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Balkinization Symposiums: A Continuing List                                                                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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Suspending campaigns: A bug or a feature>?
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Sunday, March 15, 2020
Suspending campaigns: A bug or a feature>?
Sandy Levinson
One of the notable features of the present situation is the suspension of ordinary political campaigning (save for the debate I'm now watching between Biden and Sanders). Why should we lament this, save in the states that have not yet held their primaries for state offices? The campaign season in the US has become indefensibly extended. I must get literally a half-a-dozen emails a day from the attractive Democratic candidate running against LIndsay Graham in South Carolina. I have in fact contributed to him, and I'm sure I will do so again, as is the case with several other candidates running for the House and Senate. But, frankly, I see no reason whatsoever that those campaigns must now last oer a year. No other political system in the world, I am fairly confident, spends so much time and money on repetitive campaign events, that most often become the occasion only for "gotcha" responses by take-no-prisoners opponents. I am truly doubtful about the marginal utility of many of these events (including, of course, the Nuremberg-style rallies preferred by Donald Trump). Perhaps as we start reflecting on the lessons we should learn from Covid-19 (including the necessity for having a trustworthy president instead of the pathological near sociopath who currently occupies the Oval Office), one of the topics might be reform of the almost literally insane way we conduct presidential selection in this country, beginning with the ludicrous attention given Iowa and New Hampshire and going on to the electoral college. Hope springs eternal, though it may be that literally nothing can generate any serious discussion about genuine "structural reform" in this country.
Comments:
There is a general tendency of the result being known by April but the primaries run to June. And, then the whole process started around last summer. This is absurd.
Trump will officially he needs soon (and since Bloomberg didn't run as a Republican, many states including NY won't even have a primary, largely for lack of a real opponent ... sorry Bill Weld with you one delegate). The Dems rallied around Biden though proportional distribution and an extended system will extend things some. Also, Sanders is basically a message candidate and running promotes the message. This is something that you don't need a constitutional amendment to fix. Condense the process. Use some sort of ranked voting or something to help make the apportionment fairer. Anyway, I vote late April.
Fortunately, this is not a problem created by a hard-wired provision of the Constitution. There are lots of better ideas floating around; the parties just need to pick one.
Sandy: I see no reason whatsoever that those campaigns must now last over a year.
Nature of the beast. Politics is no different than any other type of marketing - you spend years establishing a brand and then never stop reinforcing it. This is especially true with POTUS candidates attempting to reach an enormous, politics adverse electorate sprawled across a continent. The parties can shorten the primary calendar, but it won't make much difference. The current calendar lasts about five months, but nominees are generally chosen in a far shorter time. The last time a nomination actually went to the convention was Ford/Reagan 76. I am truly doubtful about the marginal utility of many of these events (including, of course, the Nuremberg-style rallies preferred by Donald Trump). In 2016, you Democrats (and more than a few Republicans like myself) downplayed Trump's ability to pack and overflow auditoriums across the country. I won't make that mistake again. Who do you think is more likely to win election in November - the man who routinely draws 40,000+ audiences waiting for hours in freezing weather or the dementia afflicted old man who has trouble drawing a couple hundred? Trump rallies are a cross between Steve Jobs rolling out the iPhone and conservative talk radio. The closest we've come to the classical pretension of a Nuremberg Rally was Obama's 2008 DNC speech with the greek temple backdrop.
Believe it or not, I agree with Mr. DePalma that there was something disconcerting about some of the Obama rallies in 2008. Jack and I wrote, well before Trump's election, of the degree to which our presidentialist system, especially after World War II, had Caesarist aspects. My own view is that this began in many ways with JFK and the emphasis on his "charisma" and the way his extra-constitutional response to the so-called Cuban Missile Crisis was valorized and set the stage for what counted as presidential "leadership" thereafter. What is distinctive about Trump is his manifest incapacity to serve as a true leader.
I also agree that we don't need to talk about constitutional reform in order to address the idiotic length of our political campaigns. Perhaps there's some (very limited) justification re the presidency, given the magnitude of the office and the need to figures without national name recognition to introduce themselves across the country. But this does not at all justify the length of campaigns for down-ballot races. I do presume, though, that it would primarily be incumbents who would support shortening the period of the campaigns, and that could be a problem. What we are really seeing is the collapse of any kind of disciplined party system and the ever-greater emphasis placed on individualized political entrepeneurship, which favors people with a lot of time on their hands and the ability to raise money for their own campaigns.
Sandy, do you realize that, right out of the starting gate, you drive off half your potential support by making this about how awful you think Trump is? Even if you genuinely think he's some sort of obscene mashup of Stalin and Nero, it's poor tactics when about half the population don't agree. And doubling down on the extremity of the terms you use to describe him doesn't help the situation: You need arguments that work without people thinking Trump is awful, and you need to deliver them without reference to how awful you think Trump is.
You can't shorten the primaries by statute. The reason you can't do this, is because the primaries are not, properly speaking, a governmental activity. The parties are private organizations, and the primaries are part of how these private organizations make some of their internal decisions. They may have abused their leverage over the legal system in many, (But not all!) states, to offload this private expense on the taxpayers, but they're still private activities, as can be seen in the states where they still use the caucus system. There's nothing stopping a party from pulling this activity back inside, and deciding arbitrarily far in advance of an election who their candidates will be. Any law holding the contrary is unlikely to survive constitutional scrutiny. Nor can you prevent individuals from deciding, arbitrarily far in advance of elections, that they are going to run for an office, and start campaigning. Campaigning is entirely a 1st amendment protected activity. If you really want to downscale campaigns, there is only one way to do it: Downscale the power of government. You can't raise the stakes this high, and expect people to not do everything they can to win.
I agree the season is too long, but I'm not sure what could be done about this structurally (I'd be interested to hear what other countries have done to get shorter seasons if that's the case as mentioned in the OP). And while I agree the focus on Iowa and NH is outsized it could be worse, at least these states tend to be battle ground/competitive ones in November so they serve as decent 'belle weather' states.
"Who do you think is more likely to win election in November - the man who routinely draws 40,000+ audiences waiting for hours in freezing weather"
Remember partisan incoherent Bircher Bart guaranteed a Romney victory over the guy who pulled these kinds of audiences. "or the dementia afflicted old man who has trouble drawing a couple hundred?" This is certainly going to be the GOP's talking points, that Biden is old and 'losing it.' That a Party whose standard bearer is Donald Trump, a regularly semi-literate person who can't string together a complete sentence, much less sentences, and tells 'lies' (probably just can't remember what he said yesterday) all the time is going with this shows these people really are the least self aware people in the universe. "The closest we've come to the classical pretension of a Nuremberg Rally was Obama's 2008 DNC speech with the greek temple backdrop." Columns are not the defining feature of fascist rallies, fascism is. And before Bircher Bart shed whatever iota of intellectual and moral decency he may have had to fall in line behind the current GOP President he said many times that Trump's campaigning was fascist. Of course he's either forgotten that or dishonestly wants us to (maybe he's suffering from dementia?). Partisan incoherent.
"And doubling down on the extremity of the terms you use to describe him doesn't help the situation"
This is coming from a guy who regularly refers to those who disagree with him about, say, constitutional interpretation as 'bank robbers' or worse. These are the least self-aware people in the world. "The reason you can't do this, is because the primaries are not, properly speaking, a governmental activity. " Iirc SCOTUS long ago ruled that the primaries are not just private activity. I mean, one can see that in that state officials conduct them and state laws apply to them (laws about what you can bring into or near a polling place and such).
I will say this: I think Iowa might be toast, at least for the Democrats, after the debacle this year. And with more big states moving their primaries up Iowa and NH were less consequential this year (Bernie won them and then got wiped out soon after, momentum quickly switched to Biden).
One thing about the primary system I've always thought curious is how it awards so much on states that each Party has little change of winning in November. The Democrats are not going to win SC anytime soon but it plays a major role in selecting the President. In fact, the Democrats nationally are going to do poorly in almost the entire South, why they allow so many delegates from a place they're not very competitive astonishes me. Likewise, I remember when Trump dealt Cruz a decisive blow by winning NY, it seemed crazy for the GOP to let NY be so decisive.
"I'd be interested to hear what other countries have done to get shorter seasons if that's the case as mentioned in the OP."
They get them by a combination of two things: Substantially less freedom of speech/press than the US, and/or a system where elections can be called by the government without much warning.
"Iirc SCOTUS long ago ruled that the primaries are not just private activity. I mean, one can see that in that state officials conduct them and state laws apply to them (laws about what you can bring into or near a polling place and such)."
Since the major parties offloaded this expense to the government, primaries are not entirely private activities. But they are certainly not entirely governmental, either. Indeed, they're hardly governmental at all, except for the fact the government is running them. Setting aside that, if the two major parties decided tomorrow that they didn't want the government running their candidate selection process for them, the government would, being run by those parties, change the rules; What's to stop a party from holding a pre-'primary' primary, so that by the time the government's primary occurs, the outcome is already decided?
Mr. W:
Fascist rallies do not require greek columns, but the Nuremberg rally featured grandiose classical themes by design. Watch the rally portions of Triumph of the Will. FWIW, I am not making any predictions concerning this election yet because I have never seen anything like this scenario in American history. With Trump, we have the first non-politician POTUS running for reelection, who is loathed by about 40% of the electorate. With Biden, whether you admit it or not, we have a Democrat establishment pol who is significantly and publicly afflicted with dementia. The man often loses track of where he is and what he was just speaking about, then freaks out when flustered by others. His campaign is limiting his speaking engagements by design. Finally, we have a government induced panic treating a severe Chinese cold as the second coming of the Black Death. While the Democrats and their media are doing their best to blame Trump, the Donald is fending off this political attack by taking charge of the panic mongering. We are living in interesting times.
"That a Party whose standard bearer is Donald Trump, a regularly semi-literate person who can't string together a complete sentence, much less sentences, and tells 'lies' (probably just can't remember what he said yesterday) all the time is going with this shows these people really are the least self aware people in the universe."
I don't think this shows "lack of self-awareness". I think rational observers know that Trump is stupid, ignorant, and suffering from various other issues including, probably dementia (though drug use is possible too). I think that the tactic of accusing Biden of the very things Trump himself is guilty of is a deliberate tactic. "One thing about the primary system I've always thought curious is how it awards so much on states that each Party has little change of winning in November. The Democrats are not going to win SC anytime soon but it plays a major role in selecting the President. In fact, the Democrats nationally are going to do poorly in almost the entire South, why they allow so many delegates from a place they're not very competitive astonishes me." The Dems do adjust the number of delegates from each state according to how that state voted in the last election. SC just has a lot more people than IA or NH, so the delegate total seemed large relative to them. I don't think either party can afford to ignore the states which they aren't likely to win. In the short run that might be ok, but in the long run they need to be competitive in many states (if not all). Holding presidential primaries in such states is one way to keep their supporters energized.
"I don't think this shows "lack of self-awareness". I think rational observers know that Trump is stupid, ignorant, and suffering from various other issues including, probably dementia (though drug use is possible too)."
It's a serious mistake to assume that people who disagree with you publicly about something privately agree, and are just pretending to disagree out of some ulterior motive. People can genuinely disagree about things, not just agree with you and lie about it. At Trump's age, he is to some extent mentally compromised. Nobody gets to that age without their thought processes slowing, their memory becoming less reliable. I've seen this in myself, and it's very disturbing. But this isn't he same thing as "dementia". As the neurologists like to say, it's one thing to forget where you put your car keys, it's another thing to forget what car keys are. A lot of the senior moments Biden is exhibiting are of the latter sort, and I would call it elder abuse that his family have apparently not tried to persuade him to retire before he further embarrasses himself. But, as the decline progresses, where you are relates to where you started from. And anybody who claims that Trump is stupid, is self-identifying as the sort of ideologue who lets their ideology get in the way of perceiving reality. Stupid people don't become billionaires, don't get elected President. Period, end of story.
The fact people who overestimate their own intelligence routinely underestimate and denigrate the intelligence of those who defeat them is a constant source of amazement to me.
Is this a form of mental disorder?
I really don't know what was so notable about Obama's rallies. This isn't about me "loving" Obama or something either. I don't think there was something notable about McCain's rallies or George Bush's rallies etc. Trump's rallies are at least somewhat different, especially his habit of having them so much beyond the normal campaign season. I'm not going to re-litigate that though here for purpose of time.
Since the major parties offloaded this expense to the government, primaries are not entirely private activities. But they are certainly not entirely governmental, either. Indeed, they're hardly governmental at all, except for the fact the government is running them. This was covered in the past too. This is a confused summary of history. I was by chance perusing Earl Warren's autobiography and he noted he supported the primary system there since it gave people more of a chance to run without reliance on special interests/party favorites. "Major parties" didn't just "offload" the expense etc. A major part of the history here is that there was a popular supported movement where the people was given more power to choose their leaders, especially where otherwise you could have party insiders basically install the people who govern us. It is somewhat ridiculous to think it is "hardly governmental" to pick candidates for government office. And, since the government sets primary dates, that is but one means for the government to alter the process. South Carolina The South at the moment is a region where the Democrats are weak in way of presidential candidates, at least under the electoral college approach, but it is still a major region of the country, including population. This is especially the case in respect to a major group in the party -- African Americans. And, that was a major reason Biden did so well there. Sanders in 2016 and 2020 failed to get support of major groups in the Democratic coalition, and South Carolina is a test of one. Mark covers that ground more, but just to toss that in.
People can genuinely disagree about things, not just agree with you and lie about it.
Yes. But, you keep on doing it. You repeatedly put out the argument that people know they are wrong on the facts but are lying about it since they just want the power to do things. It is one big conspiracy. People can disagree. They can be wrong fairly. And anybody who claims that Trump is stupid, is self-identifying as the sort of ideologue who lets their ideology get in the way of perceiving reality. Stupid people don't become billionaires, don't get elected President. Period, end of story. People who are stupid very well have gone far in this world. They can be smart and talented in certain ways. It doesn't mean they are talented at being the Chief Executive of the United States. This isn't hard. It really isn't. You can be talented at certain things and still be stupid at other things. The founder of Walmart, e.g., didn't need to know a range of things like science or whatnot. You can be talented in certain areas. Being President is a special skill-set, more so than being elected to it, especially being elected in our current environment of partisan division where even when (a historical rarity) numerous members of the person's party in the Congress said they wouldn't even vote for the person who won.
"especially his habit of having them so much beyond the normal campaign season."
It's an effort to get the Republican base energized in a year when they don't have the same primary contest the Democrats have to accomplish it. And, doubtless, (This being Trump.) to embarrass the Democrats by demonstrating that he can pull bigger crowds than they can. I agree, it's perfectly reasonable for the Democratic party to care about their voters in regions they don't dominate. The Democratic party is already too focused on what people in left-wing urban centers want, giving states like S.C. that influence helps to moderate the party's tendency to just focus on doing better and better in an ever smaller portion of the country. And the GOP could do with more effort to contest areas the Democrats dominate, too.
"People who are stupid very well have gone far in this world. They can be smart and talented in certain ways."
It really sounds to me like you're using "stupid" to mean something other than lacking in intelligence, then. I will agree with you that getting elected, and governing, are different skill sets, and terrifyingly disjoint.
"With Biden, whether you admit it or not, we have a Democrat establishment pol who is significantly and publicly afflicted with dementia. The man often loses track of where he is and what he was just speaking about, then freaks out when flustered by others."
Again, these are either the least self-aware people in the universe or the most dishonest. Trump is famous for his meandering, strange, incoherent rants of incomplete sentences. This is the guy who regularly does things like confuse Kansas with Missouri, Concord NH with Concord Massachusetts, Birthday Wishes with New Year's Resolutions, etc. Google 'Trump word salad' or 'Trump incoherent' and you'll get pages of doozies. The amazing thing is that all these are on record, writing and/or video. They're readily accessible. And so the chutzpah of his supporters choosing to attack Biden in this area is either incredible, amazing, brazen lack of self-awareness or the same level of dishonesty. Of course, our Birchers here have a record of saying foolish things on record and that never prompts them to any self-awareness or honest caution, so it is what it is I guess.
"a deliberate tactic."
Sort of like addressing W's comparably poor service record with smearing Kerry's? Yes, I wouldn't put that past people. But you would think they'd have to know they are inviting people to pull up the very easy to find and myriad examples of Trump exhibiting the kind of behavior that has so many people talking about actually invoking the 25th Amendment. This is someone rolling a boulder in a glass house.
"At Trump's age, he is to some extent mentally compromised....But this isn't he same thing as "dementia"...A lot of the senior moments Biden is exhibiting are of the latter sort"
This is actually the tell that Mark is correct. One thing Bircher Brett is so infamous for here is his brazen, extreme and either astonishingly unaware and/or willfully deceptive use of double standards when evaluating Republicans vs. Democrats. This is a guy who bemoaned the 'demonization' and 'criminalization' of political opponents but ignored his party's mantra of 'lock her up' and actually backed Trump's attempted political hit on the Bidens. This is a guy who, though he conceded there was no proven guilt of wrong doing on Biden's part re Burisma, was upset that the Senate didn't censure him while at the same time arguing that the only way to see Trump as guilty was if you had it in for the guy. There are many other examples. This is not a serious man. This is partisan incoherent.
Oh, I can craft reasons why, but Trump is using rallies differently. I say that w/o judging them. But, they are novel. OTOH, as I said, don't think Obama used them much differently than anyone else. So, singling him out is off to me.
I'm using "stupid" as the term is usually used. Since this often comes up, I'll just quote the definition of a commonly used word that causes problems: "having or showing a great lack of intelligence or common sense" A person who lacks intelligence as a whole, and especially someone who lacks common sense, can be "stupid." People say "don't be stupid" regularly to people smart in certain respects. Again, just saying that as a general principle. But, I guess, there is some common ground in the replies.
Here's two variants on a single silly argument.
"Stupid people don't become billionaires, don't get elected President." "The fact people who overestimate their own intelligence routinely underestimate and denigrate the intelligence of those who defeat them is a constant source of amazement to me." This is incredibly silly. I mean, look how silly it would look in another aspect. Brittany Spears was once a multi-millionaire singer with the number one song in the land several times. Would anyone argue that made her intelligent? No, she was *popular* and there's no reason to think that one must be intelligent to be popular. Similarly for being rich. One can become rich by being an heir, by being the widow(er) of a rich person, for example. Surely these are not signs of intelligence. The Presidency is, of course, to some extent, a popularity contest ('who would you rather have a beer with...). The smartest man doesn't win the Presidency all the time (indeed, they shouldn't I'd argue). The reasons why people question Trump's intelligence are obvious, and only the most partisan dishonest or lacking in self awareness can/do not grasp how these signal to many people that he's not intelligent in the traditional sense. His speech is often meandering, barely coherent, full of factually incorrect statements and incomplete sentences. His tweets are similar. He famously doesn't read much and he has little academic accomplishments of note. Now, can a person be intelligent and yet send these signals? Sure, of course. But it's entirely *reasonable* for someone to see these signals as a sign of lacking in that area. For those to say those people are unreasonably partisan, well, it says much more about how unreasonably partisan they are....
Mark and Joe,
I get the idea you can't ignore the states you don't traditionally do well in. I mean, you never know, there's a Democratic governor in Louisiana (iirc) and a Democratic senator in Alabama of all places (and, on the flip side, a Republican governor in Maryland). But isn't it concerning when you get someone who can win the primary primarily (unfortunate word choice) largely because they win the primaries in states where they will probably have little to no chance of winning in the general?
It's a serious mistake to assume that people who disagree with you publicly about something privately agree, and are just pretending to disagree out of some ulterior motive.
A mistake you make frequently. Why is it that so many scientists think climate change is a serious problem? In your opinion they know it's not, but keep saying it anyway, to get grants. Other examples abound. A frequent characteristic of your comments is to claim that those you disagree with not operating in good faith, but have secret nefarious motives. Stupid people don't become billionaires How smart do you have to be to be a Walton heir? And how do we know Trump is a billionaire? Because he says so? Show us the numbers.
Of a list of the 15 richest persons in the US, five of them became rich by inheritance or divorce.
https://en.wikipedia.org/wiki/List_of_Americans_by_net_worth How smart they must have been to have chosen the correct woman to be born to or the right man to marry!
byomtov and joe make good points about Bircher Brett's hypocrisy. For him to finger wag about others reading bad motives behind the facial motives the others offer up is a graviational black hole calling a kettle black.
These are not serious men. These are partisan incoherents.
"How smart do you have to be to be a Walton heir?
And how do we know Trump is a billionaire? Because he says so? Show us the numbers." You don't have to be particularly smart to inherit money. You do have to be fairly smart to have more of it decades later, while actively managing it yourself. And don't take my word for Trump being a billionaire. Take Forbes'. Seriously, why is it important to deny that Trump is a billionaire? Only to justify denying he's pretty smart. But, why the insistence on denying he's pretty smart? You can be pretty smart and be a bad President, or a bad person. It's just a result of the pathological need to believe that people you oppose have no virtues. It's not enough to disagree with them, or think them bad. You have to think they're poor, ugly, stupid, and have BO, too. This is an intellectual vice. Fight it, don't embrace it.
You need to be smart, or have people available to do it for you, in a certain way. And, even then, Trump had issues managing his money over and above various others.
Then, back to the well, challenging disagreement .. "pathological need" etc. The thing about challenging just what he says he has is about is that there is good evidence there was problems with his assertions there. And, it is part of a wider whole of his b.s.
Seriously, why is it important to deny that Trump is a billionaire? Only to justify denying he's pretty smart.
There you go again. Do you even read your own comments. Besides, I don't deny that Trump is a billionaire, I just want to see evidence for the claim. We do know that Trump has lied about his wealth, as he does about everything, both for publicity and for tax evasion, so without seeing some actual facts - like those tax returns he promised repeatedly to release - I don't accept it as true. If you were hiring a CEO would you accept an applicant's claim to business genius, or would you insist on examining the actual record? But, why the insistence on denying he's pretty smart? You can be pretty smart and be a bad President, or a bad person. Because he strikes me as not very smart. He is incoherent, can't seem to tell the truth about anything, and has done nothing that indicates, to me, great intelligence. His business career is based on his inherited wealth, and features a cascade of bankruptcies and lawsuits. That he has earned probably less return on that inheritance than if he had put the money in an index fund doesn't make him smart. That he successfully bullshitted some banks doesn't make him smart. On top of which, I think he's stupid because I think the policies he pushes are stupid. It's just a result of the pathological need to believe that people you oppose have no virtues. It's not enough to disagree with them, or think them bad. You have to think they're poor, ugly, stupid, and have BO, too. I don't think he's poor, and have no idea whether he has BO. But here you are, again, claiming my opinions are held in bad faith, based on some pathology, not actual reasons.
I get the idea you can't ignore the states you don't traditionally do well in. I mean, you never know, there's a Democratic governor in Louisiana (iirc) and a Democratic senator in Alabama of all places (and, on the flip side, a Republican governor in Maryland).
It's not just that though there is some success in Southern states these days among Democrats. Louisiana and North Carolina have Democratic governors. You have Democrats in major roles in those states too and even something like not having supermajority control matters. But isn't it concerning when you get someone who can win the primary primarily (unfortunate word choice) largely because they win the primaries in states where they will probably have little to no chance of winning in the general? I don't know how "largely" works in practice. Biden's turning point was South Carolina and the key issue there is African-American voters. Sanders in particular has a problem there. And, you need high support from them to win in November. Plus, it's like winning the Republican nomination without support of evangelicals -- it's a big part of the coalition even if it is a minority of the whole electorate. It was a major test but he still won other places, especially in a place like Michigan. In 2016, Clinton lost that by a thin 52/48. She padded her lead with votes from those states she wouldn't win in November, but the types of voters involved were quite important to her winning all the same. If she did badly in swing states as a whole, it would be more concerning. I can see factoring in November more when setting the campaign season. Iowa and NH are curious choices in part for that reason. Nevada is a reasonable option since in is a fairly diverse purple state. South Carolina as noted is importance for African Americans. Using Michigan or some Midwestern swing state among the top four etc. is a reasonable idea.
BD: "With Biden, whether you admit it or not, we have a Democrat establishment pol who is significantly and publicly afflicted with dementia. The man often loses track of where he is and what he was just speaking about, then freaks out when flustered by others."
Mr. W: Again, these are either the least self-aware people in the universe or the most dishonest. Trump is famous for his meandering, strange, incoherent rants of incomplete sentences. Forget self awareness. Do you live in the real world? Regular people conducting extemporaneous conversations constantly meander and utilize sentence fragments. Trump speaking like a regular person from Queens rather than a pol or a bureaucrat is not evidence of dementia. On the other hand, forgetting where you are and what you are speaking about in mid-sentence is evidence of dementia. The Presidency is, of course, to some extent, a popularity contest ('who would you rather have a beer with...). The smartest man doesn't win the Presidency all the time (indeed, they shouldn't I'd argue). Popularity to the extreme of cults of personality generally win elections. See Obama and Trump for two recent examples. That being said, truly stupid people cannot successfully navigate a year-plus long POTUS campaign.
"Sort of like addressing W's comparably poor service record with smearing Kerry's?"
Exactly. On the issue of primaries, Joe's response says it very well.
"Trump speaking like a regular person from Queens rather than a pol or a bureaucrat is not evidence of dementia."
Ah, Mark is correct. Even the Birchers know the guy is 'off' but they have the talking points of why their guy being 'off' is ok but the other guy being off is so very serious... These are not serious men. These are partisan incoherents.
https://washingtonmonthly.com/2017/07/20/trumps-incoherence-on-display-in-new-york-times-interview/
https://www.theguardian.com/sport/2020/feb/02/trump-kansas-city-missouri-super-bowl-tweet https://people.com/politics/trump-confuses-new-years-resolutions-with-birthday-wishes-says-he-wont-say-his-out-loud/
https://www.cnn.com/2020/02/11/politics/donald-trump-concord-new-hampshire-massachusetts/index.html
https://www.cnn.com/2019/12/23/politics/donald-trump-windmills-turning-point/index.html https://thehill.com/homenews/administration/475701-trump-rails-against-windmills-i-never-understood-wind
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. 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Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |