Thick as Thieves

The Minneapolis Star Tribune has an interview with Michael Quinn, the retired police offier who was the main source for Pointergate. It's ... not as awful as it could have been. That isn't to say it's good, by any means. He remains adamant that this was a gang sign, which is just transparently ludicrous at this point, and completely dismisses any racial overtones to the story. That said, his discussion about the role of racism in the criminal justice system is definitely above median. Anytime I hear a cop state that racial divides in arrest rates is both "evidence of racism individually and certainly of racist policies" I have to give a little nod of my head. Ditto with "There is something really wrong with law enforcement policies and criminal justice polices that puts that many people at risk." This is an unusual combination, to be honest -- acknowledging systematic racism in the abstract but denying it in what seems to be a really clear cut case (normally, one acknowledges the obvious case but dismisses it as an aberration). So, I dunno -- 3.5/10? Maybe 4/10 if I'm feeling generous.

But the best part of the interview -- and this is on the transcriber -- was when Quinn was asked whether this would have been a story if Hodge's photo-mate had been White:

"This isn't about the race of the gang. We've got white gangs within the state of Minnesota that are every bit as viscous as any black gang on the street."

While I'm sure Quinn actually said "vicious", I do like to think that the primary problem with gangs in Minnesota is that they're so damn sticky.

SCOTUS Grants Cert. in Obamacare Case

Well I was half-right -- the D.C. Circuit did grant en banc review in Halbig (whether or not health care subsidies are available for federal-established exchanges. But I was wrong that the Supreme Court wouldn't see the need to touch it -- they've granted cert. in a parallel case arising out of the Fourth Circuit.

In theory, this is not an opportunity to relitigate Obamacare. The proper meaning of the text of the Affordable Care Act, in context, is a very separate question from whether the law as a whole is constitutional. Functionally? It will be very difficult for the conservative justices -- outraged that the law was implemented at all -- to resist an interpretation of it that renders it absurd and dysfunctional. But we'll see.

Pointing Fingers

This is literally the sort of thing I joke about. "Haha, some people are so clueless they would think a Black guy pointing his finger is a gang sign." Alas, now it's all over Minneapolis news. They shouldn't have actually needed the photographer (full disclosure: my college buddy) to have to tell them how "pointing" works, but it's journalistic malpractice to continue running with this lunacy.

And yet somehow, even though 3 hours ago this would have been the parody example of "paranoid racism", odds are that I'm going to be the one accused of "playing the race card."

Two Thoughts on the Sixth Circuit Gay Marriage Decision

As you may have noticed, the Sixth Circuit snapped the streak of gay marriage appellate court victories by a 2-1 vote in DeBoer v. Snyder. Reading Judge Sutton's I felt like he was doing his best John Marshall impersonation, but my descriptor was immediately upstaged by Judge Daughtrey's dissent: "The author of the majority opinion has drafted what would make an engrossing make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy." In any event, given the direction the modern GOP is heading I don't think the Party will view this opinion as adequate penance for the Obamacare apostasy.

Others will have more substantive commentary I this opinion and its implications (the most obvious one being the creation of a circuit split, which means the Supreme Court likely will be forced to step in). I did have two thoughts I felt worth sharing:

* Probably the primary arrow in the conservative judicial quiver regarding gay marriage bans is the appeal to let the democratic process take its course. Judge Sutton leans into this theme hard -- his opinion comes close to treating gay marriage as a democratic inevitability. And maybe he's right, though I'm skeptical -- at least as a nationwide matter. But I've yet to see a conservative opinion on this subject address the heads-I-win-tails-you-lose logic at work here. In the early 1970s, Baker v. Nelson era, gay rights claims could be brushed aside because the LGBT movement was barely a blip on the political radar. Nowadays, they start doing much better in the political game, and suddenly that new-found political clout is the reason for continued judicial restraint. Now one could argue that its the older, dismiss-the-marginal court that's the real villain here. But the fact remains that, under this line of argument, equal protection doctrine is making a promise it cannot keep. It is distressing how easily these opinions slide between older precedents which justified themselves on the marginal status of gays and lesbians (nobody supports gay marriage! Sodomy can be criminalized!) and newer ones which rely on their (sort of) successful integration.

* I've become more intrigued about the expressive meanings communicated by rational basis versus heightened scrutiny review, and how they impact judicial willingness to invalidate legislation. We often think of tiered-scrutiny equal protection doctrine as expressing a continuum of social concern and condemnation: problems we think are relatively minor and unimportant get rational basis review, while those that are more severe and threatening deviations from our collective national charter get strict scrutiny. This, in any event, characterizes a lot of the rhetoric that goes into how we decide whether a given classification will receive heightened scrutiny. Yet there is a sense in which the opposite is true. A law which fails strict scrutiny may be a perfectly good law, all things considered. By definition, it may well be "substantially related" to an "important governmental interest" -- and hey, that probably puts it above median as legislation goes. So there's no shame in failing strict scrutiny. Rational basis invalidation, by contrast, seems to involve a much harsher moral judgment -- anybody who supports this law is irrational, a loony, a nutjob. So in that sense, losing on rational basis represents a much more significant judicial benchslap than strict scrutiny review could ever deliver. Of course, the problem is that courts will be quite reticent to actually make such declarations if doing so means contending that large swaths of Americans hold irrationally prejudiced political beliefs. Going back to Judge Sutton: "A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States." And ultimately, this results in a similar paradox as above: the courts are reluctant to elevate all that many classifications to the ranks of "suspect"; they argue that such a decision must be restricted to only the most extreme instances of wrong. And courts are reluctant to strike laws down under rational basis for the same reason, as Judge Sutton alludes to. Together, the real principle here is simply that equality breaches by definition must be rare.

No News is Jews News

I have to say, of all the storylines flowing out of this past election, I think Jews can't be argued to have been more than trivial players. That hasn't stopped people from trying, of course. J Street is staking a claim to be the premier Israel advocacy organization in America because it spent more than any other Israeli PAC. This is relatively meaningless, as most political advocacy (dollars and otherwise) doesn't go through PACs. Meanwhile, right-wing groups are crowing that J Street got "massacred" because many of its endorsees lost -- even though that's almost wholly attributable to the general conservative wave washing out J Street's liberal endorsees. I know of no one who thinks that Mark Udall lost because of J Street's support.

In reality, there's nothing new under the sun. Jews continue to vote Democratic overwhelmingly, though the Republican Jewish Committee is certainly welcome to brag about nearly breaking 30% in a historic Republican wave.

But perhaps the most abjectly pathetic attempt to see-no-evil comes in this "We Are For Israel" attempted fisking of a J Street poll on American Jewish attitudes. Reading the poll, it seems to give pretty straight-forward, unsurprising results. Jews want America to take an active role in the peace process, including criticizing and/or pressuring both Israel and Palestine where appropriate. That position commands overwhelming support -- 73-74% of Jews approve. Jews are also generally supportive of Israel's conduct in the latest Gaza War, strongly oppose the Boycott, Divestment, and Sanctions movement, generally support the Iran deal that's currently being negotiated, and generally support the two-state solution. Oh, and they loathe the Republican Party. WAFI does an impressive sit of pirouettes and contortions, most of which involve markedly inconsistent interpretations on what a "somewhat support" answer means, to deny everything -- even though all of this is conventional wisdom.

Listen up, everyone: Jewish voting behavior isn't a mystery. They hold conventional liberal views on most issues -- Israel included -- and so they vote for conventional liberal candidates. That's pretty much a constant. It gets washed out sometimes because, as many seem to forget, Jews represent a tiny proportion of the American population and thus have only a limited ability to drive electoral outcomes (or even the contours of the public conversation regarding what Jews think). But to folks in the know, there's nothing to be seen here that is at all novel or even all that interesting.

Election 2014 Post-Mortem

Yesterday felt much more like a gut-punch than did the last GOP midterm wave in 2010. I wondered if that was just because present pain is more salient than that of four years ago, but looking over my 2010 recap posts, it really does seem like I was at least putting on a braver face than I'm feeling now.

In some ways, this is very strange. Objectively, 2010 was a far greater disaster for team blue than 2014. 2010 was a redistricting year, meaning that the GOP wave hurt the Democratic Party for upwards of a decade. And the 2010 election actually blocked substantive Democratic progress -- we could pass legislation with control over the House and Senate. Flipping the Senate just means we go from doing nothing to doing more nothing (I will mail $20 to the Denver Post for every piece of substantive legislation that gets passed and signed by the President if they agree to set one of themselves on fire each month that doesn't happen. That may seem harsh, but the punditry-biz suffers from a severe lack of accountability and theirs was an obviously ludicrous prediction ex ante).

I think what's bothering me is more psychological. 2010 was the wave of the unknowns. Yes, many of those elected were lunatics, but they weren't known lunatics. They had been out of power. They were unproven quantities. It was nothing more than voting for "the other guy."

By contrast, some of the big winners this cycle -- Sam Brownback, Paul LePage, Rick Scott, Thom Willis, to name four that spring immediately to mind -- have spent the last few years affirmatively making their communities worse. Far, far worse. They're very known quantities. They planted a flag on pursuing and implementing policies that run the gamut from disastrous (Kansas tax cuts) to abjectly immoral (rejecting Medicaid expansion; voter ID rules). And they were rewarded for it. The expressive message of this election -- fairly or not -- was to affirm those choices. Maybe that's why my sentiments feel much more akin to how I felt in 2004. There too, what hurt wasn't that the wrong choice was made, it was that the wrong choice was ratified. "An error", as the saying goes, "doesn't become a mistake until you refuse to correct it."

2014 Election Liveblog!

Some traditions can't be let go so easily. Even if this isn't looking to be the cheeriest electoral cycle in recent memory. I will say, though, that I'm optimistic about the governor races.

All times Pacific. Let's go!

* * *

4:55 PM: We begin by noting that the Kentucky Senate race has already been called for McConnell -- no surprise there. The Virginia Senate race has not been called for Warner, which is a little more surprising and disheartening. But if you're looking for good news, Charlie Crist appears to be doing great in Florida. Down with Skelator Rick Scott!

5:40 PM: Just got home with a large cheese pizza -- that and Masterchef Junior will be my only joys tonight. What did I miss? Oh hey, Republicans picked up both West Virginia and Arkansas Senate seats. Neither is a shock, though -- bonus fact -- soon-to-be-ex Arkansas Senator Mark Pryor went to my high school.

5:43 PM: Man, if Ed Gillispie takes out Mark Warner in Virginia, this will really be a bad night. The challenger is up 51/46 with 60% reporting

5:45 PM: Twitter chatter is that Jeannie Shaheen will comfortably beat former Massachusetts Senator Scott Brown to hold her New Hampshire Senate seat. But I can't tell if this is "projecting based on early returns" chatter or "we're comfortable making a call chatter." CNN has only 19% in.

5:48 PM: I was a bit annoyed to not be voting in Maryland this year, since for the first time in my electoral life there was actually a semi-contested race there. That feeling was in equipoise with my annoyance that the gubernatorial race was, in fact, competitive, since by all rights Anthony Brown should have had to strangle a toddler to lose here. Anyway, with 10% in Brown is up 10.

5:53 PM: Apparently folks are calling New Hampshire for Shaheen. And they've also called the Pennsylvania Governor race for the Dems, which was possibly our most obvious slam-dunk flip this cycle.

5:56 PM: Crist is fading late in Florida. He's down three, but it's mostly South Florida left.

6:03 PM: Some states the road to a Democratic victory is generic: "Do better than expected." In others, there are more specific benchmarks. In Colorado, for example, it's about the fabled Democratic ground game. In Iowa, it's about voters finally recognizing that Joni Ernst is a goddamn lunatic.

6:06 PM: 66% in and Warner is still down by 5. Remaining votes might lean a little Dem, but don't seem to be overwhelmingly blue.

6:09 PM: Abby Huntsman: "Scott Brown is now the first person in American history to have lost Senate races to two diff women. Scott Brown=feminist hero."

6:13 PM: I was optimistic about Kansas, but so far Pat Roberts appears to be squeaking through. Dems carry a slight advantage on the governor's side. Dethroning Sam Brownback would be a solid consolation prize.

6:17 PM: 77% in and Warner is back within three. I do not like that I consider this to be good news.

6:24 PM: Making fun of Scott Brown is, like, the only thing keeping Democrats going right now. Every third tweet. Meanwhile, with 81% in Warner has closed the gap to one point.

6:25 PM: It's still a three point Scott lead in Florida with 97% in. The only solace is that it still looks to be mostly South Florida out (Broward County is the real laggard -- it's only 22% in and Crist is up 69/28 there).

6:29 PM: ... aaand as I saw that, Broward jumps to 71% reporting, and Scott's lead drops to a single point. Miami-Dade also still is only 74% in.

6:34 PM: Another possible notch on my "cheer-up" list would be the defeat of Maine Governor Paul LePage. Right now he's down six points to Mike Michaud. On the other hand, if LePage does pull out the win, I can equally look forward to the ritual murder and devouring of Eliot Cutler.

6:38 PM: Seth Moutan wins in the MA-06, meaning that the Bay State's congressional delegation will remain true-blue. On the Governor's side, Martha Coakley trails by one with 40% in.

6:42 PM: Democrats pick up a Florida House seat (FL-02, in the panhandle). It must be really embarrassing to lose as a Republican incumbent in a conservative region. What did you do Steve Southerland? (Lest Democrats get too excited, they're losing in the FL-26 by four points, which would negate the pick-up).

6:54 PM: John Barrow is getting obliterated in the GA-12. It had to happen one of these years, I guess.

6:57 PM: I think Mark Warner is going to squeeze through, but this is a very disappointing performance on his part.

7:11 PM: So Michelle Nunn can start closing her 16 point gap in the Georgia Senate race anytime now ....

7:16 PM: The story of the NC-Sen all night has been "Kay Hagan is trailing, but wait until Charlotte comes in."

7:18 PM: Did I speak too soon about John Barrow? He's pulled to within 6 in the GA-12 (but 91% are in and CNN's called it).

7:21 PM: Colorado Senate called for Cory Gardner. I look forward to the Denver Post being vindicated in its prediction that a GOP-controlled Senate will suddenly decide that what it wants most in the whole wide world is to cooperate with Barack Obama.

7:28 PM: Florida called for Rick Scott. Wisconsin called for Scott Walker. Gross.

7:33 PM: Let's take a look at Maryland! John Delaney is ... losing with half the vote counted in the MD-06. And Republican Larry Hogan is up six on Anthony Brown in the governor's race. In both races, Montgomery County may well save the day. You're welcome, rest of Maryland.

7:42 PM: Who knew the "unskew" movement was just two years too early? Republicans are, if anything, overperforming expectations. For example, David Perdue is throttling Michelle Nunn in Georgia -- up by 16 points in a race that all the polls said was going to a run-off.

7:59 PM: Hagan is not closing in North Carolina. And all of the sudden I'm seeing "un-calling" of New Hampshire. If that race flips, Democrats will really start rending their garments -- mostly because they've spent most of this evening consoling themselves by making fun of Scott Brown (see my 6:24 PM post).

8:03 PM: Oh thank goodness. MasterChef is starting. I need the break.

8:22 PM: You're a vengeful Democratic God. You can choose to smite either (a) Eliot Cutler, (b) the Denver Post editorial board, or (c) the entire Iowa electorate. Who do you choose? I pick "b" -- that endorsement represents everything I loathe about the media, wrapped up in a hellish bow.

8:31 PM: Thank God Baltimore County has mostly finished reporting -- it's going 61/37 for Hogan. Now, even though Hogan has a 53/45 lead over Brown, most of the outstanding votes are in Montgomery County (where Brown is up 63/36).

8:45 PM: Listen, I know it's been a rough night, but chill out about Chris Van Hollen. The only county that hasn't reported is MoCo (32% in), and Van Hollen is pulling in three-quarters of the vote there.

8:48 PM: I wanted Pat Roberts to lose so we might hang onto the Senate, but since that's out of reach anyway I can't even be mad bro. And as for Sam Brownback (who's managing to cling to a two point lead), well, if Kansas wants to self-destruct that's their problem.

9:42 PM: Anthony Brown concedes to Larry Hogan. Somewhere there's a dead toddler who's been avenged.

10:09 PM: David Roberts on Twitter: "1351 is losing in WA? Tonight can blow me." I don't even know what 1351 is, and that still encapsulates my attitude perfectly. I'm out for the night.