Sunday, February 03, 2008

Election Overview -- February Third.

The election field has narrowed to Obama and Clinton for the Democrats and McCain, Romney and Huckabee for the Republicans.

It is to early for the poll numbers to have settled out (not that that will stop the TV pundits) for a good analysis. Instead let us consider the overall structure of US elections for the past 20 or so years.

On a nation wide basis, if you have a Presidential election or a “combined election” of all congressman, all governors, all state legislature representatives, or even all dog catchers:
- The republican candidates have a guaranteed 45% and,
- The Democrats have a guaranteed 45%.

There is substantial variation locally but that the national picture. The 10% in the middle will decide who wins. The catch is if malcontents on one side or the other form a third party able to win 5% or so of the vote, they give the election to the other party.

The question then is how to win the middle 10%. These are people who seldom worry about political issues except at election time, an attitude incomprehensible to the lifetime political groupies that make up the staffs on both sides. They can go either way for reasons the political class doesn’t understand. Which is one of our small salvations from the political class.

Despite their genuine differences both Clinton and Obama are from the far left of the Democratic party.. They need to present a more moderate persona to the public for the general election. But to win the nomination they need the support of the far left who want demonstrated ideological purity. As it is shaping up, depending on where the undecided and former Edwards supports end up it looks like it will be a close race for the Democratic nomination. If it is not settled on Supper Tuesday it will likely be a long fight, which will leave both candidates distanced from the center. I give an edge to Clinton for organization and familiarity. But there is also substantial dislike for her and hostility in the local organizations to the National Party, which could be a plus to the charismatic Obama.

For the Republicans Huckabee is at his maximum support and has no chance of being nominated. Both McCain and Romney are at home in the Center Right of politics. Thus they are much closer to that middle than either Clinton or Obama. This is an opportunity.

While generally conservative McCain, has publicly broken with the party on some issues and distanced himself from President Bush on some issues gaining him some credibiity in the middle. But this has caused public friction with the more conservative part of the party. He has demonstrated an ability to win votes in the middle. Romney is also a center right person, but is getting a lot of support from the more conservative republicans who do not want McCain. This might stereotype him with the middle as more conservative than he is.

The external environmental factor the will influence party strategies is the major media outlets are closer to the far left than the middle. Clinton or Obama will be able to use this in the General election to soften their public persona as middle of the road. For McCain, that he is more Center Right is commonly known, his task will be to remind the middle voters of this and point out the genuine leftness of either Democratic candidate. Romney will have the much more difficult job of convincing the middle that he is Center Right

If McCain wins the Republican nomination the Republicans have an up hill fighting chance of winning he middle 10%. There is much less chance if Romney wins the nomination.


One of the things the new president will get to do is select several new Justice’s of the United States (Supreme Court Justices.) The Republicans will want to select a Justice who has strict constructionist juridical philosophy. The Democrats will want to select a Justice who has a Living Constitution juridical philosophy.

A Strict Constructionist would want decisions to hold close to the letter of the constitution and law, looking to the original intent of the authors and past interpretation to reach decisions. If a change needs to be made it should be through the amendment process in the constitution or by amending laws in Congress.

A living constitutionalist would question the value of original intent and precedent and see the constitution as a “living document.” A judge should decide according to what seem’s right if the case for society. Sometimes this means playing very fast and loose with the text, intent, and precedents. In one famous case invented law from whole cloth because the justice saw the decision he wanted in the “penumbra” of the Fourteenth Amendment. The amendment processes are often seen as to slow or likely to be blocked by an unenlightened electorate.

I think the Strict Constructionist is correct. It produces a law that is known and citizens can adust their lives and act accordingly, and they have clear processes to advocate change if necessary. The living constitution approach tends to be the political philosophy or even whim of the sitting judge. One can never be certain of what the law is because the next judge may have a different opinion. It tends to bypass the political processes that make the county a democracy, as Abraham Lincoln said, “government of the people for the people and by the people”

In a different area of law we have recently had a good example of these differences. If one takes a strict constructionist view of the Geneva Conventions and International Law, torture is prohibited. Nada, Nyet, Nien, No! But under the influence of the Neocon’s who as noted in my last election post are really “left wing light”, a “living Geneva Convention” attitude has been taken which allows torture. A policy that I have objected to in previous posts.

If McCain grandstanded the issue at least, he has stood clearly against torture when it was to his political advantage to support it.

If you think the legal thought process that can support torture is a good idea – vote Democratic.


El Jefe Maximo said...

Maybe I'm over lawyering this, or lawyering it wrong, even, but we have to be very, very careful about who we contend that the Geneva Conventions apply to.

In the case of the Al Qaeda terrorists, and the rebels in Iraq, these people are not States parties to the conventions, and I'm not sure they meet the requrements of the conventions or of traditional international law to be "lawful combatants." However we treat these people, we must be careful not to give them a whit more legal status than they are entitled to. Note also that the United States, quite correctly, has not ratified the two additional protocols to the Geneva Conventions of 1949 (the protocols concluded in 1977) because they tend to legitimize guerrilla groups and rebels.

The status of Iraqi Saddam regime and Afghan Taliban government military prisoners is a little more tricky. Following the fall of those regimes, and the passage of the governments of those countries under the effective control of the coalition powers (particularly in the case of Iraq), I believe that it was possible for a time for the new governments (or the Coalition Provisional Authority, in the case of Iraq), to waive the applicability of the Geneva Conventions to those groups of prisoners. This was done in Germany post WWII -- it's how we got to a lot of the Nuremburg and Tokyo defendants despite their former POW status. I wonder to what extent some method like this was used in Iraq and Afghanistan ?

In any case, whatever we do with all these groups of prisoners, we must be very careful about giving them too much legal status. Some of them are little better than pirates.

hank_F_M said...

El Jefe

I think it was creative over lawyering that got the status of the detainees all messed up to begin with. You are right we need to be very careful.

Which is related to my point. Instead of following the procedures that had been worked out well prior to 9/11 the administration tried to take a “living law” approach and rewrite every thing. What we are calling an “enemy combatant” would have been called a prisoner of war not covered under the Geneva Conventions. Which makes for a simple point to sell. Any prisoner of war has the right to be released after the war is over. Of course they are not covered by the Conventions restrictions on trials for crimes. The obvious example is a spy out of uniform who can be tried and executed. Why try to create new law when the old will work reasonable well. (I'm not a lawyer but when the Army reseve had me teaching CGS I needed to a little learning about what I taught.)

On the theory that the ICC has less guarantee to a fair trial the Civil Law system in Europe.. And when I was in Germany the Defense counsel both military and civilian hired by the families stated that the German Courts had notably less effective guarantees of a fair trial than a US Army Court Marital (the prosecutors agreed and were quite happy to let the Germans have jurisdiction.) This was not just language difference but the formal procedures and the cultural attitude. And the basis for the Gitmo Courts is US Court Martial procedures; the detainees are lucky that it is the US prosecuting and not a European Court or the ICC.

But my main point was to show the deficiency of the lefts judicial thinking, and the danger of adapting it even in a good cause.

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