Though Cowards Flinch

“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.”

So said Judge John Roberts, Jr., at the opening statement of his confirmation hearings to be Chief Justice of the United States.  Judges Alito and Sotomayor folowed this metaphor, Sotomayor in particular, during her confirmation hearings.

As I said in an earlier post, this idea of Judges as umpires, while idealistic, is wrong.  In Major League Baseball (my apologies non-Americans) the Umpires calls balls and strikes.  I cannot think of a single time, ever, having watched hundreds of baseball games, of any pitch ever, where I would say, “If only Umpire so-and-so were here, he would make a different call.”  In fact, I do not even know the name of a single MLB Umpire.

However, I do know the names of many Judges.  And it is frankly, laughable to suggest that Judges are as neutral as Umpires.  If they were, it certainly would not matter at all who we appoint, right?  We could just pick the name of a lawyer (or even a non-lawyer!) out of a hat, because they’re all the same, no?

Would the same Umpire Justice, who in 1973, dissented in the case Forman v George, which overturned the death penalty statues of the Federal Government and every State who had them, wrote, “The Court evidently [is] persuaded that somehow the passage of time has taken us to a place of greater maturity and outlook. The argument, plausible and high-sounding as it may be, is not persuasive,” (my bold) later, write, also as Umpire Justice in 1994 Callins v James, dissented from the denial to hear a death penalty case, “From this day forward, I no longer shall tinker with the machinery of death”?

Well there, that seems to be the very same Umpire, saying two different things, with the only thing that changed was time, not the Constitution.

While it’s a very romantic and a very appealing idea that judicial decisions are rendered mechanically, they’re not.  We should choose our Judges based on their legal philosophies, and they are different, and they matter, and we should acknowledge that.

As the drama of Judge Sotomayor’s Senate Judiciary Committee hearings draw to a close, with the confident anticipation of just about everyone (including Republican Senators) of a speedy floor vote, the question on a SCOTUS (Supreme Court of the United States) watcher’s mind should be: “Who’s next?”

Dave asked me in the comments of my last post who I would have rather seen nominated, and/or how to escape from the legal formalism of the “umpire” model of judicial decision-making in the public mind.

Before one can begin to answer those questions, I think we need to step back and observe the big picture of the Federal Judiciary and the Supreme Court, in order to determine who could be nominated.

The Court

President Obama will most likely get at least one more Supreme Court appointment, even if he only lasts until January of 2013.  While Justice Stevens, the most senior Justice on the Court has shown no signs of slowing or any inclination to step down, the man will be 93 in three years.  Should Justice Stevens continue to serve beyond the terminus of Obama’s first term, he would soon tie Justice William O’Douglass as the longest service Justice in history.  As I said in my previous post, if Obama wins another term, by 2016, Justice Stevens will be 96, Scalia will be 80, Kennedy 80, Ginsburg 83, and Breyer 77.

Justice Stevens will be 93 in 2013

The Next Justice

“From whence do Supreme Court Justices come?” should be our next question.  Every Justice after O’Connor has been a member of the Federal Judiciary prior to being appointed to the Court, and indeed, Judge Sotomayor served on the Second Circuit Court of Appeals for years, so President Obama did not buck the trend.  More on the Circuit Courts later.

Besides the Federal Judiciary, it’s well known that Obama is friendly with certain law professors, having been one himself, such as Professor Cass Sunstein at Harvard, who Obama has already appointed to a White House position within the OMB (Office of Management and Budget).  Having been a Professor, perhaps Obama will not be averse to appointing one.  Obama is also friendly with former Clinton DOJ Civil Rights Division head Deval Patrick, now the Governor of Massachusetts.  Given that His Excellency (yes, we still call the Governor that in the Commonwealth) is not too well-liked in Massachusetts these days, it seems that Patrick’s political career might be over, unless Obama saves him with an appointment.  For Sotomayor’s slot, names such as Jennifer Granholm (Governor of Michigan) were also suggested, and she may well remain on a short list.

I’m putting my bets on another Federal Judge.  They have an exhaustive paper trail, a proven track record, and already went through the confirmation once before, which is always a plus.  And that takes us too…

The Circuit Courts take appeals from different geographic areas

The Circuit Courts of Appeals

Let’s play a bit of a numbers game, shall we?

There are thirteen Circuit Courts of Appeals in the United States, eleven that take appeals from the States, one for the District of Columbia and one that takes appeals from certain specialized Federal Courts like the Tax Trade and Trade Courts.  There are 179 Judgeships on the Courts of Appeals, with 18 of those vacant.  As Eric Haren’s article on law.com rightly pointed out, Republican appointees have an 88-61 advantage (that’s counting active judges, incidentally) over Democratic appointees on the Circuit Courts.  That’s not to say Obama could not pick a Republican; Sotomayor was, after all, appointed to her District Judgeship by President George H. W. Bush (though appointed to the 2nd Circuit by Bill Clinton, if you’re keeping score), but in all likelihood, it will be a Judge appointed by a Democrat.

The Republican advantage over Democratic appointees makes sense.  Democrats have only held the Presidency for 12 years out of the last 40, and for 6 of Clinton’s 8 years, had a hostile Republican Senate beginning with 52 seats in 1994, expanding to 53 in 1996, to 55 in 1998.

Again, playing the numbers game, by my count, there are 58 non-senior-status sitting Circuit Judges who were Clinton appointees.  I’m discounting the 7 remaining Carter appointees as most likely being too old to be considered for a SCOTUS slot, and taking it as a given that none of LBJ’s remaining appointees with senior status would be appointed either.  Of Clinton’s remaining, non-senior status appointees, only 13 (by my count, again) are under 60 right now.  None are under 50 (for pretty obvious reasons).

So it seems to me that if Obama has to appoint another Justice of the Supreme Court, and that it wasn’t going to be in the next year or two, it will not be from a currently sitting Circuit Court Judge, but from someone whom he appoints to one of the 18 present vacancies (and most likely more vacancies to come as Judges resign, assume senior status, etc., etc.).

So, for the avid Court watchers out there, after the Sotomayor fervor settles down, let’s watch and see who Obama nominates to the Circuit Courts.

p.s. I know I didn’t answer your question, Dave, but that’s for another post -j

The ritual that is the modern Senate Judiciary Committee confirmation having come to a close, it appears all but certain that Sonia Maria Sotomayor will be the next Associate Justice of the United States Supreme Court. With every Justice appointed to the bench, there are both long term and short term victories and goals to consider. So, who fulfilled theirs?

Obama – President Obama, as he appears to have structured his goals (and that’s important) definitely won.  What were his goals?  It seems very clear that Mr. Obama’s goals are to pass his healthcare legislation.  All other matters, even Supreme Court nominees are secondary.  His pick of Sotomayor, who appears to be in line with his moderate, pragmatic constitutional views, is doubly a better choice for him because of her ease of confirmation.  Avoiding what could be a protracted Senate battle early in his term, when he wants to pass healthcare bill, he gets a Justice with a quick confirmation, and hopefully little distraction from healthcare.

By the standards President Obama has set, he won on both counts.

The Democratic Party

I think the Democratic Party’s legal goals are a little more long-term than Obama’s (yes, yes, healthcare is a long-term goal), in that the Democratic Party has struggled to find a clear and articulate voice for its legal ideology/method/whatever. Scalia’s originalism and his wry quips appeal more popularly than the more bookish Justices who have tried to come up with a similar legal viewpoint (I’m thinking of you, Justice Breyer’s Active Liberty). 

And although originalism has perhaps morphed to “original understanding” from “original intent of the Founders,” it has bred a vibrant ideological base in the Federalist society.

From Chief Justice Roberts’s and Justice Alito’s confirmation hearings, much of the Democratic Party appears to have embraced this “umpire” model of judicial decision-making — the umpire calls balls and strikes.  While idealistic, it’s clearly at best an inapt metaphor.  Perhaps a better metaphor would be it’s like having a couple hundred umpires, who watch tens of thousands of pitches a year, where three of them watch a pitch at the same time, and instead of calling “ball” or “strike” write dozens of pages of decisions, concurrences and dissents, a few decisions of which are then reviewed by a larger panel of umpires, who similarly write, or perhaps are directly reviewed by a panel of nine umpires, who get the final say. And that’s not even getting involved in District Courts or State systems (I could see having fun with the metaphor of baseball played 50 different odd ways, where it’s all “baseball” in the end, but with slightly different rules, but I digress).

Baseball would be a lot more fun that way.

From the beginning of legal realism in the early part of the 20th century, many political scientists and legal scholars alike have recognized that something other than legal formalism guides judicial decision-making.  Democrats had the opportunity, as has been pointed out fantastically by Dahlia Lithwick, to articulate a coherent legal theory.  They didn’t.  And many of them accepted this idealistic formalism of Chief Justice Roberts.

If the goal of the Democrats was to nominate a William Brennan, Jr. or a Thurgood Marshall, and reject the “umpire” theory of legal formalism, then they failed.  If their goal was as Obama’s, to nominate a moderate and get healthcare legislation passed, then they won.

The Republican Party

The Republican Party got a lot from this round, but they may have lost the next battle.

As much as this was a battle over Sotomayor, it was far more a battle over the next Supreme Court nominee.   Obama may get another nominee during his present Presidential term, with Justice Stevens at 89.  If he gets another term, by 2016, Justice Stevens will be 96, Scalia will be 80, Kennedy 80, Ginsburg 83, and Breyer 77.

Republicans won the battle of how to frame a nominee, as Sotomayor characterized the act of rendering a judicial decision with the same formalism of Chief Justice Roberts.

But having won, most of them look like they’re going to vote against her.  It’s a poor political tactic.  Obama nominated a moderate, who followed Roberts’s “umpire” understanding of judicial decision-making.  By voting against Judge Sotomayor, Senate Republicans are handing the President a powerful weapon — by voting against a moderate, Obama can say, with justification, that Senate republicans will vote against anyone he nominates.  Next time around, if Obama chose to spend some more political capital and nominated someone who appeared less moderate, and Republicans kicked up a stink, Obama could state that Republicans would vote against anyone, and that this Judge was no less moderate than Sotomayor, presuming that that nominee kow-towed to the “umpire” style of decision-making during confirmation hearings.  Now if that Judge expounded on their political beliefs a la Bork (okay, maybe not a la Bork, but more than Sotomayor did), it could be a different story.

Now, many Republicans have said they support Judge Sotomayor, think she is an able jurist, etc., etc., even though they are voting against her, so it’s not a terribly potent weapon they are handing Obama, but it is a weapon.  And for those Senators who hope to win elections in constituencies with large Hispanic populations (I’m looking at you, Senators Kyl (R-Arizona) and Cornyn (R-Texas)), their vote is going to hurt them, no matter how many supportive things they say.

Justice Souter

Justice Souter, appointed by President George H. W. Bush in 1990 has announced his intention to retire from the Supreme Court.

This story has been getting a whole lot of coverage by the American media, but the effect of a replacement by Obama most likely will have few, if any, implications for the law.  Though Souter is classified as a “liberal” by pundits, he is not a liberal lion of the mold of the Justice he replaced, William Brennan, Jr., but he is to the left on many cases.

For Obama, it’s still a momentous occasion.  The political capital required to appoint a Supreme Court Justice will be considerable.

The History of Justice Souter and Republican Appointments

The history of the Republican Party’s Supreme Court nominees is quite fascinating, and Justice Souter in particular even more so.  Since Roe v. Wade came down in 1973, the religious right wing of the Republican Party coalesced and eventually took control of much of the Party around the issue of overturning the decision. Their goal was obvious: to appoint Supreme Court Justices who were “pro-life” (or anti-choice, depending on your political inclination).  Prior appointees did not fall down Party lines over Roe v Wade; Justice Blackmun, a recent Ford appointee penned the decision, while Justice White, a Kennedy appointee wrote the lead dissent.

The next Justice appointed after Roe v Wade was Justice Stevens, who appeared to be a reliable vote, though he came from the still-alive liberal Northern wing of the Republican Party, a Chicago native, like our current President Obama.

While Carter had no appointees to the High Court, and the religious right had not truly coalesced by the time of Steven’s appointment, the first signs of how important an issue abortion would be come was clear by the time Ronald Reagan began making his first appointmetns.  Reagan’s appointees, in order, were O’Coonor, Scallia and Kennedy, all vetted and assured to be of the correct political persuasions regarding this key issue.  O’Connor, interestingly, had known and dated then William Rehnquist while they were at Stanford Law.

Souter was famously mugged once while jogging in Washington, DC; the assailant did not know who he was

Souter was appointed by George H. W. Bush.  He was a generally unknown political outsider, having served as Attorney General of New Hampshire, on New Hampshire’s Supreme Court, and briefly as a Judge on the First Circuit Court of Appeals.  John H. Sununu (father of John E. Sununu, former New Hampshire Senator), former Governor of New Hampshire and then Chief of Staff to George H. W. Bush reportedly assured Bush that Souter was “right” on abortion.

As Souter’s appointment easily sailed through, all expectations seemed to be true.  He voted reliably conservatively, until Planned Parenthood v. Casey.

Planned Parenthood v. Casey was looked forward to with relish by the pro-life movement in the United States.  By 1992, every piece of the puzzle appeared to be in place.  Every Justice had been appointed by a Republican, except Justice White, who had penned the dissent in Roe and thus could be counted on.

The case was a defeat.  Justice O’Connor, Kennedy and Souter wrote a joint plurality, which became binding upholding the central tenants of Roe v. Wade, though discarding the trimester system in favor of the “undue burden” standard.  It later came out that Souter had actually personally penned much of the opinion.

From then on began Souter’s swing towards the left, no longer a reliable conservative vote, and hated by the pro-life forces that had helped to bring him to the Court.  As future Justices were appointed, the slogan “No More Souters,” became a rallying cry for the right.

Souter was always a peculiar fellow though, eschewing technology.  He was famously given a television on his appointment to the First Circuit Court of Appeals in 1990, having never had one, by John. H. Sununu, only to use it as a paper weight, never plugging it in.  He is also well known for hating Washington, frequently retreating to his home in New Hampshire.

Souter, for the Republican Party, represents not only the support of Roe v. Wade for his opinion in Casey, but also the failure of their party, consistently, to identify and secure the appointment of Judges who share their ideologies over the course of their careers.

Obama’s Potential Appointees

Who will President Obama appoint?  SCOTUSBlog writer, and Akin Gump lawyer Tom Goldstein has written several posts on potential appointees, which can be found here, here and here.

First, a word on Obama himself.  He is a lawyer, and specifically taught Constitutional Law at the University of Chicago.  Armed with that knowledge, he most likely is going to be playing a more active role in the appointment of Souter’s replacement than other past Presidents with less legal experience. But given the present distractions of the economy and the other obvious of duties of being President, he might not have as much time to spend on this as he would like.

Now, conventional wisdom, whatever that means exactly, states that Obama is going to be appointing someone young, most likely a woman, and probably already a Judge.  All the present Supreme Court Justices were Judges, rather than politicians, as was frequently in the past.

Some names that have been thrown out there are Elena Kagan (former Dean of Harvard Law and now Obama’s Solicitor General) , Sonia Sotomayor (Judge, 2nd Circuit), Diane Wood (Judge, 7th Circuit),  Deval Patrick (Governor, Massachusetts), Jennifer Granholm (Governor, Michigan), Kim Wardlaw (Judge, 9th Circuit), as well as many others.

The trait that runs through all these picks, as well as Obama himself, is a moderate and pragmatic liberalism.  These Judges will not be Bill Brennans, or Thurgood Marshalls, but more Souters, more Stevens’s, more Breyer’s.  The present liberal wing of the Supreme Court resembles a moderate wing of Warren Court, and there have been no Warren Court liberals appointed since the end of the Warren Court, and it is unlikely that Obama will buck the trend.

To make an appointment to the Supreme Court, the President will announce an appointee, who will then have to go through the Senate Judiciary Commitee and then a full Senate vote. Though there’s been much talk of it, I think a fillibuster on any qualified candidate is highly unlikely.  Firstly, the vote is unlikely to occur before the beginning of the summer.  By that time, Al Franken will most likely have been seated, and with Sen. Arlen Specter (former Republican Chairman of the Judiciary Committee) having switched his affiliation from Republicn to Democrat, the Democrats will have 60 votes in the Senate.  If the Republicans attempt to fillibuster, it will be tricky, though not impossible for Obama to muster all 60 Democratic votes for cloture, but he will most likely be able to pick up a few pro-choice Republican Senators who would be hard-pressed to fillibuster an otherwise qualified pro-choice candidate.

If history is any judge, Republicans will not fillibuster such a candidate.  Republicans had 57 votes in 1994, and did not fillibuster Stephen Breyer’s appointment.  Similarly, Ginsburg, by that same Congress, was overwhelming confirmed without fillibuster.

At the end of the day, Souter will most likely be replaced with a younger, and female Judge with very similar judicial inclinations.

Well, apparently House Judiciary Cmte. Chairman Conyers has subpoenaed Karl Rove.

Can someone say “deja vu all over again?”

Don’t we remember that the Senate tried this already? Don’t we remember that the U.S. Senate Judiciary Cmte. found him in contempt of Congress? Don’t we recall that the U.S. Attorney for the District of Columbia, from orders from the Attorney General refused to prosecute him for contempt of Congress? Don’t we remember that Congressman Wexler recommended Congress use its inherent contempt powers?

Why are we going through this process again when it is clear that no office of the Executive Branch is going to aid Congress in shedding light on any number of the scandals Rove has been involved in? Although this subpoena is ostensibly for different purpose, to discuss Rove’s role in the prosecution of former Governor Siegelman (D-AL), when the first was just for Rove’s role generally in the US Attorney scandal, why does the House think that it will get any different results than the Senate Judiciary Committee? What needs to be done is that the inherent contempt powers of Congress need to be utilized: the House needs to try Rove for contempt and lock him up until the end of the session.

I’m not a fan of Keith Olberman, or much of the American television media, but just take a look at this. Olberman rails against Bush, who said that in tribute to the death and sacrifices of American troops, he gave up golf.

Hurray for our Commander-in-Chief!

In some brief American news, when you blatantly violate basic legal ethics, tear up the Constitution, and generally represent a Cabinet Office in the worst way possible, you’re not going to get another good gig.

An April 13 NY Times article reports that former Attorney General Alberto Gonzales is having a hard time finding a new job, having been unable to get hired by several law firms he has put out feelers towards. Surprise! Guantánamo, the U.S. Attorney scandal, warantless wire-tapping, the list goes on and on.

What’s particularly amazing about this, as the NY Times correctly reports, is that having, “Attorney General, United States,” on your resume is generally good enough to get you in, well, anywhere. Not for Gonzales.

The Bleeding Heart Show recently blogged about the Democratic Party’s netroots and how it could possibly be applied to the Labour Party.

I don’t know if it could work, but there is a single significant thing missing from the Bleeding Heart Show’s analysis that I want to address, and that’s the lack of Democratic Party grassroots. I don’t think it necessarily changes their conclusion, but it needs to be talked about to understand the larger picture.

In the aftermath of Watergate, the Republican Party radically reinvented itself in many ways. A lot of its reinventions are pretty familiar to all but the most casual follower of politics: the Evangelical Right got involved, the South’s incorporation into the Party was completed, but one thing frequently is overlooked, and that was the massive build-up of the Republican Party at the most local and State levels.

The Republican Party built up the grassroots in the 1970′s at local levels: City Council people, State Treasurers, etc., etc., on bread-and-butter issues, like busing, school issues, prayer, and issues that mattered to people at a local level.

The Democratic Party did not do that, and has not done that until the past several years.

While the Republican Party was building up its grassroots, the Democratic Party crumbled. With the collapse of the Clintonian Consensus on how to win elections (triangulation), in 2000, in 2004, and with the demonstration of an alternative model in 2006, the Democratic Party leadership, which was mainly Clintonian, doesn’t have a base.

Enter the netroots. With a Democratic Party from 1992-2006 that didn’t cater to the “Democratic” position on issues (remember, triangulation was to find the traditional Democratic position, the center, and go in the middle of them), true believers of traditional Democratic positions and values had no where to go, until the Internet. With the Internet, the netroots was born, and the bottled up grassroots of the Democratic Party found an outlet.

Results

For the Republican Party, the result of their choice to encourage local and State buildup was huge electoral success from 1980 to the present, dominating State and local governments, State legislatures, Congress (from 1994 to 2006) and the Presidency. The young, local candidates they nurtured in the 1970′s are now mature candidates who run for national positions. Moreover, these guys owe quite a bit to the national Party that nurtured them.

For the Democratic Party, you have a massive fundraising apparatus that is out of the control of the Party, which is particularly fascinating and in contrast to the Republican Party. The netroots has incredible fundraising capabilities, and we’ve seen it do incredible things that the Party could never do.

The clearest example of that are Democratic Primaries (no, not the Presidential ones). The Democratic Party, at a local, State, and National level does not take an official position on primaries. For instance, if the two people are running in a Democratic Primary for a Senate seat, the Party doesn’t endorse one over the other, or fundraise for one over the other. But with the netroots, we see people-powered candidates like Ned Lamont win a Democratic Primary against a sitting Senator, using the fundraising power of the netroots. Similarly, we see candidates like Jim Webb be propelled into the U.S. Senate on the backs of netroots Democrats.

This helps to explain why the Republican netroots isn’t developed. If I’m a Republican activist, there are strong State and local party organizations I can get involved in. There’s no need to snipe at the national Party from the sidelines on my blog: I can go out and shape my party from the ground up, and so they do.

Howard Dean’s 50 State Strategy, widely recognized as an attempt to reproduce what the Republican Party did in the 1970′s, will, I think, weaken the netroots. If there’s a competent local and State party apparatus that people can get involved in, won’t they want to join up, rather than comment from the blog sidelines? Perhaps they will, perhaps they won’t. If the strategy is successful, a lot of the netroots might migrate into local and State party apparatuses, but then again, you might not be able to put the genie back into the bottle.

There is a long history of anti-intellectualism in America. It’s so deep-seated that we often forget that it’s even there until we are jarringly woken up by a particularly egregious example. The other day, I was woken up by Jon Stewart on The Daily Show on its April 14th broadcast. Stewart was railing against the media commentary of Senator Barack Obama’s latest “gaffe” in a closed fundraiser, in San Francisco where he described certain rural Pennsylvannia voters thusly:

And it’s not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.

Now, the media commentary about Obama has been about how he’s “elitist,” how he represents the “latte-drinking” progressive Democrats, or how he’s “out of touch with the common man.”

This is certainly nothing new in America. We’re pretty upfront about it: we want our Presidents to look just as stupid as we. Beginning with our post-war Presidents, we wanted our Commander-in-Chief to look like a regular, not-too-bright guy. Everyone always poked fun at “Ike,” because he seemed pretty simple. After all, he was in the military, and everyone knows that Generals aren’t too book-smart, right? In fact, the general consensus until the past few decades was that Eisenhower, particularly on foreign policy, left it all to his Secretary of State, John Foster Dulles. Dulles was credit with all of the Eisenhower Administration’s successful foreign policy.

Modern historians (such as Richard Immerman), with access to more National Security Council documents, and other declassified documents, paint a very different picture of a very intelligent man who ably commanded foreign policy and other domestic spheres. In fact, Eisenhower was appointed Supreme Allied Commander not because he was a particularly brilliant general (although he was certainly capable), but because he was thought to be clever enough and political enough to deal with the British, the Free French, and eventually the Soviets. Of course, with anti-intellectualism in American politics, Eisenhower ably beat his two-time Presidential opponent of Adlai Stevenson, who popularized the anti-intellectual epithet “egghead” used against him by Vice-Presidential candidate Richard Nixon in 1952.

In 1960, the Democratic Party barely triumphs over anti-intellectualism in electing JFK over Richard Nixon. Nixon only lost by about one-hundred thousand votes.

Fast forward to 1964, and we get LBJ, frequently described as “earthy” and other similar terms to denote his departure from the “egghead” candidates that Democratic Party had previously run.

Move forward again, to Richard Nixon. Now, say what you will of Nixon, but he was a very smart guy. He didn’t have the Ivy League pedigree, because although he had been offered a full-ride scholarship to Harvard, he wasn’t able to go because he still had to work while he at school, to help support his family. Smart though he was, he was smarter still not to get caught up in being an “egghead.”

We see the pattern repeated over and over again to today: even George W. Bush, although his critics might try to call him stupid, I actually think is a pretty smart guy. After all, not that the Democrats haven’t helped him a lot, he’s managed to get what he’s wanted done — he invaded Iraq, Afghanistan, he passed his tax cut, and he signed a federal ban on D&X abortions (the so called “partial birth” abortion ban).

And now today, see Barack Obama attacked for being too intellectual, for being “out of touch” for being “elitist.” What I don’t understand, and I echo Jon Stewart’s comments, is, “Why doesn’t this country want a smart President?” I hope indeed, that the President of the United States of America is smarter than I am, has a more nuanced grasp of subtle policies, and has the vision to lead us in this twenty-first century. I generally have a pretty high opinion of the American public’s ability to understand political issues, but I certainly think that our politicians, who after all, live and breath these issues twenty-four hours a day, seven days a week, probably have thought a lot more about them than we have. Why do our Presidents have to pretend to be stupid to get elected?

We see Senator Hillary Clinton, trying to build off of this gaffe of Obama, pretending to be like the “common man.” She goes to Pennsylvania, drinks in a bar, talks about the cabin her grandfather built and shooting guns, etc., etc. But she’s a smart woman! She’s as educated as Obama, and she’s as educated as most of our politicians.

But maybe, in the end, she’s a lot smarter than Barack Obama, because she’s realized that to win elections in America, you can’t look like you’re smart, you have to cater to the anti-intellectual current in our society.

Props to the media.

I was speaking to a few friends of mine in a small discussion group the other day, and the topic of the media came up, and how they seem to cover every single word every candidate says. They said that this distorts the candidates’ messages, and forces them to spend far too much time thinking about every little word that might come out of their precious mouths for fear of it being twisted by the media (ok, they didn’t say precious).

I don’t have much tolerance for such an argument. It’s really pretty simple: if candidates were forthright about their political views, then their every word wouldn’t be covered. I’m no stranger for criticizing the American media, but I don’t blame them for parsing every word out of say, Rudy Giuliani’s mouth on abortion.

Let’s take a look at him, as an example. Some great websites, like ontheissues.org keep good track of candidates’ statements on a variety of issues. Let’s look at some of Rudy’s:

I’m pro-choice. I’m pro-gay rights,” Giuliani said. He was then asked whether he supports a ban on what critics call partial-birth abortions. “No, I have not supported that, and I don’t see my position on that changing,” he responded.

Q: Would the day that Roe v. Wade is repealed be a good day for America?

GIULIANI: It would be OK to repeal. It would be OK also if a strict constructionist judge viewed it as precedent and I think a judge has to make that decision.

Q: So it would be OK if they didn’t repeal it?

GIULIANI: I think the court has to make that decision and then the country can deal with it. We’re a federalist system of government and states can make their own decisions.

Rudy seems a bit confusing, no? You’re not the only one, so don’t worry. On the one hand, he’s fine with Roe v Wade being overturned, which, if you ask most pro-choicers, is tantamount to destroying a federal right to abortions. On the other hand, he has numerous statements on record saying he supports it, and he certainly supported it as Mayor of New York City.

Let’s take a look at a Democrat, shall we? We’re also looking at Hillary Clinton’s war record aren’t we? The media constantly looks at Clinton’s war record, because like Giuliani, she hasn’t been exactly clear about her views.

To begin, we know she voted for the war.

When asked about the vote in a Primary Debate, she said: “Clinton: Well, Brian, I take responsibility for my vote. Obviously, I did as good a job I could at the time. It was a sincere vote based on the information available to me. And I’ve said many times that, if I knew then what I now know, I would not have voted that way.”

Well, seems good, eh? She clarifies further however at the AFSCME Primary Debate when asked why her vote was not a mistake: “My vote was a sincere vote based on the facts and assurances that I had at the time. And I have taken responsibility for my vote, and I believe that none of us should get a free pass. It is up to the voters to judge what each of us has said and done.

When asked at the Dartmouth Primary, she responded:

MR. RUSSERT: Will you pledge that by January 2013, the end of your first term more than five years from now, there will be no U.S. troops in Iraq?

SEN. CLINTON: Well, Tim, it is my goal to have all troops out by the end of my first term. But I agree with Barack. It is very difficult to know what we’re going to be inheriting. You know, we do not know, walking into the White House in January 2009, what we’re going to find.

So, it seems pretty simple as to why the media covers every word out of these candidates’ mouths. There are a few explanations.

1. They don’t have an opinion on the issue. Maybe they’re just stupid and they’ve never really thought about this “abortion” issue or that pesky little war in Iraq? They issue conflicting opinions because they’ve just given the issues that much thought, eh?

2. Their views are so nuanced, so subtle and so brilliant that the American media unfairly twists and distorts their views on a variety of issues.

3. They’re lying. They express contradictory opinions in order to woo voters while hiding their true opinion.

So, which one do we think it is? That’s your decision.