Archive for the ‘Campaigning for President in 2008’ Category

“Cheap Shots Against Palin”

Written by Robert Justin Lipkin on November 8th, 2008

Professor Marci A. Hamilton posted the following item on ConlawProf Listserv moderated by Professor Eugene Volokh in a thread entitled “Cheap shots against Palin.” Professor Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University and a distinguished constitutional scholar. With her permission I post her contribution below:

What I find most troubling about this topic on this particular listserv is that we have had law professors at very good schools arguing that intelligence does not matter, education does not really matter, and that drawing distinctions between educational institutions is empty elitism.  James Madison would have disagreed, among others.  He despaired that the Constitution could not create a workable system without enough “virtuous” (read: knowledgeable, educated, and aristoratic) leaders to take the positions in government delineated.  Why would anyone get up in the morning to teach in a law school if they truly believed that education is not a marker of talent or ability?

As David Brooks has pointed out more than once, the Republicans have descended from a party of ideas that emphasized achievement and excellence for whom the erudite William F Buckley, Jr., was a standardbearer and leader, to one in which intellectuals are defending a literal know-nothing.  Charles Krauthammer this morning in the Wash Post asserted that Palin was a victim of “elitism.”  Not so.  She was a victim of her own shortcomings, and judged appropriately in the rough and tumble of American politics.

The American Dream, which Obama embraced and the Republicans torpedoed, is based first on education, its ability to lift people out of their current circumstances, and a belief that high achievement at competitive schools is an important marker of quality.  It was a particularly unfortunate time for the Republicans to choose someone so ill-equipped in this arena.  These values were never more important, because the economy and the wars in Iraq, Afghanistan, and against terrorism generally, are far too complicated to be capable of being resolved through good handlers, expert advice, or Berlitz lessons on world geography, history, constitutional law, or political theory.  It will take a President who has been trained to think critically at every level.  That is what good education does.  Whether Palin was briefed adequately or not before the Couric interview, she displayed a dazzling incapacity to ! solve problems because she could not even lay the groundwork to describe the problems she might have been elected to solve.

It is not elitism to say that Palin was and is incapable.  In addition to rejecting Pres Bush and the Bush years, the moderates who moved from the Republican ticket to the Democrat ticket, especiallly in response to the Palin choice, like myself, were rejecting the Republicans’ demonization of intelligence and education.  That’s a crucial element of the suburban vote.  The Party should not expect to get those voters back until they have changed this poisonous element.

I suspect that after the passion and vitriol of the general election subside, many vocal supporters of Governor Palin will rethink their support and take a more sober and realistic view about whether she even approximates the characteristics that should be the sine qua non of presidential leadership. Among these characteristics are: intelligence, knowledge, intellectual curiosity as well as a commitment to an eclectic approach to resolving concrete political and social problems.  I am grateful to Professor Hamilton for permission to post her piece on ECA.

Are Palin’s Critics Right?

Written by Robert Justin Lipkin on November 7th, 2008

Governor Palin’s belief that Africa is a single nation, not a continent, has spurred the media to increase its ridicule of this hapless, unsuccessful vice-presidential candidate. This together with her poor performance in the 11trooper3_1901.jpgcampaign revealed that she probably lacked both a sufficient understanding of the Constitution and the political intricacies in American domestic and international policies. In one sense, this is terribly unfair. Governor Palin is probably just as intelligent and knowledgeable as millions of other Americans. Yet, history will probably mark her as a political cartoon. What is inexplicable, however, is the attempt to explain away her mistakes by individuals who should know better. The real issue is that all the chatter about Governor Palin simply overlooks that any evaluation should make its standard explicit. Yet, few of Palin’s critics or defenders make clear just why her “failings” deserve condemnation or support. Perhaps more important is the lack of interest in generalizing this discussion to other public officials–mayors, governors, senators, judges and so forth–in an attempt to delineate the characteristics different levels of leadership should possess. Furthermore, how do we weigh various leadership traits against one another.  For example, suppose a candidate is neither an Einstein nor possesses an encyclopedic mind, but has a healthy curiosity and has a well developed sense of relevance. What’s the cash value of such a combination of traits? Neither critics nor supporters seem to give this question much thought. Mrs. Palin’s critics are incredulous–perhaps justifiably–that someone with her intellectual capacities can be even arguably considered presidential material, and her supporters detect elitism in this incredulity. This argument will never be settled. It may be worth the bile if it initiates a national conversation about what leadership traits American presidents should possess.

My Friend, Barack Obama

Written by Rebecca Zietlow on November 6th, 2008

I’m feeling pretty emotional about our president-elect. One reason is obvious –Barack Obama is going to be the first Black president of the United States. This is a truly momentous event to me, a former legal services lawyer in a virtually all-Black neighborhood, and a scholar of the civil rights movement and the Reconstruction eras. Like millions of people all over this country, I also am thinking of the loved ones that I have lost who would have given anything to see this day — my grandparents, who devoted their lives to the cause of civil rights and inter-religious understanding; my Uncle Carl, also a civil rights activist, who marched with Martin Luther King, Jr. to fight for voting rights in Selma, Alabama; and most of all, my dear friend Denise Morgan, a brilliant Black woman law professor who specialized in education rights litigation, whose life was cut tragically short days after her 41st birthday. I can’t tell you how many times in the last few months that I have reached for the cell phone to call Denise and talk about the latest political developments. Denise would have been ecstatic about Obama’s success, and I am certain that she would have bestowed her highest compliment on him — if Obama had gone to law school with us, he would have been our friend.

Barack Obama is my friend – well not really, but I can’t shake the feeling that he easily could be my friend. There have been many close misses. Obama was at Columbia University for two years when I was also a college student there. He worked as a community organizer on the south side of Chicago in the years immediately preceding my time there as a legal services lawyer. He went to law school at the same time as I did, at a rival elite institution just a few hours up the road. There are also the coincidental commonalities. Like me, he met his spouse at work in Chicago, and his two daughters are the same age as my two daughters. Like me and my husband, Barack and Michelle are clearly devoted to each other, and to their children.

In sum, there are many parallels between my life and that of Barack Obama. But that’s not the point. Obama seems like a thoughtful, decent person with a good sense of humor, someone who would be fun to be around. I am certain that there are thousands, if not millions, of people in this country who feel the same way. Throughout this election, the pundits have emphasized Obama’s race, asking whether the American people were ready to elect someone so different from the norm. While it is undeniable that Obama is different from any president we’ve ever had, we the people of the United States of America have gotten to know him, and we’ve gotten to feel that we have a lot in common with him. As a young white Obama supporter here in Toledo told me when explaining why his grandmother, a lifelong Republican, was going to vote for Obama – “she likes him.” Well, Obama’s landslide victory yesterday showed that a lot of us agree with her.

Barack Obama and Tiger Woods

Written by Henry L. Chambers, Jr. on November 5th, 2008

It may seem inappropriate to compare the accomplishments of the first African American president-elect and the first African American golfer to win a major championship.  However, they are linked in more than one way.  Both have been treated as supernatural chosen ones who have been touched from above.  This sort of hero worship is problematic and counterproductive because both are simply incredibly talented individuals who have outworked their competitors to hone their prodigous skills.  Though each possesses an incredible package of skills, they are no more skilled in discrete areas than their competitors.  For example, there are some orators who are as good as Obama, there are some people who are as serene as Obama, there are some people who are as bright as Obama and there are some people who have as much political sense as Obama.  However, no politician of this generation combines all of those skills in the same package.  The same is true of Tiger Woods’ golfing prowess.

However, Barack Obama and Tiger Woods share something infinitely more important.  Through their accomplishments, they give us a new way to conceive of what is possible.  Before Barack Obama arrived, it was almost impossible to imagine an African American president in America’s near future.  Similarly, before Tiger Woods arrived, almost no one believed that anyone would challenge Jack Nicklaus’ record of major golf championships.  By their actions, they eliminated the impossible.  Simply, they both – in their own ways – have forced us to dream again, to demand more of ourselves and to reassess our potential. In short, they have inspired us to believe it when we tell ourselves:  Yes we can.  


Written by Robert Justin Lipkin on November 4th, 2008

Citizens of the United States of America go to the polls today in record numbers to begin a fundamentally new direction in the American experiment. (Click here.04memo2190.jpg) Will the poisonous rot of the contemporary Republican Party remain in place or will the Party be punished for permitting itself to be hijacked by the most dangerous, the most divisive, and the least constitutionally faithful president in American history? If the polls are accurate predictors, Barack Obama will become the forty-fourth president of the United States.  The American people, however, should keep in mind that an Obama victory, even an Obama mandate, will be ineffective unless each individual supporting Obama appreciates the necessity of finding a place on their everyday “to do” list a category labeled “political participation.”  Voting every two, four, or six years is not enough.  A movement must be created that will make sure that the forces of darkness are kept at bay.  These forces derive from an attitude deeply entrenched in every American constituting an obdurate insistence that “I’m right and you’re wrong,” and that my political responsibility is to beat you, dominate you, or eliminate you.  You are not merely my opponent; you are instead my hateful enemy. Unless we acquire a sincere respect for our opponents and until the necessity for principled compromise resonates deeply in the American spirit, Obama’s victory will be short-lived.

Will Conservatism Survive?

Written by Robert Justin Lipkin on November 3rd, 2008

If there’s an Obama mandate tomorrow, conservatism–Bush-Cheney’s radical, conservatism, as well as reactionary conservatism–will have imploded. A new, more principled, more sophisticated conservatism will need to be devised, if conservatism is to survive at all. Principled conservatives have an alternative ready at hand, namely–burke4.jpgBurkean minimalism. But Obama’s mandate, should he achieve one, will be a clear repudiation of the conservatism of the religious right and neocon’s hijacking of the Republican Party. No more pandering to authoritarian religious movements; no more obstacles in the way of completing the revolution for racial justice, no more ignoring the radical policies securing enormous wealth for the rich at the expense of the poor. And certainly a repudiation of Wolfowitz, Perle, Feith’s perversion of the Wilsonian ideal to spread “democracy” throughout the world. Burkean conservatism is a principled attitude toward political change, and may (should?) survive the suicidal reign of the past eight years. It is through Burkean minimalism that conservatives should place their hope for resurrection, of course, a Burkean conservatism that is designed for the twenty-first century. The Burkean emphasis on deriving solutions from the field, so to say, through actually tried, incremental solutions in contrast to grand untried theories of political organization deserves a champion, but a champion possessing knowledge, commonsense, pragmatism, and the will to take seriously alternative perspectives, not dedicated commitments to religious conservatism and an unconscious inability to appreciate the Utopian, (unrealistic) dimension of unregulated, unsupervised, and undisciplined capitalism. But I am certainly getting ahead of history. Let’s continue this discussion after the election.

McCain’s Impulsive Choice May Cost Him the Presidency

Written by Robert Justin Lipkin on October 31st, 2008

According to an article in today’s NY Times, it’s becoming clear that Senator McCain’s choice of Sarah Palin as his running mate may be the reason he has not yet closed the gap between himself and Senator Obama in the battle for the White House. The more we get to know Governor Palin, the greater the certainty that she is not close to being ready to assume the pretmpphpojpzb91.jpgsidency, and let’s be candid, it is extremely unlikely that she ever will.  Those who think she can be rehabilitated over the next four years and become a serious contender for the Republican Party’s presidential spot are simply engaged in wishful thinking. Since McCain picked her for the vice-presidential slot, McCain’s candidacy has been spinning out of control with increasing speed. Can McCain still win the election, even with the weight of Palin dragging him down? Sure he can. But the circumstances in which his victory is possible are becoming much more difficult to imagine. Compare McCain’s conduct in making executive decisions over the course of his campaign with how Senator Obama has executed his campaign. Obama may have limited or no formal executive experience, but the very nature of his decision-making is thoughtful, analytically sophisticated, grounded in empirical facts, and finalized only after considering a multiplicity of opposing views, and these are precisely the virtues that depict executive decision-making at its very best. Let’s drop the charade that his “inexperience” casts him in the same black hole as Governor Palin. The differences between how each candidate approaches executive decisions could not be further apart.

Morning Joe aired a piece purporting to depict folks who live on the upper Westside of Manhattan as closed-minded elitists who march in lock step against the McCain/Palin ticket.  No one on the show even raised the possibility that the choice here is obvious, not only to New Yorkers but also to those who live in the heartland of this great nation. Sometimes even “elitist” New Yorkers make decisions that reflect the common sense of Americans everywhere. At least, that’s a possibility the folks on Morning Joe might have raised.

The Redistribution of Wealth and John McCain

Written by Henry L. Chambers, Jr. on October 29th, 2008

As we reach the final stages of the presidential campaign, John McCain has begun to call Barack Obama a redistributor of wealth.  McCain presumably means that raising taxes on some, e.g., those making more than $250,000, and lowering taxes on others, e.g., those making less than $200,000, is a redistribution of wealth.  This is nonsensical based on conservative orthodoxy, which suggests that lowering taxes merely amounts to allowing people to keep more of their own money.  Thus, it is unclear how a redistribution of wealth could ever come from a mere change in marginal tax rates.    However, given that McCain is a self-proclaimed maverick, it is possible that he does not believe in conservative orthodoxy.  We probably should assume that McCain is using the term redistribution of wealth in a fuzzy way to mean any systemic change that creates a different distribution of wealth than would exist without the change.  Of course, such a definition of redistribution of wealth would suggest that any change in marginal tax rates, up or down, would amount to a redistribution of wealth.  Given that McCain has argued that lowering taxes is good, McCain likely recognizes in his heart that it is the justification for the redistribution of wealth that matters rather than the fact that it is a redistribution of wealth.  

Simply, some redistributions of wealth are justified.  The 13th Amendment’s abolition of slavery was a massive redistribution of wealth in McCain’s terms, as wealth was defined at the time.  That redistribution of wealth was justified to say the least.  Indeed, even though McCain’s family – which owned slaves at one time – may have suffered on its balance sheet becuase of this redistribution, certainly the good senator understands that the redistribution of wealth was not only good, but necessary for the country to survive.      


Either President McCain or President Obama Will Control the Federal Courts and the Future of America.

Written by Robert Justin Lipkin on October 29th, 2008

The President with the consent of the Senate nominates and confirms federal judges. Often such appointments turn out to be critical concerning the powers of government and the rights of individuals. Consider the NY Times’ introductory paragraptmpphpazdvdf1.jpgh in a column in today’s paper: “After a group of doctors challenged a South Dakota law forcing them to inform women that abortions “terminate the life of a whole, separate, unique living human being” — using exactly that language — President Bush’s appointees to the federal appeals courts took control.  A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors’ First Amendment rights. And an appeals court panel had upheld the injunction.  But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.  Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.” For the complete story click here.  Choose Senator McCain if you seek to mire the Court in ancient, irretrievable values. Choose Senator Obama if you seek balance and a Constitution relevant to contemporary challenges.

More than ever before in American history, this election poses clear, significant choices in how the United States will handle a host of extraordinary important and pressing issues.  Among those issues are whether there will be some political and jurisprudential balance in the federal courts or whether the judiciary will become the most conservative (perhaps even most reactionary) courts in American history. Such issues as affirmative action, gay marriage, abortion, immigration, the economy, foreign policy, and war are among the most pressing issues. Presidents, senators, and judges who believe there is some talismanic method for determining the original images1.jpgunderstanding of the Constitution will ground American constitutional development in a series of arcane and ultimately foolish arguments about what the Constitution would mean today to an ancient priesthood of judges who could never imagine, in their wildest dreams, contemporary American constitutional and political challenges. Although some judges and constitutional scholars engage in super-intellectual gymnastics to ascertain the original meaning of the Constitution, the effort required should make us wary that constitutional originalism is anything more than an elaborate vehicle for imposing one’s idiosyncratic constitutional values onto the Constitution.  Interpretations of any text cannot exclude the invoking the ultimate values of the interpreter, and constitutional interpretation cannot exclude the constitutional and political values of contemporary judges even if they insist that they are attempting to construct the meaning of our ancient text and suppressing their own values from corrupting the process. There’s no escaping the interpreter’s values from determining his or her interpretation of the Constitution and only distortion and disaster results from trying to do so.

Will the Republicans Steal the Presidency Again?

Written by Robert Justin Lipkin on October 24th, 2008

With Senator Obama steadily increasing his lead over Senator McCain, the single most important worry is whether the election will be conducted fairly. Or wistolenvote10201.jpgll the Republicans steal the election as they certainly did in 2000 and probably in 2004 also? (Yes, I know that some legal academics have engaged in sophisticated cognitive gymnastics in their attempt to justify the Supreme Court’s intrusion into the 2000 campaign. But sophistry is sophistry called by any other name.) My only hope is that Democrats have already amassed an army of election specialists to prevent the theft of the presidency once again. The reliability of voting machines must be the first priority. Second, preventing election workers to refuse legitimate voters their right to vote is a close second. Behind the scenes of November Fourth lies troubling questions of whether voting every two-four-and six years is a satisfactory method of keeping the people involved in self-government.

The American decentralized method of conducting elections is rife with actual and probable defects.  And keep in mind the theft of the 2000 election caused the calamitous eight years of the Bush-Cheney administration.  The Constitution must be revisited to guarantee that individuals who serve as the Chief Executive of the United States are, for better or for worse, the people’s choice. Vigilance and prompt remedial responses to attempts to illegitimately prevent voters from exercising their constitutional right to vote are the key to the integrity of an election that certainly will certainly determine the future of democracy in the United States.

Click here for the New York Times‘ compelling endorsement of Senator Obama.  Here’s a critical sample of the endorsement.

It will be an enormous challenge just to get the nation back to where it was before Mr. Bush, to begin to mend its image in the world and to restore its self-confidence and its self-respect. Doing all of that, and leading America forward, will require strength of will, character and intellect, sober judgment and a cool, steady hand. Mr. Obama has those qualities in abundance. Watching him being tested in the campaign has long since erased the reservations that led us to endorse Senator Hillary Rodham Clinton in the Democratic primaries. He has drawn in legions of new voters with powerful messages of hope and possibility and calls for shared sacrifice and social responsibility.