Don’t know if you watched the Democratic presidential debate from South Carolina, but I did, and I’ll get kicked out of the blogger union if I don’t pass on some impressions.The format was unusual, with lots of questions demanding (unsuccessfully) short answers, with lots of jumping around on topics, and virtually no candidate interaction, other than that randomly forced by the questions. The two candidates that got occasionally annoying in defying the rules and talking too long were Bill Richardson and (this year’s ultimate protest candidate) Mike Gravel.And speaking of questions, they were occasionally framed and followed-up in ways that betrayed even the “gotcha” instincts of debate moderators. Joe Biden got a question on the Supreme Court’s decision on the congressional “Partial-Birth Abortion” ban that didn’t mention he voted for the ban in the Senate. Bill Richardson offered Whizzer White as a model for the nominees he’d put on the Supreme Court, and nobody noted that (aside from White’s status as something less than a constitutional giant) the Whizzer was a dissenter in the original abortion rights decision, Roe v. Wade. And John Edwards was asked about his attitude towards hedge funds (a subject that most viewers probably knew little or nothing about) without any reference to his own employment by a hedge fund between his presidential runs.The post-debate punditry on the sponsoring network, MSNBC, seemed to endorse the obvious impression that nobody really won or lost, but also suggested that Hillary Clinton did the best job of meeting her goals. She was calm, reasonable, relatively responsive, and occasionally self-deprecating. And on a question that will probably be replayed a lot tomorrow, involving how they’d react to a second 9/11 where al Qaeda’s responsibility was clear, she used the muscle verbs “retaliate” and “destroy,” satisfying those who somehow think female candidates aren’t credible on the use of force (Richardson actually preceded her in immediately mentioning the use of force as a response, while Obama conspicuously omitted it).Obama had some of the most interesting moments. He initially flubbed a “gotcha” question about America’s “three top allies,” and didn’t mention Israel, but nicely handled the follow-up. He was more specific about health care than in past debates. And he did a solid job of answering questions about his position on Iraq.Edwards was subdued and wonky (I personally consider the latter a compliment). He gamely dealt with the inevitable and impossible questions about his expensive haircut. Casual watchers might have been struck by his answer to the question on Iraq, and his implicit challenge to Hillary, but he used almost exactly the same language as in past debates, so pundits and activists probably weren’t impressed.Biden had his classic sound-bite moment, answering a question about his ability to exercise verbal discipline with one word, “Yes.” Dodd went with his counter-intuitive but what-the-hell pitch about his experience. And Dennis Kucinich, partly thanks to losing his protest role to Mike Gravel, was more relaxed and reasonable sounding than I’ve ever heard him, both in the debate and in the post-debate interview.A quick review of the reaction in the progressive blogosphere shows a subdued take on the event. At DailyKos, a reader poll about “who won” shows (as of this moment) Edwards at 20%, Obama at 17%, Clinton at 11%, Gravel at 9%, Richardson at 6%, and the rest scattered, with 11% saying “nobody.” The main outliers here are HRC’s double-digit showing (she inevitably finishes at around 3%, well below Denny the K., in assessments of actual support), and Richardson’s pallid performance. I suspect the latter may have reflected the pub the debate gave to Richardson’s NRA support, and his reluctance to call for Alberto Gonzales’ resignation.So the debate probably moved few votes, but may slightly shift the future landscape. And I hope the formatters of future debates noticed what didn’t work tonight, and try to elicit longer, more substantive, and more interactive answers next time the donkeys gather.UPDATE 1: Richardson’s shout-out to the ghost of Byron White got noticed elsewhere. Scott Lemieux at TAPPED jumped on it before I did. And my buddy Armando at Talk Left went right out and said it disqualified Big Bill from the nomination. If this sort of buzz escalates, we’ll probably see some statement from Richardson’s campaign explaining where their candidate was going with that, before Brian Williamson told him to name someone actually still living. Maybe it was a Western Thing, since the Whizzer was from Colorado. But then William O. Douglas, a much safer liberal role model, was from Washington State. UPDATE 2: Matt Yglesias picked up on my reference to the question Obama got about our “three most important allies.” So naturally, I got kicked around some in Matt’s comment thread, based on the apparent belief that I was lecturing Obama about Israel’s value to the U.S. Actually, all I was doing was pointing to the silly “gotcha” by Williamson, who was clearly hoping Obama would forget to mention Israel (a bad idea in Democratic politics), as evidenced by his immediate follow-up with an Obama quote about the suffering of the Palestinians. Obama turned that around by replying that he was talking about the folly of the Palestinian leadership, and then said the appropriate things about Israel as a U.S. ally. For the record, like Matt, I think this was a ridiculous question. Ranking allies–or, as reflected in yet another dumb question posed to Biden–enemies, is not something any potential president ought to be doing in public.
TDS Strategy Memos
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By Ed Kilgore
In looking at Dobbs v. Jackson Women’s Health Organization from many angles at New York, one I noted was the lonely position of Chief Justice John Roberts, who failed to hold back his conservative colleagues from anti-abortion radicalism:
While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.
When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:
“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”
Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.
In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.
Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”
Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:
“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …
“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …
“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”
One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.