Friday, October 27, 2006

The politics of New Jersey's gay ruling: emotion trumps empiricism

Let’s stay with the story about the New Jersey high court ruling on gay civil unions:

As expected, religious right leaders are invoking this decision in order to stoke Christian conservative turnout for the ’06 congressional elections. Gary Bauer, for instance, circulated an email last night: “My friends,if you had any doubts about whether or not it is worth votingthis November, I hope (the) decision by the New Jersey Supreme Court erased any and all reservations. As I noted in Wednesday’s report, the radical Left is using the courts to impose an agenda that would not pass at the ballot box.”

And President Bush, who for months had said nothing about gays until he rediscovered the issue in the wake of the New Jersey ruling, said this in Iowa: “(On Wednesday) in New Jersey, we had another activist court that issued a ruling that raises doubts about the institution of marriage. I believe marriage is a union between a man and a woman. And I believe it's a sacred institution that is critical to the health of our society and the well-being of families, and it must be defended.”

Somebody should give Bush a copy of the New Jersey ruling in Lewis v. Harris, and compel him to read all 66 pages, because only then might he recognize the gap between his political rhetoric and the empirical facts. Ditto Bauer. Ditto Tony Perkins of the Family Research Council. I decided to read the actual ruling. It is hardly the work of “another activist court,” or “the radical Left.”

Bush has long stated that he values “strict constructionist” judges who stick to established precedents and the literal meaning of words and phrases. By that definition, New Jersey’s majority contingent issued a strict constructionist ruling. Most importantly, and contrary to what Bush said yesterday, the majority decision doesn’t raise doubt about the institution of marriage. Rather, it specifically declares that it can’t find any language in the New Jersey constitution which would affirm the right of gay people to marry. As the ruling stated, it “cannot find that a fundamental right to same-sex marriage exists in this State.”

The four majority judges (most of whom were Democratic appointees, by the way…appointed by a gay Democratic governor) simply did what state judges do every day in this country. They took the issue at hand – gay plaintiffs seeking the right to marry – and they checked to see whether their claims squared with the actual provisions of the state constitution, as well as with “the traditions, history and conscience of the people of this state.” And they decided in the negative, ruling against the gay plaintiffs.

If the Republicans and religious-right leaders wish to review the court’s thinking for themselves, I refer them to key passages that appear between pages 27 and 31: “Although today there is a nationwide public debate raging over whether same-sex marriage should be authorized under the laws or constitutions of the various states, the framers of the 1947 New Jersey constitution, much less the drafters of our marriage statutes, could not have imagined that the liberty right protected by Article I, Paragraph I (of the state constitution) embraced the right of a person to marry someone of his or her own sex….Although (some) recent cases openly advance the civil rights of gays and lesbians, they fall far short of establishing a right to same-sex marriage deeply rooted in the traditions, history and conscience of the people of this state.”

The court majority, while rejecting “the right to marry,” did rule for gays on “the rights of marriage.” Indeed, the Republicans, hoping to galvanize Christian conservative voters, have already assailed the New Jersey judges for directing the state legislature to enact a gay civil union law guaranteeing same-sex partners the same legal rights and financial benefits now available to heterosexual couples. The GOP’s tactic is in sync with its longstanding claim that judges are riding roughshod over democracy by bulling the elected lawmakers who better represent the will of the people.

But, even on this issue, the four majority judges did what their colleagues in other states typically do: They reviewed the past actions of the elected state lawmakers. And they found that these lawmakers, acting on behalf of the people, have long been expanding the legal rights of gays – for much of the past 20 years. From page 39: “Perhaps more significantly, New Jersey’s Legislature has been at the forefront of combating sexual orientation discrimination, and advancing equality of treatment for gays and lesbians.” Just two years ago, in fact, lawmakers added “domestic partnership” to the statutory language.

So it’s logical, and consistent, that the court would tell lawmakers to bring their own longstanding policies more squarely in line with the equal-rights language in the state constitution. And by leaving it up to the lawmakers to decide whether to call these relationships “civil unions” or “marriages,” the court is specifically recognizing that the people’s branch of state government should make that determination.

The majority judges also did what “strict constructionists” typically do: They showed a respect for judicial precedent. In ruling for equal rights, they demonstrated that their decision was in sync with the state judiciary’s track record, going back more than three decades. For instance, from page 37: “In 1974, a New Jersey court held that the parental visitation rights of a divorced homosexual father could not be denied or restricted based on his sexual orientation.”

So this is the empirical record: New Jersey’s high court majority issued a strict-constructionist ruling that respected precedent, the role of the democratically-elected legislature, and grounded its findings in the particular culture and history of New Jersey. (The “rights” language in the state constitution is actually more expansive than the language in the U.S. constitution.) In other words, the New Jersey ruling was also in the conservative “state’s rights” tradition.

Of course, whether these factual nuances matter a whit on the political battlefield is another matter entirely. It’s easier, as demonstrated by conservative radio host Hugh Hewitt, to simply thunder against New Jersey’s “imperial judiciary.” It's easier, as demonstrated by conservative legal activist Mark Levin, to say that the Jersey ruling was "as political as any I've seen," even though the three dissenting judges who actually wanted to endorse gay marriage were all Republican appointees.

But on the soapbox, emotion usually trumps empiricism. The GOP needs to galvanize disaffected Christian conservative voters over the next 11 days, and the fine points of law are the enemy of political action. After all, as Bush is fond of saying, “I’m not a lawyer.”

Thursday, October 26, 2006

Is the Iraq issue more compelling than an October surprise?

Last night, while I was assessing the ’06 elections during a speaking gig in suburban Philadelphia, a Democrat in the audience asked me, “Do you think there will be an October surprise?”

The question was inevitable; at the moment, most Democrats – chastened by years of defeat – seem to be living in dread fear that Karl Rove and President Bush will show up in the Rose Garden on election eve with Osama bin Laden in chains. (Although, all politics aside, that would be a good thing.) Or, as Democratic fatalists surmise, maybe the “surprise” will be some lucky event that the Bush team didn’t anticipate at all.

Something, for instance, like the New Jersey Supreme Court’s ruling yesterday in favor of equal rights for gay civil unions.

I have no idea whether this development will be pivotal to GOP prospects on Nov. 7, given the tough national political environment that is dominated by the Bush administration missteps in Iraq. But this ruling – bestowing full legal rights on same-sex partners, in accordance with language in the state constitution – may well prompt some of the GOP’s disenchanted Christian conservative voters to rethink the notion of staying home on election day.

Many of these voters – who are crucial to Republican prospects in a number of key House races, in states such as Ohio, as well as in the South – have been soured by the GOP leadership’s failure to enact their agenda and to move speedily in the Mark Foley scandal. But now, for the first time in many weeks, a story has come along to remind them of what they passionately oppose: “activist judges” who imperil traditional morality. And the GOP will be eager to remind them that Republicans, if allowed to retain their majorities on Nov. 7, will continue their longstanding crusade against “activist judges.”

It should be noted that the “activist” terminology doesn’t apply so neatly to the New Jersey high court. All seven judges, Democratic and Republican appointees alike, ruled in favor of equal rights for civil unions. Three of the judges even believe, in accordance with their reading of the state constitution, that the institution of marriage should now be opened gay people – and all three are Republican appointees. But such nuances will not survive in a hot political climate. Christian conservative voters now have a fresh reason to vote, especially in the key states that could decide House and Senate control; as the Family Research Council, a religious right group, declared last night in an email which lamented the New Jersey ruling, “It should be clear to every voter that these elections count.”

Indeed, anti-gay marriage referenda – designed in the first place to lure these voters to the polls – are on the ballot next month in eight states, including Arizona, Colorado, Tennessee, and Virginia. I cite those four, because they are hosting potentially pivotal House and Senate races. The Republicans’ bid to hang onto the Senate may well hinge on whether they can keep their seats in Tennessee and Virginia, and Democrats in those states will not welcome any development that could stoke religious right turnout.

On the other hand, this may not rise to the level of an anti-Democratic surprise. Anti-gay marriage referenda helped galvanize the GOP base in 2004, but it is not 2004 anymore. Which brings us to the next item:


President Bush did little at his press conference yesterday to reassure most Americans (particularly independent swing voters, most of whom have abandoned him) that he has a fresh road map for success in Iraq. He said two noteworthy things, both of which are at variance with factual reality.

First, he insisted that “absolutely, we’re winning” in Iraq, and even the unlimited space available for blogging is insufficient for me to list all the evidence to the contrary, most of it provided by U.S. military authorities in his own government. Suffice it to say that his “absolutely, we’re winning” line is flatly contradicted by a new report issued by the nonpartisan United States Institute of Peace, an organization that is helping to sponsor the current reexamination of Iraq policy co-helmed by Bush family loyalist James Baker.

This report - entitled "Scenarios for the Insurgency in Iraq" - urges the Bush administration to “scale back” its lofty goals in Iraq, and establish, as one its top priorities, this more realistic objective: "Avoidance of disaster.” In fact, contrary to the claim that we're "winning," the report has a name for one of the possible future scenarios: "Descent into hell."

Second, Bush said at the press conference yesterday that he would like to see the Iraqis establish some "benchmarks," some performance timetables, so that they can demonstrate measurable progress to the American people. But within hours of his remarks, he was pointedly rebuked by the Iraqi prime minister whom he has repeatedly lauded. Nuri Kamal al-Maliki said he would not let the Americans push him around: “This is a government of the people’s will, and no one has the right to set a timetable for it.”

So, let’s review: Bush would like to see some benchmarks, yet he can’t insist because the Iraqis are now a free people and he doesn’t want to be seen as seeking to big foot these free people, yet at the same time, “America’s patience is not unlimited.”

Nor did Bush clear up these contradictions when he met separately yesterday with some hand-picked conservative journalists. Here are key excerpts:

"They were asking me today, 'put out benchmarks.' Well, it's a sovereign government. You just don't put out benchmarks. You work with the sovereign government to develop a way forward that's got enough pressure on them to move, but at the same time, they're comfortable with. Look, if we wanted to, we could put so much pressure on the Maliki government to topple it. What good would that do? We could put so many demands on them, it might satisfy people in the short-term, but it would defeat the purpose for victory in Iraq.....Part of the benchmark is precisely to create that sense of purpose for this government to have something to aim for....But I believe they're getting more crisp in their decision-making. That's one of the interesting things about Maliki, he appears to be a decision-maker. He doesn't like it when he's pushed too hard."

Part of the benchmark is precisely to create that sense of purpose for this government to have something to aim for....Quite a tongue-twister. We're three and a half years into this war, a big election is looming, but the president's only assurance to conservative voters is that he hopes the Iraqis can create a "sense of purpose."

The other night, a CBS correspondent summed up the White House predicament this way: "On the other hand, they read the polls, and they know that voters want a change in Iraq policy. But as far as any significant change, a White House official tells me, do not expect to see anything significant prior to Election Day. Quoting, 'You're not going to see anything before November 8th. It would be political suicide, and Karl Rove would never allow it.'"

In other words, the White House thinks it would suicide to dramatically change course and thus admit that it has erred on the war. But, more importantly, check out that quote, "Karl Rove would never allow it." That is a stark admission that, Bush policy is hostage to the political calendar, as decreed by the strategist-in-chief.

No wonder anxious Republicans see Iraq as a millstone. It’s also worth noting that the lame duck Senate Majority leader, Bill Frist, told a New Hampshire newspaper the other day that Republicans should “get Americans to focus on pocketbook issues and not on Iraq and the terror issue.”

What a difference four years can make. Back in 2002, word for word, that was precisely the strategy that Senate Democratic leader Tom Daschle urged his troops to adopt. Change the subject, he said - and the Democrats got hammered for that in the elections. Then, as now, foreign policy was dominant. But this time, it’s the other party that wants to talk about it.

On the air

No morning post today. Instead, I am slated to be the guest political commentator on Radio Times, the morning show on Philadelphia's NPR station, WHYY (90.9 FM). Topic: the '06 midterm elections. Some Democratic and Republican spokesmen will be joining the show by phone. I'll be in the studio. The segment runs from 10 to 11 a.m.

Wednesday, October 25, 2006

When imperiled, play the race card

I have long wondered how the Republicans would behave if it became apparent, during the final sprint to election day, that they were truly in danger of losing the House or Senate or both. To borrow a cat analogy, if the Republicans felt cornered, how viciously would they bare their claws?

Well, now we know. Just take a look at what’s happening these days in Tennessee. Basically, they're suggesting that the black Democratic senatorial candidate should be defeated because he might be attractive to white women.

The Republicans’ control of the Senate may well hinge on whether they can hang onto their ferociously contested seat in Tennessee. With the retirement of Bill Frist, the party is pinning its hopes on candidate Bob Corker; the problem is, Corker is being seriously challenged (and even surpassed in some opinion polls) by Democrat Harold Ford Jr. – who, if elected, would become the first African-American senator from the old South.

Which brings us to the present moment, and the GOP’s decision to play the race card.

It is beyond dispute that the national GOP, in recent years, has repeatedly sought to expand its appeal to African-American voters; chairman Ken Mehlman has tirelessly pitched the party to black audiences. He has sought to convince blacks that the GOP was renouncing its old “southern strategy” (a term coined during the Richard Nixon era); under this 30-year strategy, the GOP successfully invited southern whites into the fold by stoking fear of blacks. As Mehlman told one black gathering last year, “Some Republicans gave up on winning the African American vote, looking the other way or trying to benefit politically from racial polarization. I am here today as the Republican chairman to tell you we were wrong."

But now that the Republicans have their backs to the wall in Tennessee, racial polarization appears to be a viable tactic.

In recent days, Mehlman’s Republican National Committee has been running a TV ad (see “Too Hot for Corker”) which suggests that one of Ford’s hobbies is interracial sex. The ad mostly features “real people” who think that Ford, if elected, would vote to raise taxes and try to take away hunters’guns. That’s standard political fare. But the star of the ad, clearly, is the bare-shouldered, and implicitly naked, blonde white bimbo who squeals that she met “Harold” at a Playboy party. She also gets the last word; after the closing slogan (“Harold Ford. He’s just not right”), the white girl returns. She vamps for the camera, suggestively coos, “Harold! Call me!,” and finishes with a wink.

With polls indicating that the Tennessee race may hinge on the voting decisions of white rural voters, it doesn’t take a genius to conclude that this ad was not designed to appeal to the better angels of their nature.

The Republican National Committee message – “vote for Bob Corker because we have conjured the image of Harold Ford consorting with white women” – is a throwback to the strategy once employed in North Carolina by Jesse Helms, when the incumbent conservative senator was locked in a tight race with black Democrat Harvey Gantt. A Helms TV ad played on the fear that blacks were taking jobs from white people; the ad showed a white man's hands tearing up a job rejection letter. And as the election tally later demonstrated, the ad worked.

William Cohen, a former Republican senator from Maine, mentioned the Helms ad in passing the other day, while he was condemning the Tennessee bimbo ad. Cohen said on CNN: “It reminded me of what happened in North Carolina with Harvey Gantt, a purely overt racist approach…..It’s - to me, at least as I watch that (bimbo ad), is a very serious appeal to a racist sentiment…And I think (the Republicans) ought to stop it. I think that they have a candidate, and discuss the – the issues on the merits, and not get into that kind of personal type of an attack.”

GOP chairman Mehlman’s response is noteworthy. When quizzed about the ad by a visibly outraged Tim Russert, Mehlman said that he didn’t think the bimbo insinuations were racist. He said, "I think that there is nothing more repugnant in our society than people who try to divide Americans along racial lines. And I would denounce any ad that I felt did....I think it's a fair ad."

He also said that he had no control over the ad anyway - even though the ad itself tells the viewer that the Republican National Committee is “responsible for its contents.” Apparently, he is right in the technical sense; under arcane and complicated campaign finance rules, in which campaign lawyers help erect legal “firewalls,” the creation of that ad was done as an “independent expenditure” that did not require Mehlman’s official OK.

So here's where things stand: Mehlman says he's fine with the ad and can't pull it down. Meanwhile, Bob Corker, the GOP candidate, is calling the ad "tacky," and tells CNN that, while he has had no role in the ad whatsoever, nevertheless says that people in his campaign have talked to people in Mehlman's office about taking it down...although he can't remember who has talked to whom. And then there is White House spokesman Tony Snow, who insists that the ad is not tacky or racist ("There's always an attempt, when you've got an African-American candidate, to attribute something to the race card"), but nevertheless told MSNBC last night that all responsibility rests with Corker "He can get it pulled. That oughta take care of it."

One could still argue, of course, that Ken Mehlman - as spokesman for the national party - is still free to condemn such an ad, and free to reiterate his 2005 statement that his plans for a big-tent GOP leave no room for strategies that seek to polarize the voting public along racial lines.

But that won’t happen, because the Republicans are fighting to hang onto their power with the clock ticking down, and therefore all forms of hardball – including the old reliables – are now in play. Mehlman’s renunciation of the old GOP southern strategy is apparently a luxury that the GOP can ill afford in its current moment of peril.

Tuesday, October 24, 2006

Barack Obama and the art of the drug confession

There is no need for me to contribute to the latest outbreak of Barack Obama fever, which was triggered on Sunday when the Democratic senator/rock star appeared on Meet the Press and, in response to a question about a 2008 presidential bid, left the door conspicuously ajar. The normally jaded Washington punditocracy continues to gush, as evidenced again here.

Largely overlooked, however, is the fact that Obama has already made history, of sorts. I’m not talking about how he would be the first serious African-American presidential candidate in either party. I’m referring, instead, to how he has already pioneered a new frontier in the Art of the Drug Confession.

In his 1995 memoir, Dreams from My Father, he writes that, back when he was having tough times sorting out his youthful identity, he snorted cocaine (or, as he put it, “maybe a little blow”). The coke, along with booze and pot, helped him “push questions out of my mind about who I was,” and flatten “out of the landscape of my heart, blur the edges of my memory.”

That passage has received some fresh attention in recent days (three mentions in the New York Times alone), in the wake of the release of Obama’s latest book, The Audacity of Hope. It is worth noting anew, because it constitutes a breakthrough for politicians on the drug confession front.

First, he is stating that he has used something stronger than marijuana. Second, he is not uttering the ritual regrets, or abjectly begging for mercy; rather, he is essentially saying that cocaine served a purpose, albeit a flawed purpose, during his time of confusion.

Until now, drug acknowledgments have fallen into three basic categories:

1. The Weasel Words Confession, as exemplified in 1992 by Bill Clinton, who said that he smoked pot but “didn’t inhale,” and that he “never broke the laws of my country,” which was true only because he smoked pot and didn’t inhale while he was a student in Great Britain.

2. The “Tried it, Didn’t Care for it” Confession, as pioneered in 1988 by Al Gore, who said that, yes, he had smoked pot in moments of youthful indiscretion, but that his escapes from sanity were “infrequent and rare.” (This claim was apparently a falsehood. According to Inventing Al Gore, a thorough biography authored by political writer Bill Turque, Gore smoked marijuana at least three times a week during much of the '70s. See pages 100-101.)

3. And the Peek-a-Boo Stonewall Confession, as demonstrated in 2000 by George W. Bush, who refused to ‘fess up to anything specific, without quite denying anything specific; witness his campaign mantra, “When I was young and reckless, I was young and reckless.”

Obama actually took a poke yesterday at the Clintonian Weasel Words model. Meeting with magazine editors in Phoenix, the drug topic came up, and Obama said flatly, "When I was a kid, I inhaled. That was the point."

Regarding cocaine, Obama has basically copped to a major drug, and he has invited people to shrug their shoulders. So far they have, which suggests that most Americans are willing to make nuanced character judgments about politicians, especially when they play it straight.


I mentioned at length yesterday that President Bush sought on Sunday to rewrite history, by insisting - despite the factual record - that he had "never" embraced the "stay the course" stance. For further discussion, this piece today deals with the issue.

Monday, October 23, 2006

The optimist-in-chief as political albatross

Anyone who still doubts that President Bush is a lead weight on the GOP’s ’06 political prospects should check out his Sunday morning interview on ABC. Most of what he said would be more suitable for a Democratic campaign commercial, as an illustration of the current gap between presidential assertion and empirical factual reality.

Let’s go to the videotape.

1. When host George Stephanopoulos referred to the phrase “stay the course,” during their discussion about Iraq, Bush sought to correct him: “We’ve never been ‘stay the course,’ George.”

Did he really say “never?” I have to confess that I had a problem with Bush’s remark, probably because I am not suffering from amnesia. I suppose that in the Orwellian world of 1984 - where all past inconvenient remarks were automatically deemed inoperative and stuffed down a “memory hole,” to be “whirled away on a warm current of air to the enormous furnaces which were hidden somewhere” – anything spoken by the leader would be automatically welcomed as credible. The problem in America is, we still have memories, and here’s just a sampling of what those memories yield:

Bush on July 10, 2003: “We’re making steady progress. A free Iraq will mean a peaceful world. And it’s very important for us to stay the course, and we will stay the course.”

Bush on Dec. 15, 2003: “We will stay the course until the job is done. And the temptation is to try to get the president or somebody to put a timetable on the definition of getting the job done. We’re just going to stay the course.”

Bush on April 13, 2004: “We must stay the course, because the end result is in our nation’s interest.”

Bush on Nov. 30, 2005: “Some critics continue to assert that we gave no plan in Iraq except to stay the course. If by ‘stay the course,’ they mean we will not allow the terrorists to break our will, they are right.”

Bush on Aug. 30, 2006: “We will stay the course, we will help this young Iraqi democracy succeed.”

2. Yesterday, Bush was still referring to Iraq’s constellation of warring sectarian militias as a “democracy.” He told Stephanopoulos: “What you’re seeing is a battle for Iraq with a democratic government beginning to get stronger and stronger.”

I had a problem with that remark as well, probably because it is at stark odds with factual reality. The latest reports out of Iraq indicate that Prime Minister Nuri Kamal al-Maliki has been alternately unable and unwilling to confront the murderous warring militias (some of which are Shiite versus Shiite) that are virtually embedded in the “democratic” government itself.

His claim that the government is “beginning to get stronger and stonger” is also undercut by the facts on the ground. The spokesman for the U.S. military command in Baghdad, Maj. Gen. William Caldwell, late last week provided reporters with a gloomy assessment of the situation, admitting that attempts by U.S. troops to quell the militias “has not met our overall expectations of sustaining a reduction in the levels of violence.” (October has now become the deadliest month of 2006 for U.S. military casualties.)

3. Bush also mischaracterized, yet again, the nature of the violence in Iraq. He said: “Look, here's how I view it. First of all, al Qaeda is still very active in Iraq. They are dangerous. They are lethal. They are trying to not only kill American troops, but they're trying to foment sectarian violence.”

In some past statements, Bush has accurately acknowledged that, according to the best estimates by the smartest experts, al Qaeda is by no means the major terrorist force in Iraq, and that, in fact, the overwhelming percentage of fighters are home-grown Iraqis fighting on ethnic and religious grounds – often with the tacit support of the Iraqi national police. Sometimes Bush makes this distinction, sometimes he doesn’t. Yesterday, again, he didn’t.

4. Bush also said yesterday, “I define success or failure as whether the unity government is making difficult – the difficult decisions necessary to unite the country.” Coupled with his statement that the government is getting “stronger and stronger,” he obviously believes it is on the road to success.

But that claim, again, is undercut by the facts. In recent days, his own people, both at the White House and Pentagon have been busy signaling reporters that Maliki is actually not getting stronger and stronger. They are saying that Maliki needs to shape up fast and develop a series of benchmarks for success, especially on the issue of disarming the militias; as one Bush leaker told the New York Times yesterday, “the time is coming. We can’t be there forever.”

These leaks make it clear that the Bush team, squeezed by domestic political pressure and clearly anticipating that Bush family fixer James Baker’s Iraq Study Group may well recommend a drastic change of strategy before year’s end, is trying to tiptoe towards some kind of performance timetable for the first time – notwithstanding Bush’s aforementioned December 2003 vow that he will not be tempted “to put a timetable on the definition of getting the job done.”

5. Bush said yesterday that he has refused to read the books that have been written about his administration. Granted, many of those books would not be pleasant reading. State of Denial, Cobra II, and Fiasco all document, in meticulous detail (virtually none of which has been refuted by the White House) the succession of miscalculations that have brought us to this perilous moment in Iraq. But when Stephanopoulos asked whether Bush might learn anything from these books “in real time,” the president had a one-word response:


Responses such as these are contributing to the GOP’s political woes this autumn, and imperiling the Republican congressional majority. Conservative columnist David Brooks, assessing the mood of moderate northeastern Republicans in The Times yesterday, said it well: “The core problem with suburban voters is not the decision to go to war; it’s the White House’s reaction to the mess afterward…The people in (suburban) offices manage information for a living, and when they see Republicans denying obvious trends, or shutting out relevant data, they say to themselves, ‘Those people are not like me.’ So there goes your majority.”