Gerry Canavan

the smartest kid on earth

Posts Tagged ‘Bush v. Gore

Traditional Followup Linkpost Scenario Where I Do One The Next Day after Promising Myself I Won’t Let It Go a Whole Month Again This Time

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(Yesterday’s post here, including a bunch of “personal news” updates about recent projects. Get your library to buy The Cambridge History of Science Fiction!)

* Your Stan Lee obituaries. Excelsior. And a tiny little bit of inspiration for a guy whose 39th birthday is this week:

* One of the most important stories on the planet right now: As Brazil’s Far Right Leader Threatens the Amazon, One Tribe Pushes Back.

* When elections are no longer legitimate. The escalation in GOP conspiracy-mongering and the decision to have party leaders trumpet these theories directly, as opposed to relying on surrogates and propaganda outlets, is indeed very worrying. How fascism works.

  1. When electoral procedures lose popular legitimacy, it is nearly impossible to get that legitimacy back. Elections are one great way of building popular legitimacy, and if by assumption they no longer do, what will?
  2. Non-electoral sources of power are particularly dangerous when elections no longer legitimately empower politicians. It now falls to the very politicians who are involved in the recount to vouch for its legitimacy. The safest way to defend that legitimacy would be for the losing candidates to rebuke the President, directly and publicly. A public endorsement would be most meaningful if it were to come from, for example, DeSantis. Let us just ponder how likely that is.
  3. The downstream consequences from the loss of electoral legitimacy are nearly impossible to predict. I suspect that one consequence will be an ever-greater tolerance for executive malfeasance, on the logic that Congressional representatives and state governments lack democratic legitimacy.

* Luckily, Chuck Schumer is up to the challenge.

* Andrew Gillum appears in a documentary about Bush v. Gore, c. 2000.

* Grad school as conversion therapy.

U.S. Colleges See Drop in Foreign Students for Second Year Running.

“It’s annoying to just sit there staring at one screen for so long,” said freshman Mitchel Storman, 14, who spends close to five hours a day on Summit classes in algebra, biology, English, world history, and physics. “You have to teach yourself.”

Enough With All the Innovation.

* It has by the fall of 2018 become commonplace to describe the 499 known victims of Larry Nassar as “breaking their silence,” though in fact they were never, as a group, particularly silent. Over the course of at least 20 years of consistent abuse, women and girls reported to every proximate authority. They told their parents. They told gymnastics coaches, running coaches, softball coaches. They told Michigan State University police and Meridian Township police. They told physicians and psychologists. They told university administrators. They told, repeatedly, USA Gymnastics. They told one another. Athletes were interviewed, reports were written up, charges recommended. The story of Larry Nassar is not a story of silence. The story of Larry Nassar is that of an edifice of trust so resilient, so impermeable to common sense, that it endured for decades against the allegations of so many women. Amazing deep read on the Larry Nassar case and how he got away with his crimes for so long.

* The NRA told doctors to “stay in your lane” on guns. I’m a doctor. This is my lane.

What Happened When a Nation Erased Birthright Citizenship.

“It is almost like a punch in the gut. Like, wow, you’ve really gone this far to affect children? And it’s just like, have we sunk this low? That’s my feeling,” said the official, who could not speak on the record about the policy. Knife Salesman Very Sad About Stabbing.

Amazon’s HQ2 Spectacle Isn’t Just Shameful—It Should Be Illegal. Congrats to these hardscrabble communities who just caught a huge break.

* The poetry and brief life of a Foxconn worker: Xu Lizhi (1990-2014). And elsewhere on the Foxconn beat: How does Tony Evers affect Foxconn?

* Two hours from here: Baraboo school district condemns a photo showing a large group of students giving Nazi salute. Maybe the UW should rethink that whole history is over thing.

* California as the surface of the moon.

* Unsafe at any concentration.

* The law, in its majestic equality.

* Twilight of Harley Davidson.

* The Indus civilisation seems to have flourished for 700 years without armour, weapons, inequality or royalty. Here’s how to build a paradise on Earth.

* How AIs cheat.

* Thanks for waiting until after the election to tell anyone! Veterans haven’t received GI Bill benefits for months due to ongoing IT issues at VA. And please, make sure you update me on that horrible caravan of rapists and murderers that is heading towards our country, when you get a moment…

* And tonight, on the most dramatic Rose Ceremony of all time, we’ll finally find out who is the Attorney General.

Monday Night

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Friday Night!

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* Biocapital vs. cultural capital: Proceeds from The Immortal Life of Henrietta Lacks are going to a foundation dedicated to helping Lacks’ family, which has received none of the biotechnology profits derived from the HeLa stem cell line.

Reading ACA tea leaves at the Supreme Court. I think Scott mostly has this right; overturning the mandate would be an incorrect decision, I think, but a relatively inconsequential one; overturning ACA altogether would be radicalism on the level of Bush v. Gore, if not worse. I just don’t think Kennedy will do it.

* Nemesis watch: Questions for James Franco.

* Gynomite! has an interesting post about the dreams Emily experienced while she was in a medically induced coma several years ago.

* And Vizzini, socialist.

Politics Thursday

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* I’m shocked, shocked to find Mitt Romney caught being disingenuous about health care reform. Jonathan Chait has more lying liars on the constitutionality of the individual mandate, while Scott Lemieux explains another reason why even a radically activist Roberts court would be reluctant to declare the mandate unconstitutional:

But let’s say that Bush v. Gore vindicates the strongest form of legal realism and that we will soon see that Supreme Court justices are purely political actors. Would striking down the individual mandate ultimately advance conservative policy goals? Almost certainly not. On the one hand, it would be easy for Congress to get around the decision by simply structuring the tax differently and constitutionally, restoring the status quo. But what if Congress can’t? In some ways, this would be worse for conservatives — unless Congress was also willing to repeal very popular regulations (which even conservatives concede is a non-starter), the result will be the bankruptcy of insurance companies and a paved road to socialized insurance.

* Rachel Maddow had a pair of very striking pieces on right-wing incitements to violence last night.

* The health care reform reconciliation sidecar goes back to the House for technical reasons. It’s expected to be about a few hours delay. Incidentally, Steve Benen has issued marching orders on what we’re supposed to call the new program: ACA, the Affordable Care Act.

* The latest support for my theory that the GOP can’t hold its perma-No in the wake of Obama’s health care victory comes from Bob Corker (R-TN):

“This is so unlike the health care debate,” said Corker, noting that some of his Republican colleagues have made misjudgments on that point over the last month. “I don’t think people realize that this is an issue that almost every American wants to see passed. There’ll be a lot of pressure on every senator and every House member to pass financial regulation.”

* On the other hand, Republicans are apparently planning another Bunning-style freakout, this time starring Tom Coburn. In other Senate obstructionism news, the Republican objecting to any Senate committee business continuing past 2 PM was North Carolina’s own Richard Burr. Here’s still more on the breakdown of Senate procedure from Donkeylicious.

* How the Times‘ bias killed ACORN.

* And an amazing story from local alt-weekly Independent Weekly: N.C. eugenics survivors seek justice.

At 82 years old, Agnes is not sure she’ll live to see when or if the proposed compensation is paid. She appreciates the efforts being made in North Carolina to reconcile its eugenic past by acknowledging what she and thousands of others in our state went through. “It’s nice to know there are people out there that really care about your rights.”

Elaine, Agnes, Willis and Nial wonder why the American values of equal protection and individual liberty did not apply to them, and there are no simple answers to give them. They were caught within an ideological framework that said it’s acceptable to toss aside ethics and trample over the most basic of human rights if someone is perceived to not meet certain social expectations.

Now in her mid-50s, Elaine Riddick is one of the younger survivors of North Carolina’s eugenic sterilization program. From her apartment on the 32nd floor of an Atlanta skyrise, she has a beautiful view of the entire city. She says she has been able to obtain some measure of peace, which she attributes to her faith in God and finally letting go of the self-blame that she carried for years. Her adult son, Tony Riddick, whom she describes as “brilliant,” still lives in Winfall and owns his own computer electronics company.

Elaine has a loving boyfriend who, she says, takes good care of her and has a positive relationship with her son and siblings. Still, sometimes the cruelties from her past come back to haunt her. “Sometimes I think, what is happiness? Am I really happy? I don’t think I will ever be happy, because of what they took from me.”

Elaine was sterilized without her consent (or even knowledge) after giving birth to a child at age 14. She had been raped.

Fear the Court?

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TPM’s long “Is Health Care Reform Constitutional” post today says that Bush v. Gore and Citizens United aside the Roberts majority is unlikely to strike down any part of the health care bill.

Several respected conservative legal experts essentially agree that the court would have to radically break with past rulings to strike down the law. John McGinnis, a former Bush 41 administration Justice Department official and a past winner of an award from the Federalist Society, told TPMmuckraker that the court could rule in favor of the AGs only by taking a radical Originalist view of jurisprudence — one that all but ignores precedent. “I think the only person who shares [that view] is Justice Thomas.” said McGinnis, now a constitutional law scholar at Northwestern Law School. “It’s a very difficult argument to make under current precedent.”

Doug Kmiec, a former Reagan administration Justice Department official, and conservative legal scholar, echoes that view. “The idea that a regulatory requirement (whether to purchase insurance or to purchase a smoke alarm) violates the Constitution by exceeding the scope of the commerce power was rejected in the age when Robert Fulton’s steam ships were at the center of case controversy and the proposition has not gained validity with the passage into the 21st century,” Kmiec, now the Obama administration’s ambassador to Malta, told TPMmuckraker.

And Orin Kerr, a professor at George Washington Law School, who has served as a special counsel to Sen. John Cornyn (R-TX) and clerked for Justice Anthony Kennedy, likewise believes the bill is almost certain to pass muster. “I think it’s very very unlikely that the mandate would be struck down as unconstitutional,” Kerr told TPMmuckraker.

There’s another problem with the lawsuit. Many judges are often reluctant to hear a challenge to a law until it has actually gone into effect — what legal types call a “ripeness” issue. The individual mandate won’t go into effect until 2014 — by which time factors like the composition of the Supreme Court, and the underlying politics driving the lawsuit, may well have changed.

Esenberg and Balkin Play “Is Health Care Reform Constitutional?”

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It’s time again for everyone’s favorite game, “Is Health Care Reform Constitutional?” Today’s contestants are (from the right) Marquette University Law School visiting professor Richard Esenberg and (from the left) Jack Balkin of Yale Law School. Esenberg doesn’t like the bill but thinks it will most likely be upheld: “Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate.”

Balkin, for his part, has no doubt, forcefully rebutting some of the agnosticism in the Randy Barnett piece I linked earlier in the week:

The most likely constitutional challenge will be that the individual mandate to purchase health insurance is unconstitutional because it forces people to buy insurance. Barnett omits to mention in his op-ed that the mandate is actually structured as a tax: if you don’t buy insurance, you are assessed a tax for each month you fail to pay premiums. Barnett argues that individual mandate must be unconstitutional because the government can’t require people to do anything; however, the government can make you pay taxes. It does so every year. Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.

Balkin goes on to tackle that huge elephant in the room, Bush v. Gore:

Barnett is ambiguous about whether he is actually advocating a second Bush v. Gore or simply arguing that the five Republican Justices on the Supreme Court might be shameless enough to attempt a second version of Bush v. Gore. (It’s sort of like he is saying, “nice health care bill you’ve got there; it would be a shame if anything happened to it.”)

I assume that Barnett actually isn’t advocating it. Bush v. Gore was widely derided as a travesty of legal reasoning, and the Supreme Court has avoided citing it or mentioning it in its opinions since. Whether or not the individual Justices viewed their actions this way at the time, many people saw Bush v. Gore as five conservative Justices making implausible legal arguments to benefit the interests of a particular political party which they happened to favor. And not to put too fine a point on it, Bush v. Gore helped smooth the way to the Bush Presidency, the dissipation of the federal budget surplus, the war in Iraq, presidentially approved torture, the cratering of the economy, and enormous budget deficits through reckless overspending by the Bush Administration. Bush v. Gore was, in hindsight, not only deeply flawed judicial reasoning, but led to a disaster for the country. Bush v. Gore is an example of what the Supreme Court and federal judges shouldn’t do.

If opponents of the bill are reduced to wishing for a second Bush v. Gore, they, and not their opponents, have truly given up believing in American democracy.

UPDATE: In an e-mail to me, Barnett confirms that his reference to Bush v. Gore “was simply about predicting 5 votes.” He writes: “If the conservative justices are as lawless as accused, the bill’s supporters should worry. But if not, not. Which is it?”

Is Health Care Reform Constitutional?

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Last seen reminding state agencies how they can and should legally discriminate against homosexuals, Virginia Attorney General Ken Cuccinelli is already promising to file a legal challenge to tonight’s health care bill. This of course leads us to another exciting round of “Is Health Care Reform Constitutional?” Tonight’s contestant is Randy E. Barnett of Georgetown Law, writing in the Washington Post. Barnett appears much more agnostic on the specific legal questions involved than previous contestants like Erwin Chemerinsky, focusing instead on the aggressive radicality of the Roberts majority:

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

Of course I worry about this, because I think Roberts, Scalia, Alito, and Thomas would overturn health care in a heartbeat, on whatever spurious ground presented itself. But while I don’t always agree with him, I think Kennedy has integrity, and I don’t think he would go along with it. (Have to admit, though, I’ve never been more sad to have to say “no relation”…)

Select Links While I’m Away (Part 2)

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* You know your discipline is in crisis when a 28% drop in job listings in a single year is good news.

* Bullying in higher ed.

* If you want to know why your bracket’s already busted (Georgetown!), my friends at The March to Indy is the source.

* Democrats giddy with CBO score. More Americans getting behind health care reform. Democratic Health Care Skeptics Fall Into Line For Reform. Lynch: Obama Told Me He Might Try To Get Public Option Next Year. Reid: I’ll Try Again For A Public Option This Year.

* What’s not debatable is that this process highlighted — and worsened — the virtually complete powerlessness of the Left and progressives generally in Washington. If you were in Washington negotiating a bill, would you take seriously the threats of progressive House members in the future that they will withhold support for a Party-endorsed bill if their demands for improvements are not met? Of course not. No rational person would. More here.

* Will the Supreme Court strike down health care reform? Probably not.

Jon Chait, however, points to another reason to worry: “nobody who recalls Bush v. Gore could completely rule out five Republican justices deciding on a wildly activist ruling on a high-stakes political fight.” This is true insofar as it proves that it wouldn’t be fear of being logically inconsistent that makes it unlikely that Scalia and Kennedy would stay their hand.There is a big difference, though. Bush v. Gore was decided from a position of great political strength: the only two legislative bodies in a position to do anything about the ruling strongly supported the Court’s actions. In this case, however, the White House and very possibly at least one house of Congress will be controlled by people who would be infuriated by an adverse decision, and unlike with an election, Congress would still be in a position to retaliate if it returned to unified Democratic control. It would be shocking if the Supreme Court were to announce a major doctrinal innovation in those circumstances.

* Teabaggers still don’t know what they’re so angry about.

* What’s happening with cap and trade?

* Kuwait says peak oil by 2014.

* No one could have predicted that randomly taking FlashForward off the air for six months would go badly. I recall kind of liking the last aired episode, but haven’t really missed this show at all, and won’t be watching.

* Action Comics #1 to reclaim its top spot as most expensive comic book next week.

* How will Warner Brothers make money after Harry Potter’s over? A DC Comics superhero blockbuster every summer.

* If Dr. Horrible 2 is feature-length, I hope they do bring Penny back. I really don’t see a film working without her.

* The ten most important gay moments in comic book history.

* Zombie apocalypse survival flowchart.

* And the Iraq War is seven today. They grow up so fast…

Making History by Shaming SCOTUS? (TWICE UPDATED)

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A reader at TPM says so:

I know I’ve never seen anything like that happen in a SOTU and if anything like that has ever happened before in a SOTU or a joint session, I must have been hung over the day of the lecture in college. Even the fireside chat in which FDR unveiled his court packing scheme, as dripping with patrician condescension and barely concealed venom as it was, didn’t go second person and directly in their face the way Obama did tonight.

The Supremes are used to wafting into the House in their black robes, sitting dispassionately through the speech and wafting ethereally out again on a cloud of apolitical rectitude. It’s like they forget they’re there because they’re one of the three branches. And I truly don’t think it ever occured to them that crassly injecting themselves into the sordid partisan fray of what they like to call “the political branches” with that catastrophic decision would cause the President to treat them like people who’d injected themselves into the sordid partisan fray. (And why should they? After all, they got away with Bush v. Gore with barely a dent in their credibility). I even thought I detected a bit of “told you” coming from the four in the minority.

I think we saw a bit of history made tonight, and no one noticed except the Supremes themselves.

Obama seemed genuinely conflicted about this moment; if you compare his spoken remarks to the prepared text you’ll see he seemed to be softening his attack on the fly. I was remarking to someone over GChat earlier tonight that part of the problem with Obama seems to be, perhaps, his genuine respect for the separation of powers; beyond the mere politics of cover he seems to actually want Congress to do its own work in drafting legislation. It’s a problem, and hurting him badly, because Congressional Democrats have no brains. (A case study in how virtue becomes vice.)

But here, then, is one answer to that criticism, in its own way arguably a vice: Obama is also the politician who finally stopped pretending the five-justice majority that gave us Bush v. Gore and now Citizens United v. FEC is nonpartisan, apolitical, or “above the fray.” It’s been clear for years that this SCOTUS majority is every bit as activist as the “liberal judges” it decries. Indeed, with Citizens United, we see it’s probably more.

UPDATE: Media Matters, in response to a Drudge five-alarm whine over this, says it’s not that rare after all. Contra MM, the moment is somewhat singular. Citizens United was a specific decision, made just last week; Reagan’s criticism of decade-old Roe v. Wade and Bush’s complaints about anonymous activist judges don’t quite measure up.

UPDATE 2: Of course, many are pointing to Alito’s visible response to Obama as evidence of the criticism I make of the politicized contemporary Court above, as well noting that this too is a breach of protocol. Here’s Greenwald:

There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address. It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars. The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court’s credibility in this regard has — justifiably — declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more “liberal” Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” — all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John ‘balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.

Breaking News

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Written by gerrycanavan

December 5, 2008 at 10:02 pm

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Polls

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I’m seeing a lot of handwringing over the USAToday/Gallup poll that has McCain up 54%-44% over Obama, and I wanted to say just a little bit about it. First, it must be agreed that this is an ugly-looking poll. It makes me sick to see it. We should all be glad the election is 57 days away and not tomorrow.

But just keep in mind:

* it’s one poll;
* it’s a weekend poll, which are usually significantly less reliable;
* it’s a poll taken immediately following the convention, likely to be McCain’s high-water polling mark;
* it uses a “likely voter” screen, which means it alters the data according to a hypothesis about who Gallup thinks is likely to vote. These assumptions may undercount young voters and discount new registrations altogether—bad guesses, perhaps, in a year with a huge get-out-the-vote operation on the Dem side and in which it looks like young people might actually show up to vote for once;
* and it’s a national poll, which means the numbers don’t actually matter, at least not before a 5-4 Supreme Court decision abolishes the Electoral College (just this one time only) so whoever the Republican is can be president.

The raw numbers, the registered voter numbers, are a much more sanguine 50%-46%—and I’d guess that that’s about where the race stands after the GOP had a very good week of press and Obama has been absent from anything but lies and smears, give or take a margin of error. It’s higher than I’d hoped, but not worse than I’d feared.

The latest Rasmussen tracking poll has it at one point, the Gallup tracking at three.

Wait a few days, wait even until next week, to get a sense of where things stand post-convention-bumps. And ignore the polls altogether, if you can; all this poll means—all it could ever mean, even if the 54-44 number really does turn out to be an accurate snapshot of the race at this time—is that we still have a lot of work to do. So: let’s get to work.

UPDATE: Or wait just a few hours. CNN has the race dead even, 48-48.

LATE UPDATE: Lots of polls have come out since this one, and it looks more and more like an outlier

Written by gerrycanavan

September 8, 2008 at 2:40 pm

‘Get Over It’

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It looks like Antonin Scalia just figured out there’s only one thing he’ll be remembered for:

“I say nonsense,” Scalia responds to Stahl’s observation that people say the Supreme Court’s decision in Gore v. Bush was based on politics and not justice. “Get over it. It’s so old by now.

Sure, whatever, my illegal coup completely trashed American democracy—that’s so 2000. Via MeFi.

Written by gerrycanavan

April 26, 2008 at 4:01 pm

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Who Has the Moral Claim to the Democratic Nomination?

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The American Scene lays out the competing moral claims Clinton and Obama make on the Democratic nomination. I like this article because it acknowledges, as many similar articles do not, that the situation is not strictly black and white. The fact that Barack can’t get the job done in big states is troubling, the undemocratic nature of the caucuses and the failure of the delegate system to map directly onto the popular vote is problematic, and on and on. Obama clearly has the better of the argument as the winner under the rules, and accordingly he will be almost certainly be the nominee however long it takes to get there—but it costs me nothing to concede to the Clintons that, yes, the rules are not holy writ and they are not Objectively Fair and Just. They are merely the rules agreed-upon in advance by all parties involved.

My worry, going forward, is that Clinton can see the writing on the wall and will conclude that her only chance for the nomination is to turn her ship around and fly, guns blazing, at the DNC itself. Clinton’s last card is a big one, a kind of doomsday device—she can attack the delegate system and the rules themselves, claiming that various features of the primary have perverted the actual will of Democratic voters for reasons X, Y, and Z. From a procedural standpoint, this is nonsense, and from a partisan standpoint it is a total disaster, because if the delegate system is delegitimized in the eyes of Clinton supporters there’s no way to declare Obama the winner in a way they will accept and therefore no way to bring the party back together again afterwards. But it remains, nonetheless, a card she can play.

(As I wrote the other night, this total disaster scenario may even be a feature, not a bug; see possibility #3 in this comment thread.)

My point in writing all this is simply to acknowledge that, regardless of its relative lack of merit, Clinton will still have an argument that she should get the nomination over Obama even if she loses the race by every conceivable metric (as it appears she will)—and, worse, such an argument could actually take root in a party still smarting from the injustice of the 2000 election, with a press that is anxious to find some way for the Democrats to improbably let this gift-wrapped election roll, Buckneresque, right through their legs.

Obama supporters need to be ready to counter this.

Written by gerrycanavan

March 6, 2008 at 3:18 pm