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The VP Candidates on Roe & Federalism:

I am puzzled by a few things about the Sarah Palin's and Joseph Biden's responses to Katie Couric's questions about Roe v. Wade and federalism.

I found it odd that Palin could not name another Supreme Court decision with which she disagreed. After all, we know that she is aware of at least one Supreme Court decision other than Roe v. Wade with which she disagrees. Just over a month ago she criticized the Supreme Court's decision in the Exxon Valdez case, slashing the punitive damages awarded by the trial court. So did she simply freeze up and forget? Was she afraid of a 'gotcha' comeback if she named a specific case? Or is she that much of a knucklehead that she can't even remember what she thought of the Court several weeks ago? My read of the video is that the first is most likely, but I'm sure others will disagree.

Biden, the constitutional law scholar and former Chair of the Senate Judiciary Committee, spoke more smoothly and authoritatively on the issue. Yet while his defense of Roe may have sounded thoughtful at a superficial level, it was actually quite incoherent. Instead of saying that he thinks the abortion right is a fundamental liberty that deserves constitutional protection — which he only hinted at later, and would be a more straightforward way to defend Roe and an abortion right under the Constitution — Biden explained that the Court's decision is "as close to a consensus that can exist in a society as heterogeneous as ours." Setting aside his focus on Roe, and his description of Roe's initial holding as if it were still the law of the land and had not been supplanted by Casey's "undue burden" test, his rationale is problematic on several levels, particularly for someone who holds himself out as an expert on constitutional law.

First, if the aim is a rule that embodies or approximates a national "consensus" on an issue, there is no reason to believe that the imposition of a uniform constitutional mandate by the Supreme Court is more likely to embody such a consensus than will the action of the legislature. Not only is the Court less responsive to popular opinion than the legislature, Supreme Court decisions are also more difficult to change than statutory enactments. Thus, even if a the Court gets it right at a given point in time, it is exceedingly unlikely that the Court's unaltered judgment will reflect a social consensus over time. If, as Biden claims, the aim is to embody or approximate the social consensus, one has to take into account the fact that popular opinion shifts, but Roe does not.

Second, if the aim is to have abortion laws that come as close as possible to embodying public values and preferences, any nationally uniform rule, whether permissive or restrictive, is less optimal than leaving the matter to the separate states. Allowing individual states to adopt their own rules will result in a greater percentage of the public living within a jurisdiction that imposes abortion rules with which they agree. To illustrate, consider a hypothetical nation with two states of equal populations. The national preference in favor of permissive abortion rules is 60% to 40%. But in State A the preference for permissive rules is 75% to 25% and in State B the preference for more restrictive abortion rules runs 55% to 45%. With a national rule reflecting popular opinion, 60% of the people live under a rule they support. Allowing each state to adopt its own rules, however, results, in 65% of the people ((75+55)/2) living under a rule they support. So, if the aim is a set of rules that reflects "consensus" within a heterogeneous society — and this is the premise that Biden himself provided in the interview — then the federalist approach is superior to a national rule, such as that embodied in Roe (or, for that matter, a national rule embodied in a constitutional amendment, such as the proposed "Right-to-Life Amendment.")

My point is not that Biden is wrong to defend Roe. It may be difficult to defend the reasoning of Justice Blackmun's opinion, but reasonable people can and do disagree over whether the Constitution should be read to protect an abortion right, as well as on the question of whether Roe should be upheld on precedential grounds. Rather my point is to show that the basis upon which Biden chose to defend Roe — the desire to approximate "consensus" in a heterogeneous society — cannot justify the outcome he seeks to defend, and reflects a poor understanding of our constitutional system (particularly for someone of his background). While Biden speaks about these issues with in an authoritative manner, and has substantial experience discussing and debating constitutional questions, the substance was sorely lacking in this interview.

UPDATE: Brian Kalt has more thoughts on the interviews here. His conclusion:

I would have been much happier if Palin had given better answers to Couric. But her lack of knowledge of constitutional law would assumedly lead her to rely on others for advice on such matters. She doesn't know, but surely she realizes it. Biden, by contrast, has the smooth confidence of someone who has been immersed in these issues for decades. But he's wrong. To me, that's actually scarier.

Related Posts (on one page):

  1. The VP Candidates on Roe & Federalism:
  2. VP Candidates on Roe v. Wade and Federalism:
Armen (mail) (www):
I love how Biden is the one who "reflects a poor understanding of a constitutional system."
10.2.2008 2:40pm
Aultimer:
JA - that's a big strawman you've stuffed there.


Why do you think Roe v. Wade was a good decision?

Joe Biden: Because it's as close to a consensus that can exist in a society as heterogeneous as ours.


That in NO way says the Biden thinks it's the current law. It says that he think that on a divisive issue (at least this one), a "good decision" is one that agrees with both sides in substantial ways, and fashions a rule for government's involvement. I happen to agree, and strongly believe it's one of the intended Constitutional bulwarks against faction.

On the pro-choice side, RvW says that life (for government purposes) doesn't begin at conception.

On the pro-life side, RvW says that at some point, a fetus is more-or-less equivalent to a born person.
10.2.2008 2:48pm
John from Dallas:
Biden's response was a good one for the political arena, even if not logically coherent in the constitutional sense. This doesn't mean that he has a "poor understanding of a constitutional system." It means that his audience was undecided voters, not law professors
10.2.2008 2:49pm
David Warner:
As for Palin "freezing up", I've noted elsewhere the Churchillian personality of both McCain and Palin (boldness/recklessness, impatience with the academic, weak party ties/strong country ties). In his early career, Churchill spoke with a stutter and one day giving a speech in Parliament, "froze up", utterly losing his train of thought. From then on, Churchill always prepared remarks ahead of time and used notes, as Palin seems more comfortable doing, even using color-coded notecards in the Alaskan debates.

Churchill's stutter eventually cleared up (though not his lisp). Palin doesn't have that kind of time. Too bad there's no Question Time with the Alaskan governor.
10.2.2008 2:51pm
finman:

I love how Biden is the one who "reflects a poor understanding of a constitutional system."


Jonathan wasn't claiming Palin has any understanding of Constitutional law, so your use of the article "the" to paraphrase his position is a little unfair, to say the least. I'm sure he would agree with the obvious: that they both have a poor understanding of the Constitution. The only reason he focuses on Biden is because it's painfully clear that Palin is ignorant whereas some people might be fooled by Biden's smooth speaking manner.
10.2.2008 2:52pm
Philosopher:
Jonathan, it's hard to take your post seriously as a reaction to the video, assuming you watched what the rest of us saw. It's more likely your attempt to excuse Palin's ridiculous answer.

Biden gave a good answer, for a politician, to both the Roe v. Wade question and the second question (his answer about VAWA). You're trying to hold him to a much higher standard, as a "constitutional law scholar," but it's hard to take that seriously. Sure, Biden is an adjunct who co-teaches a class at some small law school. That hardly makes him a "constitutional law scholar." Biden is no Larry Tribe or Akhil Amar. He's a life-long politician who's running for high office.

Your post holds Biden to the standard of a constitutional law scholar while holding Palin to the standard of a 1L law student who didn't do the reading.

Let's hold both to the same, fairly low standard of someone running to be in the White House. Under that standard, Biden's answers clearly meet the mark. Palin's clearly don't.
10.2.2008 2:52pm
Philosopher:
David Warner: I can't believe you're comparing Palin to Churchill. What a disgrace to the memory of Churchill.
10.2.2008 2:54pm
DangerMouse:
Oh noes! This post upsets the Narrative! We should comment and shoot it down! Obama Truth Squad, Activate!
10.2.2008 2:55pm
trad and anon (mail):
Second, if the aim is to have abortion laws that come as close as possible to embodying public values and preferences, any nationally uniform rule, whether permissive or restrictive, is less optimal than leaving the matter to the separate states.
On the abortion issue, don't a lot of voters have a strong preference for a national rule over a local rule? Pro-lifers in particular strongly dislike the "loophole" that gets created when a woman can't get an abortion in Nebraska but she can get one just by driving across the state line. So their preferences would be something like severe restrictions (or total ban) on all abortions nationwide >> severe restrictions (or total ban) of all abortions in their state but not elsewhere >> abortion-on-demand nationwide. Moreover, voters tend to be located on a continuum from "total ban" to "parental notification laws + restrictions on particularly gruesome late-term abortions" to "absolutely no restrictions on abortion except general medical safety laws." You need a much more sophisticated analysis to take account of this kind of thing.

Also, I should point out that even in the vastly oversimplified case where all voters have one of two preferences and only care about the rule on the street where they happen to live, whether a state rule or a national rule (or a county rule, or a block rule) maximizes the proportion of people who live under their preferred rule depends on the distribution of voters across states.
10.2.2008 2:57pm
Michael Kessler:
Because Biden and Obama would win the election if they gave articulate, complex, and nuanced answers to constitutional law questions? Likewise, I don't expect a governor with little legal training and apparently less ability to think quickly on her feet to sound like a well-reasoned law professor.

Other posters have pointed to the underlying challenge--coherence and consistency in the midst of 12 second responses. The obvious point to decry in this is not the candidates' responses but the debasement of the whole process of political discourse that can't tolerate anything but slogans and snippets.
10.2.2008 2:58pm
wm13:
Imagine if Palin had said that the Contracts Clause applies to the federal government, how the illuminati would have pounced.
10.2.2008 3:04pm
Anderson (mail):
Biden's response was a good one for the political arena, even if not logically coherent in the constitutional sense.

Right. Biden is a politician, and like most politicians, he wants Court decisions that advance his agenda while not rocking the boat too much.

Palin's response makes it unclear whether she even knows what her party's agenda *is*.

We support a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children.

Leaving it up to the states ... yeah.
10.2.2008 3:04pm
Railroad Gin:
Palin is either just out of her element in one-on-one interviews, intimidated by the MSM or being smothered by here handlers.

When she couldn't name what magazines she read this was a mind-boggling stupid moment, but it was so mind-boggling stupid that it suggests that it was caused by something other her inate intelligence/knowledge.

There is really no mystery here. Palin would pick Scalias. Obama -- Ginsburgs. Who cares what their stance on Pullman abstention is? It is futile to expect that any candidate for office is going to give an answer that takes a serious legal approach to discussing the judiciary.
10.2.2008 3:05pm
Tillman Fan (mail):
I'm no fan of Palin, but I give her a pass on this. She's not a lawyer, and she's been involved with state and local government, not the federal government. There are a lot of reasons to think that Palin isn't qualified. Her inability to instantly recall the name of a Supreme Court case with which she disagreed isn't one of them.
10.2.2008 3:06pm
David Schwartz (mail):
Let's hold both to the same, fairly low standard of someone running to be in the White House. Under that standard, Biden's answers clearly meet the mark. Palin's clearly don't.
Exactly. They both had the goal of appeasing their base, seducing undecided voters, and so on. Even if Biden had a law professor's understanding of the issues, he would have been very tactically foolish to use it. If Palin's goal was to lower expectations for the debate, then she did admirably.
10.2.2008 3:07pm
ginsocal (mail):
OK, I think I qualify under the "Joe Sixpack" category-not a lawyer, not a politician, etc. Being a planner in CA, I need to have a greater familiarity with law than most folks, but am certainly not an expert (like, say Joe Biden). So, if someone were to come up to me and ask about SCOTUS decisions I disagreed with, out of the blue, I would be hard-pressed to name any. Even now, with 10 or 15 minutes to think about it, I can only say Roe and Kelo (planner emerging). The child rape/death penalty case I also disagree with, but can't recall the name. And I read TVC, Overlawyered and Bainbridge daily! So, I, too, think that the Biden gaffe is far more of a concern than Palin not knowing a bunch of SCOTUS cases.
10.2.2008 3:08pm
Anderson (mail):
She's not a lawyer, and she's been involved with state and local government, not the federal government.

Then if she hasn't taken other steps, like reading "all" the newspapers, to get up to speed on the federal government, maybe she ought not be contending for vice-president of same? Maybe the House or the Senate would be a better stepping-stone?
10.2.2008 3:08pm
IB Bill (mail) (www):
Off topic, slightly: Palin should've said she disagreed with Marbury v. Madison -- and then let it drop.
10.2.2008 3:12pm
gerbilsbite:
I think Biden was trying to say "natural rights" without saying "natural rights." What Roe supporters take from the decision (and, generally, from Griswold) is that the court didn't emphasize any utilitarian arguments about the desirability of keeping abortion accessible, so much as point out that restricting it would necessarily interfere with a person's ability to receive private medical advice. And if you go up to a person on the street and ask "do you believe abortion should be accessible?" you'll probably get a much less supportive response rate than if you ask "do you believe that patients should have the right to private medical care and counsel with their doctors?" In that respect, what Biden was arguing made sense.

Contrast that with Palin. I assume, for the sake of the discussion, that we're all on board with the idea that she knows little to nothing about Constitutional law and was just giving the boilerplate right-wing social conservative talking points on Roe: I think the fact that she then went on to recognize a right to privacy, apparently without realizing that Roe came out of a logical extension of the right to privacy in a medical context, shows that she doesn't even have an informed opinion on the subject of the one case she DOES recognize. And if she is willing to hold such a fervent opinion on the matter without having ever really done a critical examination of it, why on earth should we trust that she'd make informed decisions on contentious matters if elected?
10.2.2008 3:13pm
gerbilsbite:
ginsocal:

So, if someone were to come up to me and ask about SCOTUS decisions I disagreed with, out of the blue, I would be hard-pressed to name any.
Are you trying to become first in the line of succession for the White House? Are you trying for a job where you would cast deciding votes on judicial confirmations?

If you're holding Presidential and Vice-Presidential candidates to such a low standard, you need to think for a bit about what exactly is involved in running a superpower, and ask if maybe we shouldn't expect a little more than "Joe Sixpack" when picking people who will govern the entire Executive Branch.
10.2.2008 3:17pm
therut (mail):
Should have said WICKER. Awful ruling and results.
10.2.2008 3:26pm
Anonimo Cobarde:
Re: Brian Kalt

I don't see how Biden's confidence implies that he will not seek advice on these issues or will prefer his own misconceptions to received advice.
10.2.2008 3:34pm
ginsocal (mail):
gerbil: I don't consider that to be a "low standard." Quite frankly, the "experts" to whom we have entrusted running the country have made a hash of it. Anyone who can read and comprehend legal writing, and has a solid idea as to what he wants from a judge(originalism!), should have no problem doing the job. Now, if you have doubts about your own abilities, well, as a wise man once said, "A man's GOT to know his limitations."
10.2.2008 3:35pm
Johnny Canuck (mail):
Was she afraid of a 'gotcha' comeback if she named a specific case?

I think she was thought she had been given a 'gotcha' question. Her thought process went into polispeak.

I don't see why non-lawyers, even those running for President should know case names. What she should have and be able to articulate is some sense of areas of law she thinks should be changed or approach to law she would want in court appointments.
10.2.2008 3:37pm
Nate in Alice:
Why don't you just admit what we all know to be true--Palin is the ultimate populist gamble, the most ordinary person to run for such a high office. As such, she's not well-informed on, well, much, it would appear. Just like an ordinary person wouldn't be either.

Or you can go back to parsing Biden's rather politically savvy response.
10.2.2008 3:39pm
commontheme (mail):
You devote 7 lines to your analysis of the Palin response and then devote 10 lines to criticizing Joe Biden's response.

Fair and balanced, indeed.
10.2.2008 3:42pm
richard cabeza:
You devote 7 lines to your analysis of the Palin response and then devote 10 lines to criticizing Joe Biden's response.

And then he called Biden a knucklehead! Such bias...
10.2.2008 3:45pm
Jeff Boghosian (mail):
What about Palin's answer to the privacy question...does she really think that or was she just guessing at the 'correct' answer?
10.2.2008 3:51pm
Just Dropping By (mail):
After all, we know that she is aware of at least one Supreme Court decision other than Roe v. Wade with which she disagrees. Just over a month ago she criticized the Supreme Court's decision in the Exxon Valdez case, slashing the punitive damages awarded by the trial court. So did she simply freeze up and forget? Was she afraid of a 'gotcha' comeback if she named a specific case? Or is she that much of a knucklehead that she can't even remember what she thought of the Court several weeks ago? My read of the video is that the first is most likely, but I'm sure others will disagree.


I suspect Palin could remember Exxon, but her previously stated position on that case is the opposite of the official Republican Party line on tort reform/punitive damages. If she'd said she disagreed with it, she would have been taken to the woodshed by her handlers after the interview and would have exposed McCain to questions about why his VP is taking the side of the "trial lawyers" he loves to beat up on in his speeches.
10.2.2008 3:52pm
Asher (mail):
As for Palin "freezing up", I've noted elsewhere the Churchillian personality of both McCain and Palin (boldness/recklessness, impatience with the academic, weak party ties/strong country ties). In his early career, Churchill spoke with a stutter and one day giving a speech in Parliament, "froze up", utterly losing his train of thought. From then on, Churchill always prepared remarks ahead of time and used notes, as Palin seems more comfortable doing, even using color-coded notecards in the Alaskan debates.

What a joke.

And couldn't she have said something about Boumediene at least? She doesn't have to be a constitutional law scholar, but anyone who follows the news knows something about Boumediene. Certainly someone running for Vice President ought to have heard of it.
10.2.2008 3:59pm
Preferred Customer:
Palin's inability to name a specific Supreme Court decision is a side issue, as far as I am concerned (though, as many have pointed out, it's deeply puzzling given that she has publicly railed against at least two recent Supreme Court cases). I don't necessarily expect even a VP candidate to be able to rattle off case names.

What's troubling to me is her strange conception of the way in which federal rights are enforced. Her answer suggests that there is a federal right to privacy, but that states are the ones that should be interpreting the scope of that federal right guaranteed in the federal Constitution, and that it is a laudatory goal to have states coming to 50 different conclusions on the scope of that federal right depending on what their "constituencies" believe. That's nonsensical.

The idea that Biden's answer is somehow "worse" or "scarier" than Palin's is just not credible, at least to me. At the end of the day, whether we are liberal, conservative, or other, whether we are Democrats, Republicans, or neither, we will have to live in a country governed by whomever wins this election. I would much rather have a competent, skilled opponent win the election than a partisan of my own who is a bumbling oaf--at least I could be certain that the country was in safe hands, even if they were moving the country in a direction that I personally disagreed with. But perhaps I am too ready to put country first and politics second.
10.2.2008 4:02pm
Steve:
I think "consensus" is meant here in the sense of a moderate, balanced position that most people can live with. Indeed, setting aside that Casey and not Roe more accurately encapsulates the current state of the law, the Roe v. Wade decision itself enjoys far broader public support than the actual principles it stands for.

There's no reason to think that a legislative enactment embodies "consensus" more than a judicial decision. Sometimes legislatures enact bipartisan compromises, sometimes they don't. Often the legislature passes laws that are supported by 50% + 1 of the populace - or even less.
10.2.2008 4:07pm
Horatio (mail):
Questions for the attorneys:

Can you please define "Constitutional Scholar"?

If you disagree with the reasoning and conclusions of the purported scholar (i.e. Tribe), do you still consider that person a "scholar"? If so, why?

How does the quantity of publications affect your definition? What about the number of people who agree with the author's conclusions?
10.2.2008 4:10pm
pauldom:
I think many of Palin's gaffes are a result of her believing the question to be a "gotcha." Can't name a news magazine, because the questioner might have a hidden agenda or you might name the wrong one. Can't name a supreme court case for the same reason. This doesn't mean she is stupid, but it doesn't say much for her "maverick" qualities. (If only she had answered Ledbetter--feminists would have loved it.)
10.2.2008 4:19pm
Richard Aubrey (mail):
Preferred.
The political opponent is your opponent because he is moving the country in the wrong direction...skillfully.
I don't call resisting that "politics".
I call it looking out for the country.
Bumbling oafs can do harm, but the bumbling might reduce its effect.
FDR and LBJ were immensely skilled. So was Reagan.
Carter was a bumbling oaf without the slightest shred of humility to offset it.
If, for the sake of discussion, we label Palin a bumbling oafess, we at least have the notion she knows what she doesn't know.
Carter was involved in scheduling access to the Imperial Tennis Courts, Reagan was acccused of sleeping through cabinet meetings.
IMO, there are three requirements for POTUS. One is the ability to consider national security issues, and thoat always, always depends on picking among hugely plausible experts.
One is communicating to the nation.
One is coordinating the various corrupt legislators--most of them--so that their corruptions run parallell with what the POTUS wants done. LBJ was a master. Nobody's been that good since.
For the first, judgment is the key. Area studies are what you hire people for. If you need a field of expertise in POTUS, it would be military history. No candidate has it and fewer and fewer universities are teaching it.
For the second, only Biden is a goofball. The other three are good.
For the third...Obama's corruption might be in parallell with enough of Congress that he can get stuff done. Biden's too stupid. Palin has no connections. She'd have to find the pressure points and do it that way. McCain is too prickly.
Quizzes on various political issues do not tell us much about any of the three. When you consider that any poli sci grad could do better, you either raise poli sci BA degrees to the level of sufficient, or you decide that perhaps it isn't all that's required. Your answer will vary depending on partisanship.
10.2.2008 4:21pm
Philosopher:
Horatio:

A "constitutional law scholar" (the term used in the original post) is someone who devotes a significant amount of time to scholarly research in the field of constitutional law and is a recognized expert in the field.

Someone is a constitutional law scholar whether or not I agree with his or her conclusions. That's because it's a descriptive title, not a normative claim. I'd consider both Eugene Volokh and Cass Sunstein constitutional law scholars.

The quantity of publications on constitutional law is evidence that the author is a constitutional law scholar. The number of "people" who agree with the author's conclusions is not. The number of constitutional law scholars who think that the person's work is important is far better evidence.
10.2.2008 4:22pm
Anon321:
As a general comment, I find it interesting that so many people evaluate a candidate's response by comparing it to how they themselves would respond if they were in the same position. As gerbilsbite noted, they're not running for President or Vice President.

To offer a slightly hyperbolic analogy: imagine that you were on the U.S. Olympic Committee and were trying to decide which athletes would be part of our relay team. If one of the competitors had to stop mid-race to sit down, catch his breath, and drink some Gatorade, and then vomited before reaching the finsih line, would you say, "Hey, I couldn't run that far without throwing up, either. Let's cut the guy some slack and put him on the team"?

Has meritocracy really been so tarred by its proximity to "elitism" that we no longer think our national political leaders should be better informed about national political issues than the average person off the streets?
10.2.2008 4:24pm
Joel Rosenberg (mail) (www):
I dunno. I'm no candidate, or anything, but I could have rattled off Dred Scott, Plessy, Kelo, Miller, and Terry without breaking a sweat. Opposition to the first two isn't exactly controversial. These days.

I think Palin is trying too hard to avoid specifics, and worrying too much about the "gotcha" questions, while Biden is relying too much on his ability to rattle off glib sounding answers, knowing that a compliant MSM will not examine the Chosen Emergency Substitute for the Enlightened One (pbuh) at all closely.

That said, while Palin wouldn't be my first choice for somebody to get up in the morning and check to make sure that the President is still breathing, and take the Big Chair in the Oval Office if necessary, I think she'd do fine, Biden would do better . . . but that the real one to worry about is Obama, who just plain isn't and won't be ready.

That said, the nation will survive. Probably.
10.2.2008 4:25pm
Oren:

Palin would pick Scalias. Obama -- Ginsburgs.

My hope was that McCain would pick Kennedys/Roberts and Obama would pick Souters/Breyers.
10.2.2008 4:33pm
Roger Schlafly (www):
The real problem with Biden's answer is that his explanation of Roe v Wade was completely wrong. There are no trimester distinctions. The abortion right in Roe v Wade is for the entire nine months, provided only that the abortionist agrees to do it.

Perhaps Palin was worried about contradicting McCain on the Exxon Valdez case. At any rate, many other candidates have refused to criticize specific Supreme Court decisions. Obama is supposedly the constitutional scholar. Why isn't he telling us the errors in opinions written by Roberts and Alito?
10.2.2008 4:37pm
darelf:
The more of this from Palin, the more it fulfills her goal on the ticket.

She's a regular person. Normal. Not steeped ( marinated? ) in the existing political "intelligentsia"'s culture. The more the "elite" point that out, the more they are doing the campaign's job for them. It makes her sympathetic and relatable.

Biden fulfills all of the things that Obama was trying to avoid, which makes me wonder why he picked him. Prone to profound stupidity via mouth diarrhea, and comes off as the typical slick and oily politician. He is, in fact, "more of the same".

As a "follower of law news", yeah, I could think of several cases off hand that would have fit in nicely with her perceived politics and not been off base for her to mention. But that's just me. Normal people aren't like that. For some of us, I would rather have a normal person in government.
10.2.2008 4:37pm
Oren:

It makes her sympathetic and relatable.
Absolutely. Excepting the sympathy is not a primary qualification for POTUS while having a decent handle on SCOTUS precedent is.
10.2.2008 4:39pm
jpe (mail):
Biden wasn't asked about the legal merits; he was asked whether it was a good decision. Accordingly, I read his answer as a policy-based answer to a policy-based question.

Or: I think the post here misreads both the question and the response. At a minimum, it wasn't a charitable reading.
10.2.2008 4:40pm
Anon #319:
Not since Fred spoke on the issue of Federalism has any candidate given a good answer.
10.2.2008 4:42pm
Annonymous Coward:
Biden a "Constitutional Law scholar" sorry milk just shot out of my nose.

Couric doesn't appear to have the guts, smarts and/or ideological predisposition to ask a follow up question of Biden.

Q: How does can you call the most contentious decision of last 50 years a consensus?

Q: Where does the term "consensus" appear in the Constitution?

Q: You mischaracterize the Roe decision and completely ignore Casey, do you believe that a woman has a right to abort a fetus during the third trimester?

Q: Did the Violence Against Women Act impact the right to bring a civil or a criminal case in Federal Court?

Q: Is there any limitation on federal power?

Q: What is the 'Liberty Clause' of the 14th Amendment?

The difference between Joe Biden and Sarah Palin is that everyone expects Biden to say something stupid. It is still news when Palin does it.
10.2.2008 4:44pm
Anon #319:

Biden wasn't asked about the legal merits; he was asked whether it was a good decision. Accordingly, I read his answer as a policy-based answer to a policy-based question.


That's actually a fair way to look at. I didn't at first, and I don't think JA did either. Depending on your constitutional law philosophy, "good decision" could be addressed in a few different ways. For example, I think Brennan and Thomas would approach their answer in vastly different ways.
10.2.2008 4:45pm
richard cabeza:
The difference between Joe Biden and Sarah Palin is that everyone expects Biden to say something stupid. It is still news when Palin does it.

Yes, indeed.

Similarly, when you have a candidate as objectively wonderful as Obama, it's difficult to satirize him.
10.2.2008 4:51pm
sputnik (mail):
The modern right loves cretinism:

Oh lordy:


This Is Not Spin, Honest Question [Kathryn Jean Lopez]

Ask most Americans: Other than Roe, name a Supreme Court decision you disagree with? Off the top of your head? Sure, you'd come up with one. There's Kelo.

Which would, in fact, have been one more than what Sarah Palin came up with.

My mind would then wander to "that child rape case."

Which would have been two more than what Sarah Palin came up with.

Then, during these split-second deliberations, would realize I may not want to say "that child-rape case" on the national TV.

Well sure. But that's because you're K-Lo. We expect that sort of goofiness from you. We don't expect it from someone who could soon become the most powerful person in the world.

And incidentally, K-Lo? You still would have done a lot better in this interview than Sarah Palin did. That is not a compliment.

And, then, decide: "I just am not going to play Katie's quiz-show game." I think the campaign has decided "Sarah Palin doesn't do game shows. And we'll 'expose' the media for every one of those questions."

Jesus Christ on a bike. Being asked to name one freaking newspaper that you read is a goddamn "quiz-show game" question? Are you serious, K-Lo? What other softball questions will the Right's delicate flower be unable to answer? If I asked her to name colors she liked, would she say "all of them?" If I asked her to name a number between one and ten, would she just give me a blank stare? What questions are we lowly mortals permitted to ask St. Joan of Juneau?

To put it more bluntly: could Sarah Palin say or do anything that would make you think twice before eating a crap sandwich on her behalf? Don't you feel insulted that John McCain nominated someone who is less qualified than you are to be vice president? Let me repeat that: K-Lo, you are more qualified to be vice president than Sarah Palin is.

h/t Sadly No
10.2.2008 4:51pm
TA:
"Yet while his defense of Roe may have sounded thoughtful at a superficial level, it was actually quite incoherent."

And incorrect, with respect to the trimester distinction. Third trimester abortions are common.

Many politicians do not give answers to questions as asked. We're usually disappointed, but understand that that's sometimes part of the game. Only in Sarah Palin's case is this regarded as evidence of a lack of qualification.

The problem is, if you ask someone a questioned premised on the assumption that that person is a dolt, you will often get the same answer whether that person is a dolt or a genius.
10.2.2008 4:54pm
R C Dean (mail):
It says that he think that on a divisive issue (at least this one), a "good decision" is one that agrees with both sides in substantial ways, and fashions a rule for government's involvement.

Odd that there seems to be no role for any actual Constitutional provisions in all this.

Biden's answer doesn't seem to reveal any awareness that the basis for the Court's decisions is supposed to be, first, the text of the Constitution and second, applicable precedent.

What he describes is a good legislative outcome, not necessarily a good judicial outcome. And I find that somewhat disturbing.
10.2.2008 4:59pm
Smokey:
DangerMouse:
Oh noes! This post upsets the Narrative! We should comment and shoot it down! Obama Truth Squad, Activate!
Ha! That perfectly describes the hyperbolic/ballistic Palin-haters.

They can't stand the undeniable fact that she's America's hottest governor! But they sure do love the legal softballs pitched underhanded to Biden, who's in his element. How about a thorough discussion of energy issues, instead?
10.2.2008 5:02pm
SeaDrive:
Q: How can you call the most contentious decision of last 50 years a consensus?


Biden did not call it a consensus. He called it the closest to a consensus that is possible. His remarks clearly implied that he thought consensus was impossible.
10.2.2008 5:03pm
Nate in Alice:
Smokey, you obviously haven't heard her talk about energy . . . she's still under the entirely mistaken belief that Alaska supplies 20 percent of our energy....and she doesn't understand a lick about export/import practice.

I could dig the quote up, but suffice to say, no one who's been listening to her would be surprised.
10.2.2008 5:08pm
sputnik (mail):
Rolling Stone:

Sarah Palin is a symbol of everything that is wrong with the modern United States. As a representative of our political system, she's a new low in reptilian villainy, the ultimate cynical masterwork of puppeteers like Karl Rove. But more than that, she is a horrifying symbol of how little we ask for in return for the total surrender of our political power. Not only is Sarah Palin a fraud, she's the tawdriest, most half-assed fraud imaginable, 20 floors below the lowest common denominator, a character too dumb even for daytime TV — and this country is going to eat her up, cheering her every step of the way. All because most Americans no longer have the energy to do anything but lie back and allow ourselves to be jacked off by the calculating thieves who run this grasping consumer paradise we call a nation.

Ouch.
10.2.2008 5:13pm
Witness (mail):
Yeah, let's have a "thorough discussion of energy issues," so Palin can unleash more gems like this one:

"Let me speak specifically about a credential that I do bring to this table, Charlie. And that's with the energy independence that I've been working on for these years, as the governor of this state, that produces nearly 20 percent of the U.S. domestic supply of energy."
10.2.2008 5:13pm
Suzy (mail):
What, no discussion of the brand-new definition of what it means to be a federalist? I'm surprised. I keep thinking people here lean libertarian, and keep finding out I'm wrong!
10.2.2008 5:16pm
xx:
I thought Biden's answer was a surprisingly effective way of explaining Roe v. Wade to moderate voters, even if it would be an atrocious answer if presented in a law school classroom.
10.2.2008 5:17pm
ginsocal (mail):
OK, qany of the geniuses here who are against Gov. Palin bother to look at what the Constitution requires? Thought not. The President is a leader, and an administrator. If he wants to know something about the law, I'm sure there's a raft of lawyers hovering around the Oval Office for him to pick from. Bottom line: it is ABSOLUTELY IRRELEVANT what any of the candidates know of constitutional law. IMHO, of course.
10.2.2008 5:22pm
MarkField (mail):

Second, if the aim is to have abortion laws that come as close as possible to embodying public values and preferences, any nationally uniform rule, whether permissive or restrictive, is less optimal than leaving the matter to the separate states.


I don't think this is the "aim" at all. The "aim" is to institute policies which reflect the "permanent and aggregate interests of the country". Federalist 10. The way to do that is to have decisions made at the national level, NOT the state level, as Madison specifically argued in that same essay.
10.2.2008 5:24pm
Annonymous Coward:
Sea Drive,

I think you have a reasonable interpretation but he then mischaracterizes abortion rights in his answer to get them as close to what seems to be a consensus.


Because it's as close to a consensus that can exist in a society as heterogeneous as ours. What does it say? It says in the first three months that decision should be left to the woman. And the second three months, where Roe v. Wade says, well then the state, the government has a role, along with the women's health, they have a right to have some impact on that. And the third three months they say the weight of the government's input is on the fetus being carried.

And so that's sort of reflected as close as anybody is ever going to get in this heterogeneous, this multicultural society of religious people as to some sort of, not consensus, but as close it gets.
10.2.2008 5:25pm
Annonymous Coward:

I thought Biden's answer was a surprisingly effective way of explaining Roe v. Wade to moderate voters


Only if by "surprisingly effective" you mean total BS.
10.2.2008 5:26pm
TA:
"I could dig the quote up, but suffice to say, no one who's been listening to her would be surprised."

Compare Palin's comment with the AP "fact check" below. It seems to me, even from the AP article, that Palin's claim is entirely reasonable. There is no doubt that she is being judged by a much higher standard than any other politician I can think of.

From Gibson's interview:

[GOV] PALIN: Let me speak specifically about a credential that I do bring to this table, Charlie, and that's with the energy independence that I've been working on for these years as the governor of this state that produces nearly 20 percent of the U.S. domestic supply of energy, that I worked on as chairman of the Alaska Oil and Gas Conservation Commission, overseeing the oil and gas development in our state to produce more for the United States.

From Fact Check: McCain-Palin energy figure inflated September 16, 2008 - 5:52pm (associated Press):

... To back up the claim, the McCain campaign points to the Resource Development Council for Alaska, which represents the state's oil and gas, mining, fishing and tourism industries. On its Web site, the group says: "Alaska's oil and gas industry has produced more than 16 billion barrels of oil and 6 billion cubic feet of natural gas, accounting for an average of 20 percent of the entire nation's domestic production."

But Carl Portman, the council's deputy director, says that figure is an average for what the state was producing throughout the 1980s and 1990s _ long before Palin became governor at the end of 2006 _ and production has steadily declined in recent years ...
10.2.2008 5:27pm
lecturerrich:
I had to look up Boumedine: (Boumediene v. Bush, 553 U.S. ___ (2008), was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, from Wikapedia).
I guess that makes me somewhat stupid in the view of this forum but hey I only have a PhD in Information Systems and teach at a Research University in the northeast. Maybe though it has to do with having other things to do in life.

My personal take is that Palin is street smart and will handle herself well. Having worked for a Wall Street Bank and seen the cream of the Ivy League schools I am leaning towards of regular Joe, (or Josephine), running the country and doing a hell of a better job than 'Ivy Leaguers' and though it might be not too nice to say it, lawyers. Actually, looking back Truman did a pretty good job for a haberdasher.

Just my opinion :)
10.2.2008 5:32pm
gerbilsbite:
Ginsocal
OK, qany of the geniuses here who are against Gov. Palin bother to look at what the Constitution requires? Thought not. The President is a leader, and an administrator. If he wants to know something about the law, I'm sure there's a raft of lawyers hovering around the Oval Office for him to pick from. Bottom line: it is ABSOLUTELY IRRELEVANT what any of the candidates know of constitutional law. IMHO, of course.
That is officially the dumbest statement I've read here this side of bdog, and the lamest excuse for ignorance.

Article II, Section 1, the freakin' Oath of Office: ""I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Article II, Section 2, who the President gets to appoint and nominate: "he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States..."

Article II, Section 3, a part of the job that might be a bit important: "he shall take care that the laws be faithfully executed"

So, let's assume you're right and the President of the United States need not understand the Constitution. (S)he will be promising to "preserve, protect and defend" something knowing nothing about what that task entails. (S)he'll choose SCOTUS Justices knowing nothing about the philosophy they'll bring to the job or how that philosophy could affect the course of the country. (S)he'll be enforcing laws while being unclear if the enforcement mechanisms are themselves Constitutional (and even ConLaw experts get tripped up over the Due Process Clause, so having at least a baseline understanding of it is necessary to understand what it is that "raft of lawyers" is advising).

I am stunned that you could even consider that acceptable. Absolutely stunned. That's incredibly irresponsible.
10.2.2008 5:42pm
TA:
Sputnik Wrote:

"Rolling Stone:

Sarah Palin is a symbol of everything that is wrong with the modern United States ... [snip] ... the calculating thieves who run this grasping consumer paradise we call a nation.

Ouch."


Are you OK?
10.2.2008 5:44pm
Preferred Customer:

The political opponent is your opponent because he is moving the country in the wrong direction...skillfully.
I don't call resisting that "politics".
I call it looking out for the country.
Bumbling oafs can do harm, but the bumbling might reduce its effect.



It depends, I suppose, on your perspective. Bumbling may reduce the effect of "harm" insofar as you define harm as "advancing a political agenda different from your own." That's a valid definition, but in my mind it is not the most important one.

This is a dangerous world--we should not lose sight of the fact that whomever we elect President will (and, in the case of the Vice President, may) be sitting across the table from people who mean us real, physical harm. He (or she) will be called upon to make any number of decisions that affect the physical well-being of our men and women in arms, our fellow citizens, and our allies and friends. He (or she) will also be called upon to manage an economic crisis of staggering proportions.

In that context, the candidate's "agenda" is, to me, secondary if they display a lack of basic competence. I have no problem saying that if we imagine a candidate whose views are 100 percent consistent with mine, but who demonstrates a serious lack of knowledge about the basic, foundational issues facing this country, I would not want that candidate to take the oath of office.
10.2.2008 5:47pm
Asher (mail):
Actually, looking back Truman did a pretty good job for a haberdasher

The guy was in the Senate for years, and actually did a lot during his time there.
10.2.2008 5:50pm
Assistant Village Idiot (mail) (www):
TA - good sources. The domestic production is down below 15% from Alaska recently. However, it needs to be said that her number is not wildly inaccurate. Critics have noted that she said "energy," rather than "oil &natural gas," which is a real difference but not one we usually worry much about from politicians. Others misunderstand her to be claiming that Alaska produces 20% of all energy used in the US, but she didn't say that. The critics are making errors on a larger scale than Palin did.
10.2.2008 5:56pm
TA:
Thanks Asst. VI,

The main point of her claim is that Alaska is a significant energy producer, which I guess it is. This is hardly a "lie" or a "gaffe".
10.2.2008 6:03pm
ginsocal (mail):
Wow. How did we survive all of the non-lawyer presidents we've had? One could even make a claim, with some authority, that our recent lawyer presidents have been far worse than the non-lawyer ones. Again, none of the activities of a President are done in a vacuum (Clinton excepted). A good administrator will surround himself with quality people, as no one (not even you, gerbil) is capable of knowing everything.

In any case, your citations prove my point: You did not show the qualifications, only the duties. Bit of a difference, it seems to me.

BTW, I didn't claim that a president shouldn't understand the Constitution. Every citizen has that responsibility. I just said they needn't have the knowledge of a constitutional law professor.
10.2.2008 6:03pm
Simon P:
Wow, this is astonishingly sloppy.

First, as others have noted, you've completely disregarded the actual question asked Biden.

Second, you provide a flimsy institutional argument for why the Supreme Court shouldn't strive for "consensus" rules without noticing that similar reasoning can be turned against the legislature. Why would we expect, in other words, a majoritarian body to reach "consensus" rules? If a bare majority in Congress were able to ban or permit abortion, we have no reason to believe that it would impose a rule that balances the interests of the two factions opposing or supporting abortion.

Third, your "national consensus" math is wrong. In order to average the two state-level distributions the way you do, in order to calculate the national satisfaction with abortion regimes, you'd have to assume that the two states are equal in population. But if you were to have done that, your national average would have to have been 65-35 in favor of permissive abortion rules, not 60-40. If your hypothetical nation, in other words, were composed of two states A and B, where the national preference for permissive abortion rules is 60-40 and where the state-level breakdowns are 75-25 and 55-45 for A and B, respectively, then state B would have to have three times the population of state A. If state B had three times the population of state A, and both states A and B had majority-preferred abortion regimes, then you'd have a national satisfaction rate of (.75p + .55(3*p))/(p + 3*p), where p = the population of state A. That works out to 2.4/4, or 60% of the national population. So a state-by-state approach would result in the same exact level of satisfaction as a national approach, given your assumptions and a correct population distribution.

So, yeah. Just sloppy, sloppy.
10.2.2008 6:15pm
Michael Barclay (mail):
Oh, come on. If a senior in high school couldn't name a single bad Supreme Court decision upon being asked to do so in his civics class, he'd flunk. I don't mean giving case names, I just mean describing what the case held. A simple answer that would have passed 12th grade civics could have been: the pre-Civil War case permitting slavery; the late 19th century case allowing segregation; the WWII case allowing the imprisonment of Japanese citizens. Everybody agrees these are bad decisions, and anyone who graduated from high school should be able to rattle them off without "freezing up." The readers of this blog can decide for themselves whether they are comfortable with the possible 45th President not knowing these simple things about the history of our Republic.
10.2.2008 6:19pm
richard cabeza:
Oh, come on. If a senior in high school couldn't name a single bad Supreme Court decision upon being asked to do so in his civics class, he'd flunk.

Are you sure about that? I know I shouldn't, but I'm continually amazed by such bad-tempered hyperbole.
10.2.2008 6:25pm
wooga:
Both Biden and Obama like to pretend Casey doesn't exist, and that the relatively objective trimester scheme of Roe is still law (rather than the transparent federal judicial power grab inherent in the Casey "undue burden" test). Biden was probably just reciting the stuff he learned in school - which is easily forgivable despite it being out of date.

Obama, on the other hand, was lecturing in ConLaw in the 4 years immediately after Casey. His whole defense of the 'born alive' vote is an amazing exercise in pretending that Casey never altered Roe. When Obama rolls into a Roe-style 'trimester' or 'viability' defense of abortion, it would be laughable, if not so abhorrent.

Paraphrasing Animal House:
"You should listen to Blackmun, he's was in pre-med."
10.2.2008 6:31pm
TA:
Michael Barclay wrote:

"Oh, come on. If a senior in high school couldn't name a single bad Supreme Court decision upon being asked to do so in his civics class..."

How do you know she couldn't? She didn't, on that occasion. There are several reasons why that may be. You are simply assuming that the most unflattering reason must the actual one.

Barack Obama did not answer Jim Leher's first question during the first debate (if you want to argue that McCain didn't either, go ahead). Does this mean he is intellectually incapable of doing so, or that he just didn't feel like it? I'm no fan of his, but I'm willing to extend the courtesy of assuming the latter. That's what this all boils down to.
10.2.2008 6:33pm
wooga:
the rut:
Should have said WICKER. Awful ruling and results.

Exactly what sprung to my mind. That and "Wow, you know I really hate that Dred Scott decision!"
10.2.2008 6:42pm
commontheme (mail):

How do you know she couldn't? She didn't, on that occasion. There are several reasons why that may be. You are simply assuming that the most unflattering reason must the actual one.

If this were a one time event, perhaps. But when Palin can't even name a single newspaper that she has read over the years - the most logical explanation is also the one that is most "unflattering" to her.
10.2.2008 6:54pm
MarkField (mail):

Actually, looking back Truman did a pretty good job for a haberdasher.


Truman displayed a great deal of intellectual curiousity. He was an avid reader of history -- he once said that "the only thing new in the world is the history you don't know" -- with a substantial exposure to the world. He had traveled to France as an Army captain in WWI and spent 12 years in the Senate, during which time the Truman Committee investigated miltary waste. He also spent 2 years in law school, though he didn't graduate or practice.

I'm not commenting on Gov. Palin so much as pointing out that the image of Truman as "ordinary" is perhaps one he liked to cultivate, but not one we need to accept.
10.2.2008 6:56pm
anonymous0000 (mail):
"Allowing individual states to adopt their own rules will result in a greater percentage of the public living within a jurisdiction that imposes abortion rules with which they agree."

This is not true in general. Suppose 50.1% of voters in a state prefer restrictive abortion laws. They have the political power to get restrictive laws enacted. But this only takes into account voters, not teenage girls who can't vote but can get pregnant. If post-pubescent teenagers overwhelmingly favor permissive rules, there is not a true consensus for restrictive laws just because the voting age is arbitrarily set at 18.
10.2.2008 7:00pm
TA:
"If this were a one time event, perhaps. But when Palin can't even name a single newspaper that she has read over the years - the most logical explanation is also the one that is most "unflattering" to her."

So, this contrived example of her inadequacy is relevant, because the last contrived example of her inadequacy was relevant. And that one was relevant, because the one before was relevant.

Ask yourself, and be honest. Do you really believe that Sarah Palin can't "name a single newspaper she has read"? How could she possibly have functioned as Governor?

If you were asked, in such an obviously condescending manner, to name newspapers you had read, would you cheerfully respond with your list, so that the world would know you weren't illiterate? You would be more likely to respond much as Sarah Palin did, something like "Yes, of course I read newspapers. Do you really want a list?"
10.2.2008 7:13pm
gerbilsbite:
Ginsocal:

"our recent lawyer presidents have been far worse than the non-lawyer ones"

W is an MBA (Harvard, undergrad from Yale). So you're saying Clinton, Nixon and Ford are worse than W? Ooo-kay...

And you're right that no president operates in a vacuum, which is why it's important that they be well-versed in a broad array of national issues. And someone who isn't versed in constitutional law to any degree is simply not going to be able to effectively move through those issues.

(Incidentally, nice attempt at a bait-and-switch there. You said "it is ABSOLUTELY IRRELEVANT what any of the candidates know of constitutional law," then pretended what you actually said was "I just said they needn't have the knowledge of a constitutional law professor." If this weren't a printed-word conversation where we can actually check exactly what other had said, that might have worked. But still, nice attempt :) )
10.2.2008 7:19pm
Randy R. (mail):
" I don't consider that to be a "low standard." Quite frankly, the "experts" to whom we have entrusted running the country have made a hash of it. "

You mean the Republicans who have controlled the branches of gov't for the last eight years? On that, I would certainly agree with you.

"If he wants to know something about the law, I'm sure there's a raft of lawyers hovering around the Oval Office for him to pick from. "

You mean, like Alberto Gonzalez? And David Addington? You might want to rethink your statement in light of the last eight years.

"Actually, looking back Truman did a pretty good job for a haberdasher."

You are absolutely right. So maybe we should go with the guy for prez who was a mere community organizer rather than with the professional politician. He might do a pretty good job, just like Truman.
10.2.2008 7:29pm
commontheme (mail):

Ask yourself, and be honest. Do you really believe that Sarah Palin can't "name a single newspaper she has read"? How could she possibly have functioned as Governor?

Yes I do. That is what the tape shows. She has stated previously that she gets most of her news from the TV and the radio and I think it is quite possible that she doesn't even read newspapers at all.


If you were asked, in such an obviously condescending manner, to name newspapers you had read, would you cheerfully respond with your list, so that the world would know you weren't illiterate?

Oh, I see, so your argument here is that Katie Couric was just so mean and condescending that Palin was just not even going to respond to punish her?


You would be more likely to respond much as Sarah Palin did, something like "Yes, of course I read newspapers. Do you really want a list?"

You might want to go back and watch the footage more closely before you suit up in your cheerleader outfit for Palin. Her response was nothing like the spin you try to put on it. As I recall she offered some nonsensical canned answer about "respecting the media or something" and when pressed she said that she read "any and all" of the newspapers. So you are saying that answering that you read "any and all" of the newspapers makes you look better than rattling off, say, NYT, WSJ, WaPo, CSM, and whatever local papers they have up there in Anchorage?

Courics first question - what sources of information shaped your worldview - or something like that, was a pure softball. Only after Palin spewed her half-memorized talking point about "respect for the media" did Couric follow up and ask for specifics.

You know, you might want to consider the possibility that Sarah Palin is an idiot. That would be consistent with what we have seen from her thusfar.
10.2.2008 7:39pm
richard cabeza:
You know, you might want to consider the possibility that Sarah Palin is an idiot. That would be consistent with what we have seen from her thusfar.

No kidding. Fucking hicks and rednecks, the lot of them.
10.2.2008 7:46pm
ginsocal (mail):
Randy, if you truly think that Barry is anything other than a professional politician, then you are even more ignorant than you seem. Your feeble attempt to pin everything on the last eight years of Republican rule (?) falls on its face, in light of the evidence. Or, perhaps you missed the videotape of Barney Frank and Co., telling us how Fannie and Freddie are just fine, and that we should role the dice bit. Or the Democratic failure to adopt increased regulation in 2005? How about Clinton appointtee Jamie Gorelick, responsible for not just one, but two catastrophic failures, costing us billions? Sorry, but you focus on the "last eight years" is merely evidence of hyper-partisan hackery, not deep intellectual insight.
10.2.2008 7:49pm
jpe (mail):

Maybe though it has to do with having other things to do in life.

Shouldn't we expect people to run government to at least have a passing interest in, y'know, government? Not following the machinations of the Supreme Court doesn't mean Palin is a bad person, as you seem to imply that's what meant, but it does seem like a shortcoming in someone ostensibly interested in governance.
10.2.2008 8:16pm
jpe (mail):


No kidding. Fucking hicks and rednecks, the lot of them.


A friend of mine from college is a total redneck (he'd be the first to say as much), and is also a savvy corporate lawyer that can talk circles around anyone about conlaw.

ie, one can be a redneck and not be an idiot.
10.2.2008 8:18pm
Angus:
Well, my take on the "newspaper" question is that she most likely wanted to avoid saying that the only newspapers she read were the Wasilla one and the Washington Times, which is owned by the World Unification cult (the "Moonies").
10.2.2008 8:20pm
Richard Aubrey (mail):
Were I in Palin's spot, I might--had I thought about it in advance--decline to name a most important, or most disagreeable SCOTUS decision.
The reason is that I would presume the interviewer would say, "Dred Scott. That was a hundred and fifty years ago."
Or "Roe? That's settled law. Why not Dred Scott which affirmed the constitutionality of slavery?"
10.2.2008 8:32pm
commontheme (mail):
Ahh, yes, Mr. Aubrey, Sarah Palin weighed the implications of discussing the various cases with which she was familiar and decided to just not name any. That must be what happened.
10.2.2008 8:34pm
bbbeard (mail):
Newspapers? Are you joking? In Memphis we have an outfit called "The Commercial Appeal". It basically runs wire service reports and ads. Memphis being a small town, I have run into folks who are CA employees. I usually try to say something nice, like, "Well, my kids love the Sunday comics", or "Gee, I wish the movie houses would pay for larger-print ads." But I would never tout on national TV being a reader of the Commercial Appeal.

Newspapers had ceased being reliable sources of unbiased information long before I was in college, which was before Egon Spengler noted, "Print is dead."

BBB
10.2.2008 9:00pm
richard cabeza:
[insert joke about elites who read the NYT and suggest that only rubes and rednecks don't]
10.2.2008 9:02pm
bbbeard (mail):
Oh, and BTW, my favorite SCOTUS cases to kvetch about:

(1) Korematsu v. United States
(2) Lone Wolf v. Hitchcock
(3) UC v. Bakke
(4) Grutter v. Bollinger
(5) Lawrence v. Texas

And I've also been to Europe many times.

Neither having a pocket list like this, nor being a voyageur avec le savoir faire, qualifies me for office.

You Bidenesque types need to get off your high horse. 'Cause my IQ is higher than yours.
10.2.2008 9:13pm
gerbilsbite:
ginsocal:

Or, perhaps you missed the videotape of Barney Frank and Co., telling us how Fannie and Freddie are just fine, and that we should role the dice bit.
That was in 2003, right? Damn that Barney Frank and his lack of five-year prescience!

Or the Democratic failure to adopt increased regulation in 2005?
You mean during that two-year period when they controlled the White House, House and Senate? Oh, wait, wrong party...

I have rarely seen someone make so many wrong statements on a single thread. Kudos, I suppose.
10.2.2008 9:36pm
Andrew J. Lazarus (mail):
bbbeard, you, my brother, and my father are the only people I've ever heard discuss Lone Wolf as one of the worst SCOTUS decisions of all time. Except for the other items on the list (e.g., Bakke) I'd think we were cousins.
10.2.2008 9:49pm
Richard Aubrey (mail):
common.
Wrong. Wrong.
If Palin were as paranoid as I am, and as she should be, about the interviews, she would decline to name one because the interviewer would act surprised that it--whichever one it was--she thought important, compared to one or another she didn't mention.
Don't presume good faith, is a good way to go into an interview.
At least, if you're a republican and the interviewer is a journalist.
10.2.2008 10:03pm
Jmaie (mail):
You devote 7 lines to your analysis of the Palin response and then devote 10 lines to criticizing Joe Biden's response.

Fair and balanced, indeed.


Yes, but the Palin lines weighed more than the Biden lines, so it comes out even.
10.2.2008 11:08pm
Smokey:
sputnik:
Sarah Palin is a symbol of everything that is wrong with the modern United States. As a representative of our political system, she's a new low in reptilian villainy, the ultimate cynical masterwork of puppeteers like Karl Rove. But more than that, she is a horrifying symbol of how little we ask for in return for the total surrender of our political power. Not only is Sarah Palin a fraud, she's the tawdriest, most half-assed fraud imaginable, 20 floors below the lowest common denominator, a character too dumb even for daytime TV — and this country is going to eat her up, cheering her every step of the way. All because most Americans no longer have the energy to do anything but lie back and allow ourselves to be jacked off by the calculating thieves who run this grasping consumer paradise we call a nation.
Is there a doctor in the house?? sputnik is off his meds again!!
10.2.2008 11:12pm
Jonathan H. Adler (mail) (www):
Simon P. --

Before you cal me "sloppy," read the post more closely. I properly characterize the context and nature of Biden's remarks, and as for my "sloppy" math, reread the post. I wrote:
To illustrate, consider a hypothetical nation with two states of equal populations. The national preference in favor of permissive abortion rules is 60% to 40%. But in State A the preference for permissive rules is 75% to 25% and in State B the preference for more restrictive abortion rules runs 55% to 45%. With a national rule reflecting popular opinion, 60% of the people live under a rule they support. Allowing each state to adopt its own rules, however, results, in 65% of the people ((75+55)/2) living under a rule they support.
My math is correct.

JHA
10.2.2008 11:24pm
TA:
"As I recall she offered some nonsensical canned answer about "respecting the media or something" and when pressed she said that she read "any and all" of the newspapers. So you are saying that answering that you read "any and all" of the newspapers makes you look better than rattling off, say, NYT, WSJ, WaPo, CSM, and whatever local papers they have up there in Anchorage?"

Yes, much better.
10.3.2008 12:03am
ravenshrike:
There is a rather large difference between disliking the outcome of a SCOTUS decision and outright disagreeing with the decision itself. Or at least, there should be. Personally, I don't mind the outcome of RvW, but in terms of a valid court decision I do not believe it makes the cut.
10.3.2008 1:28am
TruePath (mail) (www):
Unfortunately trying to make these (important) but technical points clearly, in particular distingushing between the argument that Roe itself was a correct deciscion and that whatever the deciscion the level of reliance upon the practical effect of the Roe deciscion (which still remains despite technical shifts in standards) and other factors mean that Stare Decisis requires the major effect be upheld.

As a mathematician I've long since learned that even giving an explanation that avoids being outright misleading virtually guarantees a failure to communicate to the non-specialist. Outside of our narrow areas of expertise we evaluate talk emotionally not legally and logically.

So what should a canidate do when they know any answer they give will give the wrong impression. Try to give a more technically correct legal argument and not only do some people get confused and thing you are saying something else many others come away convinced they don't appreciate the deep effects this deciscion has on many people's lives?

----

I mean it's like asking an atheist canidate what his view is on the christian faith in a format giving him 1 minute to answer. If he says the intellectually honest thing: the christian faith is a collection of myths like the greek gods were then many viewers go away convinced that he doesn't respect their experiences, traditions and way of life. On the other hand if the canidate goes ahead and gives some eloquent but intellectually vapid reply about the importance of each person's spirituality to themselves the intellectual message is now false but the listeners no longer get the other misleading message.

In other words I've totally give up on the idea that intellectual honesty and politics are compatible at all.
10.3.2008 2:14am