E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Forget Sarah Palin for a while, who is likely to play the role in McCain Administration quite similar to that played by the equally unqualified Spiro Agnew in the Nixon Administration, throwing red meat to the base but otherwise totally ignored in the policy-making process. (By the bizarre way that "experience" is currently being defined, Agnew and Ed Muskie were more "experienced" than the people at the top of the ticket, as is the case with Palin relative to McCain, of course.) And even ignore the actuarial risks we run by electing a 72-year-0ld cancer survivor who also bears physical scars of his having been tortured for years by the North Vietnamese. (I gather that the actuarial odds of his dying in the next 4 years are about 1 in 6, which is, of course, the same odds as one gets in playing Russian roulette.)
Instead, I invite you to think of the fact that Sen. McCain is undoubtedly fixated (beyond, of course, winning the election) on the "legacy" he will leave. Who can really predict, right now, what that will mean? Perhaps he will turn out to be an environmentalist, given that on occasion he recognizes the importance of global warming, even though he has done nothing at all really to encourage alternative sources of energy. Perhaps he will take us to war on Iran. Perhaps he'll try to purge the Republican party of its corrupt elements. Who knows? There are obviously elements of unpredictability in an Obama Administration as well, but at least he will be disciplined, for better or worse, by wanting to be re-elected in 2012 and by his relatively happy membership in the Democratic Party. I suspect that John McCain knows that he is likely to be a one-term president, even if he lives out his term, and he seems to have, shall we say, an ambivalent view of his political party, plus a character structure that revels in his self-proclaimed "maverick" status. Thus from day one, there's likely to be little or no "electoral accountability." Who knows what putting "country first" will really mean to McCain? In any event, should he make it, he will have all of the powers of the presidency at his disposal to try to act out his vision and establish himself as someone worthy of his father's blessing, and the rest of us will be able only to watch. That, after all, is what it means to live in a constitutional dictatorship.
Would you require a candidate to make a contractual obligation to run for a second term before running for their first?
Also, can't the idea of legacy be expanded to include not only history-making self-aggrandizing behavior, but the opportunities he leaves to his preferred political successor? Might not McCain have a responsible bone in his body that prefers to see his "good work" continue, rather than go down in a blaze of (non-transferrable) glory?
I completely agree that a vote for McCain to pursue a conservative agenda is to put it generously a leap of faith. However, I would suggest that your reliance on the discipline of a reelection to compel Obama to pursue the liberal agenda you believe he desires is misplaced. In fact, this discipline is likely to inhibit a liberal agenda.
Much as the congressional Dems who were elected in 2006, Obama is running as a centrist and not a liberal. Obama runs from that term like a vampire from holy water. Thus, neither the Dem Congress elected in 2006 nor a potential President Obama elected in 2008 can honestly claim a mandate for liberal change. The discipline of a future election will inhibit Obama from pressing a liberal agenda as it has the 2006 Dem Congress. To the extent the Dems forget that the voters are watching, I would suggest that a rebuke along the lines of 1994 is in store for 2010.
Well, finally a good point. I really have no idea what McCain would do in office, or rather what he'd try to do, given the Democratic Congress he'll have to work with. He could continue on with this conservative act, or he could go back to being a moderate. We do know that he almost certainly won't turn into a liberal, however - depending on your policy preferences that's a good or bad thing. But I think the wild card possibilities ought to appeal to folks a little left-of-center. With Bush, you knew you were getting a neoconservative; with McCain, you might get something far more agreeable.
... or he [McCain] could go back to being a moderate.
He never was a moderate. His ACU scores are right up there. Or course, as of late he's also shown strong GOP/RWA urges, but that's just pandering to get elected (he hopes).
I am delighted to register a measure of agreement with Bart and Tray. I.e., Obama has clearly tacked toward the center in his campaign, and it would be foolhardy to expect him to be particularly "liberal," as that term is used these days, in his first term. As Hillary kept insisting (with the ubiquitous support of Paul Krugman), his medical plan is marginally more conservative than her own.
And Tray and I agree that (almost) anything is possible with McCain, As for pms's question, I wouldn't require a promise to run for a second term. I'm simply pointing out that one widely-endorsed model of "democracy" emphasizes not only popular choice at the outset but also the incentives provided by electoral accountability at next election. If one doesn't fear the wrath of voters, then that particular incentive disappears, and presidents are left freer, for better and worse, to do what they believe "right." Given that McCain has no ascertainable overall view of politics beyond moralism and an emphasis on his own rectitude, I don't think he will concentrate on preparing for his successor. And surely one (but only one) trait linked to the military is the desire for glory, especially if one is standing up for one's vision of the good.
Two things - I think McCain does have some ascertainable overall view of politics. On the margins, it gets kind of sketchy, but in the main I see him as a TR Republican. This can generate some surprising policy, like campaign-finance reform and his newfound interest in wage insurance*. However, anything that would cost a lot of money, like a robust school choice program or wage insurance, is likely to get hamstrung by his refusal to raise taxes and/or the Democratic Congress. Even though he could cut a deal with a Democratic Congress on higher taxes if he wanted to, and even though he may well not run again in 2012, I doubt he would because he's made such a fuss about how he won't, and if Palin were to run in 2012 it would still be a broken promise of sorts. So I see him, on domestic policy, as a Republican with a few surprisingly progressive ideas that probably won't get off the ground. Or in other words, nothing meaningful would happen on the domestic front during a McCain administration. Second point - I'm not sure that Obama isn't nearly as much of a mystery as McCain. You could see a quite thoroughgoing liberal agenda, but, after all the tacking to the center he's done in this campaign, I'm beginning to wonder if he isn't just as much of a poll-driven pragmatist as Clinton was. I thought the FISA vote was cowardly, and I have a really tough time believing that he disagreed with the decision in Kennedy v. Louisiana, as he claimed to.
* Mentioned in the speech last night for what most thought was the first time, but apparently he's talked about it before - see below for a decent treatment of what McCain-style wage insurance might look like.