Convictions: Slate's blog on legal issues

Judge Bait

David, you ask whether Obama or Clinton will reply to McCain's attack on those beloved bugaboos, activist judges, and, if so, what they should say. I agree, Doug, that throwing the "activist" insult back at Alito and Roberts, as Howard Dean did, is lame. Based on the Obama and Clinton campaigns' responses to my own efforts to report on the candidates' views on appointing judges, and Charlie Savage's, I'd say that each of them if nominated will come up with a decent response. Many of the moving parts are there: concern about executive overreaching, Guantanamo, police power run amok, employee rights, women's rights, the promise of equal protection, a general sense that courts should at times be a refuge for the disadvantaged. What I fear is that the Democratic candidate won't figure out how to make the composition of the courts a rallying cry in the way that McCain is already doing. Republicans are just mostly better at this. Their voters get what's at stake. I'm not sure what it would take for Obama or Clinton to get the same kind of purchase. Thoughts?

In the Philadelphia debate last month, I liked the substance of Obama's answer about the D.C. guns case: He likened the relationship between gun regulation and the right to bear arms in the Second Amendment to zoning ordinances and the protection against takings in the Fifth Amendment—in other words, you can have a constitutional right, and the state can also set reasonable limits on that right. I was annoyed, though, that both he and Clinton made a point of not taking a position on the merits of the case. They said they hadn't read the briefs. Please. Whoever is nominated had better figure out a good response to the court's ruling on the D.C. gun ban when it comes down in June. Because whatever the ruling, it has the potential to make trouble for the Democratic candidate and to make hay for McCain.

polling and race

A new poll that shows that 16 percent of Pennsylvania white voters who were asked whether “the race of candidate was important” said yes—80 percent saidno.   Of those who answered “yes” 54 percent said they’d support Obama in the general election—27 percent said they’d defect to McCain and 16percent said they’d stay home on election day and polish their guns, cuddle up with their bibles and nurse their bitterness. 

The New York Times says that this means “Obama’s race could be a problem in the general election.”  First reaction: a hearty “no duh”.   Butlet’s also unpack those poll results and ask what they really tell us.    Of course his race will repel, well, racist voters, of which no one doubts there are some.  But before we conclude that 16 percent of Pennsylvania whites are racists, notice that of the 16 percent who said race mattered, 54 would support Obama, which suggests that for some Obama’s race is a plus.  But what about those that won’t support him—about 7 percent?  All racists? Isn’t it at least possible that some won’t support him despite, rather than because of his race?

I tried this thought experiment: if asked whether the sex of the candidate is important, I would answer “yes” because I think all things being equal it would be great to have a woman President.  But sex is not enough to convince me to support Clinton over Obama—I support Obama despite his sex and because of his other virtues.  Truth be told, alot of people I know-- including a lot of feminists--are pretty sick of Hillary Clinton, Bill Clinton, even Chelsea, who, unlike her parents really hasn’t done anything to deserve their contempt, and they'd probably have it in for Socks the cat too if he turned up on TV.   Now I suppose some of them mightwell answer a poll: yes I think sex is important (I’d love to have a woman President--just not Hillary Clinton)---and no if Hillary is the nominee, by gum I’ll vote for McCain, or Ralph Nader, or stay home on election day and cuddle up with a cold martini and my warm, fuzzy Northern Californian sense of superiority.  And the Times would take that answer as evidence of voter sexism.  I imagine some Clinton supporters are beginning to feel equally irritated with Obama as this nasty campaign drags on.  So maybe a lot this polling data is evidence of the costs of a protracted fight for the nomination, rather than inveterate racism on the part of voters.  

Another piece of potentially misleading poll data: Clinton supporters are much more likely to defect to McCain or stay home if Obama is the nominee than Obama supporters are to defect or stay home if Clinton wins.  Isn’t is possible that this result is skewed by the fact that Clinton is losing and Obama looks like the inevitable nominee?  If my candidate is poised to win, I can afford to be magnanimous: “of course Hillary Clinton is a fine candidate and if she were to win (but of course she won’t) I’d support her energetically.”  But if my person is losing, I might start to get a tiny bit, well, bitter.  And maybe I’d even say things like “if that old school, politics-as-usual beltway insider steals the nomination in a brokered convention with her insider connections and underhanded politics—well, I’ll be dammed if I vote for her!  I’d rather have Attila the Hun (or JohnMcCain) than continue the corrupt Clinton dynasty!”  You haven’t heard alot of this because Obama is the presumptive nominee, but post-Pennsylvania you’re already hearing rumblings of defections to the Green party among Obama supporters should Clinton get the nomination.