Thursday, December 25, 2008

Merry Christmas

A Merry Christmas and Happy New Year to you and yours.  As a kind of Christmas present from me to you, I present a link I found (sorry, no embedding allowed) to part one of the 1951 film version of A Christmas Carol, starring the great British actor Alastair Sim as Scrooge.  It’s often considered to be the definitive film version, and if you don’t have time to re-read the Dickens story this holiday it’s a very enjoyable substitute.  See the link for further links to the other parts.

Wednesday, December 24, 2008

Eventually, the Media Will Fall Out of Love With Obama. Right?

Just saw this news headline while checking my e-mail:

Blagojevich questioning takes up Obama's time.

Yes, poor, poor Barack Obama, having to take time talk to federal investigators about a major corruption scandal involving (allegedly) the selling of his current Senate seat and perpetrated (allegedly) by the sitting Governor of his home state, who was also one of his closest political allies in the not-too-distant past, a (alleged) crook we now know has had recent contacts with the President-Elect’s would-be chief of staff.  Will there be no end to this vile harassment?

Friday, December 19, 2008

What I’m Doing (Instead of Posting Here)

As I mentioned in passing a while back, some friends (and soon to be employers) of mine are forming a new law firm, and I have the task of helping draw up the associated legal and practical paperwork (the operating agreement, articles of organization, office lease,  Firm policies and forms, etc.). This is all happening very quickly: we are hoping to start operations on the first Monday of the new year.  And we’ve all got a lot left to do for that to happen.

That’s all just another way of saying that posting will probably continue to be a bit sparse and unpredictable, at least for the next couple of weeks.  However, I don’t intend “sparse” and “unpredictable” to be euphemisms for “nonexistent”; there’s a lot of stuff I want to write and talk about, it’s just a matter of having the time to do so.  But I promise that I’ll do the best I can.

Thanks, once again, for your readership.





Update:  Ok, so now I realize that it wasn’t “in passing”; I wrote pretty much the exact same missive 11 days ago. Ah, well.

Tuesday, December 9, 2008

Congratulations, Illinois! Two in a Row!

The FBI arrested Illinois Gov. Rod Blagojevich and his chief of staff on a myriad of corruption allegations.  According to a 76-page affidavit the feds have wiretap transcripts of Blagojevich conspiring to sell the appointment to fill President-Elect Obama’s soon to be vacant Senate seat to the highest bidder.

Blagojevich’s predecessor, Republican George Ryan, is currently serving a six year sentence in federal prison for participating in a huge bribery scheme.

(Yes, yes, those charged are innocent until proven guilty. But if the feds really do have the wiretap evidence they swear they have and it doesn’t get suppressed in court [and suppression would probably be very unlikely, as the feds had to get a warrant and meet certain other strictures to do the wiretap at all], that’s pretty much it for Blago and friends.)

Update:  The Smoking Gun has an excerpt of the FBI affidavit up. Makes for fun reading.

Update/Correction: Ok, maybe “fun” was the wrong word. “Astonishing” is more like what I meant.

Monday, December 8, 2008


Dear Loyal Readers:

Sorry about the lack of promised updates in the last few days.  Some friends of mine have undertaken to start a new law firm (in which I will have a role) and are looking to get things setup and operations under way ASAP.  I have the tasks of drawing up a somewhat lengthy operating agreement, the Articles of Organization, and some important contract documents by the end of this work week.  I was preoccupied with that stuff over the weekend and will be for most of this week as well. I shall post here when time allows, and I’m dead set on publishing a podcast this Friday.  But I appreciate your indulgence as I crash on some very important professional matters.



Friday, December 5, 2008

No Podcast Tonight

Not sure I’d have enough interesting material to fill out an episode anyway, but I’m currently working on some stuff that needs to be done by tomorrow, and that stuff’s going to take me the remainder of the evening.  I think I shall wait until next Friday to throw out Episode 3 (a bi-weekly posting schedule might be wise as a permanent move anyway).

Check back here over the weekend, however: some good posts are in the hopper.

Thursday, December 4, 2008

To the Big Three: For God’s Sake, Just Agree to Bankruptcy Reorganization

General Motors, Ford, and Chrysler are plagued by three deeply rooted, difficult-to-address sources of woe:

1.  Nobody wants to buy their products.  It’s true that automakers all over the world have seen huge sales drops with the onset of the current downturn, but the demand story for Big Three products is far more troubling.  The companies have been hemorrhaging market share for decades (their failure to anticipate the recent trend toward smaller, more fuel-efficient cars is only the latest in a long series of serious missteps), and right now there are few signs that those declines will stop in the near future.

2.  Their Labor Costs Are Insane.  You know the statistics by now:  the bottom line is that the companies, on the whole, spend roughly $75 per worker per hour, while Toyota, Honda, etc. spend less than $50 for their (non-unionized) American workers.  According to the companies’ own numbers, the Big Three make medical, retirement, or other payments to almost 2 million Americans, while the companies now have fewer than 400,000 actual employees.  Recently the unions have finally agreed to major cutbacks and adjustments (not that the companies really pushed them much before this year), and more are on the way, but the full impact of those concessions won’t be felt for years.

3.  They’ve Got Way Too Many Top-Level Brands and Way, Way Too Many Dealerships.  Try this mental exercise: try to remember of all the names under which Toyota sells its vehicles in the U.S.

Now do GM.


For the latter you should have come up with Buick, Cadillac, Chevrolet, GMC, Hummer, Pontiac, Saab, and Saturn.

To reduce brand confusion, GM would like to get rid of some or most of these.  But it is effectively prevented from doing so by state laws that are in place to protect the interests of car dealerships.  (The recent elimination of the Oldsmobile brand alone took years to complete and cost GM about $2 billion.)  And while we’re on car dealerships, GM has far, far more associated with it than demand requires, hurting both GM (though various payments it has to make) and the dealers.

And that’s just GM.  


So what is to be done about these fundamental problems, which have made the difference for the Big Three between suffering-but-surviving (like Toyota, etc.) and the companies’ current verge-of-collapse status.  The most obvious option is Chapter 11 bankruptcy reorganization. Creditors would be kept at bay for a bit, those damaging union contracts that the companies so foolishly agreed to would essentially be junked, and state laws preventing the companies from fixing their brands and dealership structures would be overridden.  (Reorganization wouldn’t directly help the companies develop desirable products, but nothing but internal management change can do that.)  As with so many other companies in so many other industries, bankruptcy reorganization might offer the Big Three something of a fresh start.

And yet, as you know if you’ve kept up with the news, executives at GM, Ford, and Chrysler have been saying till they are blue in the face that bankruptcy is not an option.  Why?  In short, they contend that consumers wouldn’t be willing to buy cars from makers in bankruptcy protection.  Uncertain that warranties would be honored, parts would be available, etc., buyers would turn toward competitors, leaving recovery for the companies impossible and liquidation the only option.

But even conceding that bankruptcy reorganization is a bigger risk for an automaker than an ordinary company (which would be a concession on a hotly contested point), the obvious question is “What other choice do they have?”  GM says it may not last the year, Ford is in only very slightly better shape, and Chrysler is a cancer on the private equity firm that bought it.  What’s the alternative?

And that’s where the taxpayers come in.

The reason that auto executives continue to swear off the need for bankruptcy is because they still entertain the hope that Congress will rescue the companies from their self-made problems with tens of billions in public money.  No need to undertake the risks and indignities (and, let’s no forget, likely management shakeups) that would come with bankruptcy if Congress is willing to step in.  Of course, some of the needed fundamental changes that could get done through bankruptcy wouldn’t get done with a bailout, but that’s a problem that can be kicked down the road.  And if six months from now the companies need more money, why, Congress would surely be reluctant to see its previous investments go down the drain.

As long as the companies believe that Congress will pony up funds for them to stay solvent, they likely won’t make the painful changes that they need to make if they are to be viable in the long-term.

No one is saying that bankruptcy reorganization is without risk for the Big Three.  Moreover, it is true  (due in part to the still-damaged state of the credit markets) that even with reorganization some or all three of the companies would need a bridge loan of some size from the federal government to get through the first few months.  But with bankruptcy reorganization those federal funds might actually turn out to be a decent investment for taxpayers.  Without bankruptcy reorganization, we’d likely be hearing the same cries of distress from the Big Three again quite soon, and would face the choice of making them long-term wards of the federal government or forcing them to finally get serious about their problems after their problems had perhaps made the companies unrecoverable.

Washington must send a clear message to Detroit now:  No bankruptcy, no bailout.

Monday, December 1, 2008

The (Potential) Great Republican Hope Visits the Land of Subsidized Corn

The Washington Post had a good story yesterday on Gov. Bobby Jindal’s recent trip to Iowa.  Jindal said all the right things while he was there about a potential run in 2012, meaning that he denied that his trip was in anyway related to such considerations.  Few believed him.

Yes, like it or not 2012 is on.

Friday, November 28, 2008

LPMN Podcast Episode #2

It took some more technical doing than I had expected/hoped, but here is this week’s edition:



Among other topics, I discuss Obama’s decision to keep Robert Gates as Secretary of Defense, the ignominious end of the Hamdan terrorism case, and the return of famous/infamous  “Billion-Dollar Charlie” (Harvard prof. and lawyer Charles Nesson) to the national legal scene.

This podcast runs just about 20 minutes.

By the way, as I say in the podcast I am thinking of making Friday evening the regular posting time for this.  Leave any feedback on that, the content of the podcasts so far, or topics for future podcasts in the comments below.

Thursday, November 27, 2008

Wednesday, November 26, 2008

LMPN Podcast #2 – This Friday

I expect to have my second effort at a podcast up this Friday night, around 9pm or so.  It will be significantly less rambling more concise and better generally than my first attempt.


I’ve been caught up with some personal and professional stuff, which explains the relative dearth of recent substantive posts.  (Plus, it’s Thanksgiving week. C’mon.)  But have no fear, I’ll have some good stuff (including posts on the auto bailout controversy and November SCOTUS arguments) up within the next few days.

Monday, November 24, 2008

The Importance of Failures

In case you need a reminder (and really, in this bailout and subsidy-crazed time you shouldn’t) Victor Davis Hanson has one.

A Change in D.C. That We Can Believe in

How the Democratic chancellor of Washington D.C. schools is taking on the teachers’ unions to improve that outrageously awful school system.

Friday, November 21, 2008

Judge Orders Five Alleged “Enemy Combatants” Released

Yesterday United States District Judge Richard Leon (a George W. Bush appointee) ordered the release of five Algerians who were captured in Bosnia in 2001 and transferred to Guantanamo Bay.  Judge Leon concluded that the feds can continue to hold a sixth.   Among the detainees to be freed --if the Justice Department doesn’t successfully appeal-- is Lakhdar Boumediene.  (Yes, that Boumediene).

In 2005, Judge Leon ruled that the detainees were not entitled to habeas corpus rights, but with that judgment overturned by the Supreme Court he turned to the merits of their petitions.  The evidence the Justice Department brought against the five is classified, but Judge Leon was clearly not impressed: “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court's obligation,” he said.

Bosnia has agreed to take the five if they are released, but if Justice chooses to appeal it still could be years before that happens.

This, of course, is not the first defeat in terrorism cases the government has suffered in court:  In June the D.C. Circuit ordered (under the Detainee Treatment Act, not habeas) that a detainee be given a new military hearing or released, and in August a military jury at Gitmo essentially sentenced Salim Hamdan (yes, that Hamdan) to time served.  This is the first major defeat for the government under post-Boumediene habeas inquiry, however, and we can almost certainly expect more unless the new Obama administration radically changes policy on holding people the government doesn’t actually have any substantial evidence against.  


Correction: Corrected “last year” to “In 2005” in the second paragraph.

Thursday, November 20, 2008

Attorney General Mukasey Collapses While Speaking to Federalist Society National Lawyers Conference

Disturbing news.

Update:  Word is that he is conscious and alert at George Washington University Hospital, but no further info on the cause of his collapse.

Wednesday, November 19, 2008

Babes of the Right - 2009

Need a 2009 wall calendar?  Have a thing for right-wingers of the female persuasion?  The Clare Boothe Luce Policy Institute will hook you up:

Following in the tradition of past calendars from the Luce Policy Institute, Pretty in Mink celebrates smart, conservative women role models ... with flair.
We took some of your favorite leaders of today’s conservative movement on a journey back in time, and made them up into glamorous movie stars of classic Hollywood. Back when the big screen was a little more glamorous, women were a little more feminine, the men a little more charming—and the world a little less politically correct.

Here’s the list:

Miss January — Kellyanne Conway
Miss February — Star Parker
Miss March – Susan Phalen
Miss April – Nonie Darwish
Miss May – Mary Katharine Ham
Miss June – Michelle Malkin
Miss July – Amanda Carpenter
Miss August – Sandy Liddy Bourne
Miss September – Ann Coulter
Miss October – Kate Obenshain
Miss November – Miriam Grossman, M.D.
Miss December – Clare Boothe Luce

As the saying goes: if this is the kind of thing you’re into, you’ll be into this kind of thing.  One (a calendar, that is) can be yours for $25, or zilch if you’re a student.

I Guess I Could Unsubscribe From the Lists, But I’d Rather Just Gripe About It

From Nov. 5 (the day after the election) through today, I’ve received 12 e-mail messages from the Republican National Committee and the National Republican Senatorial Committee.  Nine of those have been fundraising e-mails, soliciting contributions for the Senate runoff race in Georgia and the recount fight in Minnesota.

Thank God they don’t have my phone number.

Tuesday, November 18, 2008

LMPN Podcast – Episode #1

At last.  It’s a good bit longer (27 minutes) and a good bit more rambling than I anticipated, but it’s decent enough for a first effort, and at this point of frustration that’s the standard.  I certainly expect that my future efforts will steadily evolve for the better, both regarding content and audio processing (sound clarity, sound effects, etc.).  But for a shakeout episode that I recorded in one run-through, this isn’t too bad:




PS: If you think you hear a couple of faint traffic noises in the background during the podcast, you’re right: that’s from some traffic outside my apartment.  Next time I’ll filter that out.

More Technical Difficulties

My recording software --the supposedly magnificent Audacity-- is causing my computer to choke again.  I’ve finally given up on it and am switching to another application.  I’ll try to record the podcast again tomorrow (ie. Tuesday, which is actually now today).  Again, no promises, but I’ll get this all worked out eventually.

Monday, November 17, 2008

Oh, By the Way

You may not have heard about it, but yesterday the Iraqi cabinet agreed to a compact with the U.S. that will see U.S. troops withdrawal from Iraqi cities by June 2009 and leave Iraq entirely by January 1, 2012.  Final approval of the measure by the Iraqi parliament looks virtually assured.

The Election Is Over, But Palin-Induced Foolishness Continues

Katherine Lopez at NRO (who pre-election compared Palin to the statesmen of ancient Greece) now argues that Time should name Sarah Palin Woman of the Year.  An excerpt:

Like the “change” from the Obama campaign slogan embraced by so many, Palin offered something different. For some it was an anti-Washington feel. Many consider her a refreshing citizen-politician in the old mold, one that Thomas Jefferson would be proud to meet. Does that make her just like Obama? I do wonder what the campaign would have been like had they both been at the helm: He wouldn’t have had a monopoly on change, and she would have had her own staff and freedom to follow her instincts, and perhaps better advice than she was given as she ran for vice president.

The really astonishing thing is that Lopez seems right about the views of her allies: many in the social conservative wing of the GOP apparently really do believe the sentiments above.

Sunday, November 16, 2008

We’re Having Technical Difficulties. Please Stand By.

Tried to record the podcast today for posting tonight, but had to spend a good chunk of the day messing around with some problems caused by my audio software.  I finally have everything working (I think), but I’m going to wait until tomorrow to churn out my initial effort (mostly because I’m just fed up with the software tonight).  But my initial effort will be up by tomorrow evening.  So check back.

Friday, November 14, 2008

First Podcast: This Sunday (Probably)

So I decided to give the podcast thing a go, at least once.  No commitments as to content or length; you’ll have to tune in to find out.  Should be up by about 8pm Sunday night.

A Provocative Link for a Friday Morning

Jonah Goldberg says that secular conservatives, economic conservatives, and libertarians should get off the case of social conservatives.  He writes, in part:

This is not to say that one can’t be a moderate on this issue or that and be a Republican. But the idea that social liberalism and economic conservatism can coexist easily is not well supported by the evidence. For example, in Congress and in state legislatures, the more pro-life you are, the more likely you are to be a free-market, low-tax conservative. The more pro-choice you are, the more likely it is that you will be remarkably generous with other people’s money.

Goldberg also argues that pushing social conservatives to moderate their views is self-defeating because“The religious right is much more likely to stop being ‘right’ than stop being religious.”

I think I’ll ruminate on this for a while, but my initial reaction is that Goldberg mistakes or misstates what we (and by “we” I mean all conservatives or quasi-libertarians who, whatever their views on the merits, don’t get out of bed in the morning politically mostly to fight on issues like abortion, gay marriage, and prayer in schools) generally want from hardcore social/religious conservatives.  We’re certainly not asking them to abandon their views, we’re asking them to realize they are in a political coalition that needs to win the votes of persuadable voters who have economically and fiscally conservative tendencies but may not agree with, say, teaching “intelligent design” in schools.  Put another way, we’re just asking them to tone it down a bit. 


Update: Inserted the link. Might be helpful.

Wednesday, November 12, 2008

Good to Know

Just checking the Post Office’s requirements and fees for various mail services and came across this:

12.2.4 Bees and Poultry

Unless sent at the First-Class Mail or Priority Mail prices, special handling is required for parcels containing honeybees or baby poultry. Under 601.9.3.7, only queen honeybees may be shipped by aircraft. Check with your local Post Office for mailability prior to mailing honeybees other than queen honeybees at First-Class Mail or Priority Mail prices.

So the next time you go to mail some honeybees, you’ll thank yourself for reading this blog.

But wait, does that mean that only queen honeybees and no other kinds of bees can be shipped by aircraft, or that queen honeybees can only be shipped by aircraft, not via regular transport?

I gots to know.  Off to read 601.9.3.7.


Update:  Looks like the former.

The LSAT + Grades Approach Is the Worst One for Screening Potential Law Students, Except for All the Others

Some profs. at UC Berkeley are studying junking the LSAT + grades (often combined mathematically to create an “index score”) formulation for law school admissions and replacing it with an alternative that would deemphasize cognitive abilities and put weight on behavioral traits and attitudes. Why?

Definitions of “merit” and “qualification” have become too narrow and static; they hamper legal education’s goal of producing diverse, talented and balanced generations of law graduates who will serve the many mandates and constituencies of the legal profession.

A thought:  I’ve never come across anyone --white, black, Hispanic, Asian, or other; male or female; young or old; straight or gay; poor, rich, or in between-- who wanted to be represented by a lawyer with less-than-stellar “qualifications,” and I’m pretty certain I never will.

Another thought:  Can there be any doubt that a new testing regime would highly value adherence to statist political beliefs (or in academic lingo "a strong commitment to social justice”)?

(Warning: Website at above link quite buggy, at least in IE8.)

(Hat tip: George Leef at Phi Beta Cons blog.)

WVU Authorities Suppress Distribution of New Conservative Newspaper

I’m angry that I haven’t heard about this before, but apparently West Virginia University officials are hindering distribution of a new conservative newspaper on campus. Staff members of The Mountaineer Jeffersonian, even after getting prior permission from the President’s office, were barred from distributing the paper without purchasing newspaper racks, a new and heretofore unenforced rule (the official student newspaper is distributed without racks in many, many spots on campus).  The newspaper has hired an attorney.

WVU has a history of trampling on the First Amendment rights of its students (for instance, until quite recently it had a policy limiting demonstrations on campus that was one of the most limiting in the country).  And, at least in the seven years I was there (2000-2007), WVU officials often further discriminated against political speech they didn’t agree with, meaning conservative/libertarian speech.

I was hoping things had improved. Apparently, they’ve worsened. 

Visit the website of The Mountaineer Jeffersonian here, and read the first issue of the paper here.

Monday, November 10, 2008

Second “Ugh” Inducing Moment of the Day

If this BBC fellow is to be believed, associating yourself with a picture of Joseph Stalin is apparently a hot new thing in the UK.

To Do or Not To Do (a Podcast, That Is)

For a while, I’ve had the idea of doing a weekly podcast for this blog.  For any unfamiliar with the term, a “podcast” is simply a radio show that’s posted to the net instead of, well, broadcast over the radio.  The podcast wouldn’t be live, but would be playable directly from this blog or downloadable to your favorite mp3 player or computer.  The content would come from the categories of “law,” “politics,” and “miscellaneous nonsense,” (duh) but would supplement, not duplicate, the written content here.  I think I would endeavor to generally keep the podcasts very short in length, say very rarely longer than ten minutes,  both because I don’t think I’d have time to spend prepping for a much longer show and because I don’t think anyone would want to listen to it.  I would probably do it on Sunday and post it Sunday night.

So what say you, dear readers?  Would you be interested in a weekly LPMN podcast that was usually about six or seven minutes long?  If so, would you (contra my tentative intention for it to have a general focus) like it to focus on any specific content areas in the law or politics?  Should it be shorter? Longer?  Should I drop the notion altogether?  Leave your feedback in the comments.

“Ugh” Inducing Moment of the Day

Asked what important conservative reforms Republicans can bring to the table as they attempt to rebuild their electoral appeal, rising conservative star Mike Pence apparently offered (wait for it, wait for it, wait for it…) upholding the “sanctity of marriage” as the most important element of the GOP’s new message.

Yes, because that’s all that’s been wrong with the GOP over the last few years: Republicans just haven’t hit social issues hard enough.

By the way, later this week I’ll have some of my own broad thoughts on what the GOP needs to do in the coming years to get back into victory lane in 2010 and 2012.

(By the way, I pretty much agree with Andrew Stuttaford’s commentary included at the link: in the short term the gay marriage political issue is generally a positive for politicians who oppose it, but it’s pretty clear that opponents are losing the long-term fight.)

Friday, November 7, 2008

Barack Obama Rode to Victory on a Massive, Unprecedented Surge of New Voters!

Or not.  Per CNN:

A new report from American University’s Center for the Study of the American Electorate concludes that voter turnout in Tuesday’s election was the same in percentage terms as it was four years ago — or at most has risen by less than 1 percent.


(Via Drudge.)

Thursday, November 6, 2008

Meet the New Politics. Same as the Old Politics.

Two developments today:

1.  Rahm Emanuel has accepted Barack Obama’s offer to become his Chief of Staff.  Emanuel has a well-deserved reputation as a skillful political player, and an even better-deserved reputation as an utterly ruthless political player.

2.  It appears that Senate Democrats will strip Joe Lieberman of his chairmanship of the Senate Homeland Security and Governmental Affairs Committee.  Lieberman, as you’ll recall, gave a primetime speech at the GOP convention endorsing John McCain.  He also stuck with the Dems after they tried and failed to defeat him for reelection in 2006, when a switch of his allegiances could have given control of the chamber to the GOP.  Of course, Harry Reid will no longer need Lieberman’s vote, and thus Lieberman will probably no longer have his chairmanship.

Will Obama intervene to persuade Senate Democrats not to go through with this retribution?

Don’t hold out too much hope.

Wednesday, November 5, 2008

Cali. Passes Constitutional Amendment Banning Gay Marriage

I’m sometimes surprised (though I probably shouldn’t be) by how much traction social conservative issues can get in solidly blue states and among traditionally blue demographics. For instance, last night California voters adopted an amendment to their state constitution defining marriage as a union between a man and a woman, in effect overturning that hugely controversial and shoddily reasoned ruling from the California Supreme Court earlier this year.  If the exit polls are correct (a big, big if), blacks and latinos provided the margin of victory for the measure, while a majority of whites voted against it.  The measure passed despite the fact that supporters were massively outspent in the closing days of the campaign by a consortium of heavy hitters like Google.

On the merits of such marriage provisions, I’m ambivalent: I like the fact that they check the illegitimate policy ambitions that certain courts try to conceal under the guise of interpreting constitutional provisions, but I think amendments that reserve the issue of the definition of marriage to state legislatures are preferable to outright constitutional bans.  (Indeed, as a policy matter I’d like to see governments gradually get out of the marriage business altogether, but that’s another post).  But the political success of such amendments across states with very different political dispositions shows the continuing appeal of some of those social wedge issues.

I Don’t Believe It. For All the Good Republicans Who Lost Last Night…

With 99 percent of precincts reporting in Alaska, Ted Stevens is ahead in his bit for reelection.

God damn it.

In other Senate news, it looks like Gordon Smith (R-Oregon) might just hang on, though 25 percent of the vote there has yet to be counted. And Norm Coleman has a 757 vote lead over Al Franken.

Come on Gordon and Norm, hold the line at 56.


Update:  Recount on in Minnesota. AP retracts their call for Coleman.


After I “projected” Dan Greear as the winner in the WV Attorney General contest last night, Darrell McGraw came back and won it.

Bad news for my WV vote analysis skills, much worse news for the people of West Virginia.

Tuesday, November 4, 2008

Live Blog of Election Night 2008

I’ve been meaning to give live-blogging a go for quite a while now, but haven’t really had a good opportunity to do it.  But it’s perfect for this election night. You should see a widget below from Cover it Livc (the gold standard of live-blogging services).  My coverage starts at 6:30pm.  If you’re not familiar with how live-blogging works I’ll be posting many, many short updates over the course of the night.  I’ll mostly post on the federal races, but I’ll look to the results from the few competitive West Virginia contests as well.  I think it will be fun to read; I’m sure it will be fun, and a bit challenging, to write.

By default, the widget makes an audio “click” when I post an update, and of course you can scroll to catch up on anything you missed. So don’t feel compelled to stare at your computer screen all night.  You know, instead of staring at your TV screen all night.  


No Leaked Exit Poll Data Yet, But Something Interesting From Colorado

Out in Colorado, it appears that more than half of registered voters voted before Election Day.  The results from those votes haven’t been released yet, of course, but the partisan breakdown of early voters has been:

Democrats: 33.44%

Republicans: 32.64%

Independents: 24.71%

Now, it’s possible that Republicans are overrepresented among early voters compared to all voters (though the conventional wisdom says pretty much the opposite). It’s also entirely possible that those party ID numbers will hold true for the entire Colorado electorate but Obama will win independents and take more GOP votes than McCain takes from Dems, giving Obama a decent margin of victory (say, at least three points).  But from this number taken alone it looks like things are setting up for a pretty close contest out there.  And, just maybe, if GOP’ers are underrepresented among early voters…

But I’m getting way, way ahead of myself.

Now where the hell are those exit poll numbers?

2:54pm Update:  Regarding the exit poll numbers and the usual sources that leak them, at this point it looks like no one has nothin’.

6:04pm Update: Gawker claims to have the first state-by-state exit poll data out there. Not worth too much, I’m sure, but if it’s worth anything at all it looks pretty decent for McCain, assuming GOP voters are indeed underrepresented in the numbers : PA Obama +4, VA Obama +2, NC McCain +2, FL Obama +1, OH Obama +1. (Hat tip: The Corner.)

Monday, November 3, 2008

An Election Day/Night Guide, and Predictions

All times Eastern:


Two things:

1.  If you haven’t already, vote.  (Personally, I prefer that spirit of engaging in a grand democratic tradition that you only really get on Election Day to early voting, but to each his own.)

2. Watch the exit polls, but don’t expect them to be terribly accurate.  Exit polling has undersampled Republican voters in recent elections --in 2004, the exits showed John Kerry performing 5.5 points better nationally than he actually did--  and the same will almost certainly be true again this time around.  Still, they’re something, and I’ll be periodically posting the numbers here as they leak to the net.  


Polls close in most of Indiana, and the first counting of votes cast on the day starts.  (CNN has a good interactive chart of poll closing times for all the states available here.)


Polls in Virginia and Georgia, the rest of Indiana, and most of Florida close. 


By this time we should have a decent chunk of the vote from Indiana in. If the race looks tight, it will probably signal a bad night for McCain nationally.  But if he’s up by at least five points or so, it could be the first piece of evidence that pre-election polls seriously underestimated his strength.

Polls in Ohio and North Carolina close.  As do polls in the Great State of West Virginia.


Should have a good sense of how Indiana will go at this point, and enough data (votes and exit poll numbers) from Virginia to reasonably guess how tight the race will be there.  If Obama is on track for a blowout nationally, we’ll probably get the first confirmation around this time with a call of Virginia for Obama, an Obama lead in Indiana, and a fairly tight race in Georgia.

Polls close in Missouri and Pennsylvania, in the rest of Florida, and in a number of other states.


We’ll likely know whether McCain has a plausible chance of winning at this point: he’ll need to have Indiana and Georgia in his column, be up in Virginia, and be up or very close in North Carolina, Ohio, and Florida.


If Obama’s going to win by more than 5 points or so, we’ll know.  See the above states (except PA, where the heavily Democratic Philadelphia area vote will  come in first and obscure the state of the contest there).

Polls close in Colorado and most of the rest of the middle part of the country.


If the race is still close, look for some very important calls between now and 10:00pm.

Bonus:  If the contest is tight in New Hampshire (last polls close at 8:00) that may or may not tell us a lot about the race nationally, but it will tell us that the pollsters screwed the pooch once again there this year (after Hillary’s shocking win in the Democratic primary).


Polls close in Nevada.


We should know or basically know whether McCain has won the in-play Eastern red states (IN, VA, NC) and swing states (OH, FL, MO) he needs.  If he has, he’ll still need to take either (1) PA or (2) both Colorado and Nevada.

(By the way, here’s CNN’s electoral map calculator.)




By midnight Obama turns Iowa, New Mexico, and Colorado blue, winning at least 273 electoral votes and the Presidency.  McCain holds IN, VA, NC, OH, FL, and MO, though mostly by quite slim (2-3 point) margins.  Nevada is extremely close, and remains too close to call into Wednesday.  Obama takes PA by about 4 points. Obama wins the national popular vote by a spread of about 3.5 points.

Other predictions:

- Sen. Norm Coleman holds off Al Franken in Minnesota.

- Dems fall short of capturing 60 seats in the Senate.

- McCain wins West Virginia by double digits.


Stay tuned for coverage throughout the day tomorrow, and frequent blogging tomorrow night.


[11/04 Update: Made a few cursory grammar, etc. corrections]

Sunday, November 2, 2008

Is There Reason for Hope?

Mason-Dixon released a new series of polls this weekend, with results from Pennsylvania, Ohio, Virginia, North Carolina, Florida, Missouri, Colorado, and Nevada.  The polls were conducted on Tuesday and Wednesday.  They show McCain ever so slightly ahead in Ohio and North Carolina, and within striking distance (ie. within the margin of error) in all the rest.

So if the race has tightened further over the last few days, and the McCain/RNC turnout machine can somehow match the Obama/DNC operation, and the undecideds break for McCain, and maybe there’s a Bradley effect of one or two points in a couple of the states… 

What? After all, this is the election where we’re supposed to believe in the power of hope, isn’t it?

(By the way, stay tuned for my electoral predictions and a concise guide to watching the election night results, both coming up tomorrow.)

For the McCain-Palin Ticket

It occurs to me that while I have posted a fair amount in the last few months about developments in the presidential contest  I haven’t actually written much about the merits of the choice.  This has been partly because I think my view on the matter is pretty obvious from my usual posts, and partly because I doubt that there are many “persuadables” in my readership.  But with the election now only days away, I’ve come to think that if only out of a decent respect for the opinions of my fellow men (to steal and misuse a phrase) I should offer some brief explanation of why I will vote the way I will on Tuesday.

Let me begin by saying that I’ve never been an unabashed fan of John McCain, and have not become an unabashed fan of Sarah Palin during her brief time on the national stage.  Before this election cycle really kicked off, all the way back in early 2007, I cheered McCain for his regular opposition to Congressional pork giveaways but otherwise had a fairly low opinion of his policy views.  I found his fervent attacks on our most important political rights, in the guise of pushing campaign finance “reform,” appalling, and his supposedly “maverick” set of policy positions more like evidence of an incoherent (or non-existent) political philosophy.  His obvious love of being feted by the media and appearing on the 60 Minutes and The Daily Show to attack his GOP colleagues certainly didn’t help either.  My view softened a great deal after he risked his presidential campaign by supporting the surge of troops into Iraq, and by the time my favorite candidate, Rudy Giuliani, was knocked out of the GOP primaries I was ready to back McCain as the least worst of the remaining Republican candidates.  However, I still have more than a few doubts about his philosophy of governance and his judgment.

As for Palin, my previously expressed opinion of her unreadiness to be President if something were to happen to McCain hasn’t been changed by her post-nomination performance.  Moreover, we’ve learned that she apparently matches, or even surpasses, McCain in a troubling mental characteristic: both seem to think that having populist conservative political instincts is a substitute for having conservative policy ideas.   (It is bracing to think that in McCain and Palin Republicans have probably chosen two candidates who have read and thought less about the proper role of government in society than any other ticket in the past 50 years.)

But with all those flaws, and many others, voting for McCain-Palin over Obama-Biden is, to my mind, the clearly correct decision.

Now, dear reader, you may think that’s simply because my “conservative” views  --particularly on economic issues and on the makeup of the federal courts-- are more consistent with John McCain’s policy stances (even though those stances aren’t backed by a coherent political philosophy).  And it’s true: My profound disagreements with the policies Obama has exposed would alone be enough to get me to hold my nose and vote for McCain.  (Although, let us not forget that some foolish self-proclaimed conservatives, see eg. Christopher Buckley, have said they intend to vote for Obama in the hope that he won’t actually pursue the policies he’s said he’s going to pursue.)  But even for many non-conservatives, voting against Obama is the logical decision.  For the outcome of the presidential race won’t just determine who controls the Presidency, but whether Democrats will take control of the entire policymaking apparatus of the federal government.  Over the past two years, the policy ambitions of Nancy Pelosi, Harry Reid, and other “loud and proud” liberal Democrats in the Congressional leadership have been checked by a GOP President.  What will happen if that check is removed?  The likely answer is fairly clear. And, for most any non-hardcore leftist Democrat, undesirable.

It could be argued that Obama, as President and political leader of the Democratic Party, would curb the policy ambitions of Congressional Democrats, if only in the interest of furthering his chances of winning reelection in what will remain a basically center-right nation.  The problem is that we have no evidence whatsoever from Obama’s political past that he is inclined or able to stand up to members of his own party.  Indeed, the most remarkable thing about Obama’s record in the Illinois Senate and U.S. Senate is how consistently he avoided taking leadership positions on controversial matters.  I see little reason to think that Obama would drop that risk-averse political style, and taking on a Democratic Congress would require deliberately taking major political risks, risks that (at least in the short term) very well might not payoff.  Barack Obama is just not a fellow who is temperamentally inclined to force those kinds of confrontations.

Over the past forty years there have been three periods where one party has controlled the Presidency and both houses of Congress: 1976-1980 (Democrats), 1992-1994 (Democrats), and 2002-2006 (Republicans).  A vote for Obama is not just a vote for Obama, but a vote for a new period total Democratic control of high-level federal policymaking.  Popular opinion says that things didn’t go so well in Washington during those periods, and if Obama does prevail things likely won’t go much better this time around.   

Saturday, November 1, 2008

Good Riddance to Bad Rubbish

Despite his recent conviction on seven felony counts in federal court, polls showing him losing to his Democratic challenger, and the assurance from the Senate Republican Leader that there’s a “100 percent” chance he’ll be expelled if he is somehow reelected, Alaska Senator Ted Stevens has not only refused to resign but is fighting as hard as ever to return to the Senate.  Asked why he continues on, Stevens responded “The state needs me.”

If Stevens weren’t so obviously engrossed by self-importance and lust for power, watching the downfall of one of the most powerful people in American politics might have a tragic aspect to it.

As it stands, it will be satisfying to watch him lose next Tuesday.  And hopefully, his power-addicted counterpart representing Alaska in the House, master of log-rolling Republican Don Young, will be dismissed by Alaska voters as well.  Bad for the GOP, you say?  In the very short term, perhaps.  But further out, better for the GOP, the Senate, Alaska, and the country.

Wednesday, October 22, 2008

Gallup: Notion that a Surge of Young Voters Will Decisively Swing the Election is (Probably) Bunk

According to an analysis released today:

Gallup Poll daily tracking suggests that 18- to 29-year-olds are not nearly as likely as older voters to be registered to vote, to say they are thinking about the election, or to express strong intentions to vote. Thus, as of mid-October, there is not convincing evidence in the Gallup data that young voters will in fact vote at higher rates than in past elections. But even if things change over the next two weeks and many more young adults do become motivated to vote, turnout alone would do little to change the candidates' overall support, according to Gallup's likely voter models.

In the Presidential Race Tightening, Heading Toward a Landslide, or What?

Something quite odd has been going on with the presidential race polling data we’ve gotten over the past few days.

The RCP average of major national polls has moved a few points in Obama’s favor so far this week, with several surveys now putting his lead near or in double digits.  However, two polls that came out today show the race significantly closer, with the respected IBD/TIPP tracking poll showing an Obama lead of only 3.7 percent [note: see update below] and an AP poll showing a statistical dead heat.  Additionally, the latest result from the GWU/Battleground tracking poll gives Obama only a two point lead.

Moreover, things get even more interesting when we consider three state polls conducted by the highly regarded (by political pundits) Mason-Dixon polling agency.  Two NBC/Mason-Dixon surveys released today have Obama up by two in Virginia (well below his lead in other polls) and McCain—yes, McCain—up by one in Florida, respectively.  An NBC/Mason-Dixon poll released Sunday put McCain up one point in Ohio.

Finally, the political prediction markets currently see Obama as an exceptionally strong favorite.  On Intrade today McCain’s predicted probability of victory reached a new post-primary low of 12.6 percent.

So what the hell is going on?

My guess is that right now Obama’s “true” hypothetical lead* is about five points.  That’s roughly consistent with the Mason-Dixon state polling data (factoring in that from the  2004 election results one would probably expect a GOP presidential candidate to run somewhat better, to varying degrees, than the national average in Virginia, Florida, and Ohio).  Or at least more consistent than a double digit Obama blowout; I just don’t see Obama winning by ten points nationally but lagging that much in those states.  Moreover, a five point lead is closer to those national polls mentioned above showing a tight race. And last, a five point lead is exactly what today’s edition of the warhorse Gallup Daily Tracking Poll (with the traditional model of likely voter screening based on past voting behavior, not the new version that classifies someone as a likely voter just on the respondent’s bare assertion that they are going to vote) gives Obama. 

And as for the prediction markets, which proved prescient in the 2004 election?  Well, today I bought $25 worth of McCain contracts on Intrade at a 12.8 percent chance-of-victory price level.  To put it in ordinary market terms, in my view McCain’s chances have been way oversold.

However, if McCain’s predicted chances should rebound to say, 35 percent? 

Well, there’s a time for putting one’s money where one’s mouth is, and then there’s a time to take profits.


*Yes, it’s  incorrect to speak of any polling lead as a “true” lead, given that a poll is, at best, only a statistical sampling measure that takes an imperfect snapshot in time, and even more incorrect to say that about a guess as to what a perfectly valid poll would show.  Fortunately, this is a blog post, not a final exam answer in a poli sci statistics class.  


Update/Correction (10/24):  After reading a couple of items floating around the net in the past few days calling into question the IBD/TIPP poll’s current methodology and doing a bit of further review of the poll’s recent results , it now appears to me that the poll isn’t producing reliable or plausible results for this cycle.  I regret referencing the IBD/TIPP poll without doing some further research into its performance this year, but still stand by my guess that race is considerably closer than the majority of national polls are now showing, a guess that is supported by the other polling data I mentioned.

Tuesday, October 21, 2008

The Chief Justice of Intentionally Bad Crime Fiction

As you may have heard (perhaps even from the last episode of Saturday Night Live, no less) Chief Justice Roberts made his comedic opinion writing debut last week, in a dissent to the Court’s denial of certiorari in a case where the Pennsylvania Supreme Court threw out a drug bust for lack of probable cause.  Here’s how the Chief began his opinion:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.


Roberts went on to attack the PA court’s decision as contradictory to SCOTUS precedent.  Interestingly, Justice Kennedy joined the dissent.

A good try at lightening things up, but, no disrespect to Chief Justice Roberts, but I still prefer those Gilbert and Sullivan stripes.

rehnquist stripes

Saturday, October 18, 2008

Palin as Pericles

NRO lead editor Kathryn Lopez posted this morning this description of a Palin campaign stop in Indiana:

Palin didn't need Greek columns. People react to her because they believe she represents what the Greeks established.

I’m becoming ever more convinced that I’ll never really understand the adoration that some on the right (albeit a decreasing number, I think) continue to have for Palin.  Respect for her considerable political skills, sure.  Sympathy and outrage over the relentless and often scurrilous attacks that she and her family have endured, sure.  But adoration?

I like to think I have some pretty good political analysis chops, but I admit I just don’t get it.

Friday, October 17, 2008

Some Highlights of the October SCOTUS Argument Schedule

So I originally promised that my preview of the Supreme Court’s October argument docket would be up last Monday (the first day of the Court’s new term, of course).  Well, stuff happens.  I decided to push ahead with the idea of some sort of October arguments overview, but as the six days of arguments scheduled for the month have already gone by I’ve switched things up a bit, integrating some analysis of how some selected arguments actually played out.

According to the headline writers at the New York Times, this year’s docket is “less meaty” than last year’s, lacking (so far) blockbuster cases like Boumediene (the Gitmo detainees case) and Heller (the D.C. gun rights case).  It may be true that the crop of cases on this year’s schedule doesn’t include any that appear likely to trigger that level of popular interest.  But, as always, there are a number of cases that will prove very interesting to many lawyers and others who follow the Court.  The following cases argued this month caught my eye:


-  The most interesting case of the month, to my mind, is Arizona v. Gant.  Those readers among you who have had the benefit/misfortune of a legal education will recall the important criminal procedure concept of the Search Incident to Lawful Arrest (“SILA”).  The core of the concept is that once the police arrest you for some constitutionally valid reason they can search your person and your immediate surroundings for weapons or contraband without obtaining a warrant or further establishing probable cause.  The concept of the SILA has been justified by interest of ensuring officer safety and preventing the destruction of evidence.

It’s fair to say that at this point the need for and legitimacy of such searches of an arrested person’s well, person, are fairly uncontroversial among most constitutional scholars.  But the notion of searching an arrestee's surroundings has presented harder problems.  This is especially true in instances involving traffic stop arrests and subsequent searches of automobiles.  To make a long story short, in  New York v. Belton (1981) and later cases in the same line the Court announced a “bright-line” rule that police can thoroughly search the passenger compartment (but not the trunk, of course) of a vehicle after arresting an occupant, no matter whether under the specific facts of a given case there were any plausible safety or evidence preservation concerns actually present.  Indeed, under current law the rule extends even to instances where an arrestee has been searched, handcuffed, and put in the back of a police cruiser (but not to the situation where the arrestee has already been removed from the scene, interestingly).

In Gant, argued last Tuesday, the Court essentially took up the issue of whether the “bright-line” aspect from Belton should be overruled.  Practically all of the justices heaped distain on the notion that immediate post-arrest vehicle searches are necessary because a subject handcuffed and locked in the back of a police car (as Gant was) presents a real danger of escaping, returning to his vehicle, and grabbing a weapon or destroying evidence hidden inside.  However, the justices also seemed to dislike the prospect of replacing the Belton bright-line rule with something that attaches constitutional relevance to highly fact-specific,  necessarily spur-of-the-moment decisions about SILA auto searches by police officers in stressful traffic stop arrest situations.  And, of course, there is the matter of stare decisis:  The Belton rule has been around for almost thirty years, the Court and many lower federal and state courts have used it as any important precedent, and police have come to rely on the vehicle SILA as an important evidence-gathering tool.

From the statements of the Justices during argument, it’s difficult to guess how the case will come out.  Despite all its obvious flaws, in the end the Court may decide to reaffirm Belton on stare decisis grounds and as the devil the Court knows.  Or a majority might be able to agree on a modified rule that still gives officers a great deal of latitude but cuts back a bit in situations where there are obviously no significant concerns about officer safety and/or destruction of evidence.  Or we might get another one plurality, three concurrences, two dissents opinion split.  In any event, it’s one worth watching.

(By the way, for those who may be interested in the merits of the Belton rule from an originalist standpoint, read Justice Scalia’s concurrence in Thornton v. U.S. (2004), a case that upheld a vehicle SILA where the arrestee wasn’t even in the vehicle when the arresting officer approached him and the search itself was conducted while the crook was, yes, handcuffed in the back of a cruiser.  It reminds one that Scalia has a pretty robust view of the Fourth Amendment’s protections, or at least a more robust view than his critics --many of them ill-informed-- give him credit for.)

-  By coincidence or (less likely) design, this October seems to be criminal procedure month at the Court.  Aside from Gant, the Court also took up two other cases involving Fourth Amendment issues.  In Herring v. U.S., the Court confronted an exclusionary rule case involving an arrest (and subsequent search, which turned up drugs) made because a police clerk in another department incorrectly and negligently informed the arresting department that there was a valid warrant out for Herring’s arrest.  In Pearson v. Callahan, the Court heard arguments about whether police need a warrant to enter a home where a civilian confidential informant buys drugs inside just prior to the police search.   (Pearson also presents an interesting potential opportunity for the Court to clarify aspects of the doctrine of qualified immunity.)   The court also heard a Sixth Amendment case,  Oregon v. Ice, on whether facts that lead a judge to impose consecutive instead of concurrent sentences must be found by a jury or admitted by a defendant, and two cases from the Ninth Circuit, Waddington v. Sarausad and Chrones v. Pulido, dealing with aspects of habeas corpus review of allegedly defective jury instructions (both of which, I predict, are headed for the ever-growing “Who the hell do the Ninth Circuit judges think they are?” reversal pile).

-  Most overhyped case of the year so far: Altria Group, Inc. v. Good.  It received a decent bit of media coverage because it deals with a suit against the tobacco companies because of their misleading promotions of “light” and “low tar” cigarettes.  It’s not worth the hype because the suit is very clearly preempted by a federal statute regarding cigarette labeling, no matter whether one is considering the language of the statue directly or the Court’s recent precedents interpreting essentially the same language in other statutes.  The vote of the Justices won’t be close.

-  In a struggle that pits (potentially) the lives of whales against (potentially) the lives of sailors, the Ninth Circuit has been giving the U.S. Navy fits about conducting training with an advanced sonar system off the west coast.  Some environmental groups argue that the active sonar system, developed to hunt for new ultra-quiet diesel submarines, damages the hearing of marine animals.  The Navy asserts that the situation meets an “emergency circumstances” exception for not complying with an environmental impact assessment requirement, a stance that the Ninth Circuit didn’t think highly of.  This one, Winter v. Natural Resources Defense Council, might be another 5-4 ruling where Justice Kennedy’s vote determines the outcome.

-  Finally, a case that deals, if only partly, with an interesting emerging doctrine in federal jurisdiction law.  Lawyers in the audience will remember that even though 28 U.S.C. 1331 allows federal district courts to hear suits  “arising under” federal law --the same language used in Article III of the Constitution-- the Supreme Court has long interpreted that statute as not granting jurisdiction to federal courts to the full extent the Constitution allows.  In particular, for over a century the Court has maintained that only suits where the federal nature of an action is evident on the face of a “well-pleaded complaint” can be heard in federal court (excluding diversity jurisdiction, of course). This means that many suits where an issue of federal law is dispositive (a libel action turning on whether a defendant has a valid First Amendment defense, for example) can’t be heard in federal court.  There’s pretty broad agreement among scholars and judges that the 19th century Congress that drafted the language of the statute intended no such thing, but many have taken the position that the well-pleaded complaint rule has now been in effect so long that the Court should leave it to Congress to modify or junk it.

However, ever so slowly a precedential crack has begun to spread in the facade of the rule.  Under the doctrine of complete preemption federal courts have, in a limited but growing number of subject areas, announced that federal law so completely supersedes state authority that even causes of action that are explicitly pled as state law claims are inherently federal in nature and can support federal jurisdiction.  In Vaden v. Discover Bank, the Court may (the case has lots of procedural baggage related to application of the Federal Arbitration Act) address the question of whether a counterclaim that asserts a purportedly state law claim can be completely preempted.  As someone who would like to see the well-pleaded complaint rule further cut back  (and has a less reverential view of stare decisis), I hope they reach the issue and continue to chip away.


A lot more info on any or all of these cases can be found at the invaluable SCOTUSWiki, run by the folks who bring you SCOTUSblog.  Additionally, the Court’s full argument calendar for October, with links to the questions presented in the various cases can be found here.  (No further arguments are scheduled for the month.)  Argument transcripts for all the cases mentioned above can be found here.

And that’s quite enough about that for now.

Wednesday, October 15, 2008

Some Obligatory Analysis of the Final Presidential Debate

Someone must of put something in John McCain’s corn flakes this morning.  After another sort-of subpar start, McCain kicked it into another gear, going after Obama on issue after issue and fielding Obama’s attacks more skillfully than he had in their first two encounters.  Moreover, in the last hour or so of the debate McCain began to sound (almost) like a consistent economic conservative.  He even (be still my beating heart!) stood up directly for free trade.  All in all, a significantly better performance on his part.

As for Obama, he was again fluid and skillful, and he didn’t make any major missteps or cringe-worthy statements.  In other words, he probably  did more than the minimum of what he needed to do.

On the whole, I think it was a better night for McCain, and might be worth a bit of political momentum to him. But will it really matter, or will the political impacts of the economic crisis simply be too much for McCain to overcome?  The latter looks to be more likely at this point; McCain probably needs the help of some unexpected outside event/s (eg. a major surge in the stock markets) in the next three weeks to win.  But the race isn’t over just yet.

Friday, October 10, 2008

Must Read of the Week

It’s an op-ed piece from the Wall Street Journal today titled “A Short Banking History of the United States.”  The subtitle: “Why our system is prone to panics.”  The short answer to that question: because American politicians, from Jefferson on, have almost continually governed our banking system to pursue financially absurd but politically popular ends.

Wednesday, October 8, 2008

Stop the Presses: Some Good News Regarding the U.S. Economy

The U.S. retained its #1 ranking in global economic competitiveness in a World Economic Forum survey released today.

(Via Drudge.)

Tuesday, October 7, 2008

Obligatory Comment on Tonight’s McCain-Obama Debate

McCain was considerably better than he was in the first one on economic policy,  attacking well on taxes and the economic crisis.  McCain also had a couple of nice moments where he showed the benefit of his long experience with town hall formats by connecting well personally with questioners (his handshake with the former Navy guy particularly comes to mind).  Obama was somewhat better on foreign policy tonight than he was in the first encounter, continued to try to focus the spotlight on the Bush Administration, and didn’t commit any significant gaffs. Overall, I think McCain probably did a bit more to help himself than Obama did, but I rather doubt we’ll see any lasting impact on the race.

I Was Wondering When We Would See Something like This

From an article in Tuesday’s Washington Post:

Last night, the Fed was drawing up plans to set up a special fund that would buy short-term commercial paper. The purchases would benefit banks as well as non-financial companies.

The fund would be financed by a loan from the Fed, and any losses would probably be covered by the Treasury using its new $700 billion bailout package. Fed and Treasury lawyers were hammering out details last night.

As much attention as the coming purchase of mortgage-baked securities by the Fed has gotten, direct efforts to stabilize the commercial paper markets might be at least as important.

Of course, this move comes on the heals of the Fed’s action yesterday to expand its direct lending to banks to up to $900 billion.

Monday, October 6, 2008

It’s On

So it’s now officially the first Monday in October, D.C. time.  And you know what that means

I’ll have a preview of the October argument docket up this evening. (Including the cases argued this morning, so I guess it’s won’t entirely be a preview. But what the hell.)  Also, I going to tie up some loose ends regarding last term’s developments this week, including making an update to the to my long-neglected Constitutional Cases of 2007-2008 feature. 

Between SCOTUS stuff, the second McCain v. Obama debate on Tuesday, and continuing analysis of the credit crisis and the bailout it’s going to be a busy week here.  Stay tuned.


Update (10/07):  Of course, you know that when I said “this evening” I meant “sometime tomorrow.”  It’s like how the Due Process Clauses mandate substantive protections.

The Denouement of Kennedy v. Louisiana

Amid all the events of last week, I got distracted from noting here a very interesting piece of news that came out of the Supreme Court on Wednesday.  A majority of Justices (the same majority that that voted to strike down Louisiana's law allowing the imposition of death for child rape in the first place) voted to deny a motion for rehearing filed by Louisiana in Kennedy v. Louisiana.  The state filed the motion after a law blogger in the National Guard noted that Congress recently passed a law expressly permitting the imposition of the death penalty on members of the U.S. military who commit child rape. That fact --which neither the parties, nor any of the amici, nor the Justice Department informed the Court about of and which went apparently undiscovered by all of the Justices-- is arguably quite relevant to the majority’s determination in Kennedy that relative lack of state and federal laws that permit a sentence of death for child rape is evidence that there is a national consensus against the practice.

But, not surprisingly, the five Justices from the Kennedy majority didn’t see it that way, contending that because the provision is one of military law (rather than civilian law) it is entitled to little weight.  Justices Thomas and Alito voted, without explanation, for rehearing.  Chief Justice Roberts and Justice Scalia found the law an important piece of evidence but voted against rehearing because, in the words of Justice Scalia,

[T]he views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this:  “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

(Citation omitted.)

And that’s that.

Sunday, October 5, 2008

This Might Be Scary if it Wasn’t So Damn Funny

Portly teens in military fatigues chanting for Obama:


Rhetorical Question

Can someone explain to me why Saturday Night Live will go after the Democrats for their part in causing the financial crisis, but John McCain won’t?


More on Free Market Criticisms of the Bailout (Part One)

As you know, on Friday the House passed a “sweetened” (ie. larded up with politically popular measures) version of the bailout package it rejected last Monday.  President Bush promptly signed the legislation into law, and Treasury Secretary Paulson is expected to begin implementing the securities-buying component of the plan within the next couple of weeks (which is as soon as the mechanisms to do so can be set up). Almost sixty Congressmen switched their votes from Monday, but the plan still has plenty of critics, left and right.

Conservative opponents of the plan continued to beat the drum on three points: (1) the plan won’t work, (2) the plan will create moral hazard (ie. it will reward lenders who made loans with little scrutiny of borrowers’ ability to repay, encouraging them to make similar loans in the future), and (3) the plan represents a major expansion of government’s role in the economy --even a step towards socialism.  The first two objections are certainly legitimate concerns, but are fairly easily overcome.  Every intellectually honest observer concedes there’s no guarantee the plan will unfreeze the credit markets, but conservative opponents haven’t been able to put forward any practical alternative that would be obviously better at providing short-term relief.  (The idea that completely getting rid of the mark-to-marketing accounting rule would a confidence-restoring panacea was a particularly gimmicky and embarrassing  proposal.)  Concerns about moral hazard have abated as we’ve seen that even the largest financial services companies have been badly wounded, a number of them fatally, by the severe consequences of loose lending.  The charge that the bailout represents an unjustifiable, indeed socialist expansion of the federal government’s role requires somewhat greater examination.  In the end, however, that examination reveals that this attack is just as off-base as the others.

Let’s begin looking at the merits of the major-step-towards-socialism argument a bit legalistically.  It is comprised of two assertions: first, that the rescue plan involves a massive expansion of the federal government’s role in the economy and, second, that expansion is an unwise and morally unjustified curtailing of free market principles.  Both are incorrect.

How can one contest that the rescue plan involves a massive expansion of the federal government’s role in the economy?  After all, under the new law the Treasury will spend up to $700 billion buying private assets and then holding and managing them until they can be sold at reasonable prices. 

But this only appears to be a major expansion of the federal government’s role to those who haven’t been paying attention to the actions the federal government, through the Treasury Department, the Federal Reserve, and other agencies have been doing over the past seven months or so. Some of the most prominent examples:

-  In March, in a transaction unprecedented in modern times the Federal Reserve made a $29 billion loan to JPMorgan Chase as part of a deal for that company to purchase Bear Sterns, heading off the possibility that the shock of Bear’s collapse would cause a domino effect in the financial system.  As part of that agreement, the Fed agreed to accept Bear’s (now JPMorgan’s) mortgage-backed assets as collateral for the loan, putting those on the Fed’s balance sheet. 

-  In September, the Treasury announced (as everyone expected) that it would extend up to $200 billion in funding guarantees to back Fannie Mae and Freddie Mac; the two GSEs (Government-Sponsored Enterprises) had become unable to get sufficient funding from the credit markets on their own credit to say afloat.

-  Then, of course, came Bloody Sunday: September 15. The news hit that Lehman Brothers, Merrill Lynch, and AIG were all facing collapse. The Fed and Treasury were intimately involved in facilitating the sale of Merrill to Bank of America. Though it let Lehman go into bankruptcy, the Fed loaned JPMorgan Chase almost $80 billion for that company to help unwind some of the many financial relationships that Lehman was involved in across the financial industry.  And the government (arguably) essentially bought AIG, the world’s largest insurer, giving it access to up to $85 billion in funds in exchange for warrants for a 79.9 percent share of ownership in the company. 

- Eight days later, the FDIC seized Washington Mutual and sold its deposits and branches to JPMorgan Chase.

-  Last week the Fed, the FDIC, and Treasury were heavily involved in negotiating the sale of the distressed bank Wachovia to Citigroup, with the FDIC entering into a “loss sharing agreement” with Citi to share the risk of potential further losses in Wachovia’s higher-risk loan holdings, getting a potential double-digit stake in American’s largest bank (by assets) in return (though that deal is now in some doubt because of  Wells Fargo’s attempt break up the deal and buy Wachovia itself ).

- The Fed recently announced that it will guarantee the principle for investments in normally ultra-safe money market funds, after the problems in the commercial paper markets caused a few large funds to decline in value.


Moreover, though the above events are undoubtedly important, perhaps the most important elements of the federal government’s expanding involvement in the financial system have drawn much less attention, at least from those who don’t follow the markets closely. Over the past year, as private lending in the credit markets has slowed the Fed has, measure by measure, taken on more and more of the task of keeping some minimally adequate level of credit flowing.  Even before the fall of Bear Sterns in March the Fed was mounting increasingly direct efforts to recreate some kind of market for mortgage-backed securities. As credit markets deteriorated over the following months the Fed took unprecedented steps to expand the availability of emergency loans from it to large financial institutions, most notably allowing investment banks to directly access loans and then altering its policies to allow institutions to put up higher-risk assets like (yes) mortgage-backed securities as collateral.  Now, with bank-to-bank short-term lending having seized up in recent weeks, we’ve reached the point where the Fed has gone from being a lender of last resort to troubled banks to being a lender of first (and for some, only) resort for fairly sound banks.  It is difficult to underestimate how critical a role the Fed is playing right now in keeping the whole U.S. financial system from going under.

The meaning of all this?  Those who think that the just-passed bailout represents an major change in the federal government’s role in the economy are simply wrong.  The change has already come, and the $700 billion asset purchase plan simply differs in some details of implementation from what federal entities have already done.  (Indeed, from a sheer dollar-number standpoint the pre-bailout federal commitments [those mentioned above plus a few other items] total more than $1 trillion.)  We must try to ensure that this intervention lasts only as long necessary, goes only as far as necessary, and is conducted as completely as possible.  But if major federal action to support financial institutions with bad assets is the Rubicon between capitalism and socialism, we crossed it well before Friday.

But one may of course argue, on moral and/or straight economic policy grounds, that the Fed, Treasury, etc. shouldn’t have done all that they have and shouldn’t be permitted to do more in the same vein.  As this item has grown long enough, I’ll take up that up in Part Two.

Friday, October 3, 2008

Gold (No Pun Intended)

Jonah Goldberg in The Corner goes after Biden’s shall we say “misstatements of fact” from last nights debate:

And, again, I never said that Palin was pure. My point is that Biden showed himself to an exceptionally facile liar. He makes stuff up with great passion, conviction and seeming command of the substance. So it just bugs me when people say he's better on the substance. I could be a great physicist if I'm not held to a requirement to be factually correct;

"Well, Gwen, that's an interesting question. As we all know the hamster spinning at the earth's core runs in a counter-clockwise direction. Let me repeat that so everyone understands. That hamster does not run in a clockwise direction, that would be madness. It's counter clockwise. That's why our lakes and rivers don't simply turn into a fine mist, and why our atmosphere doesn't simply spontaneously combust. This is something that my dear friend John McCain just doesn't understand. And it saddens me."

Thursday, October 2, 2008

Brief VP Debate Analysis

Both Palin and Biden did well.  Palin went toe-to-toe with Biden, both demonstrating a more solid grasp of policy specifics that she has in recent interviews and again showing with her effective attacking style why that “barracuda” nickname stuck.  Biden didn’t go off on an rambling, incoherent discourses, didn’t make any gaffe statements that the Obama campaign will have to furiously try to explain away tomorrow, and showed his humanity effectively.  Because Palin had lower expectations going in, call it something of a win for her, though (like all past VP debates) it won’t have any significant impact on the race.

Two debates down, two debates to go. Alas, I’ve already had my fill of the incredibly stupid content these things have generated this year.  At times tonight I half expected to hear something like this:

Palin:  “During his brief time in the Senate, Sen. Obama voted more than 20 times to kill puppies.” 

Biden:  “That’s absolute false, governor.  And more than that, John McCain has voted over thirty times to kill kittens.”

Palin:  “Joe, you just don’t get it.  Sen. Obama voted 40 times to give nerve gas to terrorists.”

Biden:  “Well, John voted more than 50 times to allow Osama Bin Laden to wipe his ass with the Constitution.”

And besides that, the McCain-Palin populism-lite nonsense is starting to really get on my nerves. Contending that the current financial crisis was almost solely caused by “predatory lending” and “Wall Street greed” is the kind of asinine claptrap that any GOP national nominee should be ashamed to offer.  And why do McCain and Palin continue to pass up great opportunities to attack Obama’s ties to Fannie Mae and Freddie Mac?  Ugh.

Ok, rant over.

Monday, September 29, 2008

My God

The House has rejected the bailout.



Two-thirds of House Republicans voted against it. The bigger surprise was that forty percent of House Democrats did. (See here.)

Goddamn fools and goddamn cowards. To hell with them all. 

Friday, September 26, 2008

Four-Sentence Debate Analysis

To win this election, Barack Obama needs to make it a referendum on George W. Bush. To win, John McCain needs to make it instead a referendum on Barack Obama.  Obama made progress on his goal during the portion on the economy, but McCain made headway in return during the foreign policy portion.  Call it a slight win for Obama that will probably have little impact on the race.

The Debate

Obama is bitchslapping McCain right now on the economy, and McCain can’t or won’t respond effectively.

I hope the foreign policy portion of the debate starts sooner rather than later.

One Bailout Most Congressional Republicans Are Fine With

On Wednesday, the House approved a measure to make $25 billion worth of loans to automakers and suppliers, supposedly for the purpose of helping them retool their plants.  The vote was 370-58.  It appears likely that the Senate will quickly follow suit, and both Obama and (alas) McCain support the plan.

Despite the timing, the plan has nothing to do with the other bailout now under consideration on Capital Hill.  Indeed, the Big Three have been pushing for federal aid at least since 2006, and the initial piece of legislation creating the loan plan scheme was passed last year.  Throughout that time, the Big Three have steadfastly contended that the measure isn’t a bailout to prop up their poorly-run companies, because companies must repay the loans and because foreign-headquartered automakers with plants in the U.S. are also eligible for the funds.

The first argument has always been transparently asinine; under the plan the Big Three will get interest rates and terms far more favorable than anything they could get from private sources (even if the long-term capital markets were functioning, which they aren’t).  Getting financial assistance from government when your credit is too poor to get decent rates from private lenders is surely a paradigm case of what constitutes a government bailout.

And as for the point that foreign companies (Toyota, Honda, etc.) can get low-rate loans too?  Well, the authorizing legislation Congress passed last year mandates that loans can only be issued for plants that are more than twenty years old.  It’s just coincidence, I’m sure, that there are very few foreign-owned auto plants in the U.S. more than twenty years old, but a lot of such plants owned by GM, Ford, and Chrysler.

It’s also just coincidence, I’m sure, that the measure passed the House and will pass the Senate as a rider to a continuing resolution that the President as a practical matter must sign in order for the federal government to keep functioning into next year.


Politico reports on how intransigence by House Republicans, cowardice by House Democrats, and petty political maneuvering by McCain and Obama led to a breakdown in the bailout talks today just as it appeared an agreement was at hand.

With this coming in the same evening as the announcement of the failure/sale of Washington Mutual, Friday could be a scary day on Wall Street.  Not just an ugly day, but a scary day.

Thursday, September 25, 2008

Ok, So Now It’s Unconstitutional

Yesterday I briefly discussed the argument that the bailout plan proposed by the Treasury violates the Non-Delegation doctrine.  Well, today the AP is reporting that Congressional leaders have agreed on a plan that is quite different from Treasury's proposal. Among the changes are added limits on how much money the department can spend and when:

The tentative accord would give the Bush administration just a fraction of the $700 billion it had requested up front, with half the money subject to a congressional veto, congressional aides said. Under the plan, the Treasury secretary would get $250 billion immediately and could have an additional $100 billion if he certified it was needed. The last $350 billion could be blocked by a vote of Congress under the arrangement, designed to give lawmakers a stronger hand in controlling the unprecedented rescue.

So either Congressional leaders, and the many lawyers on their staffs, haven’t heard that the Supreme Court ruled that legislative vetoes are unconstitutional twenty-five years ago, or they know and just don’t care.

(Alright, we know it's the latter, as Congress has flouted Chadha any number of times since the decision was issued, but indulge my slightly ham-handed sarcasm.)

Of course, the problem with challenging the restriction (assuming the law that finally gets passed contains it) is finding a plaintiff with standing.  As Congress will almost certainly never invoke the legislative veto provision because of political realities, the matter will likely never see the inside of a federal courtroom.  Which is another thing I’m sure Congressional leaders know perfectly well.

Wednesday, September 24, 2008

A Reluctant Defense of the Bailout-to-End-All-Bailouts

This is one of those rare times when perhaps we should be grateful that most Americans have little understanding of how our economic system really works on a day-to-day basis.  Because if everyone understood how close the American economy came to a meltdown last week, we might have an old-time, widepread panic on our hands.  

If the financial system is the circulatory system of the American economy, then the market for short-term, high-quality debt is the economy’s heart.  The most prominent form of this type of debt is commercial paper.   Banks constantly trade massive amounts of commercial paper between themselves to finance their own lending to businesses and consumers, and very large companies with excellent credit ratings issue commercial paper to finance their day-to-day expenses (like meeting payroll).  Much of this paper is bought by money-market funds, which investors large and small invest in.  Usually, this system works well for all parties involved. Money-market funds, and their investors, get a higher return than they would from investing in instruments like U.S. Treasury notes while still putting their money in very safe places, Big borrowers get to finance their short-term capital needs more cheaply than they could by borrowing directly on bank credit lines.  The system allows for the very efficient movement and use of massive sums of capital, but if it ever shut down the consequences for the economy would be extremely dire

Last week, it began to shut down.

The nearly simultaneous failures or near-failures of Lehman Brothers, Merrill Lynch, and AIG last Sunday and Monday were a huge blow to the already damaged high-quality debt markets. The pre-existing uncertainty about the stability of companies who had bought lots of potentially bad mortgage loans further increased, but more importantly the stability of companies who had lent money to or insured the value of those companies, through now increasingly famous credit default swaps, came into question.  (Indeed, the news that AIG was in trouble might have been the turning point:  AIG did invest in risky mortgages, but it appears that what really pushed the company beyond the point of no return was its liability as an issuer of credit default guarantees.)  Fear spread quickly among big lenders.  The LIBOR, a key interest rate that big banks charge on loans they make to each other, literally doubled overnight.  For the first time in decades, a major money-market fund reported that the value of its commercial paper holdings had sunk below purchase value.  Money-market funds stopped buying commercial paper.  General trading of commercial paper and other debt instruments between even the biggest banks slowed as banks became afraid to make even short-term loans to each other.  The credit markets were freezing up, and in just a few days the capital freeze would have spread to consumer and small business lending.  Large companies, and then smaller companies, might have had to make widespread layoffs.  Simply put, the economy was heading into cardiac arrest.

In the wake of the announcement of the federal government’s plan to buy up to $700 billion worth of distressed securities from financial institutions, the credit markets have drawn back from the edge a bit.  But as the decline in the stock market this week has shown, the continuing inability of elected officials in Washington to come to agreement over the terms of the rescue plan is driving continued uncertainty and instability in the U.S. financial system.  The message coming from Treasury, the Federal Reserve, and Wall Street is clear: the financial system needs the bailout to pass, and it needs the bailout to pass now.

But just because Secretary Paulson, Chairman Bernanke, and various titans in the private sector say a bailout is the only way forward doesn’t inevitably require the conclusion that it is. Indeed, in the last few days a somewhat surprising (at least to me) number of strong dissenters, both policymakers and commentators, have emerged.  The arguments from the left --which mostly seem to boil down to the idea that bailing out irresponsible borrowers is fine, but bailing out financial companies is horrible-- don’t much interest me, but some of the ones on the right call for answering, especially from those (like me) who often bemoan government interference in the markets.

George Will has a fine column in today’s Washington Post making (explicitly and implicitly) what I consider to be the four of the most trenchant free-market arguments against the rescue plan.  They are: (1) the bailouts the federal government has already tried (from Bear Stearns onward) in this situation haven’t averted the current crisis, (2) as a matter of constitutional law, the bailout plan proposed by Secretary Paulson gives the Executive too much discretion, (3) as a practical matter, the Treasury Department could not make all the many, many decisions of the bailout plan with anything like the efficiency we expect from our decentralized, free-market credit system, and (4) a more general objection that the plan would, at least temporarily, greatly expand government control over the “commanding heights” in our economy (our credit markets), a quasi-socialist move.

All these objections have considerable merit.

Though the bailouts the federal government has committed to so far may well (as Secretary Paulson claimed yesterday) have staved off a real financial collapse up to this point, they haven’t prevented the current crisis.  On the legally of the proposed plan, under Supreme Court precedent as it currently stands the Treasury’s bailout plan is probably on pretty solid ground; the non-delegation doctrine (which prohibits Congress from just giving the Executive completely unfettered discretion over a subject) still has some bite, but not much. However, were it tested by the “true meaning” of the Constitution, with a narrower reading of Congress’s delegation abilities, I agree that the Treasury's plan might well not pass muster.  Furthermore, though Secretary Paulson and those experts charged with deciding which securities get purchased and at what price are undoubtedly financial wizards, centralized governmental decision-making is by nature considerably less efficient than markets in allocating economic resources. Finally, a $700 billion plan to enlarge (even temporarily) the federal government’s role in markets that hold a vital place in the American capitalist scheme should always raise very important economic and philosophical questions about the role of government.  All in all, the Treasury's bailout proposal is a bad option indeed.

But with all that said, Congress should still pass it. The only realistic alternative to doing so is doing nothing (or passing a plan that is so limited in scope that it amounts to nothing).  If it becomes clear that there won’t be a bailout, the credit markets could move from a state of fragility to a state of collapse.  If that happens, we’re not just talking about a recession, at least not of the kind America has experienced in the modern economic age.  We’re talking about a quasi-depression. And, aside from the short-term human trauma that would cause, measures that federal and state governments would impose to deal with the downturn would likely dwarf the intrusiveness and the expense of the current bailout proposal.

Situations where one must choose between two bad choices are never desirable, but actually making the choice is often simple: you choose the least-worst alternative and deal with the consequences as best you can.  Congress must now do the same.


Update:  Changed the title to make it more reflective of the content of the post.