedy explained. "Osama Bin Laden is not going to decide who becomes the next president. That's *our* job."

Posted 1:05 AM by JB [link] (20) comments

Did Osama see Fahrenheit 911?

Ian Ayres

It is a little amazing that the one thing that bin Laden picks out to highlight Bush's incompetence is also the centerpiece of Michael Moore's Farenheit 911:

It appeared to him (Bush) that a little girl's talk about her goat and its butting was more important than the planes and their butting of the skyscrapers. That gave us three times the required time to carry out the operations, thank God.

This quotation reminds me of one of the four word reviews of the film:

Goat book takes priority.

I can understand why Kerry chooses not to respond to this taunt, but it is strange how little ephasis the media is giving to the idea.

Posted 2:59 PM by Ian Ayres [link] (19) comments

That Crazy Osama

JB

Osama bin Laden issued a taped message on Friday making fun of Bush and warning of more terror attacks if the United States doesn't change course.

Hmm, I guess that means that Osama wants to tilt the election to Kerry by showing that Bush is incompetent and by scaring us with future threats of terrorist attacks.

Unless he's *really* trying to tilt the election toward Bush, because he figures that the public will naturally come to Bush's side if it sees that Osama is criticizing him.

Unless that's what Osama *wants* us to think! Maybe he thinks that we'll easily see through that ruse-- attacking Bush to push us toward Bush, and so we'll move to Kerry just to spite Osama, which is exactly what Osama wanted all along!

Of course, maybe *that's* just what Osama wants us to think. By criticizing Bush, we'll realize that he really wants to support Kerry, but we'll see through his game and support Bush instead, which is in fact just what Osama wanted all along!

Hmmmm. This is just too difficult. Maybe we should just ignore the bastard and vote for whoever we damn well please.

Posted 11:52 PM by JB [link] (0) comments

The State of Play

JB

I'm in New York City this weekend at the State of Play conference, the second annual event sponsored by New York Law School's Institute for Information Law and Policy, run by Professor Beth Noveck, and Yale's Information Society Project, of which I am the director.

The State of Play is about the fascinating problems of law and regulation in virtual worlds and multiplayer online games, which are fast becoming among the most important forms of online entertainment and online community building. If you are interested in my take on some of these issues, you can read this article, which will be coming out in the University of Virginia Law Review in December.

Posted 10:42 PM by JB [link] (22) comments

The Point of Faith

JB

In a previous post, I wrote:

The point of having faith is not to escape reality, but to see it clearly, as it is, and still be able to go on, because one has hope for something better and believes in something higher. This sort of faith takes strength of character, and it gives strength in return. It is precisely this sort of faith-- and this sort of strength of character that Bush lacks. Bush's problem, in short, is not that he has faith. It is that he lacks character.

Commenting on this post, Sean wrote:

I'm not sure I understand "the point of having faith is ... to see [reality] clearly". Isn't a good definition of faith "belief in the absence of evidence"? Whatever good points faith may have, I don't see how one can argue that seeing reality clearly is one of them.

Faith is paradoxical in this sense: Although it depends on belief in what cannot be known, it helps us deal with what can be known. Having faith means being able to accept the world and all of its imperfections for what it is, and still be able to go on, because one believes in something else.

Put another way, we must not use faith as a crutch to keep us from confronting unpleasant realities. Instead, we must use faith as a source of strength given the fact that life is not always fair and does not always hand us the best set of circumstances. We must play the cards we are dealt, and to do that, we need faith.

Thus, there are two kinds of faith: faith that lets people go on believing what they want to believe in spite of good evidence to the contrary, and faith that enables people to surmount difficulties in their lives that no one else thought they could surmount. The former sort of faith is a form of blindness; the latter sort of faith requires honesty about one's self and one's situation. The former sort of faith keeps us stuck in our present circumstances; the latter sort of faith allows us to improve our circumstances and the circumstances of those around us.

Which kind of faith does the President have? Which kind does he expect from those who support him? The answers to these questions are central to what people should do in this upcoming election.

Posted 7:10 PM by JB [link] (17) comments

Bush Steps in QaQaa

JB

Bush finally spoke out about the 380 tons of missing high explosives that have gone missing from the Al Qaqaa storage facility 30 miles outside Baghdad. Not surprisingly, Bush denied that he had done anything wrong-- for example, by sending insufficient troops to Iraq to prevent raiding and looting of key facilities by insurgents. Instead, he blamed Kerry for bringing up the subject.

From the Washington Post:

President Bush took up the issue of missing high explosives in Iraq for the first time today, counterattacking Democratic challenger John F. Kerry for making "wild charges" without knowing the facts and accusing the Massachusetts senator of "denigrating" U.S. troops and commanders. . . .

[Bush] added, "Our military is now investigating a number of possible scenarios, including that the explosives may have been moved before our troops even arrived at the site. This investigation is important and it's ongoing, and a political candidate who jumps to conclusions without knowing the facts is not a person you want as your commander in chief."

In response, retired Army Gen. Wesley K. Clark, a Kerry supporter who competed with him for the Democratic presidential nomination, said Bush's words amounted to "a very compelling and thoughtful argument for why he should not be reelected."

It was Bush who "jumped to conclusions about any connection between Saddam Hussein and 9/11," Clark said in a statement released by the Kerry campaign. "He jumped to conclusions about weapons of mass destruction. He jumped to conclusions about the mission being accomplished. He jumped to conclusions about how we had enough troops on the ground to win the peace. And because he jumped to conclusions, terrorists and insurgents in Iraq may very well have their hands on powerful explosives to attack our troops, we are stuck in Iraq without a plan to win the peace, and Americans are less safe both at home and abroad."

Clark concluded: "By doing all these things, he broke faith with our men and women in uniform. He has let them down. George W. Bush is unfit to be our commander in chief."

Retired Air Force Gen. Merrill A. "Tony" McPeak said in a statement that Bush seems to believe that Kerry should not be criticizing him "since the president thinks he has never made a mistake."

McPeak continued: "Let's be perfectly clear: it is the President who dropped the ball. Senator Kerry is being critical of George Bush, not the troops. By embarking on the line of attack, George Bush is deflecting blame from him over to the military. This is beneath contempt."

The International Atomic Energy Agency officially informed the United Nations Monday that nearly 380 tons of high explosives, including some material under U.N. seal because it could be used in nuclear weapons, were missing from the vast al Qaqaa storage site 30 miles south of Baghdad.

The Iraqi Ministry of Science and Technology said the explosives disappeared after April 9, 2003, the day that Baghdad fell to U.S. forces and the government of president Saddam Hussein collapsed. The ministry blamed a "lack of security" for the loss, and officials expressed suspicion that the munitions had been looted by insurgents.

Why is the controversy over Al Qaqaa important? Because it highlights the limitations of this President and his Administration. The Administration was determined to engage in warfare on the cheap, so that it could justify its policy of preemptive war. As a result, it failed to deliver enough troops in Iraq to secure key facilities and prevent looting. Because of this bad strategic choice-- one motivated by ideological committments that blinded the Administration to the facts on the ground-- the insurgency helped itself to a large cache of high explosives that it may have used against American troops. As a result the Administration has weakened our position abroad and put our troops in harm's way.

That is reason enough, one would think, for a change in leadership.

Posted 4:12 PM by JB [link] (22) comments

Know Where to Vote

JB

Remember, if you are challenged about your right to vote, you can vote with a provisional ballot. But in some states (most notably Ohio), if you show up at the wrong precinct, the state may refuse to accept your provisional ballot even if it turns out that you are fully qualified. So if you have any doubts about whether to vote, visit MyPollingPlace.com (link via Political Animal)

Posted 4:01 PM by JB [link] (13) comments

El Nino strikes again

JB

Play the Supreme Court survivor game and find out how.

Posted 6:56 PM by JB [link] (18) comments

Why Iraq Is No Vietnam

JB

Via Michael Froomkin:

Q: What’s the difference between the Vietnam War and the Iraq War?

A: George Bush had a plan for getting out of Vietnam.

Posted 6:52 PM by JB [link] (16) comments

Black disenfranchisement, again.

JB

According to this BBC report, Republican operatives are hoping to make a series of mass challenges to black voters in Florida in the hopes of discouraging people from voting at the polls.

A secret document obtained from inside Bush campaign headquarters in Florida suggests a plan - possibly in violation of US law - to disrupt voting in the state's African-American voting districts, a BBC Newsnight investigation reveals.

Two e-mails, prepared for the executive director of the Bush campaign in Florida and the campaign's national research director in Washington DC, contain a 15-page so-called "caging list".

It lists 1,886 names and addresses of voters in predominantly black and traditionally Democrat areas of Jacksonville, Florida.

An elections supervisor in Tallahassee, when shown the list, told Newsnight: "The only possible reason why they would keep such a thing is to challenge voters on election day."

Ion Sancho, a Democrat, noted that Florida law allows political party operatives inside polling stations to stop voters from obtaining a ballot.

Mass challenges

They may then only vote "provisionally" after signing an affidavit attesting to their legal voting status.

Mass challenges have never occurred in Florida. Indeed, says Mr Sancho, not one challenge has been made to a voter "in the 16 years I've been supervisor of elections."

"Quite frankly, this process can be used to slow down the voting process and cause chaos on election day; and discourage voters from voting."

Sancho calls it "intimidation." And it may be illegal.

A Republican spokeswoman did not deny that voters would be challenged at polling stations

In Washington, well-known civil rights attorney, Ralph Neas, noted that US federal law prohibits targeting challenges to voters, even if there is a basis for the challenge, if race is a factor in targeting the voters.

In the meantime, Republicans are planning a series of mass challenges to voter qualifications in Ohio, the Washington Post reports:

Democrats, and some election officials as well, say the most potentially disruptive action could be Republican challenges of voters' eligibility filed over the past few days. Although some of the more than 35,000 challenges have been withdrawn or rejected by county officials, about 25,000 are pending.

The Democratic Party and the Kerry-Edwards campaign sent letters Monday to Ohio's 88 county election boards asking them to dismiss the challenges, arguing that they are "unfair" and "arbitrary" and that the Ohio GOP has not provided sufficient evidence under state law that the voters challenged are ineligible.

The rules for challenging voters vary from state to state, and officials nationwide are bracing for an onslaught. In Ohio, the state GOP is drawing on a little-used 1953 law to file its pre-election challenges.

Ohio law states that a party can challenge a voter's eligibility if the challenger has a reasonable doubt that the person is a citizen, is at least 18, or is a legal resident of the state or the county where he shows up to vote. The law also states that local election boards must give voters challenged before Election Day three days' notice before holding a mandatory hearing, no later than two days before the election.

It is not clear, however, how election officials can hold so many hearings, or what they should do after them.

Unlike the Florida challenges, the Ohio challenges do not appear to be aimed specifically at African-Americans, but rather at new registrants whom the Republican party fears may vote Democratic.

It is a shameful enterprise, and it speaks volumes about what the Republican Party has come to stand for. Instead of trying to come up with policies that would attract new voters, Republican operatives have are simply trying to deny people their right to vote.

Posted 6:16 PM by JB [link] (30) comments

credible vote trading

Ian Ayres

Imagine that next week Al Gore and Ralph Nader hold a joint press conference. Gore announces that he is withdrawing his name from the ballot in Texas and seven other states where polls project George Bush as a clear winner and Gore directs his supporters in those states to vote for Nader. Nader in turn announces that he is withdrawing his name from the ballot in twelve other swing states and directs his supporters in these states to vote for Gore.

This deal represents a kind of interstate vote trading that could be good for both candidates. Nader and his Green party would be virtually assured of receiving more than 5% of the overall votes cast – and thus would qualify for public funding in both this and the next campaign cycle. Gore would gain votes in the crucial swing states that might very well determine the election.

While polling results have been notoriously volatile in this campaign, recent polls have shown Gore to be trailing by more than 20 percentage points in Alaska, Idaho, Kansas, Nebraska South Dakota, Texas, Utah, and
Wyoming. But nonetheless almost 3% of the nation’s total votes are predicted to be cast for Gore in these states. Gore gains nothing from these votes, but these same votes if cast for Nader could mean all the difference in qualifying for public funding.

In contrast, there are twelve states in which there is less than a 10 percentage point difference between Gore and Bush, but in which Nader
support represents at least 50% of the difference. These swing states (Arizona, Arkansas, Colorado, Florida, Minnesota, Missouri, Nevada, New Mexico, Oregon,
Pennsylvania, Washington and Wisconsin) account for almost one-half of the total electoral college votes that Gore needs to win. In five of these states, the current polls suggest that Nader votes added to Gore’s current support would move Gore from behind to ahead of Governor Bush.

By cutting this deal, Gore would be trading almost 3 votes for every 1 vote that he picked-up from Nader in return -- about 3 million votes in the eight states where he will almost surely lose in exchange for about 1 million votes in the twelve states where Nader’s presence on the ballot may otherwise cost Gore the election.

The impetus for vote trading grows out of the winner-take-all structure of state elections. The second place finisher in a state gains no electoral college votes regardless of whether this finisher earned 1% of 49% of that state’s overall vote. Interstate vote trading serves to re-enfranchise substantial voting populations whose votes are trapped as worthless minorities in winner-take-all states by allowing them to have at least an indirect effect on the election. Vote trading can thus overcome certain anti-democratic aspects of the current electoral college system and pushes at least modestly toward a system where the candidate who was nationally most popular would win the election.

Of course, Gore’s conceding defeat in selected states might depress democratic turnout for Congressional races -- but democratic Congressional candidates are already preordained to lose most of the subsidiary elections in these staunchly republican states. And vote trading may even spur democratic turnout in these states. Instead, of casting a meaningless vote,
democrats -- can by voting for Nader -- increase the chance that Gore wins the national election.

Another problem is that it is too late in some states for candidates to remove their name from the ballot. And express vote trading might offend a sufficient number of undecided or decided voters so that the trading might cost them both more votes than it gains them. But there are many
less explicit ways to trade votes. For example, Gore could hold the press conference without Nader. And instead of expressly withdrawing his name from the ballot, Gore could simply call on his supporters in Texas to vote for Nader, but simultaneously call on all liberals in the swing states to vote for him (as the clear lesser of two evils).

As a sign of his good faith, Gore might even promise to appoint Nader as the nation’s chief consumer advocate (chair of the Federal Trade Commission) or promise to participate in future Presidential debates only if the Green party candidate is invited.

Indeed, it is not necessary for either Gore or Nader to hold a press conference. The idea of interstate vote trading has already occurred to individuals. The press has reported anecdotes of Gore supporters in Texas striking vote trading deals with friends who support Nader in Colorado.

But without some centralized coordination it will be hard for this market to clear. At a minimum, it is necessary to propose a focal point for voting. So here goes. I call on Gore supporters in Bush country (Alaska, Idaho, Kansas, Nebraska South Dakota, Texas, Utah, and Wyoming) to vote your conscience. If you think Nader would make the better president, or if you think our public debate would be richer with a better funded Green Party, or even if you just want to help encourage reciprocated Gore support in the swing states, then you should vote for Nader.

But if you are a Nader supporter and live in a swing state (Arizona, Arkansas, Colorado, Florida, Minnesota, Missouri, Nevada, New Mexico, Oregon, Pennsylvania, Washington and Wisconsin), you should vote for Gore. In these swing states, a vote for Nader may actually hand the presidency to a more conservative candidate. And if a vote-trading norm takes hold, voting for Gore can even be seen as voting your conscience as it indirectly can give rise to three votes for your preferred candidate in other states.

As it turns out this proposal would have worked to perfection in the last election, Nader with the Gore votes from the red states would have qualified for federal funding, and Gore with the Nader votes in the swing states would have easily won Florida and the election.

A crazy idea to be sure, but one that Kerry might deploy to respond to the Nader problem this election as well.

Posted 9:44 AM by Ian Ayres [link] (32) comments

Bush is Ahead, But He's Behind

JB

A little more on the incumbent rule from MyDD, estimating that if the election were held tomorrow and 80 percent of the undecideds went to Kerry,
Kerry would win 304-234, taking Florida, New Hampshire and Ohio, but losing Iowa. (N.B. This calculation was made on October 22nd; it doesn't take into account more recent polls which suggest that the race has tightened.)

Your mileage may differ. The basic point is that you must keep your eye firmly fixed on the President's numbers in the battleground states. If he polls at 49 or 50 percent or above, he's in ok shape. But if he's polling at 47 or 48 or lower, even if he's currently ahead, he's toast.

Posted 9:54 AM by JB [link] (16) comments

Greetings from the Reality Based Community

JB

The Program on International Policy Attitudes, affiliated with the University of Maryland, just released a study about the different perceptions of Bush and Kerry supporters. Read it and weep about what it says about American democracy. Dana Milbank summarizes some of the findings in the Washington Post:

A majority of Bush supporters, 72 percent, believed that Iraq possessed prohibited weapons or had a major weapons of mass destruction program, compared with 26 percent of Kerry supporters who held such beliefs. A majority of Bush supporters also believed experts agree that Iraq possessed banned weapons just before the war, and that U.S. weapons inspector Charles A. Duelfer concluded that Iraq held prohibited arms or ran major programs. In fact, Duelfer and the others who have probed the matter found neither weapons of mass destruction nor major programs for producing them.

On al Qaeda's ties to Iraq, similarly, 75 percent of Bush supporters believed that Iraq either gave al Qaeda "substantial support" or direct involvement in the Sept. 11, 2001, attacks; 30 percent of Kerry supporters held these views. A majority of Bush supporters believed the 9/11 commission backed them up on these beliefs, although the panel found no cooperation between the two, only some contacts.

The PIPA poll also found that 31 percent of Bush supporters believed the majority of people in the world opposed the U.S.-led war in Iraq, compared with 74 percent of Kerry supporters. Bush supporters also believed most of the world favors Bush's reelection. PIPA, analyzing these results, found a "tendency of Bush supporters to ignore dissonant information."

This appears to be something that Bush supporters have in common with the candidate they support.

The PIPA poll does *not* show that if you support Bush you have lost touch with reality. Rather, it shows that losing touch with reality makes it easier to support Bush. Many good people know the facts and still support the President. The point is that if he had to rely only on this group of voters, he wouldn't have a snowball's chance in hell at winning reelection.

The PIPA poll might also tend to suggest that the Bush Administration has engaged in a successful campaign of deceit and disinformation, aided and abetted by eager conservatives in mass media organizations and by a feckless press with a confused notion of journalistic objectivity. I think that the mass media are very much to blame for putting this President in office and for allowing his supporters to manipulate the mass media once there. But I also think that large segments of the American public have also been willing to be duped, or, like the President himself, don't wish to face unpleasant realities.

In other words, there is plenty of blame to go around.

Posted 9:26 AM by JB [link] (18) comments

A Caricature of a Conservative

JB

Scott McConnell, writing in the American Conservative, endorses Kerry:

Bush has behaved like a caricature of what a right-wing president is supposed to be, and his continuation in office will discredit any sort of conservatism for generations. The launching of an invasion against a country that posed no threat to the U.S., the doling out of war profits and concessions to politically favored corporations, the financing of the war by ballooning the deficit to be passed on to the nation’s children, the ceaseless drive to cut taxes for those outside the middle class and working poor: it is as if Bush sought to resurrect every false 1960s-era left-wing cliché about predatory imperialism and turn it into administration policy.

Posted 9:21 AM by JB [link] (20) comments

Why the Supreme Court Makes No Sense

JB

Charles Fried's op-ed in the New York Times today argues that the decisions of the Burger and Rehnquist courts used to make sense because they were developing a coherent set of doctrines that reflected classical liberalism or classical individualism, but the Court has lately gone off the deep end with its decisions on affirmative action (Grutter) and campaign finance (McConnell).

There are plenty of reasons that Charles might offer to criticize these two recent decisions, but one of them is not that they evidence a departure from a relatively coherent support for classical liberal principles since the mid-1970s. The Supreme Court is not a single mind, but a group of minds, whose personnel is regularly shifting. Liberals are replaced by conservatives, and one kind of liberal or conservative is replaced by another kind. Supreme Court decisions are compromises among the Justices, and tend to reflect, over time, not a consistent political philosophy but rather the changing views of national majorities and national political elites (and where the two conflict, those of national political elites). As a result, Supreme Court decisionmaking tends to go all over the place, hemmed in (albeit sometimes imperfectly) by the Justices' professional roles and existing precedent.

What decisions like Casey v. Planned Parenthood, United States v. Lopez, and Hibbs v. Department of Social Services have in common is not they are are all classical liberal decisions. What they have in common is that Justice O'Connor joined in them or wrote them. So perhaps Charles is really saying that he wishes that O'Connor was more of a classical liberal, and that she has disappointed him in Grutter (the affirmative action case) and McConnell (the campaign finance case). Fair enough. But one shouldn't expect a swing Justice like O'Connor to match a particular coherent political ideology. That's simply not what such Justices do. And don't expect a Court whose decisions depend on what swing Justices do to produce a coherent political ideology. That's not what multimember bodies do, either.

Posted 9:04 AM by JB [link] (39) comments

Bush's Faith Now Fair Game?

JB

Maureen Dowd's latest column exemplifies an important trend: until quite recently most people would have thought that President Bush's faith was a strong point. It demonstrated that he had a moral compass and that he could be trusted with the most serious decisions facing the country. The recent Suskind article describing the Administration's rejection of the "reality based community" and the recent interview with Pat Robertson stating that Bush did not believe there would be any casualties in Iraq suggest something different: Now, two weeks before the election, Bush's critics are breaching an unspoken taboo. They are arguing, sometimes implicitly, sometimes explicitly, that Bush's religious faith blinds him and prevents him from making sound public decisions.

One must tread very carefully here. Criticizing Bush on these terms requires that one must take care to distinguish his kind of faith from that practiced by many other Americans. One must make the case that unlike other Americans, whose faith strengthens and grounds them in reality, Bush's faith limits him and allows him to avoid facing hard questions. That is to say, Bush uses his religion in a particular way: to justify what he wants to do to himself, to avoid recalcitrant experience, and escape criticism and condemnation. For George W. Bush, religion is the opiate of the Presidency.

Is this a criticism of religious faith in general? Certainly not. The point of having faith is not to escape reality, but to see it clearly, as it is, and still be able to go on, because one has hope for something better and believes in something higher. This sort of faith takes strength of character, and it gives strength in return. It is precisely this sort of faith-- and this sort of strength of character that Bush lacks. Bush's problem, in short, is not that he has faith. It is that he lacks character.

It is disturbing enough that Bush blinds himself and uses his faith as an excuse for his behavior. What is equally disturbing is that his advisers, many of whom are not particularly religious, have become deeply codependent with his him. He demands completely loyalty from them, and they, in turn, make up whatever stories are necessary to justify an increasingly disastrous course of action to themselves. Their actions cannot be blamed on misguided religious faith. Instead, one must blame their actions on a different kind of faith: a particularly toxic combination of syncophancy toward the President, arrogance toward the outside world, groupthink, and hubris.

Posted 8:56 AM by JB [link] (42) comments

Off the Wall and Into the Mainstream?, or "Here We Go Again"

Mark Tushnet

One of the most interesting phenomena in constitutional law is the way in which ideas move from being "off the wall" (that is, basically "crazy") into being within the range of reasonable argument, and then into the mainstream. In my view we observed that process with the so-called "Article II" argument in Bush v. Gore -- the argument that the provision in the Constitution saying that presidential electors shall be chosen in the manner that the "Legislature" directed imposed non-trivial limits on the extent to which a state supreme court could provide meaning to the terms used in the statutes setting out how electors were to be chosen. Now endorsed by three justices, that argument has become the basis of the argument, "Of course there's a serious constitutional issue about whether the people of Colorado could by initiative rather than legislation set out how electors are to be chosen." (Actually, I think the argument about the Colorado initiative is more substantial than the one about judicial interpretation, but that's another story.)

This year's version of the off-the-wall argument moving into the mainstream is the argument that John Kerry is disqualified for the presidency (or, apparently, for the Senate position he currently holds), because of the provision in the Fourteenth Amendment imposing disqualification as a sanction for people who, having sworn an oath to support the Constitution (as soldiers -- and members of Congress -- do), gives aid and comfort to the nation's enemies. The argument is presented by Eugene Volokh at http://volokh.com/archives/archive_2004_10_14.shtml#1098295109. He thinks that, in the end, it doesn't work, but that it's "more interesting [and 'considerably more complex'] than it at first seems."

I don't want to engage the "merits," such as they are, of the argument (precisely because to do so would be part of the process of moving off the wall and into the mainstream). The form of the argument is, it seems to me, indistinguishable from arguments, for example, that the income tax is unconstitutional as applied to those who are not (merely) "Fourteenth Amendment citizens" (basically, as applied to white people). This sort of argument, which is a form of hyperlegalism, is ably analyzed in a wonderful article by Susan Koniak, When Law Risks Madness, 8 Cardozo Stud. L. & Lit. 65 (1996), dealing with the constitutional arguments associated with the Miliitia Movement.

The difference, of course, is that the Militia Movement's arguments are off the wall, and not taken seriously by any serious legal academic. So, perhaps we can identify the first step in the process by which constitutional arguments move off the wall: They are taken seriously by (some) serious legal academics. Or, more precisely, the first step occurs when some serious legal academic decides to take the arguments seriously (for reasons which themselves might be subject to analysis).

Mark Scarberry, who developed the Article II argument, headed his first posting on the Colorado initiative question "Here We Go Again." Maybe that should be said about the Fourteenth Amendment disqualification argument as well.

Posted 7:54 AM by Mark Tushnet [link] (31) comments

Not Rocket Science

JB

With less than two weeks left in the presidential campaign, it now looks as if Kerry will win all of the states Al Gore won plus New Hampsire. This gives him 264. If nothing else happens, Bush wins the Presidency, 274-264. To win the Presidency Kerry needs to win either Ohio (20 electoral votes) or Florida (27 electoral votes).

It's as simple as that.

Could something happen to change all of these calculations? Of course, anything is possible. But right now I would spend most of my time campaigning in Ohio and Florida, with occasional forays into Pennsylvania.

Posted 9:05 AM by JB [link] (3) comments

Citizen Sovereignty

Ian Ayres

Why not have a non-partisan and non-profit corporation whose purpose is to deepen citizen involvement in American political life?

CitizenSovereignty.org was just created with just this purpose.

Its projects include a pre-election federal holiday for citizen deliberation; and, a plan for fundamental reform of federal campaign finance.

Particularly near and dear to my heart is it's embrace of the Ackerman and Ayres, Voting With Dollars proposal:

Voting with Dollars:The Citizen Sovereignty Act
The Citizen Sovereignty Act is a two-part proposal to invigorate citizen involvement in politics and remedy cynicism about campaign fundraising. The Act extends voters the use of automated teller machines for publicly funded campaign contributions of “Patriot dollars,” and; it renders private campaign contributions anonymous, mimicking the secret ballot as a safeguard to the integrity of the political process.
These measures permit a substantial increase in campaign contribution limits and
associated free speech.
Voting With Dollars, by Bruce Ackerman and Ian Ayres, details the Act and how it satisfies constitutional requirements. A model text for the Citizen Sovereignty Act provides a concrete basis for an effort to restore faith in Congress and the Executive Branch. An excerpted chapter from Voting with Dollars is available for free download.

Posted 6:38 AM by Ian Ayres [link] (40) comments

The Third Presidential Debate

JB

This was Bush's best performance of the three. He got better as the debate went on. Kerry looked tired, but he was unflappable, and he made most of his points well. He seemed a bit uncomfortable talking about faith, while Bush connected best when discussing his faith. Bush refused to say whether he wanted to overturn Roe v. Wade; but one hardly expected him to answer that particular question directly. I regarded this one as a draw, although the commentators on CNN immediately afterwards thought Kerry had won, which would make him 3-0 for the debates.

Posted 11:49 PM by JB [link] (11) comments

An antitrust remedy worthy of Solomon

Ian Ayres

Obscure proceedings in Luxembourg are about to have a big impact on all of our lives. The Court of First Instance there recently spent two days listening to a debate between Microsoft and the European Union Commission. The commission found Microsoft guilty of engaging in an illegal "tying arrangement," because Microsoft sells Windows operating systems only with its Windows Media Player built in. Along with fining Microsoft $497 million euros, the commission ordered Microsoft to sell a version of Windows without media player. Here's an oped that Barry Nalebuff and I just published in the International Herald Tribune that explains why this odd injunctive remedy actually is a pretty good idea.

By the way, the IHT dropped a crucial disclosure that we included with our submission: "Prof. Nalebuff testified last week at the Court of First Instance hearings on behalf of a third party--the Computer and Communications Industry Association."

Posted 6:35 PM by Ian Ayres [link] (12) comments

Scalia Blowing Smoke Again

JB

From a speech at the University of Vermont:

Scalia defended the court's ruling in the Bush versus Gore decision that settled the 2000 presidential race. He said it met the test of constitutional originalism by relying on the Constitution's clause saying that citizens will have equal protection before the laws.

In the Florida recount halted by the court, "some people had their votes counted and others did not," he said.

I hope he was misquoted. There is almost no evidence that the Framers of the Fourteenth Amendment believed that the Amendment was designed to remedy inequalities in voting. Indeed, the Amendment was drafted the way it was to ensure that it did not give whites and blacks (or men and women) equal rights to vote. The right of black suffrage was not guaranteed until the Fifteenth Amendment in 1870; the right of woman suffrage was not guaranteed until the Nineteenth Amendment in 1920. If the Fourteenth Amendment already guaranteed equal protection of the laws in voting, the Fifteenth Amendment and Nineteenth Amendments would have been entirely superfluous.

In the debates surrounding the adoption of the Fourteenth Amendment, voting was considered a "political" rather than a "civil" right. The Fourteenth Amendment was intended to protect "civil" equality, but not political equality. Even though questions of ballot counting and black suffrage are distinct, they are both questions about equality in voting rights, and were not part of the original understanding of the Fourteenth Amendment. The application of the Fourteenth Amendment to voting questions comes much later with the Warren Court. (You know, the Court that originalists like Scalia don't seem to like very much).

Again I really hope Scalia was misquoted here, because this is the sort of originalist argument that gives originalism a bad name. I don't have problems with making arguments about original understanding. They are as legitimate as any other form of constitutional argument. What I have a problem with is people like Scalia insisting that their views are justified by originalism (and their opponents lack fidelity to the Constitution) when they haven't a clue about the actual history or are just making the history up. When people like Scalia do this, they are using originalism as a mantra to rationalize their own political values. They are doing exactly what they accuse those who disagree with them of doing.

By the way, I have the same complaint about Chief Justice Taney's opinion in Dred Scott (see this post for details). Taney insisted that fidelity to original understandings meant that blacks could not be citizens and that anyone who said otherwise was just writing their political values into the law. Like Scalia, Taney didn't know the history. At the time of the founding blacks were citizens in several states. But Taney used originalism to push his own political agenda-- in this case the protection of the slaveocracy.

My larger point is that originalism as actually practiced by Scalia (and Taney too) is bad originalism. It is sloppy and self-serving. It does not do the hard work necessary to understand what the different generations who drafted the Constitution and its various amendments were trying to do, and what their commitments might mean for us today. It is sloganeering rather than serious historical analysis; it uses the mantra of originalism as a weapon to attack political results it does not like and defend political results it does like. Bad originalism of this sort is virtually identical in my view to the sorts of judicial decisionmaking that Scalia continually fulminates about. Before he makes another of these speeches, he ought to take a good hard look in the mirror.

One might well adopt a form of historical inquiry that treats the commitments of past generations as stating principles more general than those generations understood their commitments to be. So even though the Fourteenth Amendment was specifically not intended to reach voting rights and was intended to secure only a limited set of equality guarantees, today in our society we understand that equality cannot be cabined in this way, and so the Amendment must reach things that its framers did not intend to reach, like voting rights and racial segregation of the public schools. That is a perfectly sensible way of using history. But it is not Scalia's version of originalism, or at least not the version he defends in his speeches, because it allows us to recast the framers' principles at higher levels of generality. It is, rather, a version of living constitutionalism, the very thing Scalia says he despises.

One last point: Even if we say, as Bush v. Gore does, that the Fourteenth Amendment applies to the standards for counting votes in judicially supervised recounts, the remedy the five person majority ordered in that case does not secure equal protection. The court did not send the case back down to the Florida courts under a unified standard that would have cured the Equal Protection problem. Instead, it simply stopped all the recounts, which guaranteed that, in Scalia's words "some people had their votes counted and others did not." Whether you think the equal protection arguments in Bush v. Gore are justified or not, the remedy was inconsistent with that theory of the case, and it seemed pretty clearly designed to reach a particular result-- the end of the Florida recounts and the election of George W. Bush. Scalia repeatedly complains about judges who write their political preferences into law; once again, he needs to take a good hard look in the mirror.

Posted 2:31 PM by JB [link] (41) comments

Jacques Derrida

JB

Jacques Derrida passed away this Friday in Paris. Derrida was an important influence in my intellectual life. I began my academic career exploring the connections between deconstruction and legal theory, and although I have since moved on to other topics, his work remains a powerful source of insight.

Derrida frustrated many scholars because his work did not fit easily into any distinct category or discipline. It is probably appropriate that he defied categorization because his work is very much about the limits of categories. He thought of himself as a philosopher, but in the United States his work was taken up mostly by literary critics. His own writings unapologetically mingled philosophy and literature. He loved the play of language and was fascinated by the uncontrollability of rhetoric. Derrida had a reputation as a difficult and even incomprehensible philosopher, but he could also write beautifully and playfully when he wanted to. Although accused of being a nihilist he was actually a humanist. Although accused of undermining liberal and Enlightenment values he was actually deeply devoted to them. He was at heart a critical thinker, one who sees inherent value in picking apart his own preconceptions and those of others. In this respect he was fully a child of the Enlightenment.

Perhaps the most important thing to say about Derrida is that he was not a Derridean. Other people made use of his work in ways that would probably have horrified him. He was what Richard Rorty once called an edifying philosopher-- not a system builder, or a great fashioner of airtight arguments, but one whose work incited and inspired others. The task of such a philosopher is not to reach closure but to pry apart, explore, upset, and stimulate. I have always regarded him as a disciple of Heraclitus, who believed that all things were in flux and that things that the mind regards as opposites are always connected to each other in interesting and unexpected ways.

Posted 3:13 PM by JB [link] (8) comments

What Kerry Should Have Said About The President's Mistakes

JB

The last question of the evening was directed to the President, asking him to list three mistakes he had made and what he would do to correct them. Bush said he made some mistakes in appointing people, but did not name them, and did not say he had made any mistakes on matters of policy. Here's what Kerry should have said in response:

Ladies and Gentlemen, the President's answer to this last question sums up everything that has been wrong about this Administration. He has been asked, not by some clever reporter, but by an ordinary citizen like you, what mistakes he might have made in the past three and a half years and what he has done to correct them. He has thrown about some words about people he appointed, but refused to say who they were. And he has refused to specifically name a single thing he has done as President that he might have been done better.

Now I ask you: Do you feel safer in the hands of a leader who is so intransigent, so stubborn, so unwilling to admit that he has ever made a mistake in judgment, that he refuses to see the reality before his face? Does that make you feel safer? For my part, it does not.

In the fight against Terror, we need to stay focused on our ultimate goals and on the values that have made us a great nation. We have to fight with determination. But we also need to be flexible and able to learn from our mistakes, so we can do better, so we can do the job. This President doesn't learn from his mistakes because he doesn't think he has ever made any. Instead he lashes out at anyone who criticizes what he has done. And the rest of the world sees this quality of intransigence in him. Right now, a little less anger, and a little more humility coming from the leader of the Free World might do us a lot of good. Because, as the Good Book says, pride goeth before a fall.

Posted 9:07 AM by JB [link] (56) comments

Need Some Wood?

JB

Visit Ebay. As the President would say, it's on the Internets.

Posted 8:40 AM by JB [link] (17) comments

The President Discloses His Real Strategy For Winning the Election

JB

From last night's debate:

Q. Mr. president, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who do you choose and why?

Mr. Bush I'm not telling. I really don't have, haven't picked anybody yet. Plus I want them all voting for me.

Just like they did in 2000.


Posted 8:16 AM by JB [link] (40) comments

The Second Presidential Debate

JB

This one was more interesting, but ultimately a wash. Bush did not hurt himself very much, and Kerry did not help himself that much. He was good, but not great. The only issue is whether this will slow down Kerry's momentum.

Kerry stumbled on the abortion and stem cell questions. He did fine in most other places. Bush yelled a lot in the first hour, and then calmed down. I wonder if this went over well with the audience. On the very last question of the evening, Bush was asked to identify three mistakes he had made and what he had done to correct them. He became visibly emotional and began hectoring the audience. He refused to identify a mistake he had made during his presidency, other than appointing people who didn't live up to his expectations. Essentially, he dodged the question and seemed quite belligerent. But Kerry didn't follow up by pointing to this as an example of Bush's intransigence and Bush's lack of touch with reality. I thought this was a missed opportunity, but perhaps the audience understood that Bush had amply demonstrated both of these qualities (intransigence and lack of touch with reality) so that Kerry didn't need to do anything at all.

There were several points in the evening in which one or the other candidate simply didn't answer the questions posed, and the other candidate didn't call him on it.

Perhaps most annoying, Bush repeatedly lied by saying that the Deulfer report justified his policy in invading Iraq when it actually showed that sanctions were doing a pretty good job. Kerry didn't hit back hard enough on this point, and Bush kept saying it over and over. I wonder whether the members of the audience understood which report he was referring to and whether they understood that he was simply making things up.

Kerry didn't push Bush hard on the fact that Bush has lost credibility with foreign leaders and that is why Kerry would be a better president. In response to Bush's repeated argument that Kerry won't be able to pay for his programs Kerry didn't turn the accusation around and remind the audience that Bush has been unable to balance the budget even though his party controls both houses of Congress, or that Bush's budget estimates have continually been cooked and proven to be wrong. There were many times that Bush made accusations that could have been turned back on him, but Kerry didn't pounce on those opportunities.

When Bush was asked what kind of Supreme Court Justices he would appoint, he was essentially incoherent. He pointed to the Dred Scott case as a bad example of judging. It was wrongly decided, he explained, because it held that slavery was constitutional. Well, slavery *was* constitutional until the 13th Amendment, and a court that held the opposite would not exactly have been strict constructionist. The problem with Dred Scott is that the Court reached out to decide something completely unnecessary, that blacks couldn't ever be citizens, and it also held that in order to treat southern whites equally with northern whites, they had to have the right under the Due Process Clause to bring their property (slaves) into federal territories, which meant that the federal government couldn't ban slavery there.

Oh, and by the way, Chief Justice Taney defended his view that blacks couldn't be citizens on the ground that it was the original intention of the Framers and that it was wrong to embrace the idea of a living Constitution that changed with the times:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

Any of this sound familiar?


Posted 1:13 AM by JB [link] (21) comments

Dick Cheney Teaches Logic

JB

From the Associated Press:

Vice President Dick Cheney asserted on Thursday that a finding by the chief U.S. weapons inspector in Iraq that Saddam Hussein's government produced no weapons of mass destruction after 1991 justifies rather than undermines President Bush's decision to go to war.

Now this statement may seem paradoxical at first, but it's really quite simple, you see. Going to war to removing Saddam from power was justified because Saddam posed a threat. Saddam posed a threat because he might use weapons of mass destruction or give them to terrorists who would use them on the United States. However, Saddam had no weapons of mass destruction and lacked the ability to produce them because of the 1991 Gulf War and the sanctions that followed it.

Therefore the sanctions didn't work. They didn't work because they prevented Saddam from obtaining the weapons of mass destruction that would have justified our removing him from power.

Still don't get it? Well, here's another way to look at it. As long as Saddam was debilitated by his loss in the 1991 Gulf War and boxed in by the sanctions, he couldn't develop the weapons of mass destruction that would make him the sort of threat that would justify the United States attacking him. In other words, the sanctions were preventing the United States from justifying the war against Iraq. Therefore the sanctions didn't work.

Now I know what you're thinking. You're thinking that this argument assumes that the Bush Administration was determined to attack Iraq no matter what and that it was just looking for a convenient justification on which to hang the war. But that's really a very cynical assumption on your part. When you understand the logic of Cheney's argument you will understand why you are totally wrong and should be ashamed of yourself for even entertaining such a possibility. You see, if Saddam hadn't been boxed in by the sanctions, he would be a threat, and then the United States would be justified in attacking him in order to prevent the proliferation of weapons of mass destruction. If it hadn't been for those sanctions, the United States would have had a perfectly good justification for attacking Iraq that would have allowed the Administration to start a war in perfect good faith. So you see, if the Bush Administration's invasion of Iraq is an unjustified, arrogant and ill-advised decision it's really all due to those pesky sanctions, which prevented the Administration's decision from being justified, prudent, and sound.

Do you get it now? I knew you would.

Posted 11:32 PM by JB [link] (33) comments

Read my lips -- no new draftes!

Ian Ayres

On Monday, President Bush promised voters in Iowa, "We will not have a draft so long as I am president of the United States."

What did he mean? Certainly, it was more than "Under current circumstances, I do not intend to have adraft." The promise sounds more like, "No matter what, we will not have a draft."

Is this really sound public policy? Aren't there some circumstances where it would be appropriate to have a draft? We needed a draft back in WWI and there was broad public support for that war. Can we really be so sure that we will not need one for what young people consider to be an unpopular war.

Or to put it another way.... Bush criticized Kerry for giving other countries a veto on when the U.S. goes to war. But Bush turns around and gives 18 and 19 year olds a veto on our ability to wage war.

Kerry certainly isn't going to call him on this. He isn't going to say, "Well, actually I can imagine instances where a draft would be appropriate."

But Bush is leading a race to the bottom here. At the next debate it might be appropriate to ask the President, "Since you're so sure that we will not have a draft, do you support repealing the requirement that 18 year olds register for the selective service system?"

Posted 4:17 PM by Ian Ayres [link] (14) comments

Homage To Rodney

JB

Rodney Dangerfield passed away this week. Here are some of my favorite one-liners from the man who got no respect:

My sex life is terrible. My wife put a mirror over our bed. She says she likes to watch herself laugh.

My wife likes to talk during sex. Last night she called me from a hotel room.

I said to my wife, it would improve our sex life if you'd tell me when you have an orgasm. She said, "I would but you're never there!"

I went to the bar to get a few drinks. The bartender said, "What'll you have?" I said, "Surprise me." He showed me a picture of my wife naked.

My wife is fat, you know. So fat. When I want to mow the grass, I put French dressing on the lawn and send her out to graze.

She's so fat when she lies around the house, she lies *around* the house.

She's so fat that when she wears high heels, she can drill for oil.

She's so fat her navel has an echo.

My wife is so fat she doesn't have measurements, she has time zones. And every time you walk around her you lose a day.

She's so fat she had to have her passport photo taken from a satellite.

One day I ran into my wife with my car. She asked me why I didn't drive around her. I said I didn't have enough gas.

One day I'm walking home and I see a guy jogging down the street naked. I say, "What are you doing that for?" He said, "Because you came home early!"

And my daughter, she's no bargain either. When she meets a boy, she's like Federal Express. She absolutely, positively, has to be there overnight!

I'll tell you, when I was a kid I was ugly. I was so ugly my parents hung meat around my neck so the dog would play with me.

I was so ugly that when I was born the doctor slapped my mother.

I was so ugly my father used to carry around a picture of the kid who came with the wallet.

I was so ugly one year I was the poster child for birth control.

I was so ugly I used to work in a pet shop and people kept asking how big I'd get.

I had terrible acne. One day I fell asleep in the library. When I woke up a blind man was reading my face.

I called up a hooker. She looked at me and said she had a headache.

One day I got lost at the beach. I asked a cop, "hey can you help me find my parents?" He said, "I don't know, kid, there's a lot of places they could hide!"

My parents had no use for me. When my old man wanted sex, my mother would show him a picture of me.

I said to my old man, I feel like I'm just going round in circles. So he nailed my other foot to the floor!

My mother refused to breast feed me. She said she only liked me as a friend.

Once I got kidnapped. They sent back a piece of my finger to my father. He said he wanted more proof.

My uncle's dying wish was to have me sitting in his lap; he was in the electric chair!

I asked my psychiatrist what was wrong with me. He said "You're crazy." I said "I'd like a second opinion." He said, "OK, you're ugly too!"

I went to my doctor. I said "Every morning I get up and look in the mirror and I feel like throwing up." He said, "I don't know what's wrong with you but your eyesight is perfect."

I tell you, I'm so ugly. Once I stuck my head out the window and got arrested for mooning.

I went to a freak show and they let me in for nothing.

I told my dentist my teeth are turning yellow. He said wear a brown tie.

I drink too much. Last time I gave a urine sample there was an olive in it.

I was very depressed. I was going to jump out a window. They sent a priest to talk to me. He said, "On your mark ...."

I swallowed a bunch of sleeping pills. I asked my doctor what to do. He told me to have a few drinks and get some rest.

I'm a bad lover. Once I caught a peeping tom booing me.

I put on my underwear the other morning and I could hear the Fruit of the Loom guys laughing at me.

I was having sex with a girl and she started crying. I said, "Are you going to hate yourself in the morning?" She said, "no I hate myself now."

Posted 2:27 PM by JB [link] (16) comments

A Gathering Mistake

JB

From the Washington Post:

The government's most definitive account of Iraq's arms programs, to be released today, will show that Saddam Hussein posed a diminishing threat at the time the United States invaded and did not possess, or have concrete plans to develop, nuclear, chemical or biological weapons, U.S. officials said yesterday.

The officials said that the 1,000-page report by Charles A. Duelfer, the chief U.S. weapons inspector in Iraq, concluded that Hussein had the desire but not the means to produce unconventional weapons that could threaten his neighbors or the West. President Bush has continued to assert in his campaign stump speech that Iraq had posed "a gathering threat."

Posted 9:17 AM by JB [link] (27) comments

The Vice Presidential Debate

JB

The first half hour or so was very spirited. After that, it lost energy. Gwen Ifill's questions near the end were unimaginative and did little to advance the debate. About 50 minutes into the debate I was hoping they would wrap it up early. Instead, they ran several minutes late.

This morning the New York Times ran a story whose opening sentences suggested that both candidates stretched or distorted the truth. But when you read the story, it appears that most of the examples involved Cheney, and only a few involved Edwards. Indeed, at some points in the debate Cheney was pretty shameless in his attempts to mislead, for example in attacking Kerry for opposing defense programs Cheney himself had also opposed, and in his insistence that he had never suggested that Saddam was connected to 9/11. (He even tried to insist that he had never met Edwards to insinuate that Edwards was irresponsible as a senator. This line of attack seemed very much a prepared line, and so I do not think we can attribute it to a momentary lapse of memory).

Cheney must have known that he would be fact checked afterwards, but apparently he thought that most listeners would tune out and not pay attention to what was reported later on in the print media. When Edwards was asked why he was qualified to be Vice-President, I think he should have simply said, "I will tell the truth. Decades of service in Washington have apparently made my opponent so hardbitten and cynical that he has no compunction about misleading the public even when the facts are easy to check."

Posted 8:50 AM by JB [link] (0) comments

Polling Incumbents

JB

This article by Guy Molyneux appearing in the American Prospect online explains why polling reports can often be misleading. It argues that the key statistic to focus on in presidential races is the incumbent's percentage, not the challenger's. The incumbent usually drops about a half a percentage point between the final polls and the actual vote, while the challenger picks up most of the undecided voters. In the current campaign, assuming a third party vote of approximately 2 percent, Molyneux argues, Bush must score 49 percent of the vote to win. Furthermore, Molyneux argues, even if Bush is doing very well in traditional Republican states, in most of the key battleground states, Bush is holding on to around 47 percent of the vote, which means that he will lose these states.

Indeed, if the scenario Molyneux describes holds-- big victories in the most Republican states, narrow losses in the battleground states-- Bush might even win the popular vote and lose the electoral college.

If that were to happen, two things might occur. First, both parties might finally see an advantage in getting rid of the electoral college, that antiquated relic of slavery. Second, Kerry would likely be a one-term president, for a Bush loss in 2004 would continue an unbroken trend in which candidates who win the Presidency without winning the popular vote (J.Q. Adams, Hayes, Harrison) do not get a second term.

Posted 9:48 AM by JB [link] (21) comments

A Grim Picture

JB

An E-mail from Baghdad from Wall Street Journal Reporter Farnaz Fassihi (link via Pointer.org):

Being a foreign correspondent in Baghdad these days is like being under virtual house arrest. Forget about the reasons that lured me to this job: a chance to see the world, explore the exotic, meet new people in far away lands, discover their ways and tell stories that could make a difference.

Little by little, day-by-day, being based in Iraq has defied all those reasons. I am house bound. I leave when I have a very good reason to and a scheduled interview. I avoid going to people's homes and never walk in the streets. I can't go grocery shopping any more, can't eat in restaurants, can't strike a conversation with strangers, can't look for stories, can't drive in any thing but a full armored car, can't go to scenes of breaking news stories, can't be stuck in traffic, can't speak English outside, can't take a road trip, can't say I'm an American, can't linger at checkpoints, can't be curious about what people are saying, doing, feeling. And can't and can't. There has been one too many close calls, including a car bomb so near our house that it blew out all the windows. So now my most pressing concern every day is not to write a kick-ass story but to stay alive and make sure our Iraqi employees stay alive. In Baghdad I am a security personnel first, a reporter second.

It's hard to pinpoint when the 'turning point' exactly began. Was it April when the Fallujah fell out of the grasp of the Americans? Was it when Moqtada and Jish Mahdi declared war on the U.S. military? Was it when Sadr City, home to ten percent of Iraq's population, became a nightly battlefield for the Americans? Or was it when the insurgency began spreading from isolated pockets in the Sunni triangle to include most of Iraq? Despite President Bush's rosy assessments, Iraq remains a disaster. If under Saddam it was a 'potential' threat, under the Americans it has been transformed to 'imminent and active threat,' a foreign policy failure bound to haunt the United States for decades to come.

Iraqis like to call this mess 'the situation.' When asked 'how are thing?' they reply: 'the situation is very bad."

What they mean by situation is this: the Iraqi government doesn't control most Iraqi cities, there are several car bombs going off each day around the country killing and injuring scores of innocent people, the country's roads are becoming impassable and littered by hundreds of landmines and explosive devices aimed to kill American soldiers, there are assassinations, kidnappings and beheadings. The situation, basically, means a raging barbaric guerilla war. In four days, 110 people died and over 300 got injured in Baghdad alone. The numbers are so shocking that the ministry of health -- which was attempting an exercise of public transparency by releasing the numbers -- has now stopped disclosing them.

Insurgents now attack Americans 87 times a day.

A friend drove thru the Shiite slum of Sadr City yesterday. He said young men were openly placing improvised explosive devices into the ground. They melt a shallow hole into the asphalt, dig the explosive, cover it with dirt and put an old tire or plastic can over it to signal to the locals this is booby-trapped. He said on the main roads of Sadr City, there were a dozen landmines per every ten yards. His car snaked and swirled to avoid driving over them. Behind the walls sits an angry Iraqi ready to detonate them as soon as an American convoy gets near. This is in Shiite land, the population that was supposed to love America for liberating Iraq.

For journalists the significant turning point came with the wave of abduction and kidnappings. Only two weeks ago we felt safe around Baghdad because foreigners were being abducted on the roads and highways between towns. Then came a frantic phone call from a journalist female friend at 11 p.m. telling me two Italian women had been abducted from their homes in broad daylight. Then the two Americans, who got beheaded this week and the Brit, were abducted from their homes in a residential neighborhood. They were supplying the entire block with round the clock electricity from their generator to win friends. The abductors grabbed one of them at 6 a.m. when he came out to switch on the generator; his beheaded body was thrown back near the neighborhoods.

The insurgency, we are told, is rampant with no signs of calming down. If any thing, it is growing stronger, organized and more sophisticated every day. The various elements within it-baathists, criminals, nationalists and Al Qaeda-are cooperating and coordinating.

I went to an emergency meeting for foreign correspondents with the military and embassy to discuss the kidnappings. We were somberly told our fate would largely depend on where we were in the kidnapping chain once it was determined we were missing. Here is how it goes: criminal gangs grab you and sell you up to Baathists in Fallujah, who will in turn sell you to Al Qaeda. In turn, cash and weapons flow the other way from Al Qaeda to the Baathisst to the criminals. My friend Georges, the French journalist snatched on the road to Najaf, has been missing for a month with no word on release or whether he is still alive.

America's last hope for a quick exit? The Iraqi police and National Guard units we are spending billions of dollars to train. The cops are being murdered by the dozens every day-over 700 to date -- and the insurgents are infiltrating their ranks. The problem is so serious that the U.S. military has allocated $6 million dollars to buy out 30,000 cops they just trained to get rid of them quietly.

As for reconstruction: firstly it's so unsafe for foreigners to operate that almost all projects have come to a halt. After two years, of the $18 billion Congress appropriated for Iraq reconstruction only about $1 billion or so has been spent and a chuck has now been reallocated for improving security, a sign of just how bad things are going here.

Oil dreams? Insurgents disrupt oil flow routinely as a result of sabotage and oil prices have hit record high of $49 a barrel. Who did this war exactly benefit? Was it worth it? Are we safer because Saddam is holed up and Al Qaeda is running around in Iraq?

Iraqis say that thanks to America they got freedom in exchange for insecurity. Guess what? They say they'd take security over freedom any day, even if it means having a dictator ruler.

I heard an educated Iraqi say today that if Saddam Hussein were allowed to run for elections he would get the majority of the vote. This is truly sad.

Then I went to see an Iraqi scholar this week to talk to him about elections here. He has been trying to educate the public on the importance of voting. He said, "President Bush wanted to turn Iraq into a democracy that would be an example for the Middle East. Forget about democracy, forget about being a model for the region, we have to salvage Iraq before all is lost."

One could argue that Iraq is already lost beyond salvation. For those of us on the ground it's hard to imagine what if any thing could salvage it from its violent downward spiral. The genie of terrorism, chaos and mayhem has been unleashed onto this country as a result of American mistakes and it can't be put back into a bottle.

The Iraqi government is talking about having elections in three months while half of the country remains a 'no go zone'-out of the hands of the government and the Americans and out of reach of journalists. In the other half, the disenchanted population is too terrified to show up at polling stations. The Sunnis have already said they'd boycott elections, leaving the stage open for polarized government of Kurds and Shiites that will not be deemed as legitimate and will most certainly lead to civil war.

I asked a 28-year-old engineer if he and his family would participate in the Iraqi elections since it was the first time Iraqis could to some degree elect a leadership. His response summed it all: "Go and vote and risk being blown into pieces or followed by the insurgents and murdered for cooperating with the Americans? For what? To practice democracy? Are you joking?"

-Farnaz

Posted 1:24 PM by JB [link] (19) comments

Bully For Us?

JB

The pundit spin from the first debate has raised, inadvertently perhaps, a personal characteristic of George W. Bush that I have long suspected was true of the man: Bush is a schoolyard bully, arrogant and aggressive when he believes that no one will challenge him, but becoming petulant and losing much of his air of authority as soon as someone stands up to him. Here is David Broder in the Washington Post:

Bush fares very badly when he is forcefully challenged. It makes you worry about his strength in circumstances he does not completely control. Since Sept. 11, 2001, the president has received a remarkably free ride. He rarely faces the media. He speaks only to partisan crowds; critics risk arrest if they show up. There is little evidence that Bush is challenged by his staff or his Cabinet. He is most comfortable when he sticks to talking points.

But suddenly, when Bush was confronted for 90 minutes by an opponent willing to go straight at him, he fumbled, he hesitated and he scowled. The Bush Scowl is destined take its place with the Gore Sigh and the Dean Scream.

Dana Milbank's story in the Post discusses Bush's facial expressions during the debate. The punditry has become particularly interested in these expressions, probably because they think they makes a candidate less likeable, and Bush's strong suit is his down-to-earth-likeability among various segments of the American public. I'm more interested in what they suggest about the man himself:

Bush has flashed such expressions [of petulance] -- and worse -- at reporters when they ask him hostile questions. But the public has generally not seen the president's more petulant side, in part because he is rarely challenged in a public venue. He has held fewer news conferences than any modern predecessor, Congress is in his party's control, and he has a famously loyal staff. In rare instances when Bush has been vigorously challenged -- most recently in interviews with an Irish television journalist and a French magazine -- he has reacted with similar indignation.

Bush's bullying manner probably reinforces the views of our traditional allies that the country he leads has become an arrogant bully as well. (I suspect that our enemies will think we are a bully no matter what we do). But an equally important reason to be worried about having a bully for a Commander-in-Chief is something that Broder suggests: You can deal with a bully, or at least discomfit him, by standing up to him, because he is basically insecure and he can be shaken up or confused when his authority is directly challenged. If Bush is a bully, as I believe he is, he may not be a good Commander-in-Chief when the chips are down because he will not do well when he has to face cold hard reality, or as Broder puts it, one is worried "about his strength in circumstances he does not completely control." For example, although he showed resolve in attacking Afghanistan after 9-11 (I will pass over his immediate reaction to that particular crisis) he dropped the ball when winning the peace in Afghanistan became difficult, and turned his attentions to Iraq, with the result that the situation in both countries is dire.

Bush is a very able politician but is terrible at the details of policy. He has done particularly well when he holds all the cards and controls his environment, when his advisors shield him from difficult and complicated problems and when he finds himself in a position where he can make basic decisions and stick to them resolutely. But this strategy cannot continue to work indefinitely. (You can read a longer discussion of this point, which analyzes Bush's Presidency in the context of Machiavelli's The Prince here.) This Administration has tried to put a happy face on its failures, and its political skills are such that it has succeeded in fooling about half the country. But at some point reality intrudes, and a President who cannot handle recalcitrant experience and who wilts when others stand up to him is simply not a reliable leader.

Posted 1:07 PM by JB [link] (20) comments

debating prison abuse

Ian Ayres

The first debate curriously paid little attention to the abuse at Abu Ghraib prison. It is understandable why President Bush would want to avoid the topic. But it is a little troubling that Kerry has fallen silent on this issue. I worry that Kerry thinks that talking about the human rights of Iraqis makes him look soft on terror. There was a time when Kerry a while ago was willing to speak out on this issue. But now adays he just wants to track down and kill terrorists. Most perplexing though is that Jim Lehrer did not raise the subject. That's one of the most important roles of a commentator -- to ask the questions that neither candidate wants to raise. He might have asked: "Did the prison abuse of coalition soldiers tend to undermine the human rights justification for the invasion?" Saddam killed and abused many of his citizens in the past. But would Saddam with weapons inspectors scurry around his country during the last months have killed more innocent Iraqis and abused more prisoner's than coalition forces have?"

Posted 2:42 PM by Ian Ayres [link] (16) comments

Standing Tall

JB

One feature of last night's debate that I was particularly interested in was how often the cameras showed both Bush and Kerry in the same shot. Kerry is much taller than Bush, and Bush has a habit of hunching over the lectern slightly when he wishes to emphasize his sincerity, which makes him seem even a bit shorter than he actually is.

It turns out, for whatever reason, that the taller of the two presidential candidates usually wins the election. I am informed that this trend goes back all the way to the beginning of the country's history, although, if true, I don't know how anyone could have found a candidate shorter than James Madison. The last exception to this general trend occurred in 2000, when George Bush assumed the Presidency rather than Al Gore (but of course we all know who *really* won that election.)

Posted 6:54 AM by JB [link] (18) comments

Begging To Differ

JB

One of my former students, Jennifer Chacon, sends in her assessment of the debate:

I have to tell you that I think you're dead wrong about tonight's debate.

Kerry's challenge was not to appear "transformative". What he needed to do was present himself as someone who would continue waging the "wars" that have been started on the watch of the incumbent, but who would do it better. He didn't need to present a message of transformation; he needed to relay a message of plans for thoughtful and improved continuity. This, I think he did competently.

Most of the undecided voters I know (don't ask me how I came to be related to so many "undecided" types) are wavering not because they favor what Bush is doing, but because they are concerned about changing horses midstream. I wish I was kidding. This seems like a terrible reason to vote for Bush from my perspective, and probably from yours. But you should have no doubt that there is a real concern (no matter how irrational it may seem) that switching bosses in the midst of a swirling foreign crisis abroad and low-level domestic panic at home will open the country up to unspecified grave dangers. Bush thrives on that message. Kerry's real job tonight was to let people know that he could competently pick up the reins and steer us -- smoothly -- in a new, but not radically different, direction.

Apparently Jennifer is not alone in her assessment. (Link via Atrios).

Posted 6:40 AM by JB [link] (22) comments