There Was No Civil Liberties Mandate

Conor Friedersdorf of The Atlantic has a widely read explanation of why he cannot, on moral grounds, do as he did in 2008 and vote for Barack Obama. It’s a long piece and it’s not structured as an essay so much as a series of interrelated but independent criticisms; in general, Friedersdorf is outraged by Obama’s use of drones as well as his unilateral commitment of US forces in Libya. He calls these “deal-breakers.”

In different ways, each of these transgressions run contrary to candidate Obama’s 2008 campaign… Obama ran in the proud American tradition of reformers taking office when wartime excesses threatened to permanently change the nature of the country. But instead of ending those excesses, protecting civil liberties, rolling back executive power, and reasserting core American values, Obama acted contrary to his mandate. The particulars of his actions are disqualifying in themselves. But taken together, they put us on a course where policies Democrats once viewed as radical post-9/11 excesses are made permanent parts of American life.

I’m not sure what “proud American tradition” Conor is referring to here; I’d guess he’s thinking of the Jeffersonian rollback of the Alien and Sedition Acts, the post-Palmer Raids slackening of WWI’s most authoritarian strictures, and the relative clipping of the CIA’s wings that resulted from Vietnam as well as Watergate. In all of these cases, however, the “roll back” was more obvious in historical retrospect than at the time. With the possible exception of the reaction to Watergate, none of these issues became determinative, electorally, or particularly important outside of elite circles. And as the post-WWII Red Scare as well as the post-9/11 hysteria showed, the authoritarian, security-first sensibility has never been exorcised from America’s political soul.

What I’m trying to say is that the health of civil liberties in the United States ebbs and flows; and it does so along a timeline that’s much longer than a single presidential term. Further, Conor indulges in something of a fantasy, one that I’ve previously fallen victim to myself, that Barack Obama was elected in no small part because of his beliefs about civil liberties. In this case, the fantasy is manifested in Conor’s accusation that Obama has presided “contrary to his mandate.” Sorry, but no. Once again we’re seeing a conflation of elite attention with that of the public at large — and at the risk of belaboring the point, an electoral “mandate” is axiomatically more about the public at large than elites. Recent polling shows clear majorities — including three-out-of-four liberal Democrats — favor the President’s counterterrorism policies.

Conor might say that such poll results are a testament to the intellectual worthlessness of partisanship. OK, sure; but whatever the particular motivation happens to be, the end-result is clear: those voters who like Obama overwhelmingly do so for reasons other than his civil liberties beliefs. He changes, and they either change with him or shrug their shoulders and then ask about the economy.

None of this is to say Conor should vote for the President. We all have our “deal-breakers” and while drone strikes and the expansion of the Imperial Presidency are not mine, they are for many others. If these are the issues from which you decide how to vote, then Gary Johnson, who Conor endorses instead, is indeed a better candidate than either Obama or Romney. Still, when decrying Obama’s civil liberties record, we should keep ourselves cognizant of the political realities of terrorism and civil liberties in America today. The American story is not as rosy — and Obama’s contribution not as shameful — as we might believe.

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57 thoughts on “There Was No Civil Liberties Mandate

  1. “None of this is to say Conor should vote for the President. We all have our “deal-breakers” and while drone strikes and the expansion of the Imperial Presidency are not mine, they are for many others. If these are the issues from which you decide how to vote, then Gary Johnson, who Conor endorses instead, is indeed a better candidate than either Obama or Romney. Still, when decrying Obama’s civil liberties record, we should keep ourselves cognizant of the political realities of terrorism and civil liberties in America today. The American story is not as rosy — and Obama’s contribution not as shameful — as we might believe.”

    So Elias, you don’t disagree with Conor’s main point or his logic, just some of his political and histrical analsysis?

    Obama ran on bringing transparency to the White House, which, after two terms of Bush, felt anything but. Obama’s actual time in Office has actually enhanced the secrecy surrounding the administration, not lessened it.

    And to the point of “deal breakers,” just because we each have our own, does not mean that each of our own is correct.

    Saying, “when decrying Obama’s civil liberties record, we should keep ourselves cognizant of the political realities of terrorism and civil liberties in America today,” seems completely beside the point.

    I would be interested to hear you actually defend why we should be more mindful of the political realities, and in what ways these realities should inform our voting.

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    • So Elias, you don’t disagree with Conor’s main point or his logic, just some of his political and histrical analsysis?

      Part of his denunciation of the president is based on a false premise, that he was elected to reform war on terror-era abuses, and that he has strayed from the historical norm in generally declining to do so. I don’t care who Conor votes for, but his reasons should be well-founded.

      Obama ran on bringing transparency to the White House, which, after two terms of Bush, felt anything but. Obama’s actual time in Office has actually enhanced the secrecy surrounding the administration, not lessened it.

      In the aggregate, I don’t think this is true. It’s where the administration has reneged or failed that receive the most attention — rightly, since he did promise better — but that’s not the entire picture.

      And to the point of “deal breakers,” just because we each have our own, does not mean that each of our own is correct.

      Unless you’re referring to the empirical basis on which these deal breakers rest, I don’t agree. People can do whatever they want with their vote. If your deal breaker is wearing sweater-vests, then whatever; it’s your vote.

      I would be interested to hear you actually defend why we should be more mindful of the political realities, and in what ways these realities should inform our voting.

      Again, I don’t care who you vote for. But don’t kid yourself into thinking that if Obama had rolled back Bush-era innovations entirely, then something like what happened in Benghazi occurred (or worse), then whether or not the two events actually had anything to do with one another, the story wouldn’t become: Obama put American lives in danger for the sake of ivory tower civil liberties fundamentalism. And then he’d lose reelection. If you don’t care whether he wins or loses, that’s fine; but let’s not pretend Obama had a choice in anything but the most literal sense.

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      • “I don’t care who Conor votes for, but his reasons should be well-founded.”

        So you don’t think that there is a right and wrong person to vote for in elections? That would seem to lead to the absurd notion that you don’t think there are right and wrong policies that could result from the election.

        This seems of a piece with “you have a right to your opinion.” Yes, people have a legal right to believe what they wish (to a degree..mental health and all that), but that doesn’t mean they are right to believe whatever they believe. So I’m not sure what having the right to vote for whomever I want has to do with whether I’m actually making the right choice with my vote (“right” in the sense that goes beyond: correct given my opinions, toward being “right” due to what is true).

        “I don’t agree. People can do whatever they want with their vote. If your deal breaker is wearing sweater-vests, then whatever; it’s your vote.”

        If someone says that was their dealbeaker, I’d tell them they were fools and are doing themselves and their country a grave disservice. Again, I’m not sure how you can maintain this position, given that I know you think there are certain policies that are better than others, and that election outcomes have a lot to do with deciding whether those policies are implemented.

        “Obama put American lives in danger for the sake of ivory tower civil liberties fundamentalism. And then he’d lose reelection. If you don’t care whether he wins or loses, that’s fine; but let’s not pretend Obama had a choice in anything but the most literal sense.”
        Your implicit claim here is that getting re-elected is more important than these other issues. Assuming for a moment that this would have stopped him from being re-elected, you’d still have to make the argument for why his moral stand on these issues would not matter given the larger context.

        Instead of making the utilitarian argument contra Conor’s Kantian one, you seem to want to waste time on tangential points that have nothing really to do with the actual issue of whether supporting Obama despite his civil liberties and war crime abuses is right or not.

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        • 1. I don’t share many of Conor’s values. Obviously I think everyone should have the same values as I do, but I recognize that many or even most do not. I don’t believe that my values are empirically *right* to the degree you seem to believe I do. I do believe that they’re mine.

          2. If Obama loses = Mitt Romney wins = civil liberties are even worse shape than today. (Like w/r/t torture, which the Times reported yesterday is likely to return under a President Romney.) I thought this was obvious enough I needn’t go into it. His “moral stand”? I truly don’t care. Presidents are not our moral leaders; the results are what count. Warren Harding was by all accounts a decent if dumb guy; Johnson was a near-sociopath with a mountain of neuroses. Johnson is the better president, by far.

          3. Kantian, Cartesian, utilitarian; whatever the philosophical underpinnings of Conor’s argument don’t matter much if the empirical basis on which they stand is, well, wrong. You can call it tangential nit-picking; I’d call it a push towards having a conversation that resides somewhere at least near the real world.

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          • Elias, I’m not sure why you’re still ducking the issue. If you don’t think Conor’s vote is wrong, that’s one thing. If you do, but don’t think you have a good case to make against it, that’s another.

            Personally, it appears like you’re trying to make a case against his vote by disingenously nitpicking about, for instance, what Obama said he would do, vs. what he did, and the fact that other Presidents have in the past abused civil liberties as well. Neither of those things directly addresses the question of: Why relect a man who has demonstrated he doesn’t regard civil liberties, or transparency, very highly?

            “I’d call it a push towards having a conversation that resides somewhere at least near the real world.”

            You haven’t addressed Conor’s problem with Obama, or show how that problem shouldn’t be a problem in light of political realities.

            If you want to say, drones, torture, secrecy, and civil liberties abuses will be worse under Romney, make that argument.

            I don’t think that’s the one you’re trying to make.

            Instead your knocking out pillars which are not central to Conor’s argument, and yet acting as if they matter. This the definition of distractionary.

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            • I can’t keep going back and forth on this, unfortunately, because I’m at my other other job. But I’ll try to leave you with something valuable.

              * Not thrilled with the claim of disingenuousness, don’t think it’s fair, but I will cop to being uninterested in having an OBAMA vs. ROMNEY debate on civil libs. I think it’s kind of obvious which one I consider to be the lesser evil on the issue, especially when you keep in mind that I consider marriage equality to be an issue of liberty (I know plenty of people who think their issue is civil libs would disagree with me, just for the record). I hesitate to go much farther on this path because Scott Lemieux of LGM’s posts this week in response to Conor say, more or less, everything I would. So check those if you want.

              *I can say, however, that your comment below, gaming out the benefits of a President Romney, strikes me as deeply naive or, at worst, residing in the world of philosophical abstractions to a degree that I find morally problematic. More than the latter, though, the former is my gripe. Your assumptions are ill-founded. Democrats would decry Romney’s civil lib record? Like they did under W? How’d that work out for civil libs? Or the implicit idea that Dems would become the part of civil libs — this is the essence of what I tried to do in the OP. There will never be a party of civil libs in the US of any consequence. Because in a two party system, the parties go where the voters are; and there are, relatively speaking, NO voters who make their decision on civil libs lines. It is not a concern of the polis; and it never was! There’s a reason the Framers were so ambivalent about democracy!

              Conor may understand this — in fact, I think he does, quite well — but it’s an essential point that needs to be understood before discussing anything else: there is a consensus among political elites (not all elites but political ones), spanning both parties, in favor of the general legal architecture established under Bush and continued under Obama in the name of counterterrorism. Beyond symbolic candidates like Johnson or Stein, there is no one you can vote for in November who will represent your views on civil liberties.

              And that’s why I say Conor can vote for whoever he wants; he lives in CA, his vote is mainly symbolic, and if he wants to use that symbolic gesture to register his disgust with the elite political elite’s consensus re: civil libs, more power to him. But he shouldn’t do so while thinking Obama is somehow an aberration from America’s political mainstream OR from American history. And neither should you.

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                • Yeah. I read But he shouldn’t do so while thinking Obama is somehow an aberration from America’s political mainstream OR from American history. And neither should you and I remember the people who were proud and excited to have voted for Obama.

                  It’s strange to see words that I might say about Obama coming out of Elias’s mouth.

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                  • It’s strange to see words that I might say about Obama coming out of Elias’s mouth.

                    Why? Because you assume Elias can’t see politics outside a purely partisan filter? If anyone is saying something true on this topic, it’s Elias: foreign policy is determined by an institutional apparatus comprised of people with generally shared beliefs about the US’s role in international affairs. Thinking the President has unilateral control over that apparatus is naive.

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                    • But I thought we were talking about civil liberties, not foreign policy.

                      To see Obama, of all Presidents, as “just another one” is… well, it’s one of the reasons I’ve abandoned the two real parties and why I’m voting for Gary Johnson.

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                    • To see Obama, of all Presidents, as “just another one” is… well, it’s one of the reasons I’ve abandoned the two real parties and why I’m voting for Gary Johnson.

                      What’s the likelihood that a President Gary Johnson himself wouldn’t be “just another one”?

                      As Ethan has noted below: Senator Obama had quite a civil liberties and national security record before becoming President, and almost all of it was positive.

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                    • Nob, I think you’ve hit on the problem here: the system is set up so that the pressures within the government, as well as special interests (including contractors) and political pressures (this last one is driven, to some extent, by the money in the first two), have made it very difficult not to fight the war on terror at least as aggressively as it has been fought to this point, which includes being terrible on civil liberties. I imagine there are very few people strong enough to walk into the Oval Office and not be walked all over by the defense and intelligence establishments. Plus, you’ll always have someone whispering in your ear, “If we don’t do this, and there’s another 9/11, the nation will blame you.”

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                    • On civil liberties and the “War on Terror?” Probably. The only downside might be this: Obama is not likely to be any worse in his second term than he was in his first. Romney will probably ramp it up, to distinguish himself from Obama. Then the next guy (Democrat or Republican) ramps it up from Romney, and the next guy, and the next guy.

                      Like I said, we’re fished.

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                    • No, I’d still like to give this Johnson fellow a try.

                      If he somehow by some crazy miracle got elected, then followed the exact same path as his predecessors, THEN it’s indubitably time for revolution in the streets.

                      Basically, voting for Johnson is a way to delay the need to take to the streets just a little longer :-)

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                    • foreign policy is determined by an institutional apparatus comprised of people with generally shared beliefs about the US’s role in international affairs. Thinking the President has unilateral control over that apparatus is naive.

                      I agree, especially with the bolded part (b/c I’m the one who bolded it). But there are somethings a president can still control (such as Jaybird’s example of the kill list) and some things he or she cannot. Some actions are more actions of choice than others are, and some are less so.

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              • “But he shouldn’t do so while thinking Obama is somehow an aberration from America’s political mainstream OR from American history. And neither should you.”

                That still has nothing to do with the actual electorial queston of who to vote for and why.

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              • But he shouldn’t do so while thinking Obama is somehow an aberration from America’s political mainstream OR from American history. And neither should you.

                I don’t know, I think he’s been a pleasant aberration.

                He hasn’t interned an entire ethnicity, he hasn’t passed laws that exclude an entire region from immigration and citizenship eligibility, he hasn’t ordered people to vacate their homes for government foreclosures and he hasn’t really jailed anyone solely for expressing dissent about the war effort.

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            • Warren Harding was by all accounts a decent if dumb guy; Johnson was a near-sociopath with a mountain of neuroses. Johnson is the better president, by far.

              Except for his support of the Black Codes and his firing of Edwin Stanton.

              But more seriously (and yet, still tangentially) any analysis of Harding vs. LBJ (who you actually meant) needs to account for Vietnam.

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      • Major issues with that last paragraph. Making a decision based on principle even with the expectation that it will lose you the election is a choice. It’s a very important choice. I’d go so far as to say that, if candidate can’t think of any issue where he would make that choice, he doesn’t deserve to be president. A person has to have some principles.

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  2. I recognize that the principal motive for Obama’s election in 2008 was economic. The voters expressed dissatisfaction with the economy and the government’s response to the financial crisis. Of course.

    Rationally, they should have known that the choice they really faced was something along the lines of “Are we going to bail out the blue-chip companies with four trillion borrowed dollars, or are we going to bail them out with six trillion borrowed dollars?” That’s not the choice as it was framed, of course. So it seems to me that what really happened was that the bulk of Obama voters chose “hope and change” over “stay the course,” and what they got was “stay the course” in different packaging.

    So to that extent, the OP is right that Obama’s promise to deliver a changed direction in government on the civil liberties front was a side dish at best; the meat and potatoes was the promise of new, more better economic policy. With that said, we were promised a government that would be more respectful of civil liberties than the old administration, and just as with the economy, and what we actually wound up getting turned out to be “stay the course” in different packaging.

    That this is a concern felt more deeply by high-information voters than low-information voters (or “elites” as opposed to “non-elites,” if you prefer) ought not to diminish its importance. If low information voters don’t care about that, well, shame on them. If the opposition party is even worse than the incumbent on that, well, shame on them. Barack Obama did not (twice) swear an oath to preserve and protect Wall Street. When you read the Constitution, you will find that the United States of America has explicit guarantees of individual civil liberties, and not the facilitation of GDP expansion, written into the architecture of its government and its most fundamental laws.

    Yeah, I do think that makes civil liberties an issue worthy of consideration, even if there is no viable alternative at the ballot box.

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    • +1 Burt.

      I think there are two basic arguments against voting for Obama that try to be pratical and pragmatic on these grounds.

      1.) Obama has bestowed Democratic political legitimacy to all of the things that were, under Bush, considered abuses by that group. As such he has vastly undermined one party’s ability to rein in the executive branch on those issues. A Romney presidency would at least demonstrate a) that enough dems won’t let that stand and 2) force liberal pols to oppose the now Republican President on those issues before they are completely solidified over the course of two, two-term admnistrations, one republican and the other dem.

      2.) Which more or less picks up on points just made—Romney would be opposed on these fronts, whereas Obama will not be. And the idea that Romney would just do whatever he wanted once in office is laughable. If Johnson was able to spoil the election for Obama, which he probably won’t be, then Dems would be forced to take those issues back up, rather than treating civil liberties and anti-war liberals like they do union liberals, i.e. like dog $#!%.

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      • 1. If you’re worried about the ability to rein in the executive branch, your focus should be on Congress. You know, those folks (including Democrats) who practically went into hysterics in preventing the closure of Gitmo. And by the way, where’s all this liberal angst on civil liberties when it comes to Dianne Feinstein, Ron Wyden and Barbara Mikulski? They’ve been on the Senate Intelligence Committee since 2001. Does anyone believe they were kept totally in the dark about any of this stuff?

        2. There is no conceivable way that Romney can possible get elected without having at least a GOP majority in the House and it’s almost as certain that there will be more than enough Republicans in the Senate to stymie any effort to restrain him in the body. So, what sort of “opposition” do you think a President Romney would really face?

        Mike

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        • “enough Republicans in the Senate to stymie any effort to restrain him in the body. So, what sort of “opposition” do you think a President Romney would really face?”

          That is, well, false.

          And to your first point, I don’t live in those states, so I can’t do much about those Senators.

          And yes, it takes two to tango, clearly Obama and Congressional dems like to tango just fine, I don’t think they’ll take the same approach to Romney, but if you disagree, I’d love to see your argument and evidence to the contrary.

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          • “I’d love to see your argument and evidence to the contrary”

            How did Democrats in Congress behave during the Bush Administration? How did they behave EVEN AFTER public disclosure of things like torture and warrantless wiretaps? How did Democrats in Congress behave when Obama wanted to close Gitmo?

            And if you’re so big on evidence, where is any that even suggests not voting for Obama will accomplish anything or advance any of the issues you claim to care about? ‘Cause the evidence we have about not voting for the lesser evil in 2000 doesn’t appear to support your view.

            Mike

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      • 1.) Obama has bestowed Democratic political legitimacy to all of the things that were, under Bush, considered abuses by that group. As such he has vastly undermined one party’s ability to rein in the executive branch on those issues. A Romney presidency would at least demonstrate a) that enough dems won’t let that stand and 2) force liberal pols to oppose the now Republican President on those issues before they are completely solidified over the course of two, two-term admnistrations, one republican and the other dem.

        As I’ve noted before, I think this is patently false, because 1. the legal arguments used by the Obama Administration are substantially and quite substantively different from those used by the Bush Administration.

        And 2. the Obama Administration did try to close GITMO. It was hysterics in Congress (by Democrats, no less!) who forced them to keep it open.

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  3. It should be noted, there was a reason Obama beat Hillary, and it wasn’t economic, or about health care, two issues she was clearly more trusted on.

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      • Which she voted for and Obama did not, because he wasn’t in the Senate, though both had the same policy going forward.

        It was more so a general feeling that because Obama had always been a critic of Bush war excesses, he would rein them in, not simply push them underground and out of sight.

        He was to the left of her Clintonian center on civil liberties, though his politically expedient shift was evident even then I suppose:

        http://www.nytimes.com/2008/03/01/opinion/01rosen.html?_r=0

        In the Senate, Mr. Obama distinguished himself by making civil liberties one of his legislative priorities. He co-sponsored a bipartisan reform bill that would have cured the worst excesses of the Patriot Act by meaningfully tightening the standards for warrantless surveillance. Once again, he helped encourage a coalition of civil-libertarian liberals and libertarian conservatives. The effort failed when Hillary Clinton joined 13 other Democrats in supporting a Republican motion to cut off debate on amendments to the Patriot Act.

        That wasn’t the first time Mrs. Clinton tacked to the center in a civil-liberties debate. In 2005, she co-sponsored a bill that would have made it a federal crime to intimidate someone by burning a flag, even though the Supreme Court had struck down similar laws in the past. (Mr. Obama supported a narrower bill that would have satisfied the Constitution.) And Mrs. Clinton opposed a moderate proposal by the United States Sentencing Commission that would have retroactively reduced the draconian penalties for possession of crack cocaine — a proposal supported by Mr. Obama, and by liberal as well as conservative judges.

        http://voices.washingtonpost.com/44/2008/06/obama-supports-fisa-legislatio.html

        In so doing, Obama sought to walk the fine political line between GOP accusations that he is weak on foreign policy — Sen. John McCain (R-Ariz.) called passing the legislation a “vital national security matter” — and alienating his base.

        “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program,” Obama said in a statement hours after the House approved the legislation 293-129.

        This marks something of a reversal of Obama’s position from an earlier version of the bill, which was approved by the Senate Feb. 12, when Obama was locked in a fight for the Democratic nomination with Sen. Hillary Rodham Clinton (D-N.Y.).

        Obama missed the February vote on that FISA bill as he campaigned in the “Potomac Primaries,” but issued a statement that day declaring “I am proud to stand with Senator Dodd, Senator Feingold and a grassroots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty.”

        http://civilliberty.about.com/b/2008/01/15/who-is-the-best-democratic-civil-liberties-candidate-for-2008.htm

        Compare this to Obama, who has dedicated most of his adult life to citizen activism and issue advocacy–as a community organizer, as a civil rights attorney, as author of a bestselling 1995 book (Dreams from My Father), as a constitutional law professor at the University of Chicago. When he did win election to the Illinois State Senate in 1996, his primary reason for being there seemed to be civil rights activism; his legislation established a new program to monitor police racial profiling, and required that homicide interrogations be videotaped. He was also active in death penalty reform, and tax reforms that primarily centered on the needs of low-income residents.

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  4. One of my “lessons learned” from blogging (well, maybe confirmed more than learned) is people’s assumption that their own “deal breaker” issues are viewed through the same lens, with the same level of import import, as the vast majority of Americans.

    This is a very different argument than whether a particular policy is good or bad, mind you. Storming into homes that are assumed to be meth labs, or public funding of NPR might or might not be things worth fighting against. But I am constantly amazed at how many people are convinced that the American people are just about to rise up in fury over these (or other) issues, despite the obvious and overwhelming evidence that the American people really don’t care.

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  5. I’ve said this a couple places but when you say Conor’s deal-breakers make Gary Johnson a better candidate — no they do not. Gary Johnson conceded that drone strikes might make us enemies but also said he might well continue the drone war, and continue to base counterterrorism operations in Afghanistan. If the drone war is a deal breaker for you, and you want to show that with a vote, you should vote for someone who opposes it, no? Conor’s position makes no sense.

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    • Mike, I don’t personally have much of an issue with drones, but if I did, I think I would view “it’s an option on the table” as being pretty significantly different than what’s happening now (and what would likely happen with Romney).

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