It's ok to freak out.  You should freak out.  The election handed to the Democratic Party on a silver platter is being passed back to John McCain, permanent war, and rule by the party of older white men, the party of indifference to poverty, to race and gender injustice, the party that is almost done destroying the United States Supreme Court for thirty years to come.  Today, Obama bounced from even to down two in Gallup (46-44).  He bounced from three up to tied in Rasmussen (44-44).  With each successive day since picking Biden, Obama is losing more support from Hillary supporters.  McCain hasn't led all summer, and his convention bounce awaits.  If you're paying attention, you ought to freak out.

Here's what's happening.  Democratic women think (47-39, per Rasmussen) that Hillary should be the veep pick, while Democratic men disagree, 56-35.  Thus, while a plurality of all Democrats do not want Hillary as veep (which matters), a plurality of women Democrats do (which matters).  Underscoring that a subgroup of the Democratic coalition stands poised to tank this election, per the WaPo, Obama is more popular than Hillary among Democrats (strongly favorable:  61-48), all voters (favorable:  62-52), and independent voters (favorable:  59-41).  Hillary is not preferred over Obama by any of these groups, but among the core of available voters, enough highly motivated persons are presently threatening to defect to cause us to lose this election, which that group has the power to do.

Who are these folks?  We all know.  Rasmussen says that 21% of Democratic women presently plan to vote for John McCain.  This is remarkable when one realizes that the threatened white Democratic woman vote for McCain is surely closer to 30%, and when one realizes that there are four solid votes (all the younger Justices at that) to repeal the constitutional abortion right (Scalia, Thomas, Roberts, Alito).  McCain (recanting his critique of Falwell and Robertson, and hugging Hagee) has pledged to appoint prolife Justices.

Yet about thirty percent of white Democratic women are sufficiently angry about their perceptions of sexism in the primaries, or their heartfelt identification with Hillary, or related issues, to not give a shit about that.  Our party is majority female.  This is highly nontrivial.

What is at stake tonight, and on through November 4, is not a question of blame, which is pointless.  It is a question of what will be.  For the remarkably large number of white Democratic women who would rather risk (no, facilitate) the repeal of Roe v. Wade that see President Obama, the way back from the brink must come tonight.  It must come from a Democrat some of us love and many of us care little for, the gifted, hard-campaigning Senator from New York.  It doesn't matter whether you love her or hate her.  It doesn't matter whether you like the Clinton or Obama supporters in this site.  It doesn't matter.

The only thing that matters is whether Senator Hillary Clinton can take the emotion that was naturally part of her trailblazing campaign, and which she helped engender by the manner, vigor, and duration of that campaign, and pull enough of those pissed-off white women off the ledge from which they would jump, carrying us all to the pavement below.

If she does not do this, if she cannot do this, the following will happen.  The Democratic Party will be riven more permanently into two groups that don't trust each other:  our black base, and our base of white women.  I am not blaming, it's way past that.  This is merely predictive.  Women were close to seeing the first woman President, blacks are close to seeing the first black President.  Both will feel equally the betrayal of losing an easy win in 2008.  (For those who don't know, I'm a white guy who wants women and nonwhite Presidents, and have less direct identification in the matter.)

Our party is not lockstep, as Senator Clinton correctly observed this week.  But the bitterness borne of attacks on President Clinton, attacks on Senator Obama, perceptions of race-baiting, of sexism, the disappointment that leads to nihilism, must end for enough of us to get to victory.  If our coalition holds, even thinly, we open doors for the next woman candidate in a partnership of important constituent groups in our party.  If it does not, we will reap blame and recrimination both ways, and divide ourselves even more pathetically than is currently the case.  Think about this:  McCain is not evangelical.  But he has the GOP base in his palm.  As one Clintonist blogger observed yesterday, we -- you and I -- are the Democratic Party.  If we cannot get in the palm of our candidate in this year, we will fuck up 2012, and perhaps 2016.  We will become the interest group party of distrustful fragments that we were in 1984.  And we will not elect anyone other than a white man for a long time.  Our bases will be too retributive, and nontrusting.  There is too much distrust now, and a belt to the lips of both halves of our loyal base (African-Americans and white women) will not take us to the step of trust and power-sharing that we need to forge a permanent majority.

So my hopes are with Hillary Clinton.  I think she's incredibly smart, an attribute which unfortunately has not helped us in other leaders as much as it should.  Politicians typically don't sacrifice themselves, and we need her to.  Right now, it sucks to be her.  She was almost the President.  She won't be this year, and likely never will.  She has to put the Democratic Party above her very real pain to help a rival win.  That sucks.  Sacrifice sucks.  If she does, she is in my view ten times the person Bill Clinton was in 1998, when he stayed in office to vindicate himself, not knowing what effect that would have on the Democratic Party -- you and me -- or Al Gore.  I want her to do this very difficult job, not because I love Obama's candidacy, though I have blogged for it, raised lots of money for it, done for it retail work I never do -- but becasue I have never voted Republican in my life.  I have loved Mondale, Dukakis, Tsongas, Clinton 92 and 96, Gore, Kerry, Pelosi, the whole lot of them.

And if our party breaks into fratricide (sororicide?  That sounds like a sexy teen slasher pic) by killing itself in this election, I will have to act in the tiny space of my life:  either run for office, or more likely, de-register as a Democrat.

To put a fine point on it then, I don't really like Hillary Clinton, but that doesn't matter.  The future of my party, and perhaps even my affinity for my party, is in her hands.  I really want her to do a hell of a job, show how great she is, and pull some legitimately disappointed people back from the brink.  I am rooting very hard for her, and want to be able to thank her someday for what I hope she does for America tonight and this fall.  Greatness entails sacrifice.  Be great, Hillary.

It's ok to freak out.  You should freak out.  The election handed to the Democratic Party on a silver platter is being passed back to John McCain, permanent war, and rule by the party of older white men, the party of indifference to poverty, to gender and racial injustice, the party that is almost done destroying the United States Supreme Court for thirty years to come.   Today, during his own convention, Obama bounced from even to down two in Gallup (46-44), and bounced from plus three to tied in Rasmussen (44-44).  With each successive day since picking Biden, Obama has leaked more Hillary supporters.  McCain hasn't led all summer, and his convention bounce awaits.  If you're paying attention, you ought to freak out.

Here's what's happening.  Democratic women think (47-39, per Rasmussen) that Hillary should be the veep pick, while Democratic men disagree, 56-35.  Thus, while a plurality of all Democrats do not want Hillary as veep (which matters), a plurality of women Democrats do (which matters).  Underscoring that a subgroup of the Democratic coalition stands poised to tank this election, per the WaPo, Obama is more popular than Hillary among Democrats (strongly favorable:  61-48), all voters (favorable:  62-52), and independent voters (favorable:  59-41).  Hillary is not preferred to Obama by any of these groups, but among the core of available voters, enough highly motivated persons are presently threatening to stay home to cause us to lose this election, which that group has the power to do. 

It's ok to freak out.  You should freak out.  The election handed to the Democratic Party on a silver platter is being passed back to John McCain, permanent war, and rule by the party of older white men, the party of indifference to poverty, to race and gender injustice, the party that is almost done destroying the United States Supreme Court for thirty years to come.  Today, Obama bounced from even to down two in

10.  You have spent time arguing with people on TPM who think they are more into Obama than you, they have flamed you to establish your naivete on such topics as FISA and The Clinton Question, and you have bothered to have these conversations.

9.  You ordered twenty-six pounds of Obama buttons from DemocraticStuff.com, most of which you have not given away.

8.  You have contributed 4% or more of your adjusted gross income to Obama.  This is called tithing.

7.  You can speak at length about why you like your Si Se Puede buttons better than the pink Michelle Obama, America’s next First Lady ones, but your favorites are the Obama silhouette with the JFK silhouette and the cool JFK quote.

6.  You are interested in helping Obama voter protection program in state Rasmussen lists as Likely Republican.  You feel you need more protection from than for your state’s voters, but what the hell.

5.  You broke open classy wine to celebrate the close loss in Indiana.

4.  You totally don’t mind Keith Olbermann.

3.  You have both a David Axelrod autographed baseball and a Shepard Fairey autographed “Progress” print up in your office.

2.  You have a lifesize cardboard Obama cutout up in your dining room.

1.  Obama staffer asks you derisively if you hug the cardboard Obama before you go to bed.  

Today Articleman met Ken Starr.  It was a trippy day, and included one of the most fascinating lawyer debates imaginable, so I thought I’d blog about it.  The occasion is the Ninth Circuit Judicial Conference, a very collegial and productive gathering of judges, lawyers, court administrators, and special guests, this year held in Sun Valley, Idaho.  (Culture note one:  on the way into Hailey, Idaho, six miles south, saw a polygamist family decked out in 1890’s finest, stopping to look at a fishing bridge, just like many other carloads of tourists.  It was my third polygamist sighting in the last year.)

While this conference is always a great assemblage of legal luminaries and interesting figures, this year it featured what promised to be, on paper, the most interesting panel at a conference in my career.  This one concerned whether the President was under all circumstances under a duty to comply with laws, and the circumstances under which the President might be permitted not to comply, or to comply but seek to defeat or undermine the law in question.  The panelists?  Clinton Solicitor General Seth Waxman, Clinton Acting Solicitor General Walter Dellinger, former Stanford Law School Dean Kathleen Sullivan, Bush41 Solicitor General and Whitewater Counsel (won’t call him Independent Counsel, just like I won’t call Washington National Airport “Reagan”, it’s just wrong) and torture memo celebrity, frequent Congressional guest, Berkeley law professor John Yoo.  A better set of folks to debate executive power in the context of Bush could not be devised.

Just before the panel was to begin, I learned from someone in the crowd that Yoo was not coming.  Given that Bush43 Solicitor General Paul Clement was on the stage (Clement spoke last night in a general way about the Solicitor General’s office, steering clear of controversy), it was clear that Clement was filling in for Yoo.  This was disappointing:  as Depeche Mode once sang, all I want to do is/see Yoo/don’t you know that it’s true?  Seriously, I did want to see Sullivan and Dellinger debate Yoo earnestly, and would not have that chance.  Further aside:  the introduction of the panel began with the announcement that Professor Yoo could not make it because last night he was “unexpectedly detained for six hours in the Oakland airport.”  This of course drew chuckles from the liberal half of the crowd, imagining one architect of Bush’s Guantanamo policies unreasonably indefinitely detained in a security sweep, and drew glowers from the conservative half, annoyed at our laughter.

Back on point, Yoo’s resume says a lot to me about how he was able to blithely conclude that torture was constitutional and permissible.  If you look at it, he graduated from law school in 1992, clerked for Laurence Silberman on the D.C. Circuit (a stalwart of the hard right and feeder clerk to Scalia and Thomas), took his teaching gig at Berkeley, then clerked for Clarence Thomas, interrupting his teaching to work as counsel to the Senate Judiciary Committee one year later, and worked for the Office of Legal Counsel when he wrote his infamous memoranda.  It’s easy to dismiss this resume as one from the intellectual path of the Reagan conservative revival of the 80s, that spawned “Review” newspapers and strong Federalist Societies on law campuses, with bright ideologues out-righting each other to fight their way to influential positions.  That is a fair assessment of the movement that carried forward Mr. Yoo.

But I see something simpler and very important, though less red meat for most readers.  Mr. Yoo has essentially never really been a lawyer.  He doesn’t represent people.  He’s a terribly bright guy, but he has taken Theory of the Real World at Yale Law School, and now teaches Theory of the Real World at Berkeley.  Now and then he sallies forth, his orthodoxies in tow, but he has not slaved long hours for real people with real problems.  Lawyers who do usually see gray; they understand moral complexity; they live moral complexity.  Mr. Yoo is a Harvard summa, and good for him, they are few; but facility with argument detached from the complexity and context of law practice is an elixir for the bullshit absolutism of Bushism.  It’s not just ideology; it’s ideology without the leavening of the real world, where torture is performed by real people upon real people in real places where real things happen when and after you do it.  That’s my biggest problem with John Yoo, or at least my guess as to how he so easily came to such wrong and bad views. 

After a short introduction by Dellinger, Starr began his piece by arguing for an imperial Presidency, cobbling together bits and pieces from American history, though largely from Lincoln.  Having just read a Lincoln bio, I could not fathom Starr seeming to argue that Lincoln felt his great works, most particularly the Emancipation Proclamation, were literally unconstitutional.  Lincoln agonized over this, and frequently remarked that the Proclamation would otherwise have been unconstitutional, but was constitutional as an exercise of his war powers.  Why Starr found blockading the Confederacy to be a remarkably vigorous exercise of executive power baffled me.  Starr (relying on one quote from 1864) arguing that Lincoln recognized these and other such acts to be literally beyond the bounds of the Constitution is to me either objectively wrong, or at best, a poor, tendentious, and easily refuted reading of Lincoln.

Sullivan argued very persuasively that the President was conceived as an agent of Congress, and not as a principal.  Her parsing of Madison and even Hamilton to this end was most persuasive, and regrettably, there was not time (or perhaps the inclination) of her rightward panelists to engage her there.

Waxman made a compelling point about the litigation surrounding the Hamdan decision about detention of alleged terrorists.  He had read the one hundred or so briefs filed with the Supreme Court in that matter (which Clement argued), and said the most forceful and poignant one to him was one filed by Israeli military justice officials.  Israel, he said, has neither a formal constitution, nor formal guarantees of separation of powers, and yet the Israeli brief showed how a nation besieged by terrorism nonetheless rapidly turns suspected terrorists into a civil system of justice, with access to what amounts to the writ of [ corpus, and guarantees against incarceration without notice and an opportunity to be heard.  This was a great moment, and a great point, although the sad fact is that Israel has much more experience in this area, which does not minimize the great example shown.

Clement stepped around Dellinger’s frontal attack on Bush43 giving the strong executive a bad name, and returned to first principles.  Importantly, all of the panelists agreed with him that all of the actors in the Constitutional system must make Constitutional judgments and do something about them.  As Clement pointed out, Congress relatively often passes unconstitutional statutes (for example, ignoring the Chadha decision that made clear that laws giving only one house of Congresss a veto over Executive action violates the separation of powers).  In such a case, the Executive is not obliged to defend such a law before the Supreme Court nor to obey it, any more than the Executive would obey a law circumscribing the Constitution’s grant of pardon power or the veto power, the examples Clement actually raised.  But of course, those are simple, easy, and even silly cases.

Starr pushed back against the liberals on the panel by pointing to Executive supremism on FDR’s part, in seeking to remove a trade commissioner, and Truman in the steel cases, suggesting without making the point express that what’s good for the liberal goose is fine for the rightist gander.

Yet in the closing minutes of the back and forth, Sullivan brought it home in style.  Her points:  (1) the fact that it is so that the President possesses considerable express power over foreign affairs, and that Congress cannot unmake the Constitution’s express grants of power (in Clement’s easy example) does not support the logical leap that the President possesses extraordinary powers that are plenary (meaning general and unstated in the Constitution) or lumped into an incoherent soup of supposed “inherent” authority; (2) the secrecy of the Executive’s subversion of Congress’ will in domestic wiretapping, in torture, in military courts was designed to elude review; and (3) the President should be true to their Constitutional vision, but not in a secret way that defeats public rejection of tyrants, Congressional review of the Executive (abuses of secret wiretapping), and evades and defeats judicial review.  The Constitution, she concluded (nodding to Justice Kennedy, who is in attendance) abhors these things because it is a compact to preserve the people’s liberty.  You go, Kathleen.  As always, well said.

Afterward, I waited to try out my reactions to Starr’s take on Lincoln on both Sullivan and Starr.  To Sullivan, I said, Lincoln did not believe his actions in war literally unconstitutional, and that, besides, isn’t it awfully ironic and inconsistent to hear the conservatives who abhor legislative history when liberals use it to interpret statutes sanely suddenly cobble together anecdotal bases for an Imperial Presidency not found in the Constitution – not only out of context Lincoln quotes, but quoting John Marshall when he was a Representative touting Executive supremism in foreign affairs?  She seemed to think those fair points (but people are nice at conferences!).

I then waited further and then had a chance to ask Starr whether his belief was that Lincoln viewed his actions as literally unconstitutional.  He allowed that Lincoln subjectively believed them incident to his war powers, which seemed to step back from his argument as I had heard it.  It seems that the conservative justification of Bushism, as a theory of the Executive, is simply that the challenge of terrorism is of equal magnitude and threat as the Civil War itself, or as a fallback that provides less justification for its excesses, at least World War II and the Great Depression.  I think it is not bad faith, in and of itself, to have believed this six years ago.  But it is yesterday’s bad idea, and especially the Civil War comparison is no longer even remotely defensible.  The panel, and the chance to hear from folks I agree with and those with whom I disagree, made me rethink FISA, and even impeachment of Bush Administration folk after Obama (hopefully) begins his Presidency.  A strong President is one thing; an Imperial Presidency like Bush’s is wholly another, and is a discussion and fight well worth having.  Out here in the real world, I think we will win that fight.

Here are my picks for election music:  songs about politics, peace, rights, the media, and other election-related things.  If you have any political music favorites on your iPod or Victrola, would appreciate your countersuggestions.

10.  Heaven 17, “(We Don’t Need This) Fascist Groove Thang”, Penthouse and Pavement (1981).  The best little-known New Wave album of the early New Wave.  Asks “Have you heard it on the news/about this fascist groove thing/evil men with racist views/spreading all across the land” and warns that “Reegan’s President-elect/fascist god in motion.”  Plus, it’s got a good beat, and you can dance to it.

9.  Green Day, “Basket Case,” Dookie (1994).  “Do you have the time/to listen to me whine/about nothing and everything all at once/I am one of those/melodramatic fools/neurotic to the bone no doubt about it/sometimes I give myself the creeps/sometimes my mind plays tricks on me/it all keeps adding up/I think I’m cracking up/am I just paranoid?”  Who knew they were writing songs about the liberal blogosphere in 1994?  Amazing.

8.  Don Henley, “Dirty Laundry,” I Can’t Stand Still (1982).  Is there a more pointed critique of the media in a cool song?  “We can do the innuendo, we can dance and sing/when it’s said and done we haven’t told you a thing/we all know that crap is king/give us dirty laundry.”  Maybe in Elvis Costello’s “Brilliant Mistake” from King of America (1986):  “She said that she was working for the ABC News/It was as much of the alphabet/as she knew how to use…”  Nah, sticking with Henley.

7.  Carly Simon, “You’re So Vain,” No Secrets (1972).  When asked during an early 2008 debate about his decision to run for President, Barack acknowledged that there’s certainly an element of vanity in politics.  This of course is true.  I dig the song, it’s a sensually delivered, bitter rant, kind of like an opulent red wine.  Or whine.

6.   10,000 Maniacs, “Peace Train,” In My Tribe (1987).  Brilliant cover of the Cat Stevens song, but removed from In My Tribe in 1989 when Stevens supported Ayatollah Khomeini’s fatwa against Salman Rushdie.  Those later events aside, this is a seriously cool track, since made available on the 2004 compilation Campfire Songs.

5.  Goldfrapp, “Ooh La La,” Supernature (2005).  More infectious than I Am Legend and 28 Days Later combined.  Great loud car song, to enjoy your $4 a gallon 2008 gasoline as you cruise and kick back.

4.  They Might Be Giants, “James K. Polk,” Istanbul (Not Constantinople) EP (1990).  How can you not like a song that frankly begins, “In 1844, the Democrats were split/with three nominees for their Presidential candidate” and ends with “in four short years he met his every goal/he seized the whole southwest from Mexico/made sure the tariffs fell/and made the English sell/the Oregon Territory/he built an independent treasury/having done all this he sought no second term.”  But then, my monicker Articleman is drawn from TMBG’s Particle Man (“what’s he like/it’s not important/Particle Man”) so I’m biased.   

3.   Moby & Public Enemy, “Make Love Fuck War,” (2004).  A postmodern Give Peace a Chance, with a pleasant grind.  “Make love, fuck war, peace will save us.”  This is wicked dance floor material, even better for workouts.  It got me through the Pennsylvania primary season every day at 6 a.m. 

2.  The Clash, “Know Your Rights,” Combat Rock (1984).  “Know your rights.  All three of them!”  Which the Clash then list helpfully for you.  “Number 3:  You have the right/to free speech/as long as you’re not dumb enough/to actually try it.”  If there is a better anthem for civil libertarians, I have never heard it.

1.   Public Enemy, “Fight the Power,” Fear of a Black Planet  (1989).  “Yet our best trained, best equipped, best prepared troops refused to fight.  In fact, it’s safe to say that they would rather switch!  Than fight.”  One of the most influential rap songs ever recorded, hot, nasty, timeless.  Get ready for August 28, the 45th anniversary of I Have a Dream, and fighting the power every day through November 4.

This is a post about mistakes in emphasis on the progressive, blogging left.  I mean overemphasis upon: the civil immunity provisions of FISA, the thirst to hold in 2008 hearings to impeach George Bush for taking us to war arguably without Congressional authorization, the wish to hold Karl Rove in contempt, prosecutions for Department of Justice hackery, and other reductions of our party’s agenda to winning a series of legal skirmishes with and about Bushism.  While I would have voted against FISA, think the Iraq War is evil, think Karl Rove is contemptible, I think it’s much more important to acquire and concentrate power in our party while the pendulum swings toward us.  Until November 2008, I believe that should be our sole focus, and that the emotional satisfaction of show trials and spectacle punishments, while satisfying, are not only counterproductive as they may awaken the sleeping GOP base, but a waste of our focus.

While Whitewater, Bush v. Gore, and general anger at the folding-chair performance of the Democratic Congress may have brought us to a place where we’re focused more on winning legal conflicts than elections, it is a stupid place to be.

The recent FISA imbroglio reflects this.  As I’ve written, the thing I don’t get, and which suggests to me some lack of focus here, is that the focus is on preserving civil lawsuits against telecommunications companies.  The argument is that the truth about the government’s surveillance programs cannot come out unless civil remedies for aggrieved private citizens are preserved.  I do think private citizens should have this recourse, but as a long-practicing civil litigator, this seems quite stupid if people making this argument are serious.

A party focused on governing and on winning elections wouldn’t offload oversight to the civil litigation process.  Such a party would render oversight, from its perch in Congress.  The focus on immunity is a function of the failure of Democratic leadership in the House and Senate, but it’s still a dumb focus.  Our party’s leaders need to be made to do oversight.  It’s their job, not the job of well-intended lawyers who occupy no Constitutional role.  Having won elections, our Senators and Congressfolk need to govern, not delegate or abandon their Constitutional function.  And forget Congress, this is the era of the strong Executive.  So electing one is much more important than “proving up” the known excesses of Bush.  I want 2009-2017 to be a time of hope and reform more than I want to endlessly rehash the evils of 2001-2009.

This same goofy dance is writ larger in the current impeachment brouhaha.  The comments on TPM line up with the comment of KRXA’s Hal, who said on his program to me that many of his listeners are very upset with Nancy Pelosi for not pursuing impeachment in 2008.  While I commented back to Hal that we need to win the fall election, and that Pelosi is a good progressive, there’s a deeper, more obvious point here.  Sure, the prosecution of the War on Terror (TM) via the invasion and occupation of Iraq is deeply wrong.  But the American people elected Bush in 2004 to keep on keepin’ on.  The election was a referendum on the war.  Maybe you’ve noticed -- we lost the referendum.  Be mad at the American people for it.  Be mad at the swing voters in Ohio for it.  Blaming our political foes because they beat us is whiny and utterly misses the point.  Impeach the American people, or leave it alone.  The Kucinich articles are cowardly and five years too late.  What’s Dennis’s real game?  I’m a better progressive than Nancy Pelosi?  Corrosive, and bullshit.  The war was wrong?  No shit.  Defund it, or get us out by acting under the War Powers Act if you can.  But a show trial?  That’s for parties permanently out of power, who can’t do more.  We have Congress.  We need to use our power to act, not to create spectacle.

And maybe it tells us is that it just feels good to impeach.  We lost the election, so let’s have a political prosecution.  After all, our political foes did that to Bill Clinton, so they deserve the same.  Back atcha.

It’s unsurprising that we learn little about winning elections from Dennis Kucinich, whose home state had a chance to elect John Kerry and thus truncate the war, and chose not to.  But again, we’re trying to win a battle in a courtroom.  This is the extension of Warren Court-ism into a philosophy of government.  Rights we could not enact at the ballot box will be won, if needed, in the unelected courts.  But civil lawsuits and impeachments are fundamentally empty if relied upon as instruments of real governance.

The continuing Department of Justice scandal, in which a culture of political hackery led to the selection of federal prosecutors (and the omission to hire others) on the basis of rank partisanship, is a disgrace.  It needs to be investigated independently and to its conclusion, and if there are crimes along the way that require prosecution, we need through oversight and parallel Congressional inquiry to make sure that such prosecutions happen. 

But we can’t confuse the prosecutions with the higher point – throwing out of power the corrupt party that disgraced itself by polluting the historically nonpartisan office of that icon of public service, the federal prosecutor.   Obama has talked about this issue.  We should talk about it.  But the point isn’t to put people away.  The harm the party of permanent war and partisan prosecution did has been done.  The bell cannot be unrung (no, not even by Kucinich’s Articles of Impeachment that went missing longer than the Rose Law Firm billing records).  The point is to win.  FISA immunity, permanent Middle Eastern war, hiring unqualified hacks as prosecutors.  Once in power, we won’t do this. 

A final example was the would be contempt citation against Karl Rove.  In a rush to self-injure, some progressives renewed their chronic flogging of Nancy Pelosi, this time for not using administrative processes to go after Rove for nonresponsiveness to Congress’ mandates.  Rove is of course evil, but the bigger question is what instrumental purpose is served by holding Rove in contempt – do we get something from him that helps us consolidate our position, do we turn him into a martyr to the sleeping right wing?  The relentless crapping on Pelosi as not being bloodthirsty enough is a testament to the self-destructive inability of pockets of the left to work in party discipline.  And it is further proof that too many folks want blood from legal processes more than they really want an ’09 progressive majority.

So it’s good to speak against the war, against FISA, against Republican excesses, to speak against politicizing the most necessarily neutral part of our government – federal prosecutors.  But we shouldn’t be licking our lips over impeachments, show trials, and contempt citations.  The legal processes surrounding issues are smoke.  The issues are the fire.  And it’s in the fire we are going to be purified, or damned this year, either by winning a Presidential election that allows us to govern and growing a progressive Congressional majority, or not.  That is almost all of what matters this year.  So let’s win elections.  Lawsuits are for the losers.

The blogosphere and the solid left is in an uproar over Senator Obama's vote for the amended FISA bill.  As progressives, we deplore the Bush Administration's illegal spying on Americans, violations of due process, civil liberties, habeas corpus, and turning America toward being an evidently free country with a twist of police state thrown in.  I would have voted against FISA.  The vote for it was wrong.  But is the vote about FISA the be-all-end-all of future civil liberties in this area?  Is it a reason to lose heart in Obama, or withhold your vote from him, as some suggest?  I say no, and suggest you do too.  Five reasons:  
 
1.  The Argument That Civil Suits Against Telcos Are the Way To Hold the Administration Accountable Is Bullshit.   Mirroring much discussion in the blogosphere, Senator Clinton's statement about her vote against FISA stresses the importance of defeating immunity, because civil litigation against the telecommunications companies (private persons' lawsuits for damages) is a "critical" way to hold the administration accountable.  She writes:
 
"There is little disagreement that the legislation effectively grants retroactive immunity to the telecommunications companies.  In my judgment, immunity under these circumstances has the practical effect of shutting down a critical avenue for holding the administration accountable for its conduct."
 
She's right that the legislation confers retroactive immunity.  But immunity from what?  Civil lawsuits for damages.  We don't leave chasing the Bush Administration's sorry abuse of civil rights to the civil discovery process in lawsuits filed by private persons for cash, in which discovery is logically limited to the facts of their case and not the programmatic abuse of civil liberties fostered by the Bushies (and in which a majority of judges deciding what is discoverable are Republican appointees, by the way).  What utter, responsibility-shifting crap.  If you've ever done civil discovery, you know how dumb the idea of leaving public policy to it, and to private persons' efforts in it, is.  That's not what the courts are for.  That's what _Congress_ is for.  That's what the House and Senate are for, and our party controls them now, not the Executive.  That's why Pelosi, Reid, and their colleagues either need to investigate use and abuse of FISA powers in their oversight role, or the netroots need to hold _them_ accountable.  This festering sore over immunity from civil lawsuits is every bit as stupid as the contretemps over impeaching Bush for what he was elected to do.  The time for that accountability was 2003-04.  The place for telco accountability is the oversight function.  Not civil litigation.  Anyone in the Congress telling you otherwise doesn't want to do their own job.  Voting that FISA is bad, but not oversighting like FISA is bad, is bullshit. 
 
2.   The Health of Our Civil Libertarian Culture Depends Much More Upon Who Appoints Judges For the Next Four To Eight Years Than Upon the Existence of Not of Private Suits Against Telcos for Bush Administration Abuses.
 
Helpful stat for you:  Democrats confirmed 86% of Bush's judicial nominees, after Republicans confirmed 75% of Clinton's.  So the same genuises who aren't doing oversight but want you to believe that civil litigation is a panacea for checking conservatism's excesses are giving Bush more of what he wants on the bench.  Again, think about what is wrong with that picture.  Partly as a result, ten of the thirteen federal circuits have Republican-appointed majorities.  The Supreme Court is 7-2 Republican, with Reagan appointee _Anthony Kennedy_ the civil liberty-preserving swing justice.  Seriously.
 
So what's more important to your civil liberties, or anyone's?  Whether a lawyer can get damages and discovery from a telco for what Bush did four or six years ago?  Or whether the Courts of Appeal that determine most significant federal legal questions (fewer than 100 are resolved by the Supremes each year) return to balance, or even a Democratic-appointed tinge?  If you can't tell, then by all means, sit this election out.  If you care, support Obama.  He's the Democrat.  Judges he appoints will be much closer to your worldview than those appointed by McCain.  And Democrats in the Senate will confirm whomever McCain puts up, making it more important he not win.     
 
3.   Voters Read This As Obama Moving Toward the Center, and We Don't Need Another Mondale/Dukakis/Gore/Kerry Loss, Where We're Tagged As Too Liberal To Govern.  Rasmussen Reports says that voters (correctly) see Obama moving toward the center.   According to a July 8 poll, while in June 67% of Americans thought of Obama as liberal, now 56% do.  While 22% thought him moderate, now 27% do.  While we are liberal, and would love to elect a President who campaigns as a more unabashed liberal, even now, with Democratic voter identification at a recent high in relation to Republican voter identification, there are fewer self-identified liberals than conservatives.  Like it or not, Obama wins the election by holding the left and winning the middle, which presently, he is.  Obama could be tagged with Wright, with Ayers, with distortions of his voting record to appear too far left for swing voters.  He's playing defense.  It's pissing you off, but he's playing defense.  It may not be the right play, but it's only decisively wrong if we, the left, bail on him in meaningful numbers. 
 
4.   The Law of Unintended But Obvious Consequences To Disunity on the Left (The Nader-Iraq War Rule).
 
If you ask Ralph Nader, he probably would not have voted to authorize the war in Iraq.  Nor would he, as our executive, have committed our nation to it, and to the years of occupation that followed.  Nader ran in part because the left felt taken for granted.  Many of his votes reflected the left's fat and happy satisfaction with eight years of a Democratic President, as if that were normal somehow.
 
It isn't.  Nader ran, people for whom Al Gore was insufficiently pure were one group that swung the election, and the Iraq War (and the abuses of civil liberties that spurred the FISA debate) flowed from it.  Don't you think we on the left can sully ourselves enough to win a friggin' election?  I'm not suggesting you don't express your views over FISA.  But the view that anyone should not support Obama as a consequence is doing McCain's work, and is the same thinking that launched George Bush into abuse of our civil liberties and into war and occupation.  Half a loaf is a hell of a lot better than none. 
 
No matter how disillusioned you are, if you don't vote Obama, don't support Obama, you're the Pottery Barn rule voter.  Whatever McCain breaks, you buy.  History suggests you'd better have his bankroll and more.  Bad shit will happen if he wins.  Unless you fell into a coma in January 2001, you know this.
 
5.  Obama Doesn't Have 20 Votes in the Senate.
 
FISA won 69-30.  Obama would need to have 20 votes to have changed anything, not one. 
 
Vote your conscience, fundraise your conscience.  Mine says do both for Barack, and while I'd have voted with the 30, I'm not missing a step with him.  I hope you don't either.

Just spent three weeks away from my hometown, traveling all over, mostly on business.  Everywhere I went, Obama was on the minds (and clothing) of people.  Nary a peep about Johnny Mac, and it feels good.  Meanwhile, the state polls are almost all good news.  Obama up 5 in Montana.  Up huge in Rhode Island and Maine, big in Minnesota and Wisconsin, even up in Ohio and Florida.  The good vibe is palpable.  Some Obama notes from my three weeks of travel.
 
June 18:  Vancouver, Canada.  At airport, discussing crappy exchange rate and weakness of American dollar, Canadian guy at currency exchange says America needs to get rid of Bush.  I tell him we're going to put in Obama.  He's skeptical.  En route to hotel in cab (most Vancouver cabs are Priuses -- very cool), cab driver touting chai tea product he seeks to sell to Whole Foods makes kind remarks about Obama.  So far, so good.
 
June 19-20:  American lawyers in Vancouver:  This is a convention of lawyers responsible for their law firms' risk management.  A Republican-leaning independent lawyer from Michigan reports being swept up in Obama fever, having given money, which he says is out of character for him, asks me to send him bumper stickers, buttons.  A solid Republican from Chicago reports not having ruled out voting for Obama.  Equally solid Democrat from his office asks for bumper stickers, buttons.  Dinner with older lawyers from DC, asking who I'm supporting, but they won't say what they think.  Saying good stuff about McCain is so out of style.  He's even in Canada during this trip, and no one mentions him. 
 
June 24:  Portland, Oregon.  Morning run with Obama hat on the Willamette.  Some friendly waves.  More eye contact for the hat than for me.  Four hours later, I'm wearing an Obama T-shirt after a stupid deposition lets out early.  Heading from downtown up to 23rd in the streetcar, polite homeless guy says, "Hey, Obama Man."  Chats me up, asks for money for cigarettes.  Obama Man declines.  After hitting Mio Sushi, Greenpeace canvasser also walks up to solicit:  "Obama Man, can I have a minute?"  Obama Man chats, declines to give.  Maybe that huge Portland rally in May was the Million Obama Man March.  Must be an Oregon thing.  
 
June 26:  Washington, DC.  Up at 4 a.m. Pacific/7 a.m. local to go for a morning run up the national mall, past Lincoln Memorial, to Washington Monument.  In connection with campaign, have been reading up on Presidents, through McCullough's Adams, a shockingly entertaining John Quincy Adams bio, a great book on the 1800 election  (Magnificent Catastrophe), a crappy book on Polk, a great Jackson bio.  So I'm hauling my Obama hat and other Obama T-shirt around the mall at nine minutes a mile, thinking about the history of the swamp, thinking about how much our nation has changed, and what this election means in our evolution as a country.  Get goosebumps going back to Georgetown past Lincoln.  As to the hat and shirt, everyone in DC stares.  They're wondering if I am Somebody.  (Which of course, I am Not.)  But they all look, and you can see their thinking on their faces.  DC is the Hollywood of politics.  Everything is about the town's one industry.  Power is sexy, and everyone wants it, wants to see it, wants to be it.
 
Dinner that night with a close friend well-connected in politics.  Give him a full selection of Obama swag.  He has moved on from the primaries and is very committed to an Obama win.  The energy on our side is crackling on the Hill. 
 
June 27:  In Dulles, at the America store, four people in a row buy Obama stuff in ten minutes.  One middle-aged woman browses McCain.  The cardboard McCain looks eerily lifelike.  No takers.  Remarkable that anyone even tries to sell Bush stuff.  Buy my son a foam Air Force One glider.
 
July 3:  Chicago, Illinois.  At Taste of Chicago, eating too much a few blocks from Obama HQ.  Am the only white guy wearing Obama stuff.  Chicago is such a wonderfully diverse city, and there are so many different Obama t-shirts and hats in view, today all worn by African-Americans.  This run is historic, and there is so much pride on display.  The t-shirts the African-American Chicagoans are wearing have enormous Obama head likenesses, quite the contrast with my little dweeby logoed shirt.  They're wearing a face and a feeling, I'm wearing a slogan and an idea.  Crossing Michigan Avenue that evening, a teenage girl with sharp features trading jokes with her girlfriends, a button on her pursestrap, again a big Obama face. 
 
I used to live in Chicago.  You learn there to feel the weather coming in.  The wind comes up near the lake, the air gets dank and cooler.  You just knew there would be rain before there was rain.  On the Blackberry, polls show Obama up by silly huge margins in safe states, ahead in swing states too.  Portland, DC, Chicago, seeing that girl in the crosswalk, three weeks bouncing around, you can feel the change coming.

With apologies for the self-focused nature of this post, thought I should post briefly about the wacky experience of being on liberal AM talk radio as Articleman, talking about recent posts and the issues in them, and some thoughts coming out of that.  Was on KRXA540 out of Monterey/Santa Cruz for about 20 minutes doing a pitch-and-catch on various issues with Hal, the owner/GM of the station.  Hal has uber-cool NoCal theme music, and plows through issue after issue briskly and with detail, so it was really fun.  I totally thank Hal, and hope to be back.  I was actually a little nervous, which is weird for me, I don't get nervous arguing to a jury or speaking in public.  Really wanted it to go well.  Here are the thoughts I wanted to share, though:
 
1.  Humorous Point:  Hal complained on the air, as we all have here, about the difficulty of finding anything on TPM.  He said it's easier to find a poster you like on Google than to bother within the site, which he said has the most confusing architecture of any he's seen.  From your lips to Josh's ears, I said, and I'm going to send a mail to Andrew Golis as a followon to that.  When the media starts talking about how your website's functionality cuts against its content, that's a sign.
 
2.  Ironic Point (for me):  We talk within this blogospace about how insular and irrelevant our dialogue is.  Judging from the points of concern to Hal's listeners, as raised by Hal, I think the things we obsess about are actually more representative of general concerns that I had thought.  The Hillary debt thing, and the widely held misconception that Obama could pay it from his campaign fund, was raised.  At the end, the question of whether to flog Pelosi for not impeaching was raised, as that's of great concern to his listenership.  (I argued vigorously for Pelosi and against the effort.) 
 
3.  We Are, Collectively, the Rise of Progressive Media.  Josh Marshall.  Air America.  Hal's station.  Your posts.  My posts.  Our comments.  This is important.
 
Hal was talking about how much of AM is conservative.  I really like our collective pushback, as I mentioned to him.  When I was in college in the 80s, I founded a liberal newspaper to compete against the local National Review clone that was schooling and placing into the MSM all kinds of George Will emulating drones -- Terry Teachout, Dinesh D'Souza, blah blah blah.  There was no liberal counterpoint movement in the years of Dukakis et al. on my campus, or most.  We were losing a step on the march in schooling new soldiers in the fight for our values, and in getting our message out, and in seeming like we were competing.
 
The rise of Limbaugh is part and parcel of 1994, which was a movement against us and what we are for.  O'Reilly is the second wave of that crap.  These waves were stronger than we were at one time.  But just now, Olbermann's ratings top O'Reilly's, for the first time.
 
Progressives, organizing around the net, around MoveOn, raising money for Dean, MoveOn, now Obama, liberal radio against the dittoheads, all of it, we're a rising tide.  My dad generally votes Republican, and likes O'Reilly better than Olbermann.  But he said that KRXA was more substantive in focus and less personal in its other offerings he checked out than the conservative media he more frequently takes in.  We are talking to people, and judging from the poll numbers, we are taking the natural swing of the pendulum, now toward us, and pushing it as far as we can.  Which leads to . . .
 
4.  The Unity Pony.  I will always remember one of our commenters saying in my Unity Pony thread, F*** The Pony.  Rather than call that person a ponyfucker, which is humor too easy by half, it reminds me not to be dishonest (I really didn't like Hillary's campaign) but to try as hard as I can to talk with and not at or against other Democrats (Naderites, Clintonistas, anyone).  I had two or three openings on that show to lay into Hillary or Pelosi, and I think it is of utmost importance to keep our eyes on the 2008 election, not failures of our party's leaders to avoid war in 2003, or hubris in 2008 as one side or the other sees it.  WE HAVEN'T WON A TWO PERSON PRESIDENTIAL ELECTION BY MORE THAN A POINT SINCE 1964.  OK?  So our site, and talk radio as its mirror, give us the choice.  Do we ride the pony, or do what our colleague in my unity thread told us to do to the pony?  For me, it's no choice.
 
Ride the pony.  Win the election.  This is our greatest year as a party since 1992.  I'm having a blast, I hope you are too.

Hi all.  When I put an e-mail address on Articleman's profile, I did not expect to get asked to do a radio interview as Articleman.  I guess the good folks at liberal talk radio KRXA in Monterey/Santa Cruz California like and follow TPM.  After a recent post of mine about my support of Obama, someone there sent me a mail inviting me to do a call-in about that post, the campaign, and perhaps other recent posts.  I am scheduled to call in and do live chat tomorrow at 8:06 AM.  It is on live stream at http://www.krxa540.com/www.krxa540.com/
if anyone is interested.  Just thought you might get a kick out of a reader-post here getting someone on the radio, or might want to turn it on briefly at your desk and throw an egg at your speakers.

I've been keeping an eye on the Rasmussen Balance of Power Calculator.  Sat down to pen my own today, using data outside Rasmussen, compensating for Rasmussen overweighting past experience (Colorado, Florida) which 2008 polling does not suggest will repeat precisely, and using some lessons of the spring.  So here's the Articleman Electoral College Calculator, with commentary, and inviting yours.

 
Safely Democratic (148):  Illinois (21), Hawaii (4), Vermont (3), New York (31), Maryland (10), District of Columbia (3), California (55), Minnesota (10), Washington (11).  The first seven of these are utterly beyond reach.  California won't be as big as some of these, but it is no less certain.  Minnesota is polling with a bigger Obama advantage than the national trend, and bigger than recent election cycles.  McCain could run with Pawlenty and would lose Minnesota today.  Obama is running even further ahead of the national trend in Washington and far ahead of recent Democratic performances.  These are entirely safe.

Likely Democratic (62):  Connecticut (7), Rhode Island (4), Delaware (3), Maine (4), Massachusetts (12), Oregon (7), Wisconsin (10), New Jersey (15),
 

These get more interesting, and are worth separate comment.
Connecticut could yield VP picks on either side, with Lieberman and Dodd.  Connecticut polls close enough that one could imagine Lieberman helping McCain, but I don't see it; Connecticut is supereducated and affluent, which is an Obama wheelhouse.  Rasmussen lists Rhode Island and Massachusetts as safe, but Obama's standing with white Democrats there was not where it should have been in early polling.  They will be wins but not by the margins Clinton or Edwards would have racked up, which is fine.  Maine has been reliable recently, though not by huge margins, and Obama spurred a great deal of enthusiasm there.  Delaware looks strong.  Oregon is polling closer than Washington, but is basically the same state electorally, with more downscale voters, marginally fewer white liberals, but enough to create the same result minus 5 points or so.  Wisconsin has been so close in recent elections that no one will rate it closer than leans Democratic, but Obama polled +14 there this week and has been ahead recently.  Wisconsin's leading Democrats are strongly behind Obama, and he performed very well in the primary, in which voters only selected which party to vote for when they filled out a unitary ballot.  Wisconsin borders Illinois, which has helped Obama this year.  It looks very likely from here.  New Jersey polls well for Obama.  Another state weaker in the primaries than one wished, but so what.  I'd worry the most about Connecticut among these, but put this group in the bank.


Leans Democratic (42):  Pennsylvania (21), Iowa (7), Colorado (9), New Mexico (5)
 
Pennsylvania has been polling well for Obama, even generally during the sturm-und-drang of April.  Its southeast is Obama country.  The economy in the rest of the state will hurt McCain.  Rendell and Casey deliver.  Iowa Republicans are despairing the lack of energy for McCain, who did not win the 08 GOP primary, and who has flouted ethanol orthodoxy in the past.  Borders Illinois, tilting bluer.  Kerry ran +2 off the national trend there already.  Book it.  Colorado keeps getting rated tossup, but there are many reasons that's dumb:  Obama has run ahead of McCain there all year, by varying margins, Obama won the caucus there very decisively with widescale participation, it's increasingly Latino (a group nationally with Obama 62-29 or so, as two polls indicate currently), there are enough leading Democrats with him in the state, and we're running a strong Senate campaign this year.  Colorado Dems are energized and an emerging majority.  New Mexico is the closest of this group, but the Udall Senate race, the support of Richardson, strong recent polling, and Obama's emerging success with Latino voters in relation to McCain make it a likely win.

Running Total Safely, Likely, Leaning Democratic:  252

Tossup (74, Democrats need 17 to win):  Michigan (17), New Hampshire (4), Nevada (5), Ohio (20), Virginia (13), North Carolina (15)
 
Michigan is fascinating.  We keep winning it, but by less.  The Michigan primary fiasco, but also McCain saying the lost jobs aren't coming back.  If we win the above 252 electoral votes, Michigan alone can put us over the top, because we win a 269-269 tie by having a majority of state Congressional delegations.  Recent polling suggests we win it but not by much.  New Hampshire is increasingly upscale and urban, but is also historically fond of McCain.  Nevada was polling for Obama before Wright, is slightly proMcCain since then.  Richardson would help here.  Michigan seems to give us a razor's edge, New Hampshire and Nevada are true jump balls.
 
Ohio feels like a loss to me.  There are polls flipping either way.  Governor Strickland does not feel like more than a lip service supporter, and his support is important.  The state is too Appalachian, had cultural issues with Kerry, and has cultural issues with Obama.
 
I see Virginia helping put Obama over the top.  Unlike Ohio, most of the state's leading pols have been with Obama for a long time.  If Obama picks Webb, more so.  Kaine is important, but so was Obama's dispatch of organizer Mitch Stewart to head his effort there.  This state is increasingly upscale and receptive to Obama's appeal to Democratic-leaning independents.  Virginia is also a great example of a New South state where in primaries, Obama overperformed preprimary polls.  That is, the Bradley effect was not in evidence, and there appeared to be greater understatement of black votes in preprimary polls than there was overstatement of white support for Obama.  This was true in Virginia, both Carolinas, Georgia, Mississippi, and Alabama.  But Virginia polls the best out of that group of states.  All Obama has to do is hold down losses in the rural and westernmost part of the state, and drive turnout in its east.  Look for Obama to win it by 2 points.
 
North Carolina is a similar analysis.  It's not as strong a state for Obama as Virginia.  However, with Barr running it appears in play.  Again, preprimary polls understated Obama's ability to drive the black vote to the polls, and understated his margin among black voters.  Obama's organizing among all groups, and this phenomenon, are probably worth about 3-4 points at the margins.  I see North Carolina staying around 5 in polls, and Obama's ground game driving it to jumpball status, though I think our chance of winning is one in three (but far better than the polling houses think it is).

Leans GOP (33):  Indiana (11), Missouri (11), Mississippi (6), North Dakota (3), Nebraska CDs 1 and 2 (1 each)
 
Indiana is often rated as likely or even safe GOP.  This is dumb.  Indiana suffers from some of the same economic issues that put Ohio in play.  It is adjacent to Illinois, and 20% of it is in the Chicago media market.  From Bloomington and northward, its counties in the primary season were not afflicted with Appalachian voting patterns as concerns Obama.  Obama polled close to McCain at the time of the primary and spent a great deal of time there.  Missouri has polled both ways, though the balance of polls have favored McCain.  The wildcard here is Claire McCaskill, who delivered Obama's only non gender-gapped performance against Clinton of which I'm aware.  Look it up, it's amazing.  Obama went 49-48 with both genders after she barnstormed the state for him.  She will again.  I see her as Presidential timber in eight years, but that's a different conversation.  Obama probably has to be +3  If-4 nationally to win Missouri.  Today he would.  Obama has polled within six in Mississippi.  If the GOP base is truly depressed in turnout, we have a chance.  In Mississippi, as in the rest of the South, polls understated Obama's strength.  If those polling dynamics hold in the general, if he's under 4 or so, he'll win.  Mississippi looks like a close loss.  Obama polled ahead in North Dakota shortly before Wright emerged.  Plouffe has mentioned it recently, I have a sneaking suspicion that we'll be putting resources there, and I have a gut that Obama could grab it.

I say we lose Indiana, have no idea about Missouri except that it will be close, one chance in five in Mississippi, one chance in four in North Dakota.  Best chance for a breakthrough is Nebraska Congressional District 1, where SurveyUSA shows Obama close to McCain, and some running mates put him ahead.  From here, looks like Obama/Webb would get us CD1, and likely CD2 as well.
 
Likely GOP (99):  Alaska (3), Florida (27), Georgia (15), Louisiana (9), Montana (3), Texas (34), South Carolina (8)
 
Obama has run -5 in Alaska in a pair of polls, and the Begich-Stevens race helps too.  Obama probably needs to run +10 nationally to have a chance here, is unlikely.  Florida is overrated.  It has not gone Democratic in the last two cycles.  Check the polls, it won't this year.  Or if it does, this one's over very early.  Money spent there is a headfake.  Georgia was a great primary state for Obama, but this is a state the Reverend Wright has hurt us in more than most.  Even Barr doesn't put it in play.  Louisiana is a ten point loss in the making.  Montana will be much closer than expected, but we probably can't overcome the 23 point thumping Bush put on Kerry.  Texas will be closer than expected, has polled at -5 once recently.  If Richardson is the VP nominee, could be extremely tight.  I see a loss of 8-10 otherwise.  South Carolina has polled tight, and black turnout will decide the margin, but it's not suffiiciently urban and progressive to get all the way there.  A five point loss.
 
Safely GOP (80):  Alabama (9), Arkansas (6), Arizona (10), Idaho (4), Kansas (6), Kentucky (8), Nebraska CD3 and overall Nebraska vote total (3, two awarded for state total, one for each of NE's three Congressional Districts), Oklahoma (7), South Dakota (3), Tennessee (11), Utah (5), West Virginia (5), Wyoming (3). 
 
Rasmussen lists Arizona as likely GOP, which is stupid.  It won't be huge, but it is like California; run this election twenty times, all twenty come out the same way.  Kansas was a pipe dream for Democrats, and would remain so with Sebelius.  Obama showed down only eight in West Virginia, but there are too many white refuseniks on the Democratic side, and Obama's negatives there are in the fifties.  The rest merit no comment.  McCain can have them.
 
Safely, Likely, Leaning Republican:  212
 
There are many winning combinations on the board.  The initial 252 + Michigan.  That 252 + Virginia or North Carolina and New Hampshire (Webb).  252 + Colorado, New Hampshire, Nevada (Richardson).  252 + Missouri, Nevada, and one district in Nebraska (Sebelius).  252 + Missouri, New Hampshire, CDs 1 and 2 in Nebraska (Sebelius).  Rasmussen's daily tracker, showing a 6-7 point lead daily for Obama since the primaries ended, suggests that Obama has the ability to get into the 300s.  This board has a great deal of opportunity, and too much vulnerable real estate for McCain to defend.

Earlier today, Senator Gordon Smith of Oregon, a Republican facing a tough re-election battle this year (aren't they all!) raised eyebrows by likening right-wing efforts to define marriage, and thus preempt gay marriage, as comparable to nineteenth century attacks on polygamy.  Eric Kleefeld at TPM wrote that it was "one of the strangest things we've seen in a long time."  It is certainly hypocritical, given Smith's opposition to gay marriage and domestic partnership benefits.

Smith stated:

"Part of what I fear, as you start defining marriage -- we have a long history of doing that in this country, and my Mormon pioneer ancestors were the victims of that. They were literally driven from the United States in the dead of winter for following their religious beliefs. I don't want that coming back."

While Eric wrote, "[w]e're still not entirely sure what Smith's position is on gay marriage, or how exactly it relates to the persecution of Mormons over a century ago," Smith is hardly the first to make this comparison, nor is the answer difficult to grasp.

In Romer v. Evans (1996), the U.S. Supreme Court recognized that laws that infringed on political participation by gays could offend the Equal Protection Clause.  In dissent from the opinion in Romer, Justice Scalia wrote that there was nothing unconstitutional about antigay discrimination because the Supreme Court, in Davis v. Beason (1890) ruled that Idaho acted constitutionally by depriving polygamists of the right to vote.

One response to Eric's incredulity at the juxtaposing of 21st Century gays and 19th Century Mormon polygamists is that Justice Scalia compared early Mormon polygamists to gays in the important Romer case.  Of course, he did so as a sneer, to show that sexual minorities do not deserve rights.  

In doing so, Scalia made a conservative rhetorical move against expanding rights by equating a left-wing sexual minority against a right-wing sexual minority, so that each upon reading his argument would be offended at comparison to the other, and crawl back under the bed in silence while heterosexual, Protestant white men golf and drink whiskey, their womenfolk bake, and their sheep get nervous.  A pox on all deviants, his dissent reads.

But rights of sexual autonomy and protections of sexual minorities and gender differences are the new civil rights frontier in our society.  While Gordon Smith's views of these issues are not in step with justice, it is welcome that a conservative is saying out loud, albeit in his own electoral desperation in a liberal state and a liberal year, that oppression of sexual minorities is both an American tradition and offensive.  We should single out Smith for praise for saying such a thing, rather than making fun of him or saying he's babbling.  He's not.

This is not an argumentative piece, intended to persuade.  It's just why this one particular writer within this community supports Barack Obama for President, and has since 2006.  I list my reasons in no particular order.
 
1.  Barack was right about the most important issue of the last eight years:  The Iraq War.  In 2002, I watched America taken to war against another nation that was no threat to it based upon transparent lies.  The American people were barely, and narrowly duped, but they were duped.  Obama called it like it was.  He was right.  Many in our party got it right, but enough got it wrong that the Democratic Party truly was the appeaser party in 2002 and 2003, caving to Bush.  The view that Obama's criticism was meaningless is wrong.  Had he been wrong, and the war been right, he'd be nobody today. 
 
2.  Barack's leadership style is listening, consensus building, and talking to all comers.  When he went to law school, Harvard was about as hostile and divided ideologically as the nation later became.  He became the President of the Law Review because its members (a politically turbocharged, generally brilliant group) saw him both as a progressive and someone who could fairly treat and honor the contributions of its many deeply conservative members.  All groups left liking and admiring him.  Bush's Solicitor General Paul Clement and RNC Chair Ken Mehlman were friends and admirers of Barack's.  His legislative positions have not allowed him to show this intrinsically executive quality.  But he has it in abundance, and we need it more now in our politics than we have in sixteen years.
 
3.  Barack is a symbol of racial progress, and his election the biggest sign of racial progress in America since the passage of the Civil Rights Act of 1964.  There have been five black Senators in U.S. history.  There is one now.  Racial progress and the breaking of barriers is quintessentially Democratic.  Seeing Barack win Iowa was incredible.  Seeing him win the nomination more so.  During the primary campaign, I had an exchange of mails with a close friend supporting Clinton who was touting to me the unwillingness of whites to vote for Obama on a racial basis as an indication of his candidate's greater electability.  Please understand that this next comment is about those voters, and not Clinton.  My son is half-Asian, my wife is Asian.  And at the start of the campaign, I didn't want a nonwhite President out of family loyalty.  My wife supported Edwards until mid-January 08, and seemed to like Hillary as much as Barack until then.  But the 10% of Democratic voters in Ohio and Pennsylvania who admit voting against Barack because he is black voted against my son and my wife in a way that is very personal to me.  We're going to make them very unhappy this November, and show them that America is better and more decent than they are.
 
4.  Barack is smart as hell, and cerebral.  I am ceaselessly entertained by the plodding drones of limited vocabulary and intelligence, who can seldom spell what they post, but who question Barack's general intellect and call him an empty suit.  So sorry, but the dude was top 7% in one of the most competitive, mostly blind-graded grad schools in the world.  Harvard Law School magna cum laude graduates are, as a group, the smartest and most capable people I have ever known.  Barack Obama is brilliant, and he brings a cerebral style of engagement to discussions of difficult issues, and as some really great debates this spring showed (the S.C., L.A., Ohio, and Texas debates in particular), facile with complexity and nuance in issues like health care, environmental policy, and energy policy.  I think wonk is highly overrated, but Barack does wonkery far better than he needs to lead us well and wisely. 
 
5.  Barack is likable.  I want a Democratic Reagan.  I want a large majority.  I think we'll win this year, but I feel better about the chance to win a larger victory later.  Most of the great landslides in recent history (Johnson, Nixon, Reagan), were preceded by closer elections (two of those virtual ties).  Our ability to govern as Democrats, to make a lasting imprint on the trajectory of America, depends on holding Congress and having a two-term President of some personal popularity.  Barack is hard to hate.  He's charming, a great speaker, tries to respect all sides in a debate.  He has the temperament to lead us to a 55% or so victory in a second go-round.
 
6.  Barack is a committed civil libertarian.  He's committed to the Constitution.  He taught constitutional law.  But to him, the law wasn't a way to get the instant validation of a Supreme Court clerkship despite his rock star status leaving Harvard.  He went to the streets and worked as an organizer.  That is a man for whom the Constitution is a living document, not just as a matter of interpretation, but as a matter of a creed to be lived.  People who sneer at his organizing experience or don't count it as relevant are foolish.
 
7.  Barack will make the federal judiciary more Democratic, and more like America.  Here's Obama on the criteria he will use to select judges: "The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."  The federal Courts of Appeal are approaching 70% Republican, and seven of the Supremes were appointed by Republicans.  Barack has the judgment to pick great judges, and more diverse judges, and he's not afraid to say so up front, which shows principle.

8.  Barack is authentic.  Who you read as authentic depends on who you are, where you're from, how you form empathic bonds.  It also depends upon whether you think someone's full of shit.  Obama is as honest a major politician as I have seen in a long time.  When asked in a debate about his decision to run for President, he acknowledged that there is vanity and pretension in anything like that.  He isn't trying to hide behind a mask.  The guy is who and what he is.  For what it's worth, this was my number one explanation when asked in January 2007 as to why I supported Barack then.

9.  Barack is my generation.  I don't want to place undue emphasis on this.  It's not a qualification.  But in organizations of any type, new leadership can change things more decisively than Yuri Andropov staggering to the head of the line at the Kremlin.  Barack is the Gorbachev to McCain's Andropov, and to the other apparatchiks who never made it that far.  If you don't think things are fucked up in America today, you aren't paying attention.  The bigger the change, the better.  A young, untested guy with fewer commitments is more likely to deliver it than any incrementalist who thrives in the Senate.

10.  Barack is a natural leader.  True, Barack has a briefer record than most Presidential aspirants.  But his lack of encumbering history makes him a better potential leader, not a worse one; there's less minutiae to get lost it, less gotcha to play, a more pure focus on the now and going forward.  And leadership is not a wonk contest.  I loved Dukakis, but I also noticed the gravity of his wonky loss.  Executive leadership, in great measure, is a function of vision, generality, and inspiration.  Barack has the heft needed (more than any Republican President since at least Nixon) to do policy, but we aren't in a wonkery deficit, we're in a moral leadership and progressive leadership deficit.  In him, I see the solution.

This is a post about why and how the Democratic primary campaign will end tomorrow night when Hillary Clinton takes the dais.

Hillary Clinton is a smart woman. A very smart woman. She knows that she has lost this primary fight, and has known it since early May, when she ceased her periodically barbed attacks on Obama.  She was entitled to continue until this campaign's end, and tomorrow night the last vote will have been cast.

All signs today point to her withdrawing tomorrow and endorsing Barack Obama.  Her chronically uncoordinated husband, who at times appears to have communicated with her by shortwave radio, semaphor with a flag missing, or not at all, blurted out that today could be his last on the trail forever.  Obama and Clinton spoke privately Friday.  There are rumors of Obama being asked to help black congresspeople challenged by pro-Obama primary opponents, and of Obama helping raise money for Hillary's debts.  There is the call for important supporters to attend Hillary's speech tomorrow night.  There is the call for requests for reimbursement to be submitted immediately to her campaign.  Etcetera.

But the biggest sign that points to the end tomorrow is the confluence of fortune -- the Rules and Bylaws Committee did not deliver a torrent of delegates -- and intelligence, namely, that of a very bright Yale Law School graduate named Hillary Rodham Clinton.

She knows that she is beaten, and while she is remarkably, extremely averse to self-criticism or criticism of her campaign, she is aware of the need for party unity.  She speaks of it.  Many of us did not and do not understand parts of her campaign in light of that object.  But she is going to do unity her way, and it is hard to see how any intelligent person thinks that means persisting past Obama's accumulation of the 2,118 delegates needed for nomination.  Her supporters' recent statements track in general with the realization that this exercise ends at the moment Barack hits that threshold.  With supporters like Iowa's Vilsack saying publicly that Hillary needs to concede, her immediate reports are surely hearing that now from all quarters.

Another obvious point:  Hillary Clinton is a politician who wants to be President.  If not via the Vice Presidency, which tea leaves say she would take but will not be offered, then perhaps in 2012.

From these basics, all signs point to an epic speech tomorrow.  Hillary Clinton has thrilled and inspired millions of her supporters.  She has also angered millions of Democrats at times, a fact to which she is emotionally inured but of which she is either dimly or sharply aware.  For her to hope to fight another day at the head of a united Democratic Party, for her to not be accused by those relatively neutral Democrats remaining of playing spoiler should Obama lose to McCain, there is no effective moment of intended reconciliation within the open gash that this nomination fight has become past tomorrow night.

I have neither liked nor enjoyed the Clinton campaign in any respect since shortly before the South Carolina primary, when a friend of mine in it put me on notice of consequences for heretics from it, and I have liked it less since then.

But I expect a great speech from Hillary Clinton tomorrow night.  I expect it from her self-interest, from her intelligence, from her accomplishment, from her aspiration to lead the entire Democratic Party, and from her actual leadership through these primaries of half of it.  I wish her the best in wrapping her passion into a speech, and helping us as Democrats make peace by showing how she and Senator Obama seek the same good, and by explaining with emotion how important it is that our team win the November contest.  I hope for her and for the party and for Barack that she deconstructs the us and them that has festered in the party since February, and construct a we.  Leaders do things like that.  It can be her best moment -- as lawyers know, statements against one's interest are entitled to greater weight than others.  By doing good, she would do well.

So I wish her the best speech of her career, wonderful coverage of what in many quarters will be surprising grace that I hope and expect she will earn, and a summer of reconciliation and encomia for her unique and historic campaign.