BeldarBlog

Regarding my recent silence

A reader emails:

"Come on, Beldar, there has been a mid-term election Surely you must have something to say about this. What has happened to all those pointed, witty Beldar remarks?"

I wasn't much surprised by the election results. I'd said what I had to say about the Texas governor's race back during the primaries, and I didn't think I had anything unique or particularly interesting to write about any of the other races that wasn't already being at least adequately written by others.

And I don't have the urge right now to comment on the daily missteps of the Obama Administration. I'm instead content, at least for this moment, to continue to rely on a general observation I made over a year ago, just when some of those self-deluding Obama voters were beginning to focus more closely on their new emperor's new clothes:

Amateurs. Incompetents. Ideologues. Full-time politicians turned half-wit government officials. Brilliant leftists who, confronted with the real world, are exposed as clueless idiots and children.

It's going to be a long time until January 2013....

The odds are good that the muse will again take me, but there's no telling when.

Pap and twaddle from Broder: McCain should save GOP from "extremism"

I can't remember the last time I read anything in a David Broder column that I agreed with, and his op-ed in today's WaPo — which calls upon John McCain to provide "adult leadership ... for both his party and his country" — is no exception.

Broder argues that "[o]ne of the conspicuous failings in the past few years has been the absence of a second party making principled decisions on when to support and when to oppose the president." That's patently untrue: It's only GOP support for Obama's continuance of most of George W. Bush's GWOT policies that have kept the Dems from reprising what they did to this country, our allies, and the rest of the world starting in 1974-1975, when they condemned South Vietnam to a brutal and deadly Communist takeover. And the support Obama has gotten from the GOP is not due to leadership from John McCain or anyone else in particular, but because the GOP rank and file in both chambers of Congress understand that a combination of self-abasement and cutting-and-running is the worst possible response to any enemy, certainly including our Islamofascist ones.

There are many positive things that can be said of John McCain, and I'm pretty sure I said them all, many times each, after he'd locked up the GOP presidential nomination in 2008. But 2008 was a year of extraordinarily weak GOP candidates. And the fact that McCain survived a strong primary challenge in 2010 after getting blown out in a presidential election in 2008 doesn't suddenly convert him from an old senator into an elder statesman. Like John Kerry, he's an embarrassingly bad former-nominee who just keeps hanging around the Senate; he gets exactly the respect there which he's due, which is not "none," but which means that nobody else there is much inclined to follow his lead just because of who he is (or was).

I believe in the two-party system even when it's sputtering, and while I never had any illusions about McCain's ample flaws, neither did I ever entertain any illusions that any of the non-GOP alternatives might have been remotely acceptable. (Hillary & Hubby might have turned out slightly better than Obama has, but only slightly, and at what cost in sleaze?) Of the bunch who'd sought the GOP nomination along with McCain, Fred Thompson was by far my favorite, but Fred had nowhere near enough of the proverbial fire in the belly. As a result, he got in too late, and he didn't run nearly hard enough to make up for McCain's advantage (as the runner-up from 2000) in the front-loaded winner-take-all set of early GOP primaries. But Fred was my favorite in substantial part because he was the only major GOP candidate who actually had a long-demonstrated commitment to core conservative principles. As a naval aviator John McCain had the tenacity and courage to resist his North Vietnamese torturers, but as a politician he's too often succumbed to the superficial allure of liberal pap and twaddle.

I'm a big-tent Republican, meaning I welcome the vote and the support of even those voters whose only agreement with me is that an opposing Democratic candidate is, for whatever reason, worse. But welcoming people into the tent isn't the same as pitching the tent's center-pole on unstable ground, which is what we did in 2008: Against the tsunami of willful self-delusion that propelled Obama into office — and welcome back, by the way, all of you whose eyes have been re-opened, you who persuaded yourself (although you should have known better) that all that "tax and spend/redistribute the wealth/blame America first" stuff was just empty GOP rhetoric instead of fundamental Obama dogma — we put up a Republican Lite. We needed instead, as we always need, to offer the voters a full-bodied Reagan-style Republican. And there just wasn't one of those available in 2007-2008.

It's the nature of cycles — political, economic, or otherwise — that there are bad times punctuating the good. We can only fully appreciate Reagan's greatness, for example, by contrasting him with his disastrous predecessor, Jimmy Carter. And so too it may take the horrors of Obama to prepare the nation to appreciate and embrace another genuinely conservative leader from the Grand Old Party in 2012.

I don't know who that will be yet. But I'm very, very sure that David Broder's instinct — which is to implore the Grumpy Old Warrior from Arizona (via the Canal Zone and the U.S. Navy) to lead his fellow Republicans to politely acquiesce in the ongoing Democratic rape of our national economy and our international self-abasement before our enemies — is bonkers. Broder's suggestion that we somehow need McCain to save the GOP from "an experiment in extremism" — meaning a return to Reagan Republicanism — gave me the best belly-laugh I've had all week. You want to talk "extremism," I'll show you some genuinely extreme extremism:

Odd traffic from Pandagon.net

I have only the cheap and free version of Sitemeter, and although TypePad also offers some metrics, I don't spend much time — even when I've been blogging recently — checking stats to see which other websites are referring traffic here. I notice sometimes when folks have linked me; I'm sure I miss noticing others. But the last couple of days I've been getting hits from pandagon.net — a leftie site that I gather is quite popular, but not one which I frequent. So I took a look, and found that I'd been linked as part of a post by someone named Jesse Taylor in a post entitled "Ten Questions Nobody Ever Asked About George W. Bush," thusly:

6.) Where are George W. Bush’s MBA projects and papers?

That's a link to a post about Obama that I wrote during the 2008 election season — specifically, on June 23, 2008. My post was triggered by a widely remarked article by Jeffrey Ressner and Ben Smith on the Politico website in which they reported on Obama's tenure at Harvard Law and, in particular, on the Harvard Law Review. They'd said:

One thing Obama did not do while with the review was publish any of his own work. Campaign spokesman Ben LaBolt said Obama didn't write any articles for the Review, though his two semesters at the helm did produce a wide range of edited case analyses and unsigned "notes" from Harvard students.

The thrust of my long-winded rejoinder was to say: Gee, based on what I know about law reviews, from my own admittedly different perspective as an editor at a competing one a few years before Obama's time, the assertion that Obama hadn't written or published any student work seemed extremely odd and improbable for someone who went on to become the head (editor-in-chief or, as at HLS, "president") of his or her law review.

I was right, and Ressner and Smith were wrong, although it appears that the reason they were wrong was that they'd been misled by the Obama campaign for reasons no one has ever adequately explained: As I explained on August 22, 2008*, in a prominent update to my June 23rd post, Ressner's and Smith's own subsequent reporting revealed "Obama's lost law review article" — actually a student casenote. I wrote at greater length about the apparent contradictions from the Obama team on this subject. My criticisms put me in company with, for example, such right-wing observers of the Obama campaign as Noam Scheiber at The New Republic.

I'm not sure what to make of this new link from Mr. or Ms. Taylor, then — other than as a general, and pathetic, example of the current Obama apologists' annoying whining about political problems of The One's own making, and especially of their need to continually re-invoke, somehow, Booooosh. As for their premise that George W. Bush's life was never put under a microscope, obviously those folks slept through the 2004 election and the entire TANG/Ra^thergate controversy. Silly libs.

Oh, wait — Mr. or Ms. Taylor apparently wasn't asleep for all of 2004. Google-searching my own site, I'm reminded that he or she linked me in October 2004 from a pandagon.net post entitled The Hollow Echos of Jackboots. Sweet!

In same-sex marriage appeal, Ninth Circuit surprises Beldar with both composition of panel and results

[UPDATE (Wed Aug 18 @ 9:20 p.m.): Most of my speculation in this post is based on an apparently mistaken premise that I shared with other pundits who were speculating about the Perry case — viz, that the granting of emergency relief, like a stay pending appeal, by a Ninth Circuit motions panel would result in the merits of the appeal then being directed to that same panel. See my new post, which expand on the comments in the last updates below regarding Prof. Rick Hasen's comments in the press. — Beldar]

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Along with many other legal pundits, I had predicted — not here, but on August 8 and again on August 13 in comments over on Patterico's blog — that the Ninth Circuit would refuse to stay U.S. District Judge Vaughn R. Walker's decision striking down California's "Proposition 8" state constitutional amendment that re-established the exclusivity of opposite-sex marriage there.

Today the Ninth Circuit proved my prediction wrong in a remarkable page-and-a-half order, the operative language of which amounts to less than a dozen sentences — but each of them is significant.

My prediction was not based on my view of what ruling would have been proper under the law — and for the record, let me promptly confirm that I think a stay is entirely appropriate, and that in due course Judge Walker's decision should be reversed and rendered by the appellate courts — but rather upon my admittedly cynical expectations based on my perception of the politics of the particular Ninth Circuit judges who I expected to be on the three-judge panel that would rule on the appellants' stay application: U.S. Circuit Judges Kim McLain Wardlaw, Raymond C. Fisher, and Marsha Siegel Berzon, all Clinton appointees who hail, respectively, from Pasadena, Pasadena, and San Francisco.

Instead, the three-judge panel that actually issued today's ruling comprised U.S. Circuit Judges Edward Leavy, Michael Daly Hawkins, and Sidney Runyon Thomas.

My friend and California/Ninth Circuit practitioner Patterico points out to me by email that these three judges comprise the Ninth Circuit's standing motions panel for August 2010, having been "[pre-]assigned [by the Ninth Circuit Clerk's office, under the administration of the Chief Judge, Alex Kozinski,] to consider ready substantive motions matters" which arise during that month. Every circuit maintains such a panel — emergency motions like this are sometimes purely procedural, sometimes somewhat substantive, but generally amount to "judicial scut-work" most of the time — and the membership of such panels typically rotates automatically, with different members serving every month. (For posterity, since the current page on the Ninth Circuit website listing members of the motions panel for August 2010 will change next month, here's a link to a .pdf capture of that page as of tonight.)

My prior understanding, however, was that the Ninth Circuit — like the Fifth, when I clerked for one of its judges way back in 1980-1981 — would automatically bypass the rotating motions panel when there was a subsequent appeal or emergency motion from a case that had already been heard by a prior Ninth Circuit panel, even if that was just a prior motions panel (as opposed to a panel that had heard a full appeal on the merits from a district court final judgment). Judges Wardlaw, Fisher, and Berzon — who, I assume, were the three members of an earlier motions panel — had heard and denied the earlier stay application last December in connection with Judge Walker's original ruling permitting the trial to be televised. So my assumption (shared by many other legal pundits) was that those same three judges would hear this motion too.

Some other facts that may or may not be, or become, significant:

• Judges Leavy and Hawkins are senior status judges. Senior status judges normally don't participate in the internal debate or voting on whether a panel decision should be reheard by the full circuit sitting en banc, which can sometimes affect the internal court dynamics of an appeal as it works it way through the circuit-court level and before it's considered by the SCOTUS.


• Judge Leavy was appointed by President Reagan, and Judges Hawkins and Thomas were Clinton appointees, but I don't know much more about them than that and the other very basic information in the Federal Judicial Center's biographical database.


• Although the Ninth Circuit is headquartered in San Francisco and appeals from the four Californa federal districts make up the majority of Ninth Circuit cases, there are other western states in the circuit, with circuit judges appointed from each; somewhat improbably, however, none of the three judges on this panel lives in California: Judge Leavy lives in Portland, Judge Hawkins in Phoenix, and Judge Thomas in Billings. Before I learned that they're on the August motions panel, I wondered whether perhaps Wardlaw, Fisher, and Berzon had been disqualified or had recused themselves based on their California citizenship. (FWIW, I don't think such recusal/disqualification is required.)

In addition to staying the effect of Judge Walker's decision, the panel sua sponte — that is, on "its own motion," without anyone connected to the case asking it to — set the case for an expedited appeal, on an accelerated briefing schedule shorter than the default deadlines established by the Federal Rules of Appellate Procedure that had already been applied to this appeal. The panel also announced that no exceptions or extensions are likely to be granted. (This same panel would hear such procedural motions.) And the panel also directed that the appellants "include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing," thereby ensuring that the standing issues will be fully briefed by both sides as part of the consideration of the merits of the appeal.

I'm still looking into this, and will quite possibly have updates to this post depending on what I find.

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UPDATE (Tue Aug 17 @ 12:25 a.m.): This is from the Court Structure and Procedures preface to the Ninth Circuit Rules, under section E(4) on "Court Procedures for Processing and Hearing of Cases":

The only exception to the rule of random assignment of cases to panels is that a case heard by the Court on a prior appeal may be set before the same panel upon a later appeal. If the panel that originally heard the matter does not specify its intent to retain jurisdiction over any further appeal, the parties may file a motion to have the case heard by the original panel. Matters on remand from the United States Supreme Court are referred to the panel that previously heard the matter.

This sort of rule is common in both state and federal court systems, and it's intended to promote judicial economy by directing particular cases to judges who may already be "up to speed" on them. It's not unknown for such rules to generate some gamesmanship by the litigants, however, and more rarely, even by judges or clerks' office personnel. Typically if there's any question about how or whether such a rule applies in a given case, the clerk turns for an answer to the chief judge. And the administrative power to make such procedural rulings is, as a practical matter, an important adjunct of a chief judge's power as "first among equals" on any given court.

What's currently before the Ninth Circuit does have a different Ninth Circuit docket number (No. 10-16696) from the proceedings on the trial televising ruling (No. 09-17241), so it's possible that someone in Clerk Molly C. Dwyer's office either never considered directing this stay motion to the earlier panel, or else thought about it and concluded, "Nope, this is not a 'later appeal' from the 'same matter' within the meaning of the rule." Or the Ninth Circuit Clerk's office may have a standing, but (perhaps) unwritten, rule that prior decisions by mere motions panels don't count unless it's for another procedural motion that's from the same stage of an appeal (e.g., also from after a final judgment), such that a prior motions panel ruling from an emergency interlocutory appeal just doesn't qualify for the re-assignment rule.

On the Ninth Circuit's helpful web page accumulating filings from this case, I don't see any separate motion by the respondents (that is, the ssm-proponents who won before Judge Walker) asking for their opponents' stay motion to be assigned back to the same panel that had heard the earlier motions in connection with televising the trial. That might turn out to have been a tactical blunder by Olsen and Boies and their allies, perhaps based on their assumption that the Clerk would make that re-assignment automatically.

As for whether this same motions panel will — by virtue of having ruled on the stay application and, sua sponte, on the briefing schedule — will now be assigned the appeal on the merits, I just don't know the answer to that question. Before today, I would have said "yes" with some confidence. But if the Wardlaw-Fisher-Siegel panel didn't hear the stay application, I'm not sure whether the Leavy-Hawkins-Thomas panel will hear the merits, especially given that two members of the latter are senior status judges.

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UPDATE (Tue Aug 17 @ 12:55 a.m.): There was a tip-off as to who the panel would be: On Friday, August 13, there was a short order from the current motions panel — Leavy-Hawkins-Thomas — granting the appellants' motion for leave to exceed the normal page limitations in connection with their stay application. But it's Docket No. 14 in the Ninth Circuit's docket. Even with instantaneous service by email, Olsen, Boies et al. probably did not have had that order in-hand when they prepared and filed their response (which has Docket No. 9 and was e-filed on that same date). I haven't read them yet, but a word-search of the .pdf files indicates that the word "panel" doesn't appear in either their response or the responses filed by their allies fighting the stay (the City & County of San Francisco and, despicably, the California Attorney General).

Others (besides me and Patterico) who had speculated that the Wardlaw-Fisher-Berzon panel would hear the appeal on the merits include Orin Kerr at the Volokh Conspiracy and bmaz at Empty Wheel/Firedoglake. Prof. Kerr added a parenthetical edit, perhaps presciently: "(edit: just to be clear, I mean the Ninth Circuit merits panel, not the motions panel that will hear the stay denial in the next few days)." But if the above-quoted provision of the Ninth Circuit rules didn't even get this stay motion back to the Wardlaw-Fisher-Berzon panel, then why would it get the decision on the merits back to them? And will it even get the case back to the Leavy-Hawkins-Thomas panel?

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UPDATE (Tue Aug 17 @ 1:35 a.m.): The Advocate (h/t AllahPundit at Hot Air) quotes representatives from the California AG's office (heh) and the legal teams seeking to overturn the ssm-amendment as saying they won't ask the SCOTUS to overturn the stay. Presumably that also means they won't seek panel or en banc reconsideration of the stay at the Ninth Circuit level either. As for how it's being spun:

"We are very cognizant of the fact that many people wanted to get married as soon as possible, and that's why we so strongly opposed the stay," plaintiffs' attorney Ted Boutrous, who argued the case alongside lead attorneys Ted Olson and David Boies, told The Advocate. "But at the same time, had the stay not been entered, it may have been harder to get such an expedited briefing schedule in the case."

Another legal source, who declined to be named, said that had the ninth circuit ruled against a stay, an appeal by Prop. 8 supporters to the Supreme Court could have been harmful to Olson and Boies's highly strategical [sic] case. "When you have an important constitutional issue, as is the case here, you don’t want the first time it comes before the justices to be a high-pressure, high-speed situation," the source said. "You’d rather have it come on a full record and on a schedule where the court has time to consider the issues carefully.

"You don’t want this hitting their schedule when it's summer and they're on vacation," the source added.

The spin strikes me as spectacularly weak sauce: Yeah, if the stay had been denied, they might not have gotten an expedited briefing and argument schedule, but in the meantime, thousands of gays would have been getting married. Whether those marriages will later — after SCOTUS review — still be deemed valid can't possibly depend on whether they were entered into solely on the strength of Judge Walker's unstayed ruling or, instead, on the strength of a potential later affirmance of his ruling by the Ninth Circuit on the merits. Boutrous' suggestion that the stay somehow benefits gays wanting to get married in California is simply ridiculous, a particularly unpersuasive example of "well, we really sort of wanted to lose that motion, regardless of what our court filings said." Moreover, even in a "highly strategical case" (which I suppose is one in which you have to be extra careful not to misunderestimate your opponent), if you think that an appellate judge's first instinct would be to go with your side, then you quite possibly might prefer to present the issues to him for the first time in an emergency setting. And the "summer vacation" argument is childish. Whoever made those arguments, even for purposes of spin in the press, was very wise not to agree to be named.

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UPDATE (Tue Aug 17 @ 2:15 a.m.): Musing on the significance of the order's concluding sentence and case citation regarding standing, Allahpundit writes (links his):

As of an hour ago, the first weddings were set to start at 5 p.m. on Wednesday; now they won’t happen until December at the earliest, with no explanation given of how Walker erred. Presumably they figured there’s enough of a chance that Prop 8 supporters will win on appeal that they didn’t want to let marriages happen now, only to have to void them later. That’s the good news for gay-marriage opponents; the bad news is that two of the three judges here are Clinton appointees and they’re clearly quite interested in Walker’s argument that Prop 8 supporters lack standing to appeal his decision. Merely postponing the inevitable here?

But if we're debating which tea leaves are strongest and most reliable as predictors, I have a contrary take. The standing issue had already been raised and briefed (albeit in a comparative hurry) by both sides in the stay application and responses. Every appellant has the obligation to demonstrate to the appellate court that it has federal subject-matter jurisdiction and that the appeal meets the other "case or controversy" jurisprudential requirements like standing, ripeness, non-mootness, etc., so there is absolutely no chance that the appellants would have ignored those issues in this case. However, precisely because it's so basic, if even one judge on the panel requested a sentence like this one — even if he simply wanted that briefing in order to confirm his or her preliminary view that there is indeed standing — then whoever drafted the order for the panel certainly would have included it. The sentence requesting this briefing is not the sort of thing anyone would object to including in the order, in other words, and I really don't think it necessarily implies anything important as a result.

Far more importantly: Probability of success on the merits is explicitly made part of the standard of review for stay applications like this one. If you lack standing, your probability of success is zero. Probability of success on the merits is not determinative by itself, but it's very important — easily the single most important factor in most situations. Implicit in the unanimous ruling granting the stay, therefore, is that at least two judges are satisfied — at least for the present preliminary purposes, that being deciding an emergency stay motion — that there is adequate standing. They (or others) might come to a contrary decision later, but that's the decision of at least two of these judges, at least for today. If, by contrast, even two members of this motions panel really seriously thought that the opponents had already made a persuasive case that there's no standing, that should have resulted in the stay being denied. (If only one judge thought there's a serious doubt about standing, he/she might well have decided not to write that up now as a dissent to the stay ruling — such dissents are extremely rare at the circuit court level — but instead to kick that overt discussion on down the road to the panel proceedings on the merits, with the possibility that full briefing may persuade at least one of his/her panel-mates to agree there's no standing, or perhaps with the possibility that it will be an altogether new panel, with three entirely different members, who may hear the appeal on the merits.)

Also, Prof. William A. Jacobson at Le-gal In-sur-rec-tion speculates that the November election results and January office-taking of a new California governor and attorney general might affect the standing issue in a way that will help Prop 8 supporters. He might be right, but I haven't done enough to refresh my recollection and update my knowledge on standing to weigh in on that. When a governor or AG may decide to stop trying to defend the validity (under the federal constitution) of a state statute or state constitutional provision is an interesting mix of constitutional law, civics, and even legal ethics. I didn't disapprove, for example, of the Texas solicitor general's and attorney general's decision not to seek certiorari from the Fifth Circuit ruling striking down Texas' "five-dildo" rule, even though the Fifth Circuit had explicitly created a split between the circuits; but that was after full briefing and a decision on the merits by a Fifth Circuit panel, and after a motion for rehearing en banc had been denied. Morever, millions of Texans had not just voted to confirm the five-dildo rule!

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UPDATE (Tue Aug 17 @ 6:15 a.m.): From the NYT's article on the decision (boldface mine):

Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles, said the ruling "takes the heat off the Supreme Court," which was likely to have been asked for an emergency stay by those who support Proposition 8 if the Ninth Circuit had not acted.

But Mr. Hasen added that the stay’s putting a halt to any potential marriages did not mean that the Ninth Circuit would necessarily rule in favor of Proposition 8.

"I don’t think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits," he said. "It won’t be the same panel deciding the merits as decided the stay motion."

Mr. Hasen added he believed that even supporters of same-sex marriage could see the logic of extending a stay.

I hold Prof. Hasen in high regard, and having clerked for a judge on the Ninth Circuit, he has vastly more experience with that court than I have. (I've only appeared as counsel there once, and that was long ago.) I agree with his first observation, regarding Monday's panel ruling "tak[ing] the heat off the Supreme Court," although the SCOTUS is pretty much used to such heat and it naturally comes with their institutional responsibilities. I wish I knew the exact basis for his assertion that it "won't be the same panel," but I certainly can't dispute that conclusion. And I don't know what to make of his last comment: I think there are excellent reasons for proponents of same-sex marriage to have concluded that as a matter of long-term strategy, it was a mistake to even bring this case, in this fashion, from California at this particular time, in the immediate aftermath of the passage of Prop 8 and with the current composition of the SCOTUS. But (unless the NYT quoted Prof. Hasen out of context), why pretend that this is not a set-back, even a temporary one, for ssm-supporters?

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UPDATE (Tue Aug 17 @ 7:10 a.m.): Prof. Hasen's quoted at more length in the LAT (bracketed portion theirs):

Loyola Law School professor Richard Hasen said Monday's order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If the panel had refused to place a hold on Walker's ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."

Hasen said the hold "takes the heat" off Kennedy and takes the case "off the front burner for a while."

That makes more sense to me, although I'm not entirely persuaded. The change that ssm-by-judicial-decree supporters would need in the interim is not just another state or two moving into the (so-far quite short) ssm-permitted column, but instead in the occupancy of one of the SCOTUS seats held by Chief Justice Roberts and Justices Scalia, Thomas, Alito, and (possibly) Kennedy.

The LAT leaves unremarked — but I cannot — the cynicism that underlies all this punditry. I'm guilty of it too, but still: How and when, exactly, would the federal Constitution change between now and, say, the five or six months from now during which the Ninth Circuit's expedited proceedings will play out?

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UPDATE (Wed Aug 18 @ 9:20 p.m.): As I warned in my update at the top of this post, anyone reading it should also see my newer post for more on Prof. Hasen's statements about an entirely new panel hearing the merits, which I increasingly believe is likely to be the correct prediction.

NYT posits that Dems will benefit, compared to 1994, by "lack of surprise" over voter discontent

Today's NYT also contains as nice a piece of self-delusion — entitled "This Time, Voter Anger is No Surprise" — as has ever been recorded in the annals of psychotherapy. It begins with an anecdote and proceeds to what the NYT clearly hopes will be accepted as shrewd political analysis applicable to Democratic incumbents nationally:

A year ago, dozens of protesters gathered outside the district office of Representative Ike Skelton, a Democrat who has represented a wide stretch of western Missouri since 1976. The anger they directed at health care legislation — and by extension most Congressional Democrats — left the party in a state of near panic.

It may, in retrospect, have been the best thing that could have happened to Mr. Skelton and his colleagues.

In the arsenal of advantages that Republicans hold as they seek to win control of Congress this year, one thing is missing: the element of surprise. Unlike 1994, when Republicans shocked Democrats by capturing dozens of seats held by complacent incumbents, there will be no sneak attacks this year. Democrats have sensed trouble for more than a year, with the unrest from town-hall-style meetings last August providing indisputable evidence for any disbelievers.

The result has been to goad many Democrats into better preparation: more fund-raising, earlier advertising, lots of time on the campaign trail.

Because, of course, everyone knows that the incumbents who do more fund-faising, do earlier advertising, and spend more time on the campaign trail should win, regardless of what they've done in office.

Take a step back. There is a significant admission not very well hidden in this delusive fantasy: The Dems have known for at least a year already that their actions in office were angering the public. Did they change what they were doing? No, they did not. They've kept doing what the Democratic Party's collection of special interest groups wants, meaning they've kept up the unprecedented and outrageous volume of government handouts and the associated opportunities for graft. And they've extended the bumbling, fumbling, incompetent, and destructive reach of the federal government further into your health care, your energy use, the cars you drive, and dozens of other aspects of what you used to think of as being "your" lives.

And having spat in their constituents' collective faces, they're going to hunker down, fire up their attack ads, fan the flames of class- and race-warfare, point the finger at Boooosh, and generally hope that this somehow turns out to be, against all polls and predictions, one of those years where they can still fool most of the people all of the time.

Yes, Representative Skelton, you and your buddies have finally captured the public's rapt attention, and now they're on to you. As a consequence, the hanging party has gathered, the pots of tar are heating, and they're cutting up pillows for feathers. But just like the NYT says: all that's the very best set of things that could have happened to you — if you're willing to heed the advance warnings and get the hell out of Washington before they catch up to you. But your lack of surprise at their outrage, brother, isn't likely to save you; instead, it just makes you more guilty.

Obama: L'État c'est Moi! And my job is to tell you, my subjects, what your values should be

One would expect even a junior state senator from Illinois to have a better grasp of politics than Barack Obama has shown in his comments about the proposed Islamic center near Ground Zero. One would certainly expect even a junior lecturer, much less a senior one, from Chicago Law School to have an instant grasp of the difference between whether something's legal and something's wise. Basically, I'd expect anyone running for high school senior class president to be able to draw this kind of distinction with great ease and indisputable clarity if he wished to opine on one question but not the other.

"Amateurish" is insufficient. "Embarrassing" would be presumed, except that Obama has still shown himself to be, quite literally, incapable of being ashamed.

Do you remember all the classic cartoons — Tom & Jerry, for example — in which very large, fierce watch-dogs get very excited, and they run from their doghouses across their yards as fast as they can? And they're practically flying, and they're really about to finally catch the cat when — boing! — they hit the end of their leashes and they're are yanked violently, hilariously, to a complete stop? That's what I was reminded of in reading, first, Greg Sargent's WaPo post from Saturday morning about Obama's Friday night speech being "one of the finest moments of Obama's presidency" precisely because Obama didn't just address the legal issue, but instead expressed his full support for building the center near Ground Zero because it would be flat-out un-American not to welcome and respect the group proposing to build this center; and, second, Mr. Sargent's wounded and genuinely pathetic one-line update after Obama's Saturday "clarifications." (H/t Patterico.) Repeat after me, Mr. Sargent, with more feeling this time: "We've always been at war with Eastasia ...." If you can't pivot on a dime, you're useless as a shill, Mr. Sargent!

But as our mirth finally subsides, let us consider the premise of this entire Obama pratfall, as very deliberately emphasized and then re-emphasized by the president's top handlers and spin-meisters, as reported in their camp newsletter newspaper of choice (emphasis mine):

Faced with withering Republican criticism of his defense of the right of Muslims to build a community center and mosque near ground zero, President Obama quickly recalibrated his remarks on Saturday, a sign that he has waded into even more treacherous political waters than the White House had at first realized....

....

... Mr. Obama’s attempt to clarify his remarks, less than 24 hours after his initial comments at a White House iftar, a Ramadan sunset dinner, pushed the president even deeper into the thorny debate about Islam, national identity and what it means to be an American — a move that is riskier for him than for his predecessors....

....

“I think it’s very important, as difficult as some of these issues are, that we stay focused on who we are as a people and what our values are all about,” the president said here on Saturday.

....

White House aides say Mr. Obama was well aware of the risks. “He understands the politics of it,” David Axelrod, his senior adviser, said in an interview....

....

Mr. Obama has typically weighed in on such delicate matters only when circumstances have forced his hand, as he did during his campaign for president, when he gave a lengthy speech on race in America in response to controversy swirling around his relationship with his fiery former pastor, Jeremiah Wright.

Debate about the Islamic center had been brewing for weeks, yet Mr. Obama had studiously sidestepped it.

But the Ramadan dinner seemed to leave the president little choice. Aides said there was never any question about what he would say.

“He felt that he had a responsibility to speak,” Mr. Axelrod said.

So let's put aside, for the nonce, whether this issue is remotely comparable in any way to candidate Obama's warm embrace and then bus-throwing-under of Rev. Wright (a political embarrassment unique to Obama and of own making). Let's not necessarily attribute to Obama or his staff, but instead let us assume for now the responsibility of the NYT's writers and editors, for the positively insane assertion that the Islamic religious calendar ever could or should leave the President of the United States "with little choice" or "force his hand." (After all, Obama can not only draw on all of his power as Commander in Chief and Chief Executive, he can fire up his special personal magic to lower the oceans and heal the planet; and you're telling me he's helpless, hopeless, and without alternatives that would let him even choose his own topics of discussion at a short speech at a dinner held to show respect to a religion he insists he doesn't belong to?)

And contrary to Obama's characterization, this controversy is in no way "difficult": Regardless of his or her political preferences, only a moron could fail to understand that (1) it's probably legal but (2) a spectacularly bad idea, as a matter of taste and policy (not law), for an Islamic center of the sort these particular folks are proposing to be built by these particular folks where they're proposing to build it. The only reason this controversy is still getting so much traction is that the 80% of Americans who instinctively understand and accept this simple distinction are quite properly annoyed that Barack Obama and the remaining 20% of Americans continue to insist on arguing about First Amendment rights.

But read again the part I've highlighted with green print — the part about "stay[ing] focused on who we are as a people and what our values are all about." And then re-read the reasoning for why Obama and his staff thought they were compelled to take a position, any position, in this local land use controversy. This administration has once again told you, America, in just so many words, that it sees the President's job as telling you what your values are and, indeed, what they should be.

In fact, Obama and his administration see his role as national nanny and instructor in matters moral to be so paramount that he was forced, despite knowing the risks, to "wade deep" in controversy, to suffer the slings and arrows of outrageous political fortune, just to set us straight on Friday. (And then to set us, uh, straighter, on Saturday.) Oh, poor, poor under-appreciated, misunderstood Barry! Because that's the spin, folks: Obama, according to Axelrod, hasn't been at all politically inept on this, but rather, he's been brave and selfless.

Now aren't you ashamed of yourself? You definitely should be!

The arrogance, the condescension, and the megalomania of Barack Obama and his minions continues to amaze me. Is there no political strategist with access to the Obama White House who can point out the obvious to them — that Obama's credibility has long since been exhausted, that even his relevance is fading, and that the single very best thing he could do for himself and his party right now would be to stop his own endless hemorrhage of talk, talk, talk?

Blumenthal lies about lying

If I'm looking at my son Adam and I call him by his older brother Kevin's name, I've "misspoken." If I say to him, "Adam, I served in Vietnam," then I'm a liar.

Richard Blumenthal, the attorney general of Connecticut, is running to replace Chris Dodd in the U.S. Senate. He definitely is proving himself to be Dodd-like, and much like Dodd's Democratic Senate colleagues Tom Harkin, Hillary Clinton, and, of course, John "Christmas in Cambodia" Kerry — as a bald-faced pathological liar.

Anyone who has repeatedly referred to himself as being among Vietnam War veterans "returning" to the U.S., anyone who has said "back when I served in Vietnam" — when in fact he did not serve in Vietnam, ever — cannot possibly have simply "misspoken." That one could make such a mistake innocently, even once, is impossible; that one could allow such a mistake to remain uncorrected is almost inconceivably, and certainly irrationally, dishonest. Rather, when Blumenthal repeatedly insists that he merely "misspoke" with no intention to deceive anyone, then he's lying again, as blatantly as possible, by denying that he was lying before.

My scorn for this lying ass-clown, this scum-stain masquerading as a man, also extends to every single willfully self-delusional Connecticut voter who votes for Blumenthal if he indeed tries to continue his misbegotten political career.

------------

UPDATE (Mon Apr 18 @ 3:45pm): I commend to you, and associate myself with, AllahPundit's remarks.

Obama, Sunstein, and "libertarian paternalism"

From a very scary hagiography in the New York Times Magazine:

Libertarian paternalists would have school cafeterias put the fruit before the fried chicken, because students are more likely to grab the first food they see. They support a change in Illinois law that asks drivers renewing their licenses to choose whether they want to be organ donors. The simple act of having to choose meant that more people signed up. Ideas like these, taking human idiosyncrasies into account, might revive an old technocratic hope: that society could be understood so perfectly that it might be improved. The elaboration of behavioral economics, which seeks to uncover the ways in which people are predictably irrational, “is the most exciting intellectual development of my lifetime,” Sunstein told me.

The title of the article is "Cass Sunstein Wants to Nudge Us." The word "nudge" in the title is an allusion to the title of a recent book that Sustein co-wrote. But you have to understand: by "nudge," Sunstein means "turning your life into something run the way he and his ilk think it should be run" — nothing less than that.

It is the nanny state. It is the statist impossible utopia that Barack Obama and folks like Sunstein have in their pointy heads as the America they want to build, as they systematically dismantle everything in the America that exists.

"Libertarian paternalism" is an oxymoron. What Sunstein and Obama are doing is just arrogant paternalism, period. Instead of anything remotely resembling real libertarianism, Sunstein is promoting the notion of government regulation so subtle, so perceptive, so ... well, just so damned clever that it won't really seem like much of a bother to do what Sunstein and Obama and the government want you to do. You'll think it's your own idea!

'Cause they're smarter than you and me, see? Get it? If you don't, then just keep clinging to your guns or religion or antipathy toward people who aren't like you or anti-immigrant sentiment or anti-trade sentiment. Something. You moron, why do you think you're even remotely qualified to run your own life? Sheesh.

[/sarcasm off] Seriously, folks, this article will tell you everything you need to know about why Cass Sunstein is my worst dread as a potential Obama SCOTUS nominee. I am so, so very glad that he's a pasty white guy!

Beldar's take on the current SCOTUS buzz

Another [senior administration official] said that there have been several meetings but that the White House has not much shared its point of view. Still, one outside source said the president's preference is less apparent than at the same point a year ago, just before he nominated Sotomayor. "Last time around, you knew Sotomayor was going to be the candidate," the person said. "She was such a home run on so many different counts.... I would say this one is much, much, much more difficult for them."

So reports the WaPo, in what I think was probably an unintentional episode of damning by faint praise.

The Hon. David Souter, retired Associate Justice, was reliably a Lefty vote, but he generally lacked any significant influence beyond his single vote. Justice Sotomayor was an almost perfect replacement for him — and by "perfect replacement" I mean "perfect match." She was picked on the sole basis of identity politics, and I suspect all that "wise Latina" superiority stuff has been politely ignored, but has not been quite forgotten, by her new peers.

Indeed, I have a comparatively higher opinion of each of the people supposedly on Obama's current short list than I do of Justice Sotomayor, and I think any of them would have a better shot than Justice Sotomayor at satisfying what ought to be a liberal Democratic president's strategic goals in making a SCOTUS appointment. That is to say, I think Obama essentially wasted his pick on Justice Sotomayor. And I think that any of the people now supposedly under consideration would have at least a chance of becoming a Justice with more influence than Souter wielded or Sotomayor is likely to wield. I doubt any of them would ever become as influential as was, say, Justice Brennan or even Justice Douglas, but they might manage, if they're fortunate, to mostly fill Justice Stevens' liberal shoes as someone who could definitely hold his or her own.

Of the names being floated, I think Judge Diane Wood of the Seventh Circuit is the most likely to be able to influence other votes, especially that of Justice Kennedy — albeit in directions I'd mostly rather not see those votes go. (I can't deny that part of me would also prefer to see Judge Wood get the pick because she and I both took the UT-Austin/Plan II to Texas Law School career path, but that's my own flawed version of "identity politics" talking.)

Both as a political conservative and an opponent of judicial activism, I'd be least concerned about Solicitor General (and former Harvard Law Dean) Elena Kagan — which is another way of saying I don't think she'd end up being very much more influential than Sotomayor and that she'd probably be less influential than almost any "average" liberal circuit judge. (That includes either Merrick Garland or Sidney Thomas, the two white male circuit judges whom Obama has given what I firmly believe are only "courtesy" interviews. He might pick someone white, but he won't pick someone white and male.) So I'm mostly rooting for Obama to pick Kagan.

For what it's worth, my worst-case scenario is still another Harvard product, Cass Sunstein. I actually think the sort of schmoozing, fund-raising, and deal-brokering that Kagan is supposed to have been good at when she was the dean at Harvard isn't likely to be nearly as effective at the SCOTUS. Sunstein is a genuine dynamo of ideas — many of them absolutely terrible — and I think his stature as an academic superstar is far more likely to impress Justice Kennedy than Kagan's status as a mere dean, which (after all) is an administrative job.

Were I a senator, I would probably vote against anyone Barack Obama nominated; he in particular, by his own votes against Dubya's Roberts and Alito SCOTUS nominations, forfeited the legitimacy from which he could have argued that a president ought to be able to get confirmation votes for well-qualified nominees regardless of partisan politics. But I wouldn't filibuster any of the four currently supposed to be the front-runners. I don't believe filibusters are appropriate for judicial nominations, and I'm not going to change that principled position (which I believe to be firmly rooted in the Constitution) to retaliate against Dems who've abused the filibuster during the Bush-43 and Bush-41 administrations.

I would try to make best possible use of her or his confirmation hearings to expose liberal positions taken by anyone who Obama might pick, but frankly, any Democratic nominee is going to follow the same playbook Sotomayor did — that is, dissemble about his/her own real views and pretend instead to be John Roberts.

All SCOTUS nominations are important, but comparatively, this one is not nearly as important as will be the nomination for Justice Scalia's successor. I'm therefore going to divert into a more productive use — specifically, good wishes for Justice Scalia's continued health and vigor and clear writing — some of the mental energy that I might otherwise expend worrying about this particular pick.

Is it legal to stamp "TAX CHEAT!" over Tim Geithner's signature on $1 bills?

Instapundit links a website named taxcheatstamps.com that includes a YouTube video of a Fox News segment about a fellow who was protesting TreasSec Tim Geithner's confirmation by stamping, in red ink, the words "TAX CHEAT!" over Geithner's signature on $1 bills.

The person being interviewed in the video is, I gather, named Michael Williams — and I assume he also runs the website and sells the stamps. He writes at the top of his webpage: "I'm being audited because this website pissed someone off," which almost counts as a warning and disclosure to consumers, but in the video clip, he gives his assurance that to the "best of [his] knowledge in [his] research," using such stamps for such a purpose is "not illegal," and that "it's only illegal to deface currency if you prevent it from being circulated or if you're trying to do it for the purposes of fraud." On an associated website with some other snarky protest stamps for sale, he writes that it's "probably not" illegal to deface currency with his stamps, but allows that "that's part of the risk of civil disobedience[,] right?" and warns customers to "[d]o it at your own risk." As support for his "probably not illegal" claim, he in turn links this page, which quotes the relevant statute but is remarkably light on legal reasoning or analysis. Overall, then, despite some mild reassurances, this is pretty much the opposite of an iron-clad guarantee that you won't be prosecuted and a promise to pay your legal fees if you are.

By linking Mr. Williams' site, I'm pretty sure Prof. Reynolds wasn't giving his own legal opinion to back up Mr. Williams' opinions, and I'm not sure what Mr. Williams' own legal qualifications may be. Were I asked for my opinion, however, I would warn that the legality of this practice is far from well-established or clear. I would warn that in the current political climate, there instead may be a legitimate, nontrivial risk that using these stamps on circulating American currency could result in prosecution and even conviction.

The relevant statute is 18 U.S.C. § 333, which provides:

Whoever mutilates, cuts, defaces, disfigures, or perforates, or unites or cements together, or does any other thing to any bank bill, draft, note, or other evidence of debt issued by any national banking association, or Federal Reserve bank, or the Federal Reserve System, with intent to render such bank bill, draft, note, or other evidence of debt unfit to be reissued, shall be fined under this title or imprisoned not more than six months, or both.

There's only one reported federal decision — Keese v. Zerbst, 88 F.2d 795 (10th Cir.), cert. denied, 301 U.S. 698 (1937) — which deals with this statute or its predecessors, and it's not really helpful since the court concluded that the defendant had been correctly indicted, tried, and convicted under the counterfeiting statute (and its more severe penalty), rather under this one. So there are no reported cases in which you can take comfort before starting your protest stamping.

Just looking at the text of the statute, I don't think there is any doubt that using these stamps — even if the read ink leaves Secretary Geithner's signature still legible — would qualify as "defac[ing or] disfigur[ing]" the bills. But I think Mr. Williams is also probably right, and that — properly construed to be given its least expansive interpretation — the "with intent to render [the instrument] unfit to be reissued" clause must be read to modify all of the previous language. Therefore the prosecution would have to prove that intent beyond a reasonable doubt as an element of the crime.

Any defendant would surely argue that instead, his intent was to make a political statement and protest, and that his action constituted symbolic speech protected by the First Amendment. At least superficially, those are attractive positions.

But what if the government adduces evidence — from, say, the responsible officials at the U.S. Mint — which unequivocally and persuasively establishes that the government considers currency that has been so stamped to have been rendered "unfit to be reissued" when it's passed through government hands? What if the rationale is politically neutral, and the government has a plausible and logical explanation for why it must destroy such bills, an explanation which doesn't depend on defending the bona fides of Secretary Geithner?

If so, the government would have its proof of the required consequence, and thereafter the government would only need to also show that the defendant — because he knew of that consequence and proceeded anyway — must have intended that the currency become "unfit to be reissued." The statute doesn't require, after all, that causing the currency to become "unfit to be reissued" be the sole intention behind the act. A prosecutor could persuasively argue, and a jury could well agree, that the defendant had both a legitimate intention to protest, and an illegal intention to cause the currency to be withdrawn from circulation.

Indeed, with a good processor, the wrong jury, and just a few bad breaks, the defendant's admitted desire to protest can be re-characterized as a desire to cause the government the expense and inconvenience (as well as perhaps embarrassment). At a minimum, the defendant — who'd probably have to take the stand in order to dispute the prosecutors' inferential arguments about his intent — would have a dangerous tightrope to walk on cross-examination.

As for the First Amendment defense, this might be considered "conduct" rather than "speech," the way a minority of the current SCOTUS considers flag-burning to be conduct (and hence something that may be regulated and prohibited) rather than speech.

Bottom line: There is more risk here than I would recommend that any client willingly undertake. There are plenty of other ways to protest that don't require you to essentially concede guilt on any elements of a federal crime. Some of those means of protest might actually be persuasive, which this isn't actually likely to be. So if you're inclined to protest, pick one of them instead.

Obama only pretends to re-write every state's domestic laws to benefit gays & lesbians

As I write this, the online version of today's Washington Post has the following breathtaking headline and subhead:

Same-sex partners given hospital visitation rights:
President Obama mandates hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney.

In the accompanying article, we read:

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.

The president directed the Department of Health and Human Services to prohibit discrimination in hospital visitation in a memo that was e-mailed to reporters Thursday night while he was at a fundraiser in Miami.

Administration officials and gay activists, who have been quietly working together on the issue, said the new rule will affect any hospital that receives Medicare or Medicaid funding, a move that covers the vast majority of the nation's health-care institutions. Obama's order will start a rule-making process at HHS that could take several months, officials said....

Obama's mandate is the latest attempt by his administration to advance the agenda of a constituency that strongly supported his presidential campaign.

At first glance, this appears to be lawmaking by executive order. Of executive orders, Clinton aide Paul Begala gave us this memorable quote in 1998: "Stroke of the pen, law of the land. Kinda cool." The reason the quote is memorable is its casual assumption — in two different senses of that word — of near-imperial power, power that's essentially independent of either chamber of Congress and, indeed, of the American people. 

Those with even a passing familiarity with the history of the civil rights movement will recall that Harry Truman's 1948 executive order desegregating the U.S. military preceded any significant congressional action on race relations by a decade or more. I expect we'll see today's announcement compared to that one.

But when one turns to the Obama White House's own website, and in particular to its "Presidential Actions" page, one finds that although there are other "executive orders" listed there which pertain to other matters, the new policy regarding gay rights and hospitals is labeled merely a "presidential memorandum," not an executive order. And when we turn to the memorandum itself, we find something considerably less impressive than that which the WaPo — and, dare I say? — the Administration's spinmeisters have jointly tried to project.

First, the memo directs the Secretary of Health and Human Services to

[i]nitiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.

Technically, then, this isn't a command, but a condition for funding: Were a hospital to decide to forgo Medicare and Medicaid funding, it could, if it wished, maintain visitation policies permitting only traditional visitor classifications that might exclude, for example, unmarried romantic partners of either sex or any sexual orientation. Most hospitals do accept that funding, and so will have to comply with the rules HHS attaches to that funding. But even so, this policy change doesn't protect only gays and lesbians, but rather empowers all hospital patients, whether gay or straight, at all federally funded hospitals.

Similarly, the second command in the memo directs HHS to

[e]nsure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care.

Again, this is a condition of funding, not a direct command. And again, it's directed not only to gays and lesbians, but to all patients, gay or straight, who've signed "advance directives" that give "patients' representatives" — gay or straight, family member or friend — the power to make medical decisions on their behalves. So what does it do, exactly? It says that HHS should make sure hospitals who receive federal funds comply with already existing federal regulations that respect state laws already on the books — laws that extend patient rights without reference to whether they or anyone else involved is gay or straight. This is supposed to qualify as a momentous step forward for gay rights?

The memo's third and final command is the only one specifically applicable to the gays and lesbians who are trumpeted as the beneficiaries of The One's actions — an entirely toothless requirement that the Secretary "[p]rovide additional recommendations to [Obama], within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families." Obama might as well have written: "Between now and the November elections, find me some other excuse to claim I've done something for gay rights."

Who can act on your behalf is, in general, not a question of federal law — not even the traditional kind of federal law where each chamber of Congress passes identical bills and the president then signed them. Instead, this is traditionally a matter of state law, an intersection of agency law and domestic/family law. That's why the (entirely laudatory) trend toward enforceable durable powers of attorney and health-care directives has come from the state legislatures, most of them enacting model legislation, but some of them experimenting with tweaks, in our "national laboratory" of continuing policy-making. In our system of federalism, writing or re-writing these kinds of laws is simply not part of the POTUS' job description. (Compare and contrast Truman's executive order on military desegregation, given to organizations over which he is constitutionally made commander in chief.) 

Indeed, doing what the WaPo's sub-headline suggests — simply "mandat[ing that] hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney" — would, in my humble opinion, be unconstitutional if attempted by executive order. It would be quite possibly beyond the combined constitutional power of Congress and president. But when we have a president who wants to take credit for causing the seas to recede, we ought not be surprised to see him claim to have similarly exerted his lordly powers over some bigoted local hospital administrators.

Lest you have any doubt that this is all smoke and mirrors — a manufactured event cynically designed by the Obama White House as a sop to those who are otherwise growing unsatisfied with a perceived lack of action on "gay rights issues" by The One — read the penultimate paragraph of the memorandum:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

This paragraph, friends and neighbors, is the equivalent of Emily Litella's closing lines to Chevy Chase in the old SNL "Weekend Update" skits: "Never mind."

And thus, in the giant Venn diagram of American politics, do two sets become ever more nearly exactly congruent: Those who support Obama, and those whom he's successfully duped.

I'm not against this very modest and mostly illusory policy tweak in favor of patient empowerment. I'm certainly not distressed that it benefits gay patients as well as straight ones. But I'm against charlatans. And Obama is one.

---------------------------

UPDATE (Fri Apr 16 @ 10am): Regarding the specific impetus for this action, the WaPo article reports:

Officials said Obama had been moved by the story of a lesbian couple in Florida, Janice Langbehn and Lisa Pond, who were kept apart when Pond collapsed of a cerebral aneurysm in February 2007, dying hours later at a hospital without her partner and children by her side.

Obama called Langbehn on Thursday evening from Air Force One as he flew to Miami, White House officials said. In an interview, Langbehn praised the president for his actions.

"I kept saying it's not a gay right to hold someone's hand when they die, its a human right," she said, noting that she and Pond had been partners for almost 18 years. "Now to have the president call up and say he agrees with me, it's pretty amazing, and very humbling."

But as reported by the New York Times in its May 2009 article about Ms. Langbehn, the Miami hospital in question denied that the grounds on which it prevented Ms. Langbehn access were that she was insufficiently related to the late Ms. Pond. Rather, her attempts to join Ms. Pond were at least initially frustrated on the basis that no visitors should be permitted in the trauma emergency room where hospital personnel were trying to administer life-saving procedures upon Ms. Pond. Later, when Ms. Pond was moved to intensive care, Ms. Pond's adopted children were also prevented from visiting — not because they had been adopted by a lesbian, but because they were 14 or under. After it received a copy of the medical power of attorney authorizing Ms. Langbehn to receive information and made decisions on behalf of Ms. Pond, the hospital did consult with Ms. Langbehn regarding Ms. Pond's medical options, including the placement of a brain monitor and possible surgery; Ms. Langbehn did not allege that she would have made any different decisions had there been any more thorough consultation. The only indication of any specifically anti-gay bias appears to have been a stray comment by a social-worker to the effect that Florida was an "anti-gay state." In a supposedly similar case from Washington State, Sharon Reed was restricted in visiting her dying lesbian partner, Jo Ann Ritchie, on grounds that Ms. Reed's particular actions were interfering with a nurse's provision of medical care — not on grounds that Ms. Reed was a gay partner (instead of a straight spouse). Nothing in yesterday's memo requires, either directly or (through federal funding approval) indirectly, that hospitals permit unlimited visitation everywhere and at all times even to traditional opposite-sex spouses; if "immediate family members" are restricted, so too may be gay partners. And whether the visitation restrictions placed upon either Ms. Langbehn or Ms. Reed were or were not reasonable as a matter of medical judgment in their particular circumstances, nothing in yesterday's memo would have changed either of those results.

I don't doubt that there have been gay partners who've been discriminated against by hospitals against on the basis of their being gay. There are indeed anti-gay bigots, and some of them work in hospitals, and no doubt some of them have made arbitrary and unreasonable decisions regarding visitation rights based on their animus against gays. But more often, hospitals make their equally arbitrary and unreasonable decisions for other reasons having nothing to do with anyone's sexual orientation, simply because they're imperfect and fallible human institutions. And there are surely a vanishingly small number of hospitals with formal policies requiring, or even permitting, the denial of visitation rights to a gay partner when a straight spouse's visitation would be permitted. I very much doubt that yesterday's presidential memorandum, or the HHS rule-making process it directs, will end up changing much of anything at a practical level.

I wouldn't trust David Axelrod as far as I could throw him, but especially not on anything involving dinner

A Reuters report from yesterday printed in the WaPo quotes White House senior advisor David Axelrod as insisting that the Obama Administration was not snubbing Israel or Israeli Prime Minister Benjamin Netanyahu when Obama ducked out of their White House meeting to eat dinner — without offering Netanyahu so much as a package of saltine crackers:

"This was a working meeting among friends. And so there was no snub intended," White House senior adviser David Axelrod told CNN's State of the Union news program.

Axelrod noted that the two leaders had met in private for two hours and had better things to do with their time than worry about protocol.

However, my own White House sources, which are extremely unreliable, assure me that the real explanation for why Bibi got bupkis is that Axelrod had already eaten the hamburger intended for the Prime Minister — an unfortunate incident which resulted in Axelrod offering to gladly pay Netanyahu back for the hamburger next Tuesday.

 

Seriously, this is unfortunately typical of the Obama White House's treatment of our allies. First Obama embraces America's enemies. Then he insults our best friends. And then he (or his proxies like Axelrod) insist that the insults somehow don't count because, well, ummm, because, ummm, who cares about protocol? Yeah, who cares about protocol when we're in the midst of a big, artificially contrived spat with Israel over the propriety of Israel announcing new construction in Jerusalem while Biden was visiting, which was, you know, an important matter of ... protocol?

Beldar on Fund on Perry's success in "nationalizing" a state race

With a sub-head reading "Texas governor Rick Perry's victory last night shows that nationalizing local races can work," John Fund of the Wall Street Journal — yet another analyst whose work and opinions I respect greatly — wrote this yesterday afternoon about Tuesday's Texas primary results:

The late House Speaker Tip O'Neill once said "all politics is local." Texas Governor Rick Perry won last night's GOP primary by standing that adage on its head and nationalizing the race. He pounded his main rival, Senator Kay Bailey Hutchison, as a Washington insider and tagged her as "Kay Bailout" for her support of the 2008 rescue of major financial institutions.

Mr. Perry said the results were a triumph for conservative principles: "Texas voters said 'no." They said 'no' to Washington bureaucrats making decisions that state leaders and citizens should be making for themselves." He won 51% of the vote, with Tea Party activist Debra Medina pulling in another 18% of the vote. By avoiding a runoff, Mr. Perry put himself in a good position to take on former Houston Mayor Bill White in the fall.

I agree with that as far as it goes, but — perhaps aided by the sub-headline, which Mr. Fund probably didn't write — there may be an implication that the same tactic of "nationalizing" a statewide race can work for Perry against Bill White in the general election, too. I'm not convinced of that, although I think it's certain that Perry will indeed try to make that happen.

As I've written repeatedly recently, I'm quite sure that Perry is going to do his very best to try to keep the focus not on Bill White's performance as Houston's (nominally nonpartisan) mayor, but on his service as Bill Clinton's Undersecretary of Energy. I've known Bill since the late 1970s when we were at Texas Law School together, and he's always been a mainstream Democrat, and he had a long-standing professional interest (even passion) on the topic of energy (and particularly natural gas) regulation even before he went to law school. Given that, I was utterly unsurprised to see him show up in that post. But I don't claim to know much about what he did in it — much less any specific things he did that would be particularly sensitive or objectionable if reconsidered now in the context of a Texas gubernatorial race. Nevertheless, for me, the mere fact that he was "one of them" — a "Clintonista," a committed Democrat, a volunteer and not a draftee — would be ample all by itself to prompt me to withhold my vote for him in any state-wide or federal election.

I'd guess that not many of the Houstonians who voted to elect or re-elect White as mayor knew about his service in the Clinton Administration. I'd further guess that — for that purpose, i.e., the mayoral race — most of them didn't care, and for that purpose, I didn't either. But being governor is different than being mayor. There are quite a few conservative Texans who, like me, consider themselves Republicans and believe in the two-party political system instead of believing in empty, ridiculously insincere promises about "crossing the aisle" and "being bipartisan" — like that's actually going to happen when it comes time for the 2011 redistricting, hah! White isn't going to get our votes for governor, regardless of how good a mayor he was, as long as he's a Democrat. (And yes, he is one.)

White is, however, objectively the best qualified and most attractive candidate the Dems have run in a state-wide race in more than a decade. He's going to get pretty much all of the Dem votes that are out there. White's going to benefit, oddly enough, from the fact that Barack Obama isn't on the ballot in 2010, because if Obama were, that fact alone would drive a huge surge of Texas conservatives to the polls for the sole purpose of voting against Obama. (I frankly suspect this was a factor in White's decision to switch to the 2010 governor's race instead of following his original post-mayoral plan to run for U.S. Senate in 2012.) White will easily pick up, then, most of the "reliable" Democrat votes, and he has enormous incentives to invest in targeted "get out the vote" activities from now until November.

Texas still being a red state, however, that won't be enough. White can't win unless he can persuade, and then motivate to vote, a sizable contingent from the "middle" — and yes, there is a vague and large (albeit not as "vast" as sometimes assumed) "middle" in Texas who don't regularly turn out to vote for Republicans and who might possibly be persuaded to vote for what they perceived to be an exceptional Democrat. By "exceptional," I mean exceptionally well qualified in terms of his credentials and experience, a standard that White can legitimately claim to meet, and "exceptional" in the sense of standing somewhat apart from conventional Democrats (especially as now typified by Obama, Reid, Pelosi, and the national Democratic Party).

And here, friends and neighbors, is where I think we must consider again the lesson of Debra Medina. I mean no offense to the good folks of Wharton County, whose local GOP Ms. Medina apparently was once the head of, but it's not exaggerating much to say that Ms. Medina's candidacy came out of nowhere. There was essentially nothing in her background or history to distinguish her from anyone picked at random from within the entire State of Texas. But by tapping into the same mostly inchoate rage and dissatisfaction that has found some expression in the Tea Party movement, she — even though she wasn't an "official Tea Party nominee" and was in fact opposed by some Austin Tea Partiers — went from zero to 18.5% of the GOP primary vote in the political blink of an eye. That's precisely why I've referred to her here as the "Neither of the Above" Candidate.

While Perry will rigorously and consistently attempt to frame the November general election in the same manner as he did the GOP primary — that is, as a battle between an untrustworthy Washington insider (White instead of Hutchison) against a down-home anti-Washington conservative (himself) — White's frankly a lot harder to put in that box than Hutchison was. During almost the whole of this decade, White's been attending Houston City Council meetings, not going to Capitol Hill or the White House. He's been quite literally handing out MREs to Hurricane Ike refugees and working on bayou drainage projects, not passing TARP or plotting the nationalization of American healthcare.

Some of my commenters have expressed grave skepticism over my assertion that White's service as Houston mayor will help him in other parts of the state. They argue that other parts of the state haven't watched the local TV news feeds during the hurricanes or seen the local headlines, and they're right about that. But White has between now and November to educate non-Houstonians about his performance as mayor, and I'm here to tell you, folks, he got enough accomplished that it's going to take a while for him to run out of things to talk about. It was not an accident that White won re-election with more than 80% of the vote in an extremely conservative city, and if you think he won't get any traction in the rest of the state from his record here, I respectfully suggest that (a) you have no real basis for that assumption, and (b) you've failed to account for the efforts the liberal media will make to assist White on this score between now and November.

Indeed, the obvious jiu-jitsu move for White to pull off will be to resist Perry's attempt to "nationalize" the Texas governor's race by turning it instead into a referendum on incumbency: By virtue of his ascension to the governorship when Dubya resigned in December 2000 plus his elections in 2002 and 2006 to two four-year terms in his own right, Perry is already the longest-serving Texas governor in history. Now, there's nowhere close to as much general dissatisfaction among Texans with what's been going on in Austin as there is with what's been going on in Washington. But that's not to say that Texans necessarily give much credit for that to Rick Perry in particular, either.

Perry, in short, had a perfect opportunity in this year's primary to exploit the Tea Partiers' anti-Washington rage in particular, and Hutchison's own efforts to make Perry's long incumbency never stuck (in part because of her own long incumbency as a U.S. senator). "Nationalizing" the primary race against Hutchison was easy, and Perry was successful in sidestepping the Tea Partiers' potential rage against himself. But White's not as vulnerable to that ploy as Hutchison was, and White may be far better positioned to use Perry's long incumbency against him.

When it comes to that one-in-five or so Texans whose votes are up for grabs, and whose votes could result in a GOP loss if all or most of them broke decisively for White, this is a new ball game, gentle readers. The November general election is not going to be like the 2002 or 2006 election — indeed, the 2006 election was so weird and exceptional that it's not much use as a predictor of anything — and it's not going to be like the 2010 primary elections were, either.

Beldar on Barone on how Perry's Harris County showing bodes for White

Michael Barone is one of my favorite and most trusted political analysts, and he has a facility with polling data and places that I utterly lack. That makes me reluctant to second-guess this preliminary conclusion of his regarding yesterday's Texas primaries:

Perry won this not in rural and small town Texas but in metro Houston. This bodes well for him in the general election, since it indicates strength in the home base of the well regarded Democratic nominee, former Houston Mayor Bill White, who was nominated by an overwhelming margin.

I'm just not sure the "bodes well" conclusion connects to the premise. Perry did well in Houston, sure, and the GOP turn-out both here and state-wide was much, much stronger than the Democratic turn-out because of the contested GOP senatorial race. It's also fair to presume that a huge percentage of those who voted for Perry in this primary will vote for him again in the general election, and indeed, that some still very large majority of Texas Republicans who either didn't choose or bother to vote for Perry in the primary will nevertheless vote for him in the general election.

But you are still talking about a primary. Even the 12 percent or so of total registered Texas voters who voted, state-wide, in the GOP primary collectively represent only a small fraction of likely voters in the November election.

And as I'm sure Barone knows, the mayoral races in which White's won election and reelection by huge super-majorities were nominally — and to an amazing extent, genuinely — nonpartisan. It would be silly to assume that in a partisan race for statewide office this November, White would ever have gotten all, or mostly all, of the same individual voters who've voted for him for mayor in the past.

I don't think the main significance of White's history as Houston's mayor, in fact, is directly connected to how Houston/Harris County voters in particular will vote. I think that based on the reputation he's earned among Houstonians, he will indeed do at least somewhat better here than the hypothetical "average" Democratic candidate for governor; and since Houston is the state's largest city, even "somewhat better" will translate into some tens of thousands of votes. But it's not a big enough swing to win the state-wide race for him.

Put another way, there are too many Houston voters (like me) who were perfectly happy to vote twice for a fellow like White for mayor (where the damage a wild-eyed liberal could do, even if he tried, is institutionally minimized), but who wouldn't vote for him for a state-wide or federal office (where a wild-eyed liberal could do vastly more damage). That White has been sympathetic to, or even fully on board with, pretty all of the values and positions of the national Democratic Party just hasn't been relevant in Houston's mayoral campaigns, but it's obviously much more relevant now that he's running for governor. For all those voters who apply different criteria to local races than they do to state or federal ones, White could never count on us as "a lock" anyway, even though we did vote for him as mayor. And that's true regardless of whether we voted for Perry or Hutchison or Medina yesterday in the GOP primary.

Instead, White's generally well-respected performance during two terms as mayor of Houston is important in the overall race (and not just in Houston/Harris County) for two reasons:

First, having been the mayor of the nation's fourth-largest city for eight years with generally conspicuous success — despite a direct hit by Hurricane Ike and a lot of collateral impact from Hurricane Katrina — is an attractive, conventional, and entirely legitimate credential for becoming governor. You can appreciate that whether you live in Houston or Waco or Dumas or Laredo. Without some comparable credential — and frankly, there aren't very many of those to go around, certainly not among Texas Democrats (who haven't won a state-wide election this Millennium) — Perry would have an enormous relative campaign edge, simply because he's been governor for the past decade and the state's still in decent shape (and compared to the rest of the U.S., incredible shape).

Second, keeping the focus on his record in Houston gives White his best opportunity to distance himself from Obama and from the national Democratic Party. You can guaran-damn-tee that between now and November, White will spend a whole lot more time reminding folks of his local service in Houston than of his time as Bill Clinton's Undersecretary of Energy. (He's also not going to spend a lot of time talking about his early 1980s law practice.)

White surely has always known he's an underdog. He's surely never imagined that Houston could be a "vote stronghold" for him as a Democrat in any state-wide race. Someone had to win on the GOP side, and by definition that candidate is going to have made a relatively strong showing among primary voters. I just don't see that Perry's relative success over Hutchison in the GOP primary here yesterday says much one way or another about the still-considerable (but never determinative) extent that White will be helped locally and statewide by his record as a two-term mayor here.

DGA's Daschle draws wrong lessons from Texas primaries: White has a chance in November, but it's despite (not due to) Obama and the national Dems

“Tonight’s results are a stark reminder that Republicans’ giddiness about 2010 is premature,” Daschle said. “Rick Perry is our nation’s longest serving Republican governor and yet he barely won 50 percent of the vote in his own primary. We need no more evidence to know that this is not a pro-Republican electorate; it’s an electorate that wants results over rhetoric, optimism over pessimism, and success over secession. I can only assume that tonight’s results send chills down the spine of Rick Perry’s campaign manager.”

So reads a congratulatory press release — celebrating Democratic gubernatorial candidate Bill White's overwhelming victory with 76% of the votes in the Texas Democratic Primary — issued tonight by the Democratic Governor's Association. The "Daschle" being quoted is not long-time U.S. Senator Tom Daschle (D-ND), whom John Thune beat in 2004, and who was last seen in early 2009 under the rear wheels of the Obama Administration's bus (when a tax scandal obliged him to withdraw from further consideration as Obama's nominee for H&HS Secretary). Rather, it's Tom's son Nathan, a 2002 Harvard Law grad who worked briefly as a litigation associate for Covington & Burling before joining the DGA in 2005. Now the DGA's Executive Director, we're told by its website that "Nathan previously served as the DGA’s Counsel and Director of Policy, a position in which he coordinated DGA’s legal efforts and advised governors and candidates on a wide range of policy matters," and that he "has also served in the legislative affairs office of the American Federation of State, County, and Municipal Employees and the Natural Resources Defense Council [and] also worked on the [unsuccessful] 1996 U.S. Senate campaign of Tom Strickland (CO)."

So do these credentials qualify Daschle the Younger as an expert on Texas politics? Could he be right in insisting that Bill White actually has a chance against Republican incumbent Gov. Rick Perry, whose 51% tally in Tuesday's primary won him renomination without a run-off in a three-way race against sitting U.S. Senator Kay Bailey Hutchison and the vaguely Tea Party-affiliated newcomer Debra Medina?

I think the 2010 Texas gubernatorial race will indeed be interesting, and it may be closer than a lot of people are predicting — but if so, I'm very, very certain that won't be for the reasons spewed out by the likes of Nathan Daschle or other Washington Democratic machine politicians. And indeed, the message of this primary for the Democrats, if they're smart enough to heed it, was that so long as they keep quietly sending lots of money, career politicos like Daschle probably ought to stay the hell away from Texas in general and from Bill White's campaign in particular.

*******

Perhaps only a Harvard Law-trained Democratic spin-meister could mock Perry for "barely [winning] 50 percent of the vote in his own primary." If confronted with that claim, I'm quite sure that Perry's first reaction — echoing Scott Brown's devastating point in the Massachusetts special election last month — would be to insist that this wasn't his primary, but rather the Texas GOP's primary. Only an idiot — or, perhaps, a Harvard Law-trained Democratic spin-meister — could trivialize a primary-election clash between a state's sitting governor (since December 2000) and its senior U.S. senator (since 1993). And indeed, this time last year, Perry trailed Hutchison by double digits in early polling for this race.

From Perry's 51% showing, Daschle argues that "[w]e need no more evidence to know that this is not a pro-Republican electorate." But surely even a Harvard Law-trained Democratic spin-meister wouldn't dispute that a GOP primary is indeed, by definition (even outside of Texas), a "pro-Republican electorate," so Daschle must have been talking about the combination of the two primaries held on Tuesday. So how does that work out for his argument? As of this moment, with 99.63% of the vote reported, the Texas SecState's tallies show that for the seven candidates in the Democratic gubernatorial primary, a total of 676,795 have been cast, amounting to 5.19% of just over 13 million registered voters in Texas. In the GOP primary, by contrast, the corresponding numbers are 1,471,429 votes totaled for the three Republican candidates, amounting to 11.29% of the state's 13 million voters. Well over twice as many Texans came out to vote as part of the "pro-Republican electorate," in other words, as did in the "pro-Democratic electorate." ("Registered voters" here means all who are registered to vote in the general election, regardless of party; Texas has open primaries that aren't limited to "registered Democrats" or "registered Republicans," there being no such party-based registration here.)

Those figures compare to the March 2006 turn-out figures of 5 and 4 percent, respectively, for the GOP and Democratic primaries — so a bare one percent more of registered voters turned out for this year's Democratic primary, compared to a more than doubling of the percentage for registered voters who turned out for this year's GOP primary. The Dems actually had much more excitement in their 2002 primary, when they got over 8% of registered voters to vote in a slug-out between Dan Morales, Tony Sanchez, and two lesser-known candidates. (Yes, there actually were lesser known candidates.) Sanchez won the Dem primary with 62%, but then was crushed by Perry in the general election by a 58% to 40% margin.

No, Nathan, if there are "chills running down the spine" of Perry's campaign manager tonight, they're the good kind of chills — the very well-satisfied ones. Perry not only came from behind against a formidable, universally known, and well-financed opponent, but he managed what was probably, in context and overall, a substantially greater challenge as well: Perry effectively co-opted enough of the Texas Tea Partiers — or those generally sympathetic to the Tea Party's protests, which I think amounts to a vastly larger number of people than those who've actually attended a rally or protest — to prevent a "None of the Above"-candidate like Debra Medina from forcing a run-off.

And — with due, which is to say, not very much, respect to her — that's all Ms. Medina's candidacy ever was. She had no political track record. She had a laughable absence of credentials to demonstrate a basic capacity to serve adequately as the state's chief executive. When she was asked, in effect, "Whatcha think about them Truthers and them Birthers?" she couldn't even maintain enough discipline in her talking points to pass what's become, for better or worse, a political litmus test now used to identify the farthest fringes of the political fray. She confessed, in other words, to a fondness for fruitcakes, and if she's not a fruitcake herself, she offered no convincing proof to that effect.

(NB: I do very emphatically respect those who are thoroughly fed up with politics as usual, and especially Washington politics as usual, and whose rage opens them to careful consideration of non-incumbents. But she was a poor choice, a wholly inadequate vessel, for their hopes and beliefs. If new political voices are to inject new leadership into state and national politics, they can't just skip the "basic competency" category of qualifications.)

That Ms. Medina, despite her utter lack of credible credentials or experience, ended up polling 18.5% (to Hutchison's 30% and Perry's 51%) is still an incredibly important result from Tuesday's vote — something that should indeed grab the attention of incumbent politicians of both parties whether in blue, red, or purple states. But by calibrating his campaign rhetoric to run mostly congruent to the Tea Partiers' protests — and entirely congruent with the Tea Partiers' anti-Washington, anti-federal government themes — Perry was able not only to keep "None of the Above" from forcing a run-off, he was able to win the nomination outright with a majority vote in the first primary round.

And by doing that, Perry not only shored up his standing with a voting populace that will indeed be naturally skeptical of a former Clinton Administration cabinet undersecretary in November's general election, he eliminated the substantial risks of a runoff that he almost certainly was destined to win anyway. The risks were that he'd have to spend more time and money fighting Hutchison — and being tarred, perhaps indelibly, by Hutchison's negative advertising. (Some of Hutchison's ads were pretty effective, much moreso, I thought, than Perry's Democratic opponents have managed to put together in past races.)

It's not that Hutchison wanted to run against the Tea Partiers! Heavens, no, she would have loved to cuddle up with them, and she tried to remind them that she was preaching "limited government" and "fiscal responsibility" back in the 1960s, when John Tower and George H.W. Bush were about the only Texas Republicans who'd gathered any national prominence from a state still dominated by LBJ and what was then a very conservative Democratic Party. But she was indeed vulnerable to charges of being a pork-grabber, and Perry lashed her mercilessly (if, in my judgment, not entirely fairly) with her pro-TARP vote from the fall of 2008.

Can Republicans from less deeply red states win in November with the same model Perry has just used — one in which he never quite sought, and certainly never became, the "nominee" or "official candidate" of a movement that isn't quite yet an actual political party, but with whose sentiments he very diligently and aggressively and unashamedly identified himself? Obviously, Perry would have had a much harder time of this strategy if he himself had been an incumbent in a federal office rather than a state one. Thank goodness none of the scoundrels who make their livings in the legislative and administrative back alleys of Austin have figured out yet what a "trillion" means; as a result, most of the Tea Partiers' ire is still being directed, quite appropriately, at Washington. But in other states — can you say "Kah-lee-VORN-ee-ya"? — without the budget surpluses or economic prosperity that Texas continues to enjoy, the Tea Partiers' anti-incumbency mood may well blanket both state and federal politicians. And indeed, it should.

*******

So why, then — after roundly mocking Daschle the Younger for being thoroughly out of touch with, at least, Texas voters — would I agree with Daschle's main point, i.e., that a Bill White win in November is at least imaginable?

Well, friends and neighbors, it's this: I happen to know that unlike Barack Obama and Nathan Daschle, Bill White didn't go to Harvard Law School. Instead, he went to good ol' Texas Law School — where he was editor in chief of the Texas Law Review, he actually did write and publish a fine student note for the Review, and he was the Grand Chancellor in Spring 1978 (meaning academically first in his class as of the end of their second year). He's a San Antonio native who's never lost his drawl or had to fake one. He will draw heavily, and with considerable appeal, on his record as a multi-term (and multi-hurricane) nonpartisan mayor of Houston. And he will fight tooth and nail against Perry's attempts to keep the focus on Washington and its single most prominent symbol, who's also quite probably the single most unpopular person among conservative and moderate Texas voters — Barack Obama. Tonight's exchanges from the two campaigns, as reported by the Houston Chronicle, are already sounding the themes we'll be hearing and reading for the next eight months:

White told supporters in Houston he expects Perry to try to “perpetuate” himself with politics of division and distraction to avoid talking about Texas issues, such as high unemployment, state government growth and unfunded mandates for local governments.

“Texans deserve a new governor,” a leader who is “more interested in the jobs of Texans than in preserving his own job,” White said.

White said he believes Perry will continue trying to put voters’ attention on political debates in Washington.

“They’ll point fingers at Washington and talk about the alarming growth in government in Washington so you won’t notice the alarming growth in government in Austin,” the Democratic nominee said.

Perry, speaking to supporters at the Salt Lick barbecue restaurant in Driftwood, signaled that he fully intends to continue the anti-Washington rhetoric.

“From Driftwood, Texas, to Washington, D.C., we are sending you a message tonight: Stop messing with Texas!” Perry said.

Perry said his challenges are to tell the story of a successful Texas, “defend the conservative values that made them possible” and “remain attuned to the threat of a federal government that continues to overreach,” as well as increasing its spending. “It is clear the Obama administration and their allies already have Texas in their cross hairs,” Perry said, referring to his expectations that national Democrats will support White.

In short, White will run away from Obama. He'll have all the money he could possibly want in order to fine-tune that image. He's objectively better qualified, with a more substantial record of public service, than anyone the Dems have run for state-wide office in years. And Perry does have some high negatives (some of which he's earned), even though he's now been spared the ordeal of further sniping from Hutchison in a run-off.

Do I think a White victory is likely? No — and I think that by dodging the run-off, Perry has indeed made a giant stride toward reelection in November. But could a White win in November happen, even in Texas, even without some sort of miracle in Washington that makes Barack Obama suddenly beloved of all Texans? Yeah, it could happen. White will have to avoid drawing the wrath of those who voted "None of the Above" (i.e., for Medina) yesterday, which he can mostly do by not looking or sounding like Obama, by staying well clear of the national Democratic Party, and by continuing to at least mouth platitudes that are pro-business, anti-taxation, and fiscally responsible. And Perry will need to shoot off a few of his own toes — or perhaps get caught in bed with the proverbial dead girl or live boy.

Bayh's decision to forgo re-election run can't help but highlight the spectacular incompetence of Obama-Reid-Pelosi

Handicapping the 2008 presidential race from way back on April 23, 2007, I predicted: "Thompson/Romney defeats Obama/Bayh." And I still respect three of those four — all except The One who won.

My respect for Sen. Evan Bayh (D-IN) — one of the most intelligent, articulate, and reasonable Democrats in public office — goes back to his days as a two-term governor of Indiana. (NB: "Respect" isn't the same as "support"; I have substantive policy disagreements with Bayh that would prevent me for ever supporting or voting for him.) Evan Bayh has never quite taken off as a national candidate, but he's been on the national stage for some time; indeed, he's the kind of solid and appealing alternative whose failure to catch on seems baffling as we watch bozos like Howard Dean and John Kerry seize the Dems' spotlights and microphones. Although former Indiana Sen. Dan Coats was perceived to be offering Bayh a tougher re-election challenge this year than Bayh had faced in previous bids, the fact is that Sen. Bayh remained well liked at home, he had already distanced himself from both Obama and the Democratic congressional leadership, and he has an unbroken string of elections and re-elections in Indiana.

Thus, Sen. Bayh's announcement today that he would not seek a third term in the Senate in 2010, just on the brink of the deadline for filing for his party's nomination, has stunned those who follow politics on both the Left and the Right:

Since 9/11, I have fought to make our nation safe with a national security approach that is both tough and smart. I have championed the cause of our soldiers to make sure they have the equipment they need in battle and the health care they deserve when they get home.

I have often been a lonely voice for balancing the budget and restraining spending. I have worked with Democrats, Republicans, and Independents alike to do the nation’s business in a way that is civil and constructive.

I am fortunate to have good friends on both sides of the aisle, something that is much too rare in Washington today.

After all these years, my passion for service to my fellow citizens is undiminished, but my desire to do so by serving in Congress has waned. For some time, I have had a growing conviction that Congress is not operating as it should. There is too much partisanship and not enough progress — too much narrow ideology and not enough practical problem-solving. Even at a time of enormous challenge, the peoples’ business is not being done.

....

To put it in words most people can understand: I love working for the people of Indiana, I love helping our citizens make the most of their lives, but I do not love Congress. I will not, therefore, be a candidate for election to the Senate this November.

Dem spinners will blame Republicans for the "partisanship" that Sen. Bayh decried in his statement. But Bayh's party has overwhelming majorities in both chambers of the Congress that Bayh has described as "disfunctional." Most voters are too smart to believe a pro-Dem spin in the face of that incontrovertible and overwhelmingly significant political fact. And one would labor fruitlessly in trying to find any explicit blame directed exclusively, or even mainly, at the GOP in Sen. Bayh's statement. To the contrary, the one fellow senator Sen. Bayh went out of his way to laud was fellow Indianan Richard G. Lugar, a Republican.

If Sen. Bayh were adhering to the party line, in fact, he would of course have blamed George W. Bush for his decision.

Re-reading my prediction from 2007, I'm tempted to wonder how differently, and potentially better, Barack Obama might have fared during his first year in the White House if he'd had Bayh as his Veep instead of the blithering idiot he actually picked as a running mate. Unfortunately — for Obama, and for America — I'm quite confident that the answer is: "Not much."

The reason is that Barack Obama's arrogance is boundless. There's simply never been, and there never will be, any chance that someone like Bayh will ever have Obama's ear in a significant way.

No, Obama insists on being Clown in Chief. He's eclipsed even Biden in that regard, and he's obviously determined to run his one-term presidency into the ground rather than change course in any significant way. There is, of course, a large silver lining in that fact as we inch slowly toward January 2013 and Obama sets new records for ineffectiveness in the meantime. But the dark cloud remains, and America will pay the price, literally and figuratively, for Obama's fecklessness for decades.

There was one obviously insincere sentence in Sen. Bayh's announcement today: "My decision should not reflect adversely upon the President."

Oh, Sen. Bayh, I can understand why you felt compelled to recognize the inevitability of observers drawing inferences about the Obama Administration from your decision. Likewise, I appreciate and applaud the fact that you couldn't bring yourself to tell a similar outright lie about whether, and how, your decision should reflect upon Harry Reid or Nancy Pelosi. But were your fingers crossed behind your back when you wrote that line about the President? Or were you rationalizing it by recognizing that even your startling decision not to run for re-election couldn't possibly add meaningfully to what's already obvious — to all except the willfully self-blinded and -drugged — about the spectacular deficiencies of Barack Obama?

Debra Medina and Farouk Shami have done Texans a favor by proving themselves unqualified

From an AP report printed in today's Houston Chronicle:

Republican gubernatorial candidate Debra Medina, reeling from her remarks that questioned whether the U.S. government was involved in the Sept. 11 terrorist attacks, on Friday blamed the ensuing firestorm on a "coordinated attack" that she speculated came from the campaigns of her better-known GOP rivals.

Medina also predicted "more of this" in her race against Gov. Rick Perry and Sen. Kay Bailey Hutchison. She said there are no "high-profile kinds of scandals in my life that really are going to get people something to chew on. So they're going to have to make some things up."

"The political games we saw beginning to be played yesterday serve nothing but a diversion," she said, denying that her news conference in Houston — during which some questions were posed by Medina campaign staff seated among reporters — was an effort at damage control. "No. This is continuing doing what we've been doing, campaigning hard for months."

In response to a question Thursday from nationally syndicated radio talk show host Glenn Beck, Medina said there were "some very good arguments" that the U.S. was involved in the 2001 attacks that took down the World Trade Center and killed some 3,000 people. "I think the American people have not seen all of the evidence there, so I have not taken a position on that," she said.

Medina also has told a Dallas TV station that besides her questions about 9/11, she similarly has questions about Barack Obama's birth certificate (meaning his constitutional eligibility to be President).

According to the same AP report, the candidate who trails Bill White in the polls for the Democratic Party's nomination (but could also make a run-off if White pulls less than 50%) has also jumped aboard the grand conspiracies bandwagon:

On the Democratic side, gubernatorial candidate Farouk Shami said Friday he also had questions about the involvement of the federal government in the terrorist attacks, saying "maybe there is no smoke without fire."

"We still don't know who killed John F. Kennedy, who's behind it," Shami said during an interview with Dallas television station WFAA. "Will we ever find the truth about 9/11?

"It's hard to make judgments. I'm not saying yes or no, because I don't know the truth."

Those aren't just wrong answers, they're disqualifying answers. Public servants, to be effective at all, must be able to make good judgments. Indeed, they must be able to make good judgments even with less than perfect and complete information. And that's especially true of those in the executive branches of government.

As a mere blogger, I've tried hard to avoid making a snap judgment about Debra Medina, in part because I think GOP politics have gotten sclerotic, and because I believe we desperately need new talent that's genuinely committed to old values.

Debra Medina wasn't ever likely to get my vote, though: I was too troubled at the complete absence of any record of prior public service from which we might conclude that she is qualified to do the job required of the governor of Texas. It didn't matter to me how good a game she talked, because there's a complete absence of any proof that she's competent at the most basic level to undertake the task of governing.

But Medina's political self-immolation over the last few days now leads me to affirmatively recommend, for whatever that might be worth and to whoever's reading, that conservative Texans vote against her. I don't much care whether you vote for Hutchison or Perry. Just don't waste your vote on this kook.

It's not just a distraction, but a willful and malicious waste of political energy to fight over Barack Obama's birth certificate at this point, folks. It's water that's not only already flowed under the bridge, it's evaporated out of the river, floated across the continent, turned back into rainfall, and been soaked up into growing crops that have already been harvested, eaten, and excreted. When there are so very many legitimate and genuinely urgent concerns about Barack Obama and what he's doing as President, I'd rather not hear another freaking word about his birth certificate — not from anyone, not for any purpose, and most especially not from someone who is seeking my vote for service as a public official.

But the Truther stuff is far worse, at least as I judge things. For a public figure who wishes to be taken seriously, it's not enough to merely admit that radical Islamic terrorists flew the planes into the Twin Towers and the Pentagon; it is offensive and a mark of derangement to pretend that it's an open question whether the U.S. government was in any way complicit, either actively or through deliberate and knowing inaction, in the 9/11 attacks. State governors have serious public safety responsibilities. We can't afford to have in charge of the Texas National Guard, the Department of Public Safety, and the Texas Rangers someone who, as Texas state senator (and conservative radio host) Dan Patrick has reported (h/t Ace), thinks there's something suspicious about how policeman but not firemen were able to escape from the Twin Towers before they came down.

Medina's attempt to cast blame on her opponents for this kerfuffle is pathetic. Of course her opponents will make the most use they can of her screw-up — Hutchison because Medina had become perceived as a threat to knock her out of second place, Perry because he hopes he might squeak in with a majority and avoid a run-off. With this Obama-like refusal to accept responsibility, Medina has compounded her original offenses and further demonstrated her lack of political stature.

Similarly, insisting that she's just vindicating the public's right "to ask questions" is entirely disingenuous. "I support free speech, including the right to espouse crackpot positions," one can say. But this sort of wink and nudge and phrasing of ridiculous accusations as "mere questions" can fool no one.

I don't blame anyone who's been taken in by either Medina or Shami. But I can't excuse or understand anyone who still sticks with them. It's time to re-think, and to realize that you've been looking at your candidate through the political equivalent of beer goggles.

No, one can't play footsie with the Truthers and the Birthers and expect to be a serious candidate. Anyone who can't see that lacks the minimal basic judgment necessary to hold a public office. Debra Medina and Farouk Shami have done Texans a favor by confirming that they're not serious candidates, not even for purposes of casting a "protest vote." It's time for these two to return to the political obscurity whence they came.

Is it Medina or "Neither of the Other Two" who's "coming on strong" for the Texas GOP gubernatorial nomination?

After a long blogging hiatus, I wrote last Friday about the 2010 Texas gubernatorial race. I was dismissive of the chances of GOP candidate Debra Medina, who's identified with both the Tea Party movement and, perhaps less closely, with the 2008 enthusiasts over Ron Paul's presidential candidacy.

Today InstaPundit Glenn Reynolds links a David Fredosso post in the Washington Examiner which, in turn, touts a Public Policy Polling report that "Medina is coming on strong," asserting that she's "now at 24%, just four points behind Kay Bailey Hutchison's 28%." Claiming to be a poll of "likely GOP primary voters," PPP's poll was apparently one of those telephone robo-polls.

Now, as I've written here before many times over many years: I hate polls and pollsters in general; I think they're pernicious and evil, that they've come to distort the American political process in ways that are usually bad, and that they're given undue weight by the media and pundits and (worst of all) by politicians. One of the things I liked best about George W. Bush throughout his presidency was that he absolutely refused to be driven by polls, in very dramatic contrast to his immediate predecessor in office. Agree with them and him or not, Dubya has principles, and he governed by them for the most part (albeit with some conspicuous exceptions, and he was most consistent with regard to his most passionately held principles, e.g., on matters of post-9/11 national security). I don't know or much care whether PPP is one of the "better and more honest" pollsters; as far as I'm concerned, that's like discussing "better and more honest" timeshare condo salesmen.

Accordingly, I'm especially skeptical of any poll that's automated and that relies on what is essentially offensively-oriented voicemail — using the word "offensive" there in both the sense of being unpleasant, and in the sense of being non-passive and intrusive.

But when you drill down into the actual polling questions and results, you'll find this question and answer that I think is hugely significant, but that PPP, Fredosso, and Prof. Reynolds all ignore:

Q5 Do you have a favorable or unfavorable opinion of Debra Medina? If favorable, press 1. If unfavorable, press 2. If you’re not sure, press 3.

Favorable........................................................ 40%
Unfavorable .................................................... 9%
Not Sure.......................................................... 51%

If there's a figure that's significantly understated in this entire poll, I suspect it's that last one. I would wager a Whataburger Patty Melt Meal, even a Whata-sized one with a milkshake and a hot apple pie, that nowhere close to 49% of likely Texas GOP primary voters could tell us one significant fact about Debra Medina other than, perhaps, at most, that she's not an incumbent state or federal politician.

I think that the appropriate interpretation of this poll, in the current political climate, is that most of the votes purportedly for Medina are actually for "Neither of the other two" — at least when the only other choices are Perry and Hutchison. Perry and Hutchison have been on the ballot over and over and over again; their names are extremely familiar to Texas voters in a year in which that's as much a curse as a benefit. Indeed, the poll shows that both Perry and Hutchison have roughly 50% job approval ratings, which I think is probably not too far off. But Perry has some high negatives — not all the voters who snicker at references to "Gov. Goodhair" are Democrats, and even some who like him are very uncomfortable with the ideal of a 10-year governor running for re-election — and Hutchison is widely perceived in some parts of the state as being part of the elite Bush-41-style RINOs who've been thoroughly corrupted by spending too long in Washington. (That's not exactly my own view of either of them, for what it's worth, but it's also fair to say that I'm not doing backflips over either's candidacy.)

It's very easy to blow off some steam in an automated telephonic robo-poll where pressing the button for an unknown or little known candidate costs you nothing. Taking the trouble to go to the primaries to cast a vote to match that phone button stab — whether as a protest or as a substantive endorsement of Ms. Medina's candidacy — is a whole 'nuther deal.

I can't rule out entirely the possibility, suggested by Freddoso and others, that Medina now threatens to beat out Hutchison for a spot in a GOP run-off, although I still think that's pretty unlikely. I wouldn't much mind seeing that happen, actually, if it served to help re-enforce the Tea Partiers' message to both major political parties that they can't just continue to give lip service to fiscal conservatism while spending like promiscuous frat boys at a strip club with Daddy's Amex Platinum Card.

But will a majority of Texas GOP primary voters actually cast their ballots, at the only poll which counts, for a political unknown with no prior experience in any public office — knowing that candidate will be running against a formidable and extremely well-financed Democratic candidate like Bill White? Nuh-uh, compadre. That's just not going to happen. Not in a state-wide race in Texas, anyway — not this year.

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UPDATE (Fri Feb 12 @ 1:25am): As reader "Paul in Houston" commented below, Ms. Medina has, at a minimum, hit a speed bump when, in response to questioning on Glenn Beck's radio show as to whether the government was involved in the attack on the World Trade Center on 9/11, she answered: “I think some very good questions raised have been raised in that regard.” (DRJ has posted a transcript over at Patterico's.)

I'm inclined to agree with Ed Morrissey that her later written statement trying to walk this answer back is not very convincing, and Ed may also be right that the recent polling before this statement may have constituted "the apex of her political career."

If Ms. Medina had a track record of solid performance as a principled conservative in any public office, one might be inclined to say, "Oh, well, Glenn Beck — he's a big-mouthed rabble-rouser who's just out for ratings," which is unquestionably true, and to assume that this was just an unfortunate misstatement by Ms. Medina, a "gotcha moment" in which we ought to credit her written retraction over her spontaneous answer in the Beck interview. But if we take politicians at face value, then we'd all have to believe that Barack Obama is absolutely committed to fiscal conservatism and to reigning in government spending. Deeds trump statements; absent deeds, spontaneous words trump carefully rewritten words.

Although I think Beck's usually a clown, he stumbles upon or makes real news from time to time, and there's no doubt that he's high-profile enough now that this incident will dramatically increase Medina's name recognition among Texas GOP primary voters. But I think it probably will diminish the odds of her making a run-off to nearly nothing.

Beldar handicaps Perry vs. Hutchison vs. White

Regarding Glenn Reynolds’ item, linking a Los Angeles Times blog post, about a new Rasmussen Reports Poll suggesting that in the 2010 Texas gubernatorial race, either incumbent Rick Perry, retiring U.S. Senator Kay Bailey Hutchinson, or self-identified Tea Party supporter Debra Medina would defeat the likely Democratic challenger, Bill White:

It’s way, way too early to handicap the final Texas gubernatorial race with any confidence. But for now, as I see it, the two big questions are:

• Will the Hutchison/Perry mud-slinging during the GOP primary seriously damage either of them in a way that affects the general election?

              — and —

• Will Bill White’s success as Houston’s mayor permit him to dodge his eventual GOP opponent’s efforts to tar him as just another tax-and-spend liberal Democrat who would be a close ally to President Obama and the national Democratic Party leadership?

(I mean no offense whatsoever to Ms. Medina, and I am, in general, very sympathetic to the concerns raised in the various Tea Party protests around the country. But both Hutchison and Perry will work very hard, during the primary and, for the winner, after, to lure those voters. Perry in particular is already emphasizing his non-Washington status. I expect either of them will adequately co-opt those voters, such that a newcomer like Ms. Medina is not likely to have much more than a symbolic and incidental effect on the Texas GOP primary or the general election in November.)

Although he's unconventional in many respects, Bill White is the most viable and attractive candidate the Dems have run for any state-wide Texas office in quite some time. I know Bill reasonably well: He was the editor in chief of the Texas Law Review in 1978-1979, one year ahead of the editorial board on which I served. A few years later when I was at Baker Botts, I was heavily recruited by him and his then-law partners at Susman Godfrey. I like him and I respect him. Bill is industrious and just wicked smart — as smart as anyone I’ve ever met, period.

Had he not been term-limited, and had he wanted another term, there is no doubt at all that Bill could have been re-elected as Houston’s mayor again by another overwhelming margin. I’m not one of the local politics mavens who bird-dog every City Council meeting, and Bill’s performance as mayor generated serious critics whose opinions I also respect. But I’ve never known him to be, nor seen any credible accusation that he is, anything less than basically ethical. I think he’s used carrots more than sticks as mayor, but with no more larceny in the carrot-distribution than what's probably the necessary minimum. Compared to, say, Chicago, Houston’s local politics are still amazingly nonpartisan and usually even non-controversial; there’s a positive passion for “business as usual” here in a city of amazing opportunity, and a mayor who can preside as a reasonably good steward over that process, without screwing up too obviously, will end up looking pretty good in hindsight. Bill certainly at least met that low hurdle. But in particular, Bill ended up looking both competent and compassionate in the recent Gulf Coast hurricanes — both as the leader of an involved civic neighbor during Katrina and, even more dramatically in contrast to New Orleans’ awful leaders, as the guy on the hot seat during Ike.

White is not a natural politician by any means — he’s utterly lacking in the slick charisma that Bill Clinton sweats and breathes, and his wonky professorial streak isn’t mixed with the same arrogance that Obama exudes. He still has a boyish directness that’s quite disarming — and it’s helped him translate his lack of political slickness into a net-positive feature for his successful mayoral campaigns.

Thus, I’m one of many conservative and Republican Houstonians who happily voted for Bill for mayor twice. I wish him well in life. I’m grateful for the good he’s done. Yet I will not vote for him for any state-wide or national office — precisely because he is indeed a devoted member of the Democratic Party.

White was a cabinet undersecretary (Energy) in the Clinton Administration, and he’s now running for a place on the political ticket (Dems) that hasn’t won a contested race in a Texas state-wide election since the early 1990s. I believe he’d govern as a progressive Democrat at either a state or national level, in a way that Houston’s local politics simply wouldn’t have permitted him, or anyone, to do as mayor. And I just have no confidence that he would — or would even want to — stand up against the leaders of the national Democratic Party; I just can’t see him defying the national party line on anything important.

Perry and Hutchison both have had extremely broad support — translating to easy victories — in their past races, but I don’t think either of them has a fraction of the depth of support that Dubya had when he was in the Texas Governor’s Mansion (or the White House, for that matter). And both Perry and Hutchison have done a good job at identifying the other’s most likely Achilles heel — Hutchison claiming that Perry’s too close to lobbyists and particular business interests, Perry claiming that Hutchison has become too much a Washingtonian and one of those GOP incumbents who were fiscally irresponsible to the point of recklessness. Both positions are caricatures, but the point of caricatures is that they rely on (and simply exaggerate) definitive, if superficial, features. The problem for Hutchison is that right now, most Texans probably hate the idea of federal spending more than just about anything, and certainly more than they hate mere lobbyists.

The Perry/Hutchison brawl, while enthusiastic and probably sincere from both sides, strikes me as something akin to a brouhaha over whether the S.M.U. Pony Band unduly insulted the Fightin’ Texas Aggies or their mascot during a college football halftime performance. If you're not heavily invested in either camp, the fight's entertainment value begins to fall off pretty sharply pretty soon. If conservatives are looking for targets to demonize, there are lots better ones around than either of these two — both of whom can legitimately claim to have reliably served most of their constituents quite satisfactorily in most respects, as reflected by the fact that they've both had easy re-elections. I suspect that most Texas Republicans wish they’d both shut up and just flip a coin tomorrow to decide which one will pull out of the primary. At least, that’s pretty much the way I feel. But some of the mud will probably stick, certainly enough to cost the eventual GOP nominee a few points in the general election — and that’s damned unfortunate, but I doubt it will be determinative.

Texas wasn’t totally immune to The One’s hopey-changitudinosity in 2008 — Obama didn’t do badly at all in Harris and Dallas Counties, for example, and had enough coat-tails to help Dems win a surprising number of local offices in both. But the bloom and its fragrance, real or imagined, is decidedly off that flower now. I don’t think even Karl Rove — whom Dubya reportedly nicknamed “Turd Blossum” for his ability to make political miracles from a stinky, messy situation — could turn an Obama connection into a political plus in Texas today.

I don’t mistake White’s lack of conventional political charisma as being political naïveté, and indeed, I suspect he can be adequately ruthless. But I doubt that ultimately he will be able to overcome the label of his party and the implied associations with Obama, Pelosi, Reid, Dean, Dodd, Frank, etc. — not in a big-money campaign against either Perry or Hutchison. Even with a positive record as Houston’s mayor to capitalize on, I just don’t see him generating the image of independence and strength that he’d need to run convincingly away from Obama. And on substance, even if he runs as what Dems would consider a “Blue Dog,” with a “conservative-light” platform that pretends allegiance to fiscal discipline and entrepreneurial values, there will still be plenty of issues on which he’s compelled to keep to the Left — among them social issues like abortion and gay marriage — that are still hot-buttons for some Texas conservatives and even some independents. (And yes, there are at least some of the latter; they're the ones who put Ann Richards into the Governor's Mansion after her ill-starred GOP opponent, Clayton Williams, fed her the ammo to paint him as a sexist good-ole-boy in 1990.)

So if forced to guess today — that’s what Professor Reynolds did with his post, he’s practically forced me to blog again with this early February guess about a November election! — my best guess is that the general election will come down to a somewhat weakened Perry, who will still overcome a White who can’t quite disassociate himself adequately from Obama and the national Dems.