Whispers from a New Moon

Happy Eclipse, dearhearts — here’s your photo of the day.

And here’s your Tom Toles ‘toon, on another topic entirely … or is it? This energetic doorway gives us potent opportunity to leave the old behind — and plunge the Darth prototype back into the fear-consciousness it came from.

This post includes news on unitary power, Congressional subpoena’s and Karl Rove — funny how Rove finds his way into EVERY DAMNED THING, isn’t it? We’ve got to get a stake through that heart at some point; the entirety of Rove’s power comes from weasely, back-channel whisper campaigns that grow like fungus and infect those who think power comes from the dark arts of the human psyche. We need a good dose of sunshine to kill off that black mold — on that note, check out this ad by MoveOn for Obama; sweetness and light, you say?? BRING IT ON!!

And — because we can’t separate out the Pub candidate from current Pub leadership, nor wean either from their Rove-addiction — you’ll find McCain stuff in this post. “Maverick” Johnny Mac has been touted as the unCola of the Republican party — but lately he tastes about the same as the Bushie brand of Coke [or coke, whatever.] Can that be because Rove, acting as a shadow consultant, has added all the ingredients to produce same-old? Yes — it can.

The American public has been manipulated for decades by press and politicians — we’re in that phase, thanks to these last acidic years of lying and governmental plunder, when the mothers milk of American propaganda is souring … but the narrative of McCain’s “honor” as old war horse and hero still plays with those who only listen to what they want to believe; lately, it’s been harder to put lipstick on that pig. Very little display of honor from the crusty old coot these days.

More people have rejected Karl Rove than have examined the truth about John McCain — that’s a card we should play, especially with the ham-handed ad that tossed squirrely white sex-kittens on the same screen as Obama [and especially since HE hasn't had multiple wives or mistresses and doesn't deal in dirty jokes or old-boy'isms. How obvious is THAT ... and if it isn't, we should make it so!] This is an old Rove staple — gathering the mud scraped from their own flanks and flinging it toward the opponent.

I’m going to attempt … as improbable as it sounds for a partisan of my ilk … to write one of those e-mails about McRib that is similar to the crap I get about Obama; it shouldn’t be too difficult, considering the facts … I won’t have to depend on innuendo to do the deed. When Obama spoke to “not looking like the face on a dollar bill” recently, he was speaking to those racist e-mails in the low-level smear campaign; he most often says “they” in this context … they say … but he stumbled and put it on the Mac campaign, who rose in their faux-righteousness to accuse O of playing “the race card” [gag me, for crissakes.] E-mail campaigning is vicious and effective — perhaps we can get our own going, certainly more factual. Again, that calls on skills I may not be able to muster: if I could enter into that kind of mind-set, I’d be rakin’ in the big bucks as a frikken politician!

Yesterday, I was at a gathering with a number of Pea Patcher’s and one bright and clear-eyed 92 year old lady said she wasn’t going to vote for Obama because he was schooled outside of the United States. I mentioned the factoid that McCain wasn’t born in the US and about five people did that “I didn’t know that” round of commentary; the whole climate in the room changed before my very eyes. The old lady said, “Well, that changes everything — I’ll have to think about this.”

Who’d a thunk it — K.O. by technicality! I mention this because we really ARE on an edge with this election; I never heard ONE PERSON mention race yesterday, and here in the Patch that’s amazing. I’m thinking a well-placed e-mail that exposes McCain for what he is can put down roots of doubt, and that would be enough to make a big difference. We’ll see, I’ll give it a try; I’ll start with mention of his $520 Ferragamo loafers — if a haircut can kill Edwards, yadda.

Good news is that a Bush-appointed Judge has thrown another stick into the unitary power cogs; and Rove is being held in contempt. The judge’s ruling puts some fire in the belly for going after the heel-draggers, past and present [Bolten, Myers, Rove] … and gives us another clear indication that rule of law is a hard concept to kill.

Bonus reads are GREAT this week — you’ll find some fascinating and thoughtful articles on our enigmatic presumptive; don’t miss these, they’re informative. First though, you’ll find a very interesting election map from a pundit who has bypassed the big, fluctuating polls to focus on each race, state by state — be sure to check your own state, and note the encouraging numbers.

I leave you with an Eclipse blessing, from me to you:

May Goddess lift you today and bring you EVERYTHING you need for whatever comes next!

Blessed weekend — and keep yer head down!

Jude

My Blue Election Map
Ryan Kauffman, HuffPo
July 28, 2008 | 11:47 PM (EST)

Defeated in Court — Again
The Bush administration never seems to learn from its excessive assertions of presidential authority.
Washington Post Editorial
Friday, August 1, 2008

ALBERT EINSTEIN is said to have described insanity as doing the same thing over and over and expecting different results. The Bush administration would be wise to take heed of these words.

Obsessed with stretching the limits of executive power, the administration has time and again engaged in legal battles or unilateral action in defense of warped interpretations of the law. Time and again, it has been rebuffed by conservative and liberal judges alike. The result: The administration has trampled on the rule of law, and the backlash against its actions has whittled away at the foundations of legitimate executive power.

The latest example is the thorough, thoughtful and devastating opinion issued yesterday by Judge John D. Bates of the U.S. District Court for the District of Columbia, which eviscerates the administration’s arguments for refusing to allow former White House counsel Harriet Miers to appear before Congress about the firing of nine U.S. attorneys. The House Judiciary Committee brought suit to enforce its subpoena of Ms. Miers after failing to reach a compromise with the White House over documents and witnesses. In his 93-page decision, Judge Bates concludes that the White House had no legal basis for its position and that Ms. Miers is bound by the subpoena to attend a congressional hearing. Once sworn in, Ms. Miers may still attempt to invoke executive privilege; whether she is justified or not could be a matter for future litigation.

Judge Bates, by the way, is no knee-jerk liberal: He’s an Army veteran, a former prosecutor, a former deputy independent counsel in the Whitewater investigation of President Bill Clinton and a 2001 appointee of President Bush.

The White House is almost certain to appeal the ruling and may be expecting a more hospitable reception from the generally conservative U.S. Court of Appeals for the D.C. Circuit. That prospect should give Congress pause and prompt a renewal of efforts to reach a compromise. For the better part of 200 years, these types of disputes have generally been worked out in the political arena, without the need for judicial intervention. It is still the best approach, as even Judge Bates acknowledges: “Although standing ready to fulfill the essential judicial role to ’say what the law is’ on specific assertions of executive privilege that may be presented, the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role.”

A federal court rejects Bush’s “executive privilege” claims
Glenn Greenwald, Salon
Thursday July 31, 2008

The Bush administration and its radical theories of executive power suffered yet another blow today from the judiciary, as a Federal District Judge, John D. Bates of the District of Columbia District Court — a Bush 43-appointed Judge, former Deputy Independent Counsel for the Whitewater investigation, and a generally very pro-administration judge — held in a 93-page ruling (.pdf) that Bush aides Harriet Miers (former White House counsel) and Josh Bolten (White House Chief of Staff) are not entitled to absolute immunity from Congressional subpoenas. The dispute arose out of the investigation by the House Judiciary Committee into the firing of eight U.S. attorneys who, in many cases, had either aggressively prosecuted GOP officials or had refused to prosecute Democrats or otherwise advance the GOP’s political interests.

As part of its investigation, the Judiciary Committee issued Subpoenas to Miers and Bolten in an effort to find out, among other things, who actually made the decision for those U.S. attorneys to be fired. The subpoenas ordered Miers to appear before the Committee in order to testify, and ordered both to produce documents to the Committee. Both Miers and Bolten refused to comply with the Subpoenas. Miers simply failed to show up for her hearing, while Bolten refused to produce the demanded documents. They did so in reliance on the Bush administration’s claim that both of them, as top-level aides to the President, enjoyed absolute immunity from Congressional subpoenas. It was that extremist theory which the court today rejected — and rejected decisively and unequivocally.

In unusually strong language, the court pointed out that the President’s claim that his aides enjoyed absolute immunity from Congressional investigations was “unprecedented” and “without any support in case law” (p. 3). Like so many perverse claims of absolute presidential authority, this claim was plainly contrary to the core principles of how our country has long functioned: “Federal precedent dating as far back as 1807 contemplates that even the Executive is bound to comply with duly issued subpoenas” (p. 31). To underscore how frivolous the administration’s claim here was, the court emphasized (p. 78):

The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple but critical fact bears repeating: the asserted immunity claim here is entirely unsupported by case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors to not enjoy absolute immunity.

That the Bush administration’s claim was purely lawless has long been obvious. After all, the Supreme Court, in 1974, already explicitly ruled (in the context of a criminal investigation) that Richard Nixon lacked exactly the absolute immunity that Bush officials claimed here. Because of that, as I wrote back in March, 2007 when this claim was first asserted by the Bush administration:

It is crystal clear (just as it was when Bill Clinton sought to invoke “executive privilege” to resist Grand Jury subpoenas to his aides — Sidney Blumenthal and Bruce Lindsey and Hillary — in the Lewinsky investigation) that the narrowly construed doctrine of executive privilege does not entitle the President to shield the communications here from compelled disclosure.

All along, the refusal of Bush aides to testify (and today’s ruling obviously applies to Karl Rove as well) was nothing more than another lawless attempt by the administration to shroud everything it does in secrecy and shield itself completely from accountability of any kind. Indeed, as the court pointed out today, quoting a 1975 Supreme Court case, the power to compel testimony and documents from the Executive branch is indispensable to what are — at least in theory — the core Congressional functions of lawmaking and oversight (p. 36):

The power of inquiry — with process to enforce it — is an essential and appropriate auxillary to the legislative function.

Today’s ruling should should elevate the pressure on Bolten, Miers, Rove and other Bush officials to respond to Congressional inquiries regarding what they know about the firing of these U.S. Attorneys, but as a practical matter, its impact will be quite limited. Miers, Bolten and friends can still (and certainly will) assert privilege with respect to specific conversations and documents (the court only resolved whether they have immunity from Congressional subpoenas generally, not whether specific documents and conversations are privileged). This ruling simply means that Miers and Bolten must “respond” the Subpoenas — Miers can show up and refuse to answer most questions by relying on specific “privilege” assertions (that the court would then have to resolve), and Bolten can do the same with regard to documents. This administration has repeatedly demonstrated complete indifference to legal process.

The court did note, in several places, that Congress likely has (again, at least in theory) the inherent authority to arrest and detain Executive Branch officials who refuse to comply with their Subpoenas. But they have demonstrated no appetite for exercising that power, and short of something truly threatening like that, it is difficult to envision Bush officials being meaningfully forthcoming in any Congressional investigation.

One interesting point the court highlighted (p. 76) was that the next President could simply withdraw any claims of privilege over these matters. Even though Bush, as a former President, could still assert the privilege, its assertion “would necessarily have less force, particularly when the sitting President does not support the claim of privilege.” Thus, an Obama presidency (assuming Cass Sunstein has no say in the matter) could significantly diminish the ability of Bush officials to shield their legally dubious conduct from Congressional and judicial scrutiny by formally withdrawing all of these claims of executive privilege — not just as part of this investigation but the other scandals as well.

Little by little — step by step — federal courts have been fulfilling their function in rejecting the radical executive power claims of the last seven years and imposing some modest limits (at least in theory) on what the Executive Branch can do. That’s why they are so eager to obtain immunity and invoke every procedural weapon to avoid having to be accountable in a court of law. Today’s decision is the latest such step in that process, and provides still further evidence of just how lawless this administration and its animating theories have been.

Karl Rove Held In Contempt By House Judiciary Committee
LAURIE KELLMAN, AP
July 30, 2008

WASHINGTON — A House panel Wednesday voted to cite former top White House aide Karl Rove for contempt of Congress as its Senate counterpart explored punishment for alleged Bush administration misdeeds.

Voting 20-14 along party lines, the House Judiciary Committee said that Rove had broken the law by failing to appear at a July 10 hearing on allegations of White House influence over the Justice Department, including whether Rove encouraged prosecutions against Democrats such as former Alabama Gov. Don Siegelman.

The committee decision is only a recommendation, and a spokesman for Speaker Nancy Pelosi, D-Calif., said she would not decide until September whether to bring it to a final vote.

With little more than three months before Election Day, it wasn’t clear whether majority Democrats could take any substantial action in a political environment in which time for the current Congress is running short and lawmakers face a host of daunting legislative problems and a cluttered calendar.

Exposing Karl Rove’s Swift Boat Operation
Rep. Chris Van Hollen, HuffPo
July 31, 2008

Yesterday’s decision by the House Judiciary Committee to cite Karl Rove for contempt of Congress was an important step forward in holding this White House accountable to the rule of law. Unfortunately, we have not seen the last of Karl Rove and his political tricks.

We have recently learned that Rove has signed a mid-six figure consulting deal with billionaire casino mogul Sheldon Adelson to oversee the activities of the right-wing shadow group Freedom’s Watch. With the National Republican Congressional Committee (NRCC) underfunded and in disarray this cycle, it has outsourced its work to Freedom’s Watch, a shady soft money group with ties to President Bush and Senator John McCain.

If you ever wondered what the Bush political team is up to this campaign season, you need look no farther than the team behind Freedom’s Watch. Rove, along with former White House Press Secretary Ari Fleischer, former White House Political Director Tony Feather, and a slew of Bush cronies have teamed up with the third richest man in the country, Freedom’s Watch’s sugar daddy Sheldon Adelson - to form this unprecedented swift-boat operation. Their goal is clear — to preserve Bush’s legacy by delivering a third Bush term.

When you consider the infamous swift-boat attacks against John Kerry were financed with less than one-tenth the proposed budget for Freedom’s Watch, our challenge becomes clear. We can not allow shadowy outside groups steal our Big Change election. Today, the Democratic Congressional Campaign Committee launched “The Real Freedom’s Watch” to expose the connections between Freedom’s Watch, Karl Rove, President Bush, and John McCain.

Please take a moment to visit www.TheRealFreedomsWatch.org and sign our petition demanding the National Republican Congressional Committee and Republican campaigns nationwide denounce Karl Rove’s new attack shop. Together, we can shut the door on Karl Rove-style politics once and for all.

If Tocqueville Had Only Known of Karl Rove’s Gene Pool
P.M. Carpenter, THE FIFTH COLUMNIST
Fri, 08/01/2008

The McCain campaign’s assorted, reshuffled strategists may not always know where they or their candidate stands on the critical issues of the day, but you’ve got to give them credit for this much: They know how to change — or drive — the subject.

Their virtuosity in launching high-flying missiles of the lowest common denominator is, of course, only a nostalgic feature of the Rovian politics of 2004 and 2000. And even though John McCain appeared resistant throughout the early stage of the general election campaign to the practice of their dark arts, one must allow him credit as well for finally doing what a losing candidate must do — go dirty, go petty, go low, and keep going until the odds have at least leveled.

The ‘race card’ brawl of yesterday — and, no doubt, today and throughout the weekend — is the most instructive instance yet of Rovian voodoo emerging from the McCain camp. The campaign was sustaining, barely, the crushing weight of ridicule over its Spears-Hilton ad, but it wasn’t so flattened or dispirited that it couldn’t stop to think, We need a diversion, a huge one, and quickly. What could it be, whatever could it be?

Well, all they had to do was look around and take note of what Barack Obama was saying contemporaneously on the stump, never mind that it was virtually the same thing he’s said innumerable times before. But no, this time it was noteworthy, even narrative-changing, and the media world simply had to be alerted.

Their opponent — that black guy — has just “played the race card, and he played it from the bottom of the deck,” breathlessly charged McCain’s quasi-campaign manager, Rick Davis. “It’s divisive, negative, shameful and wrong [thank God].”

Whatever may have occurred so far that is unifying, positive, uplifting and right couldn’t possibly hold a candle to that slab of raw meat. So off the media went, like a greyhound after a rabbit with a bull’s-eye on its butt. How Pavlovian.

Now, Obama, I should further note, was not entirely blameless in this much-ado-about-mostly-nothing affair, although I doubt he was even conscious of his rhetorical malfeasance at the time. For his sin had to do with little more than the minor matter of an altered pronoun.

“So nobody really thinks that Bush or McCain have a real answer for the challenges we face, so what they’re going to try to do is make you scared of me,” Obama told a Springfield, Mo. crowd on Wednesday. “You know, he’s not patriotic enough. He’s got a funny name. You know, he doesn’t look like all those other presidents on those dollar bills, you know. He’s risky. That’s essentially the argument they’re making.”

Obama’s “they,” however, on previous occasions had always been left at the ambiguous “they,” a knowing and unmistakably correct accusation aimed at a scattering of McCain’s surrogates and those 527s of a bogeyman-racist bent.

Yet on the occasion of Wednesday, Obama committed — again, probably rather unconsciously, inadvertently — a rousing pushback-opening boo-boo. He unambiguously fingered “McCain” beforehand, and not merely “they.” Oops. Five will get you ten that if Obama could say it again, he wouldn’t say it that way.

For that was all that the newly hired Rovian tacticians at McCain & Co. needed. It wasn’t much, but enough, just enough of a suggestive crack at the door to exclaim Oscar-winning shock and horror at the profoundly unfair and scurrilously mean-spirited.

And I can’t say that Obama’s communications director, Robert Gibbs, helped matters much in his miscommunicated comeback. “Barack Obama in no way believes that the McCain campaign is using race as an issue, but he does believe they’re using the same old low-road politics to distract voters from the real issues in this campaign.”

Hey, Bob, just say that Obama misspoke and leave it at that. Just say that your candidate intended to say what he’s always said — “they,” not necessarily McCain, are coming — and then hit the familiar “low-road” stuff.

What you produced instead was a pregnant contradiction that the media can now chew on for another couple days; a McCain-campaignlike communiqué announcing that your candidate doesn’t always speak for the campaign.

At any rate, you gotta love it. All of it. This indisputably is Tocqueville’s Democracy in America all right, only re-writ large. Politics as sport, not policy; a sport in which the underdog can never be counted out, because the ratings- and circulation-chasing media know precisely what the bloodthirsty multitudes want.

Sure, in a way I blame McCain for feeding the beast, after all his protestations of a new kind of straight-talk politics. But then again, the gladiators don’t make the rules. Another ambiguous pronoun does — We do.

Low-Road Express
New York Times Editorial
July 30, 2008

Well, that certainly didn’t take long. On July 3, news reports said Senator John McCain, worried that he might lose the election before it truly started, opened his doors to disciples of Karl Rove from the 2004 campaign and the Bush White House. Less than a month later, the results are on full display. The candidate who started out talking about high-minded, civil debate has wholeheartedly adopted Mr. Rove’s low-minded and uncivil playbook.

In recent weeks, Mr. McCain has been waving the flag of fear (Senator Barack Obama wants to “lose” in Iraq), and issuing attacks that are sophomoric (suggesting that Mr. Obama is a socialist) and false (the presumptive Democratic nominee turned his back on wounded soldiers).

Mr. McCain used to pride himself on being above this ugly brand of politics, which killed his own 2000 presidential bid. But he clearly tossed his inhibitions aside earlier this month when he put day-to-day management of his campaign in the hands of one acolyte of Mr. Rove and gave top positions to two others. The résumés of the new team’s members included stints in Mr. Bush’s White House and in his 2004 re-election campaign, one of the most negative and divisive in memory.

Almost immediately, the McCain campaign was using Mr. Rove’s well-honed tactics, starting with an attempt to widen this nation’s damaging ideological divide by painting Mr. Obama as a far-left kook. On July 18, Mr. McCain even suggested that Mr. Obama is a socialist to the left of the Senate’s only avowed socialist: Bernie Sanders of Vermont.

Mr. Obama’s politics are hardly far-left, and anyone who has spent time in a socialist country knows how ridiculous that label is for any member of Congress. It would be bad enough if Mr. McCain honestly believed what he said, but we find that hard to imagine.

Mr. Obama has distorted Mr. McCain’s record at times, but Mr. McCain’s false charges have been more frequent: that Mr. Obama opposes “innovation” on energy policy; that he voted 94 times for “higher taxes”; and that Mr. Obama is personally responsible for rising gasoline prices.

And Mr. McCain has not stopped there. Taking a page straight from Mr. Bush and Mr. Rove, Mr. McCain has been trying to distract voters from his support for an unending war in Iraq by portraying Mr. Obama as unpatriotic and weak. This line of attack reached a crescendo last week when Mr. McCain fumed and fussed and went to places with European-sounding names while Mr. Obama traveled abroad.

Mr. McCain repeatedly said Mr. Obama “would rather lose a war to win a political campaign” and that he “does not understand” what is at stake in Iraq. He also accused Mr. Obama of canceling a visit to wounded American troops in a German military hospital because news cameras were not allowed. That’s a false account of what occurred — and Mr. McCain ignored Mr. Obama’s unheralded visit to a combat hospital in Baghdad.

Like Mr. Bush, Mr. McCain confuses opposition to an unnecessary war with a lack of spine and an unwillingness to use force when the nation is truly in danger. Obviously, Mr. Obama is untested as a commander in chief and his trip was intended to reassure voters. But Mr. McCain is as untested in this area as Mr. Obama, and it is hard to imagine a worse role model than the one Mr. McCain seems to be adopting: President Bush.

Many voters are wondering whether a McCain presidency would be an extension of Mr. Bush’s two disastrous terms. If the way Mr. McCain is running his campaign these days is an indication, Americans don’t have to wait until next January for the answer to that one.

weekend reads

As a Professor, Obama Enthralled Students and Puzzled Faculty
JODI KANTOR, New York Times
July 30, 2008

CHICAGO — The young law professor stood apart in too many ways to count. At a school where economic analysis was all the rage, he taught rights, race and gender. Other junior faculty dreamed of tenured positions; he turned them down. While most colleagues published by the pound, he never completed a single work of legal scholarship.

At a formal institution, Barack Obama was a loose presence, joking with students about their romantic prospects, using first names, referring to case law one moment and “The Godfather” the next. He was also an enigmatic one, often leaving fellow faculty members guessing about his precise views.

Mr. Obama, now the junior senator from Illinois and the presumptive Democratic presidential nominee, spent 12 years at the University of Chicago Law School. Most aspiring politicians do not dwell in the halls of academia, and few promising young legal thinkers toil in state legislatures. Mr. Obama planted a foot in each, splitting his weeks between one of the country’s most elite law schools and the far less rarefied atmosphere of the Illinois State Senate.

Before he pushed campaign finance legislation there, or outraised every other presidential primary candidate in American history, Mr. Obama marched students through the thickets of campaign finance law. Before he helped redraw the map of his own state Senate district, making it whiter and wealthier, he taught districting as a racially fraught study in how power is secured. And before he posed what may be the ultimate test of racial equality — whether Americans will elect a black president — he led students through African-Americans’ long fight for equal status.

Standing in his favorite classroom in the law school’s austere main building, sharp-witted students looming above him, Mr. Obama refined his public speaking style, his debating abilities, his beliefs.

“He tested his ideas in classrooms,” said Dennis Hutchinson, a colleague. Every seminar hour, for example, brought a new round of, “Is affirmative action justified? Under what circumstances?” as Mr. Hutchinson put it.

But Mr. Obama’s years at the law school are also another chapter — see United States Senate, c. 2006 — during which he seemed as intently focused on his own political rise as on the institution itself. Mr. Obama, who declined to be interviewed for this article, was well liked at the law school, yet he was always slightly apart from it, leaving colleagues feeling a little cheated that he did not fully engage. The Chicago faculty is more rightward-leaning than that of other top law schools, but if teaching alongside some of the most formidable conservative minds in the country had any impact on Mr. Obama, no one can quite point to it.

“I don’t think anything that went on in these chambers affected him,” said Richard Epstein, a libertarian colleague who says he longed for Mr. Obama to venture beyond his ideological and topical comfort zones. “His entire life, as best I can tell, is one in which he’s always been a thoughtful listener and questioner, but he’s never stepped up to the plate and taken full swings.”

Mr. Obama had other business on his mind, embarking on five political races during his 12 years at the school. Teaching gave him satisfaction, along with a perch and a paycheck, but he was impatient with academic debates over “whether to drop a footnote or not drop a footnote,” said Abner J. Mikva, a mentor whose own career has spanned Congress, the federal bench and the same law school.

Douglas Baird, another colleague, remembers once stopping Mr. Obama for his assessment of potential gubernatorial candidates.

“First of all, I’m not running for governor, ” Mr. Obama told him. “But if I did, I would expect you to support me.”

He was a third-year state senator at the time.

Popular and Enigmatic

Mr. Obama arrived at the law school in 1991 thanks to Michael W. McConnell, a conservative scholar who is now a federal appellate judge. As president of The Harvard Law Review, Mr. Obama had impressed Mr. McConnell with editing suggestions on an article; on little more than that basis, the law school gave him a fellowship, which amounted to an office and a computer, which Mr. Obama used to write his memoir, “Dreams From My Father.”

The law school had almost no black faculty, a special embarrassment given its location on the South Side of Chicago. Its sleek, Eero Saarinen-designed halls bordered a neighborhood crumbling with poverty and neglect. In his 2000 congressional race, Rep. Bobby Rush, a former Black Panther running for re-election, used Mr. Obama’s ties to the school to label him an egghead and an elitist.

At the law school, Mr. Obama taught three courses, ascending from lecturer to senior lecturer, a title otherwise carried only by a few federal judges. His most traditional course was an elective in the due process and equal protection areas of constitutional law. Mr. Obama’s voting rights class traced the evolution of election law, from the disenfranchisement of blacks to gerrymandering to contemporary debates over race-based districting and campaign finance. Mr. Obama was so interested in the subject he helped Richard Pildes, a professor at New York University, develop what is now a leading casebook in the field.

His most original course, a historical and political seminar as much as a legal one, was on racism and law. Mr. Obama improvised his own textbook, including classic cases like Brown v. Board of Education, but also essays by Frederick Douglass, W.E.B. Dubois, the Rev. Martin Luther King Jr. and Malcolm X, as well as conservative thinkers like Robert Bork, himself a product of the school.

Mr. Obama was especially eager for his charges to understand the horrors of the past, students say. He assigned a 1919 catalogue of lynching victims, including some who were first raped or stripped of their ears and fingers, others who were pregnant or lynched with their children, and some whose charred bodies were sold off, bone fragment by bone fragment, to gawkers.

“Are there legal remedies that alleviate not just existing racism, but racism from the past?” Adam Gross, now a public interest lawyer in Chicago, wrote in his class notes in April 1994.

For all the weighty material, Mr. Obama had a disarming touch. He did not interrogate or belittle students; instead he patiently drew them out, restating and polishing their halting answers, students recall. In his 2001 class on race, he imitated the way clueless white people talked. “Why are your friends at the housing projects shooting each other?” he asked in a mock-innocent voice.

A favorite theme, said Salil Mehra, now a law professor at Temple University, were the values and cultural touchstones that Americans, for all of their deep differences, still share. Mr. Obama’s case in point: his wife, Michelle, a black woman, loved “The Brady Bunch” so much that she could identify every one of the white family’s escapades by its opening shots.

As Mr. Obama’s reputation for frank, exciting discussion spread, enrollment in his classes swelled. Most scores on his teaching evaluations were positive to superlative. Some students started referring to themselves as his groupies. (And Mr. Obama, in turn, could play the star. Like every professor, he spun out elaborate hypothetical cases, but in what even some fans saw as a sign of self-absorption, Mr. Obama’s occasionally featured himself. “Take Barack Obama, there’s a good-looking guy,” he would start, introducing a twisty legal scenario.)

Liberals in particular flocked to his classes, seeking refuge. After all, the professor was an unashamedly progressive politician who championed child care subsidies and racial profiling laws, and in a 1996 interview with the school newspaper, sounded suspicious of President Bill Clinton’s efforts to reach across the aisle.

“On the national level, bipartisanship usually means Democrats ignore the needs of the poor and abandon the idea that government can play a role in issues of poverty, race discrimination, sex discrimination or environmental protection,” Mr. Obama said.

But the liberal students did not necessarily find the reassurance they sought. “For people who thought they were getting a doctrinal, rah-rah experience, it wasn’t that kind of class,” said D. Daniel Sokol, a former student who now teaches law at the University of Florida at Gainesville.

For one thing, Mr. Obama’s courses chronicled the failure of liberal policies and court-led attempts at social change: the Reconstruction-era amendments that were rendered meaningless by a century of resistance, the way the triumph of Brown gave way to fights over busing, the voting rights laws used by Republicans in the South to crowd blacks into as few districts as possible. He was wary of noble theories, students say; instead, they call Mr. Obama a contextualist, willing to look past legal niceties to get results.

For another, Mr. Obama liked to provoke. He wanted his charges to try arguing that life was better under segregation, that black people were better athletes than white ones.

“I remember thinking, ‘you’re offending my liberal instincts,’ ” Mary Ellen Callahan, now a privacy lawyer in Washington, recalled.

In his voting rights course, Mr. Obama taught Lani Guinier’s proposals for structuring elections differently to boost minority representation. Opponents attacked those suggestions when she was nominated as assistant attorney general for civil rights in 1993, costing her the post.

“He took very seriously her ideas,” said David Franklin, who now teaches law at DePaul University in Chicago. “I think he thought they were good and worth trying.”

But whether out of professorial reserve or budding political caution, Mr. Obama would not say so directly. “He surfaced all the competing points of view on Guinier’s proposals with total neutrality and equanimity,” Mr. Franklin said. “He just let the class debate the merits of them back and forth.”

While students appreciated Mr. Obama’s professorial reserve, colleagues sometimes wanted him to take a stand. When two fellow faculty members asked him to support a controversial antigang measure, allowing Chicago police to disperse and eventually arrest loiterers who had no clear reason to gather, Mr. Obama discussed the issue with unusual thoughtfulness, they say, but gave little sign of who should prevail — the American Civil Liberties Union, which opposed the measure, or the community groups that supported it out of concern about crime.

“He just observed it with a kind of interest,” said Daniel Kahan, now a professor at Yale.

Nor could his views be gleaned from law review articles or other scholarship; Mr. Obama has never published any. He was too busy, but also, Mr. Epstein believes, he was unwilling to put his name to anything that could haunt him politically, as Ms. Guinier’s writings had hurt her.

“He figured out, you lay low,” Mr. Epstein said.

The Chicago law faculty is full of intellectually fiery friendships that burn across ideological lines. Three times a week, professors do combat over lunch at a special round table in the university’s wood-paneled faculty club, and they share and defend their research in workshop discussions. Mr. Obama rarely attended, even when he was in town. “I’m not sure he was close to anyone,” Mr. Hutchinson said, except for a few liberal constitutional law professors, like Cass Sunstein, now an occasional adviser to his campaign. Mr. Obama was working two other jobs, after all, in the state senate and at a civil rights law firm.

Several colleagues say that Mr. Obama was surely influenced by the ideas swirling around the law school campus: the prevailing market-friendliness, or the use of economic tools to analyze the impact of laws, for example. But none could say how. “I’m not sure we changed him,” Mr. Baird said.

Because he never fully engaged, Mr. Obama “doesn’t have the slightest sense of where folks like me are coming from,” Mr. Epstein said. “He was a successful teacher and an absentee tenant on the other issues.”

Classroom to Campaigns

As Mr. Obama built his political career, his so-called groupies became an early core of supporters, handing out leaflets and hosting fund-raisers in their modest apartments.

“Maybe we charged an audacious 20 dollars a head?” said Jesse Ruiz, now a corporate attorney in Chicago. Mr. Obama was sheepish asking for even that much, Mr. Ruiz recalls. He had no staff, so the day after a fund-raiser, Mr. Obama would come by and stuff the proceeds into his backpack.

Even as Mr. Rush lambasted Mr. Obama’s university associations in 2000, Mr. Obama never mentioned that humiliating, hopeless campaign in class (he lost by a 2-to-1 margin), though colleagues noticed that he seemed exhausted and was smoking more than usual.

Soon after, the faculty saw an opening and made him its best offer yet. Tenure upon hiring. A handsome salary, more than the $60,000 he was making in the state senate or the $60,000 he earned teaching part-time. A job for Michelle Obama directing the legal clinic.

Your political career is dead, Daniel Fischel, then the dean, said he told Mr. Obama, gently. But Mr. Obama turned it down. Two years later, he decided to run for the Senate. He canceled his course load for 2004 and has not taught since.

Now, watching the evening news, it is dawning on Mr. Obama’s former students that he was mining material for his political future even as he taught them.

Byron Rodriguez, who practices real estate law in San Francisco, recalls his professor’s admiration for the soaring but plainspoken speeches of Frederick Douglass.

“No one speaks this way anymore,” Mr. Obama told his class, wondering aloud what had happened to the art of political oratory. In particular, Mr. Obama admired Douglass’s use of a collective voice that embraced black and white concerns, a voice Mr. Obama has now adopted himself.

In class, Mr. Obama sounded many of the same themes he now does on the campaign trail, Ms. Callahan said, ticking them off: “self-determinism as opposed to paternalism, strength in numbers, his concept of community development.”

But as a professor, students say, Mr. Obama was in the business of complication, showing that even the best-reasoned rules have unintended consequences, that competing legal interests cannot always be resolved, that a rule that promotes justice in one case can be unfair in the next.

So even some former students who are thrilled at Mr. Obama’s success wince when they hear him speaking like the politician he has so fully become.

“When you hear him talking about issues, it’s at a level so much simpler than the one he’s capable of,” Mr. Rodriguez said. “He was a lot more fun to listen to back then.”

Obama the Lawyer President
How would he choose judges?
Emily Bazelon, Slate
Thursday, Feb. 7, 2008

If Barack Obama gets to be president, he’s not going to outsource the law. As a former constitutional law professor, he hasn’t got it in him to wave off this aspect of his potential administration. Obama knows too much for that. And he would care too much about striking the balance he wants on liberty and security, continuing to straighten out the Justice Department, and nominating his idea of good judges to delegate these activities and check back in only to give his blessing.

The yawning gulf here is between Obama and President Bush, who has clearly relied on Dick Cheney and others to shape his administration’s approach to law and the judiciary (with far happier results, from his point of view, than Bush’s big moment of intercession, when he chose Harriet Miers for the Supreme Court himself). But Obama’s approach to legal policy and the DoJ and judges also may distinguish him from John McCain, who is not a lawyer—and from Hillary Clinton, though for different reasons.

Obama’s immersion makes the law professors in his inner circle giddy. In addition to the sweet relief of a candidate who has promised not to keep marching to the drummer of executive power, and who wants to protect rather than diminish the right to privacy, the Obama lawyer team loves their man because he goes toe to toe with them. As Harvard law professor Martha Minow puts it, “He has at his fingertips the whole historical context of the moments in which our Constitution has been stretched, or has been in jeopardy, and when presidents have tried to bring it back. This isn’t an afterthought for him: ‘Oh, I’ll go consult my lawyers.’ ”

For Minow, this was driven home by an exercise in speechwriting. She and fellow Harvard law professor Laurence Tribe, Georgetown law professor Neal Katyal, and University of Chicago law professor Cass Sunstein were supposed to work up a draft of a big speech for Obama about law and democracy. The four of them—titans, all—labored over multiple drafts, which they sent back and forth among themselves. Then they and other law professors arrived at Obama’s office. After apologizing because he hadn’t reviewed their version, he reeled off four points he thought the speech should make. And Minow says they were better than what her quartet had come up with—not just more politically resonant but better conceived. Obama still hasn’t given a big democracy and law speech, but he has made his points—about opposing rendition of detainees to other countries, for example—in a variety of settings.

Hillary Clinton, too, is an accomplished lawyer with precise and honed views of the Constitution. It’s hard to imagine she wouldn’t be in the thick of the big and medium-sized decisions, either. But she’s not been as forthcoming about this aspect of her plans for governing. Clinton’s campaign didn’t return my repeated phone calls and e-mails, either this week or the last time I wrote on the topic. In a published Q & A with the Boston Globe’s Charlie Savage, both Clinton and Obama did offer plenty of specifics—about how the Bush administration has overreached on executive power, among other things. But only Obama named the legal thinkers he’s consulting.

Katyal, who has been called in by both senators, described what sounded like a typical establishment vs. insurgency split between the two. Clinton “comes at it a bit more from a top-down perspective,” he said, “as in, ‘elites are likely to know what the right answer is.’ She’ll likely talk to the Nobel Prize winner, but maybe not be as likely to talk to the people on the ground affected by the policies.” Obama, on the other hand, talked to Katyal for two hours when the Military Commissions Act, which sought to limit the Guantanamo detainees’ right to bring appeals in federal court, was being debated in the Senate. He wanted to know how the proposed law would play out directly for the detainees, and Katyal was representing Salim Ahmed Hamdan before the Supreme Court.

In the end, both Obama and Clinton voted against the Military Commissions Act. And that’s a good example of why it’s hard to say whether and how Obama’s and Clinton’s different styles would translate into different legal policies. You can get to the same answer from the top down or from the bottom up.

It’s also hard to say whether Clinton and Obama would choose judges who would see cases differently on the bench. Wisely, neither campaign is tossing around names for a hypothetical Supreme Court appointment—even though that is what legal observers most want to know. And both would inevitably reject the idea of a litmus test, while at the same time assuming that they won’t pick a justice who will become the fifth vote for kicking over Roe v. Wade.

One of Obama’s close advisers on legal matters, Cass Sunstein, is a proponent of judicial minimalism—the theory that judges should hew closely to the facts in the cases before them rather than issuing forth with bold and sweeping opinions. So I wondered if Obama might favor moderate judges over strongly liberal ones—a translation to the bench of his calls for unity and bipartisanship, in other words. But Minow and Tribe rejected that. And Sunstein himself has written that given the roaring conservative voices currently on the court and its shift to the right, minimalism isn’t necessarily the best posture for the next justice. “I clerked for Justice Marshall, and while I don’t agree with him on everything by any means, there is an argument that the court would benefit from someone with a vision of equality and liberty,” Sunstein said. “That is clearly absent.”

On Obama’s staff, that absence is also keenly felt. How to fix that? “We’d want a nominee who would do what John Roberts did,” one staff member said. “You go through the process and say ‘Hey, I’ll look at each case as it comes.’ You have a moderate temperament. You’re affable and everybody likes you. And then you get up there, and after a year and a half, you vote on the opposite side from John Roberts in every single case where that’s warranted and it matters.”

The judicial version of Barack Obama, perhaps?

Obama Thrills on the Hill
Jonathan Weisman and Ben Pershing, WaPo
7/29/08

Sen. Barack Obama held his first meeting with House Democrats since clinching the Democratic presidential primaries, huddling in the ornate Cannon caucus room with lawmakers to coordinate policy messages.

House members who were deeply divided during the primary season greeted Obama with warm, sustained applause. Then they pushed him on their own platform of increased infrastructure funding, a new round of flood relief and a second stimulus package aimed at jobs creation. Those priorities meshed well with Obama’s, as the senator shifts from last week’s foreign policy push overseas to a renewed focus on the economy.

House Democratic Caucus Chairman Rahm Emanuel (D-Ill.) said he was looking forward to the day when the occupant of the White House would sign a stem cell research bill into law, give 10 million additional children health care coverage under the Children’s Health Insurance Program, and end the war in Iraq.

But Democratic aides said the loudest applause came when Obama discussed his trip through the Middle East, Afghanistan and Europe, and Democratic leaders hailed a new era when American leadership is respected abroad. House Speaker Nancy Pelosi (D-Calif.) alluded to that after the meeting when she spoke of “America’s leadership role in the world,” and implored Obama to “take our country in a new direction.”

“We are in an historic time and every member of Congress recognizes what an extraordinarily challenge and what an extraordinary opportunity this election represents,” Obama said, flanked by the entire House Democratic leadership.

He added, “Democrats are not for a bigger government but for a responsive, efficient and honest government that is listening to the voices of the American people.”

He pledged to work with congressional Democrats and “like-minded Republicans” to govern after the election.

“This is one of those moments when big change can happen, but only if we seize that moment,” Obama said, before rushing off for a flight to Missouri.

During the hour-long session, according to people in the room, Obama emphasized his plan to reach out to congressional Democrats, both during his campaign and his presumptive administration. Obama touched on subjects ranging from Iran and FISA to energy policy and Justice Department malfeasance.

Members described an upbeat session marked by calls for unity. The one note of discord came when Rep. Adam Schiff (D-Calif.) asked whether Obama planned to implement a “Team of Rivals” strategy in selecting his Cabinet. Specifically, Schiff asked whether Obama might keep Defense Secretary Robert Gates in his current post, prompting a chorus of boos and hisses from the assembled Democrats. Obama responded that he was focused on getting elected before he would consider such decisions.

Rep. Shelly Berkley (D-Nev.) said Rep. Howard Berman (D-Calif.) asked Obama about his stance on the current state of negotiations with Iran over its nuclear program. “If the Iranians don’t accept a deal now because they think they’re going to get a better deal from the next president, they’re mistaken,” Obama responded, according to Berkley.

“There were no surprises,” said Rep. Gary Ackerman (D-N.Y.). Asked whether the subject of Obama’s vice-presidential search came up, Ackerman said: “Are you kidding? There were 230 vice presidents in the room.”

Obama was particularly pointed in discussing recent reports of partisanship and other malfeasance at the Justice Department. “He said his first order of business will be to direct his attorney general to find out what’s gone wrong there,” said Rep. Emanuel Cleaver (D-Mo.).

Rep. Patrick Kennedy (D-R.I.) said after the meeting that Obama reminded him of the last Democratic occupant of the White House. “It’s very similar in manner to dealing with President Clinton. There isn’t a thing that he can’t answer, any question he can’t just wow you with in terms of his answer,” Kennedy said.

After a brief photo-op, Obama walked to the elevator with his arm around Speaker Nancy Pelosi (D-Calif.), the two of them smiling and laughing. Pelosi seemed to say her farewell as Obama entered an elevator, then after a moment’s hesitation, jumped into the car with him just before the door closed.

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

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