The Wu'Tierney Factor II

Due to the unfortunate absence of Professor Tierney (who is getting out the vote in Paris), the title was changed to the slightly less catchy “Wu’Persily Factor.” A panel consisting of Professors Wu and Persily, as well as students David Gringer (3L) and Steve Nadel (2L) dissected Super Tuesday and offered their opinions on the race.

Professor Wu started by noting that, “if you’re into politics, this is just a great time to be alive.” He found Super Tuesday very interesting and claimed that he didn’t understand what was going on with American politics this year. Why, for example, did Obama carry Alaska but not San Francisco? He thinks there are factors here people are missing, and he doesn’t know exactly what they are.

Professor Wu compared the upcoming dynamic to a cartoon grudge match, where each candidate gets one really good shot at the other. First, February seems to favor Obama, and he has a month to exploit that. Then, March, with Texas and Ohio, seems to shift the other way and give Clinton an advantage. The question is whether she can survive February in order to take the race back in March, and, if she does, whether she can win decisively then.

With regards to the delegate totals, Wu predicted that Clinton will have a total lead of about 100 after everything is tallied. Obama will be seeking to even up the score in February and try to gain an edge. If neither can knock the other out during their strongest month, then the election moves into uncharted territory, and perhaps all the way to the convention.

Professor Persily began by offering some generalizations that he said were “about 80% true.” He noted that, for the most part, Clinton is getting the larger share of the Latino vote (by about 2:1), less educated whites, older voters, and women. On the other hand, Obama is winning among African American, higher educated whites, and whites in red states. Professor Persily admitted that this oversimplified things. For example Obama did well in the southern states, but also managed to carry Connecticut and Delaware. Obama also seems to have a natural advantage in caucuses.

Persily personally thought Clinton did much better than expected on Tuesday, especially in California. To win that by such a significant margin bodes well for her.

Additionally, he’s very concerned about the way this race is going because he’s worried that this is going to end up depending on the most undemocratic aspects of the primary process. In a race this close, three things come into play that candidates can’t control. (1) Delegate apportionment. (2) Superdelegates. (3) The Florida/Michigan votes, which might be reinstated despite not really having contested elections.

On the Republican side, Persily thinks McCain wrapped it up last night.

Steve Nadel, who worked on the Romney campaign, had some insights into the Republican contest. First, he discussed Romney’s campaign strategy, which was to win the big states early and knock out McCain and Giuliani. It appeared over the summer that everyone who saw Romney liked him, so they aimed to increase his exposure. When other candidates starting coming to the fore, Romney basically fell off the map. Nadel thinks this speaks poorly of him as a candidate.

Nadel thinks the Republican primary is over, and that everyone except the CNN commentators realize this. He does not think Huckabee can win, but thinks the governor might still be relevant.

As for the Democrats, Nadel is “amazed at how long it’s going to take”. He expected like Clinton would walk away with the nomination early, like everyone else. Obama has really shown impressive staying power and ability to enlarge his natural constituency. He’d still give it to Clinton, though, because Obama now has to win big in places not suited to him.

David Gringer began by talking about the media. They are having a huge effect on this race, and he wanted to highlight just how badly they’ve done. He also pointed out that endorsements don’t seem to actually mean anything to voters, only to the media.

In Gringer’s view, perhaps the most important aspect of the campaign is organization. The strength of the candidate’s ground team in each state seems to have a huge effect on the outcome. Obama’s team in Iowa and Clinton’s in New Hampshire were particularly effective, and he is wondering where they will be sent next.

Attempting to explain the strange voting results noted by Professor Wu, Gringer hypothesized that there are two different kind of Democratic voters at issue here. What he calls the “machine” wing of the Democratic party dominates in places like New York and California, places where Democrats dominate and have established power structures. These states seem to favor Clinton. By contrast, states like Idaho and Kansas don’t have “machine” structures, and there have been recent grassroots organizing efforts to rebuild the Democratic Party in these states. These non-machine states favor Obama.

Gringer uses this model to suggest that we might see surprising results. For example, Louisana, thought to be an Obama stronghold, has a strong machine structure. On the other hand, Texas, which is thought to be likely Clinton territory, has more of a grassroots organization structure. He is excited to see how the next few months turn out.

A very interesting presentation from a great panel. Thanks to all who participated and attended. For those who missed out, it looks like we will soon need the Wu’Tierney Factor III.

ACS National Convention 2007 - Days 2 and 3

ACS National Convention 2007: Toward a Just Future

The overall focus of the convention seemed to be the government and the balance of power in the Roberts court era. Discussion covered topics such as the role of the courts v. Congress, constitutional interpretation, and the effect of social values, public opinion and culture.

Day 2 of the convention began with a panel on race and the Constitution. Professor Goodwin Liu (who will be coming to Columbia in early October) got the discussion started with a quick rundown of the meaning of the equal protection clause ("EPC") within the framework of the 14th Amendment. According to Professor Liu, the EPC was originally intended to help establish a "national citizenship," where every citizen of each state and the nation as a whole had equal status and the same substantive rights. It was an anti-hierarchy, not an anti-classification, measure.


Judge J. Harvie Wilkinson III (US AC, 4th Circuit) took the opposing view by advocating a race-neutral application of the EPC. The 14th Amendment should transcend race by viewing all Americans as equal "citizens," Judge Wilkinson said, avoiding the tendency of race to divide rather than join. In Judge Wilkinson's view, by rejecting racial categorization in the recent Seattle and Louisville school desegration cases, the Supreme Court was taking an important step towards a race-neutral America. School districts should be focusing on gaps in socio-economic class, not race.

The other panelists staunchly disagreed with Judge Wilkinson's approach. John Trasviña, President of MALDEF, and Ted Shaw, President of the NAACP-LDF, emphasized the difference between aspiration and reality. As Professor Liu pointed out, the United States is far from being a colorblind society. Until there is a true social consensus on racial equality, it would be dangerous to pretend that race is irrelevant.

The question, then, is whether the courts are the best way to push for social change. In the breakout session on "backlash" and attacks on landmark Supreme Court decisions, the panelists debated whether "activist" judges cause a backlash of public opinion. Professor Jeffrey Rosen defined "backlash" as social movement driven by counter-majoritarian judicial decisions. However, Professors Reva Siegel and Robert Post argued that so-called "backlash" is a normal and necessary part of the constitutional order. By making decisions that lead to democratic deliberation, courts help reaffirm the authority of the Constitution. Professor Scott Lemieux suggested that judicial minimalism is actually more dangerous, especially with the recent hollowing-out of precedents by the Roberts court. It is more important than ever for the nation to debate topics such as education and abortion.

Other breakout sessions considered hot-button issues like climate change, federal sentencing, the justice department, and voting access.

The final day of the convention continued the discussion on a diverse range of topics including civil unions, racial profiling, labor organizing, immigration reform, the balance of power, the role of local government, the Military Commissions Act, the Establishment Clause, and reproductive rights.

One highlight was the luncheon panel featuring Supreme Court journalists from Slate, NY Times, National Journal, and NBC News. Asked to predict the future of the nation in this new Supreme Court era, Pete Williams said what everyone was thinking: "Who knows? And it depends..."

ACS National Convention 2007 - Day 1

ACS National Convention 2007: Toward a Just Future

The 5th Annual ACS Convention kicked off with a student leadership retreat on July 26. Two career-oriented panels, one on clerkships and one on careers on Capitol Hill, brought in an amazing array of panelists. The judges all made great comments on the clerkship application process, and the Hill staffers made me wish I wanted to work on the Hill myself (maybe someday...).

The student-led breakout panels followed, with our very own Dana Green leading the Privacy session. With so much current discussion of governmental violations of privacy, it was jarring to realize how few protections are in place against private employer surveillance. The Electronic Communications Privacy Act of 1968 (18 U.S.C. §§ 2510-2521) is the only federal statute addressing worker communication privacy, and its terms are so narrowly interpreted that it offers almost no protection at all.

The retreat wrapped up with a small networking fair and an organizing best practices discussion for student chapter leaders. Finally, the evening wound down with the official opening reception of the convention.

Moot Court Victory!

Left to right: Ben Garry, Judge Susan Graber (US AC 9th Circuit), Judge M. Blane Michael (US AC 4th Circuit), Chief Judge Robert Pratt, US DC for SD IA), Laird Nelson

And it's official! A team of Columbia 1Ls has gone to the finals of this year's ACS Constance Baker Motley Moot Court Competition and come home with the grand prize...

Congrats to Ben Garry and Laird Nelson for their spectacular performance in the final round of the competition last Friday!

No doubt the entire competition has been a great experience for all those involved as participants and organizers...may this year's victory inspire the new teams this fall!


Stay tuned for more on the rest of this year's ACS National Convention in Washington, DC...(with fewer exclamation points but no less exciting I hope)