The Supreme Court’s announcement today that it will review the constitutionality of ObamaCare ensures that the health care law will be one of the biggest issues in next year’s presidential and Congressional elections.  Federalism – including the Tenth Amendment and Congress’ enumerated powers – will also be a prominent election issue because the Court’s decision will have even larger implications than the fate of ObamaCare.  The decision will answer the momentous and timely question of whether there are any real limits on the federal government’s power over states and individuals. See here for my recent op-ed exploring the additional cases that will make this the most politically important Supreme Court term in decades.

The prominence of ObamaCare in the 2012 elections is good news on its face for conservatives, but it’s hard to know which way the issue will ultimately cut.  That depends, in part, on what the Supreme Court decides.

If the Supreme Court upholds ObamaCare in its entirety, it will be seen as a victory for Obama and Congressional Democrats, which would likely provide them with some electoral momentum.  On the other hand, such a decision by the Court would throw responsibility for reforming or repealing ObamaCare entirely on the shoulders of the new Congress and President, thus making it an even bigger political issue.  That might be bad news for Democrats given ObamaCare’s continual poor showing in the polls.

Conversely, if the High Court strikes down ObamaCare in its entirety, it would be a victory for Republicans, giving them the electoral momentum, but at the same time largely depriving them of one of their best election issues.

The third possibility is that the Supreme Court will strike down one or more of the challenged ObamaCare provisions – the individual insurance mandate or the expansion of Medicaid – but leave much of the statute in effect.  That might be the best case for Republicans.  They would be able to say “I told you so,” while the campaign’s focus would be riveted on how to repair the shattered statute, with Democrats on the defensive.

It looks like which outcome to root for in the Supreme Court depends on whether you’re most concerned about ObamaCare or the 2012 elections.

In light of last night’s Politico story about allegations against Herman Cain, it is important to clarify the legal meaning of the term “sexual harassment.” Specifically, Politico reports allegations that Herman Cain made an “an unwanted sexual advance” and engaged in “innuendo or personal questions of a sexually suggestive nature.” Politico suggests that this amounts to sexual harassment, using the term at least six times.

The truth is that the reported allegations, even if true, do not constitute sexual harassment under the law unless – as the Supreme Court has stated – they are “sufficiently severe or pervasive” to “create an abusive working environment,” among other requirements. Even the guidance of the decidedly liberal U.S. Equal Employment Opportunity Commission cautions that “sexual attraction may often play a role in the day-to-day social exchange between employees” and that

“[S]exual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.”

The “severe or pervasive” requirement is not a legal technicality. Trivializing the term “sexual harassment” undermines the seriousness with which cases of severe and pervasive harassment are taken. There is no suggestion in the Politico article that Cain’s alleged behavior was either severe or pervasive, so at least for now, the suggestion of sexual harassment is unsupported.

Politico places a lot of weight on the report that “there were financial settlements in two cases in which women leveled complaints [against Cain].” In fact, without knowing more about the details of the settlements, it’s impossible to draw any conclusions from them. Corporate America is very risk averse when it comes to negative publicity, and in-house settlements often occur even when the evidence of harassment falls far short of the threshold needed to be taken seriously by a court.

Cross-posted at the Committee for Justice blog.

In Politico’s Arena, I tell the following story about Barack Obama. My goal is to get people thinking about whether moral outrage over Rick Perry’s tenuous connection to the “N*****head” rock is politically motivated rather than sincere.

[A] couple of basketball courts down the block from my cousin’s house in Chicago … have gained some local notoriety because people remember that, for many years, Obama brought friends and colleagues there to play basketball. Locals say that for much of the two decades he played there, the anti-Semitic term “Hymietown” was scrawled very visibly as graffiti across the old wall beside the courts. The courts and adjoining grassy area were called Hymietown Park by some of the neighbors, so the graffiti artist may be guilty mainly of insensitivity in repeating the informal name of the park.

As Obama’s reputation in Chicago grew, he persuaded local authorities to upgrade the basketball courts, which he continued to use. Eventually, he asked authorities to paint over the offensive graffiti. But some say that Obama was slow in doing so, and as recently as this spring, the word “Hymietown” was still faintly visible under the half-hearted paint job. To be fair, there is no other connection between Obama and the graffiti and, as far as I know, no one claims that Obama used the term “Hymietown.”

People … have suggested that Rick Perry is racially insensitive, not ready for prime time, or simply “pathetic” because of his tenuous connection to the “N*****head” rock. Can the same be said about Barack Obama because of his similar connection to the Hymietown graffiti?

In truth, Hymietown Park exists only in my imagination. But my Hymietown fable closely parallels the Perry story as told by the Washington Post and is intended to produce some cognitive dissonance for those who hold Perry to a standard very different than the one they apply to Democrats.

On last night’s PBS NewsHour, I discussed the politics of confirming President Obama’s judicial nominees with Caroline Fredrickson, executive director of the liberal American Constitution Society. A transcript of the interview and streaming video are available on the NewsHour web site. Here are some excerpts:

CURT LEVEY: Caroline accurately pointed out that there are 20 pending [nominees] who have gotten out of committee. But that’s only 20 out of 91 vacancies. And all but one of those 20 are just a matter of weeks or, at most, a couple of months, which is a very short time historically. I mean, there are many of Bush’s nominees who waited literally years after they got out of committee. There were some nominees who were waiting throughout most of the eight years. So the fact that there’s only one out of the 20 who’s even been waiting three months I think tells you that things are going fast.
——————–
CURT LEVEY: I don’t think [the judicial vacancy rate] has much to do with anything the Republicans are doing. It has to do with a very slow nomination pace by the Obama administration. Obama is not making confirmations a priority, nor is Sen. Reid, the majority leader. Also, there’s just been, let’s face it, a general breakdown in courtesy in the Senate. And so all issues get affected, including judges. And there were also two Supreme Court vacancies in Obama’s first two years, which, for about six months [bring other confirmations to a halt].
——————–
CAROLINE FREDRICKSON: Thirty-seven of those vacancies represent judicial emergencies. And that is a term that’s been defined by the Administrative Office of the Courts to represent an extremely high caseload.
…
CURT LEVEY: I do agree that judicial emergencies should be given priority. But, again, let’s remember that judicial emergency is not just defined by caseload. It’s also defined by how long the vacancy has existed. And, again, that vacancy may have existed for a long time because Obama was very slow to appoint a nominee.

Because a Balanced Budget Amendment (BBA) is the only type of budget reform capable of binding future Congresses, it is disappointing that the pending debt ceiling bill does not contain the Boehner bill’s requirement that a BBA be approved by Congress and sent to the states.  However, there is some good news for BBA supporters in the bill (the Budget Control Act of 2011 or BCA).  It contains not just a requirement that both houses of Congress vote on a BBA – the sole focus of most press reports – but also an incentive for Congress to approve a BBA.

To understand the incentive, it is necessary to clarify some confusion about the relationship between 1) the bill’s BBA provisions – providing for a debt limit increase of $1.5 trillion this winter if the BBA is approved by Congress; 2) the spending cuts of up to $1.5 trillion to be recommended by a special Joint Committee – resulting in a debt limit increase of up to $1.5 trillion if the cuts are approved by Congress; and 3) the $1.2 trillion in across-the board spending cuts triggered automatically if #2 fails – resulting in a debt limit increase of $1.2 trillion this winter.  Reliable sources on the Hill have confirmed that, while Congressional approval of a BBA is a substitute for the Joint Committee cuts in the sense of enabling the $1.5 trillion debt limit increase, that substitution would not eliminate the automatically triggered cuts.

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In one of the most outrageous examples of judicial activism ever seen, a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has struck down the voter-approved Michigan Civil Rights Initiative (MCRI), which bans racial and gender preferences in Michigan’s public employment, education and contracting.

In today’s 2-1 decision, two Clinton appointees came to the startling conclusion that MCRI violates the U.S. Constitution’s Equal Protection Clause because it “reordered the political process to place special burdens on racial minorities.” Their reasoning: “a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution.”

This reasoning is completely disingenuous because the purpose of all constitutional amendments is to reorder the political process in a way that can’t easily be reversed.

Even the very liberal Ninth Circuit rejected this reasoning in its 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based.  Noting that the Fourteenth Amendment’s Constitution’s Equal Protection Clause barely permits racial preferences, the Ninth Circuit reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

In other words, the Constitution’s equal protection guarantee cannot possibly mean that states are prohibited from amending their Constitutions to ensure equal protection of all races.  The argument to the contrary was widely considered to be a legal stretch when first made by Proposition 209’s opponents, and it lost any plausibility once rejected by the liberal Ninth Circuit.  Its resurrection in the Michigan case was not taken seriously before today’s “gift” of judicial activism from the Sixth Circuit.

In 2006, the MCRI ballot initiative was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an enormous margin.  That shouldn’t be too surprising given that opinion polls over the last decade have repeatedly shown that Americans overwhelmingly oppose racial preferences.

Today’s decision is a classic example of legal elites trying to impose their values – in this case, a belief in achieving racial diversity at any cost – on the “less enlightened” public after those values are rejected at the ballot box.  This use of the courts to do an end-run around the democratic process is a hallmark of liberal judicial activism.

It is no wonder that the Sixth Circuit decided to release this decision on the Friday before a long holiday weekend.

The only good news is that the state of Michigan will surely appeal today’s decision to the U.S. Supreme Court and/or the full Sixth Circuit.  If the Supreme Court reviews this decision, it will almost surely reverse it.  In fact, I expect that some if not all of the Court’s liberal Justices would vote to reverse.

Cross-posted at the Committee for Justice blog.

From the diaries by Erick

“Unless there’s a surprise Supreme Court vacancy this year, this is the big fight of the year,” said Curt Levey, executive director of the conservative Committee for Justice. Levey and many other conservatives argue that Liu is an extraordinary circumstance. – David Ingram, Legal Times (5/17/11)

This excerpt summarizes the showdown that will occur tomorrow when Senate Democrats force a cloture vote on Ninth Circuit nominee Goodwin Liu, President Obama’s most radical judicial nominee and the man whom Obama would dearly like to make the first Asian-American Supreme Court justice.  Liu’s left-wing agenda and outrageously activist view of the law makes this showdown a classic test of the bipartisan “extraordinary circumstances” standard for when judicial nominees can be filibustered.  The standard originated in the 2005 Gang of 14 agreement.

Liu is a 40 year old Berkeley law professor whose vocal and unabashed championing of judicial activism has made him a star on the legal left.  Liu “envisions the judiciary … as a culturally situated interpreter of social meaning” and believes judges should create constitutional rights to “distributive justice,” including welfare rights to “education or housing or medical care.”

Liu has expressed left-wing views on virtually every hot-button issue likely to come before him on the bench, including the view that Americans are obligated to pay reparations for slavery, an obligation he would likely read into the Constitution.  Liu is too far to the left for even Rahm Emanuel, who advised the President against making this nomination.

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From the diaries by Erick

A number of people have asked me whether today’s rejection of Virginia’s request for expedited Supreme Court review of its ObamaCare challenge tells us anything about how the Court will ultimately rule on the statute’s constitutionality.  The answer is no.

It is folly to draw any conclusions because it’s extremely unusual for the Supreme Court to grant certiorari – that is, review – of a case while it’s still working its way through the lower federal courts.  The last time the Court did that in an important case was 2002, when it agreed to hear Gratz v. Bollinger, a challenge to race-based admissions at the University of Michigan, which had been heard but not yet decided by the U.S. Court of Appeals for the Sixth Circuit.  It’s so rare that it took a new, not-yet-jaded lawyer (me) to even suggest  making the request for a Writ of Certiorari Before Judgment.  And the writ would likely have been denied if the companion case, Grutter  v. Bollinger, had not already been decided by the Sixth Circuit, making it ready for Supreme Court review. In the instant situation, none of the companion cases to the Virginia suit have been decided by circuit courts.

Nobody doubts that the Supreme Court will eventually hear one or more of the lawsuits challenging the constitutionality of ObamaCare.  We don’t know whether Justice Kennedy will provide the fifth vote necessary to strike down all or part of the law, but his vote isn’t necessary to grant certiorari.  Only four votes are required for review and the Justices know those votes are virtually guaranteed when the time is right.  So it’s only the matter of timing that Justice Kennedy and his colleagues had in mind when they denied Virginia’s request.

If today’s denial tells us anything about a Justice’s state of mind concerning the merits of the case – which I doubt – it’s the mind of Chief Justice John Roberts. Roberts is more likely than Kennedy to strike down ObamaCare but less likely than Justices Thomas, Scalia and Alito.  With only four Justices needed to grant certiorari, that makes Roberts the likely swing vote on any petitions to review the ObamaCare cases that are decided on a close vote.  That said, the Justices’ votes on such petitions are generally not disclosed, so it will be difficult to prove my prediction right or wrong.

From the diaries by Erick.

The charge: Republicans are willing to shut down the government over the issue of Planned Parenthood funding.  Democrats and the media are making the charge and Republicans are denying it – arguing that, instead, the disagreement centers on the total amount of budget cuts.  But the GOP’s denial only feeds into the assumption that everyone seems to be buying into, namely that if Planned Parenthood funding is what stymies a budget deal, it is the GOP that will stand guilty of shutting down the government over the issue.

Excuse me for being logical in the midst of a shutdown “crisis,” but why is virtually everyone – even Republicans – buying into this assumption when it can just as easily be said that Democrats caused a shutdown by refusing to cut funding for their beloved Planned Parenthood?

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Compare the news out of France and the U.S. Supreme Court yesterday, both involving the limits on offensive speech.

In Snyder v. Phelps, the High Court ruled 8-1 that the First Amendment protects the Westboro Baptist Church from being sued for picketing the funerals of U.S. troops with signs such as “Thank God for Dead Soldiers.” The Topeka church’s message is that God hates the United States, especially its military, for tolerating homosexuality. The Court’s decision was a courageous and principled one in light of the near universal abhorrence of the church’s method for proclaiming its message.

In contrast, the Paris prosecutor’s office announced yesterday that superstar fashion designer John Galliano will stand trial for public anti-Semitic rants that resulted in his firing by French fashion house Dior on Tuesday. Galliano faces up to six months in prison and $31,000 in fines if convicted of making public insults on the basis of religion or origin.

Both Galliano and the Westboro Baptist Church should be ashamed of themselves. But even as a Jew, I’m thankful that we live in a country where anti-Semitic tirades – and other highly offensive types of speech – are protected by the Constitution. The alternative is to give the government the power to determine what statements are too offensive to utter and that power is a far greater threat than the rants of private citizens can ever be.

President Obama’s decision today to abandon the Defense of Marriage Act (DOMA) is both outrageous—as a matter of Justice Department policy and constitutional law—and a miscalculation that will decreases the chances of ObamaCare being implemented, while potentially increasing calls for Supreme Court Justice Kagan to recuse herself from certain gay rights cases.

The President’s refusal to defend DOMA, a federal statute enacted by overwhelming margins in the Senate (85 – 14) and House (342 – 67) and signed into law by President Clinton, flies in the face of Justice Department policy and principles of democratic government.  It has long been the Department’s policy to defend any challenged federal statute unless no plausible argument can be made in its defense.  By ignoring that policy, President Obama is engaging in a disturbing power grab that, if taken to its logical conclusion, would allow him to undermine any duly enacted federal law that he doesn’t personally agree with.

But that’s not the worst of this power grab.  In announcing the President’s decision, Attorney General Holder informed the nation that “the president has concluded that … sexual orientation should be subject to a more heightened standard of [constitutional] scrutiny.”  In layman’s terms, that means that President Obama has decided that the Fourteenth Amendment’s Equal Protection Clause prohibits distinctions based on sexual orientation in the same way that it prohibits racial discrimination.

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From the diaries by Erick

The biggest news in today’s ruling that the ObamaCare individual mandate is unconstitutional is the court’s decision to strike down the entire ObamaCare statute because the unconstitutional mandate cannot be severed – that is, separated – from the rest of the statute’s provisions.  Today’s decision signals, not only that the individual mandate is unlikely to survive its now-inevitable review by the Supreme Court, but also that if and when it meets its demise in the High Court, it is likely to take the entire ObamaCare statute with it.  This new reality has very important policy implications for both President Obama and Congressional Republicans.

There is only one thing President Obama can do to ensure the survival of federal health care reform and that is to prevent the legal challenges to the individual mandate from reaching the Supreme Court.  He can accomplish that only by negotiating with Republicans to repeal or substantially modify the ObamaCare statute, replacing it with a bipartisan health care reform package that does not include the individual insurance mandate.  The result would be to moot and thus derail the legal challenges now hurtling towards the High Court.

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As I listened to celebration of the 50th anniversary of John F. Kennedy’s inaugural address today, I thought about the most famous line of the speech: “Ask not what your country can do for you; ask what you can do for your country.” The second half of that line has inspired people across the ideological spectrum to serve America, whether in the armed forces, through private charity, or via political and civic involvement. But, I wondered, why isn’t there more focus on the first half of that line, which urges Americans to abandon a sense of entitlement?

Why do liberals, who acclaim JFK and his famous line, nonetheless advocate for an ever increasing list of government-provided entitlements, ranging from ObamaCare and green energy subsidies to lifetime tenure for public school teachers and government preferences for minorities and women? Likewise, why have conservatives and libertarians failed to remind their fellow Americans that the modern, entitlement-driven welfare state is the antithesis of Kennedy’s call to “ask not what your country can do for you”? Fifty years after JFK’s inauguration, it’s time to take that call seriously.

The most remarkable thing about Rick Santorum’s comparison of abortion and slavery is the mainstream media’s initial reaction treating it as a gaffe. That reaction reflects the intellectual smugness that has made “mainstream media” a bad word in much of America.

The analogy between the slavery debate in the 19th century and the abortion debate in modern times is a solid one because both centered on 1) who to include in the definition of “human,” and 2) whether the ultimate moral decision should be legislated or left to individuals. Despite the similarities, well-meaning people are free to reject the abortion-slavery analogy given that there is no longer any disagreement that slavery was a moral outrage.

However, to refuse to see the similarities and, instead, view the analogy as ignorant is to contemptuously dismiss the half of America that considers abortion to be the taking of a human life and a moral outrage. You don’t have to share the moral judgment of pro-life Americans, but to dismiss their values as unworthy of serious consideration is the very definition of smugness.

Cross-posted at Politico.

Claiming that Arizona gunman Jared Loughner was motivated to kill by heated political rhetoric is about as sensible as believing the Son of Sam’s assertion that he was motivated to kill by the barking of his neighbor Sam’s dog.  Son of Sam and Keith Olbermann see a link – perhaps even Loughner sees a link – but consider the source.  The truth is people like Loughner kill because they are too mentally unbalanced and angry at society to be influenced by even normal considerations of self-preservation, no less by the tone of civil discourse. 

Keith Olbermann, Sheriff Dupnik and the others trying to score political points by blaming political rhetoric are going down a very dangerous road both because it absolves violent killers of full responsibility for their actions and because it aims to silence the passions that are an important part of public debate.  Martin Luther King and his fellow civil rights activists used passionate and heated rhetoric to rouse the nation against white segregationists.  But, surely, that does not make Dr. King and his colleagues partly responsible for the violent crimes of the Black Panthers and James Earl Ray. 

Ultimately, the passionate rhetoric of conservatives like Glen Beck may be vindicated by history or condemned by it.  But that is for the American people to decide as the debate plays out in the coming years, not for Keith Olbermann and Sheriff Dupnik to decide by cutting off debate.

Cross-posted at Politico.

Conservative leaders, including yours truly, delivered a letter to Senate Majority Leader Harry Reid today, urging him “in the strongest possible terms not to use the ‘lame duck’ session to force votes on the confirmation of any nominees for federal office.”

The letter emphasizes that many of the nominees that might be confirmed during the lame duck session “are still before the Senate precisely because of concerns about their radical and controversial views.”  A Senate that “has already been replaced by the American people has no business confirming such controversial nominees to federal office,” the letter adds.

On November 2, the American people rejected the liberal agenda that has been pushed by the Obama Administration and its most controversial pending nominees.  If Senate Democrats try to confirm these controversial nominees during the lame duck session, they will be showing contempt for American voters.

In the letter, we call attention to the 16 “most egregious” pending judicial and executive branch nominees.  The list includes two appeals court nominees (Goodwin Liu and Robert Chatigny), three district court nominees (John McConnell, Edward Chen and Louis Butler), as well as nominees to the Equal Employment Opportunity Commission (Chai Feldlbum and Jacqueline Berrien) and the National Labor Relations Board (Craig Becker).  Also on the list are John Podesta, nominated to the Corporation for National & Community Service; James Cole, the Deputy Attorney General nominee; and Donald Berwick, who was recess appointed to head the Centers for Medicare & Medicaid Services.

Cross-posted at the Committee for Justice blog, where the full text of the letter, including the list of signers and the list of the 16 most controversial nominees, is available.

I’m glad to see that President Obama and the rest of the Democratic leadership don’t get that Tuesday’s massive defeat was a repudiation of Democrat policies.  I had thought Democrats would do some honest self-evaluation for at least a few days—as they seemed to do following Scott Brown’s victory in Massachusetts—before convincing themselves the message was not about them.  But this time the denial was immediate. I guess the bigger the emotional trauma, the stronger the psychological defense mechanisms that kick in.

My fear was that Democrats would do what Republicans did following their defeats in 2006 and 2008—that is, fess up to the error of their big-spending ways, thus paving the way for the forgiveness and course correction that made Tuesday’s comeback possible.  But Democrats’ initial reactions indicate that I overestimated their capacity for self-awareness.  Whew.

Still, there’s plenty of opportunity for self-sabotage in the GOP if victory turns self-awareness into arrogance.  That danger includes overinterpreting the election results to conclude that Democrats have been vanquished in any permanent sense of the word.  Like Erick , I’m happy that November 2 left the Democrats “wiped out except among coastal elites and majority-minority districts.”  I just hope that Republican leaders realize how temporary it might be.  As I said in my April 2009 post (“Dems Have Permanent Majority … at Least Until the Next Election”) regarding predictions of GOP irrelevance, “the only honest analysis is admitting that you haven’t got a clue about what’s going to happen in future elections.” 

Speaking of coastal elites, I’m gratified to see that my election morning post at the Committee for Justice blog turned out to be even truer than I had hoped.  I suggested that, as in the nationwide Congressional elections, voters would use a judicial retention election in Iowa and a Nevada vote on judicial selection commissions—backed by Sandra Day O’Connor—“to say no to elitism.”  I admittedly avoided a prediction of complete victory in Iowa and Nevada, but voters there were less hesitant.  They fired the three Iowa Supreme Court Justices on the ballot, all of whom discovered a constitutional right to same-sex marriage in the state constitution last year.  And Nevadans chose popular election of judges over selection by commissions that inevitably “get captured by trial lawyers, academics and antibusiness activists.”

When it comes to the most important qualities we look for in a senator—good ideas, leadership ability, intelligence, articulateness, strong principles, a compelling vision for the future, and the like—Christine O’Donnell stood out as the better choice for Delaware voters during last night’s debate.  But the MSM seems to be focusing, instead, on a somewhat less important quality where O’Donnell’s opponent, Chris Coons, might have the edge after being a lawyer for eighteen years.  I’m talking, of course, about the ability to name Supreme Court decisions off the top of your head. 

O’Donnell struggled when asked which Supreme Court decisions she dislikes, but Coons didn’t do any better. When asked the question, Coons could only come up with the same case, Citizens United, that a questioner had asked him about a few minutes earlier (Wolf Blitzer failed to push the issue with Coons, unlike with O’Donnell).  Moreover, Coons’s answer consisted of nothing more than the usual Democratic talking point—corporations shouldn’t have free speech rights—that even my dog knows by heart by now.

While we learned nothing from Coons’s answer to that question, another of his remarks about the courts was more telling:

[M]aking sure that we’ve got on the record Miss O’Donnell’s views on things like prayer, abortion, evolution, is important. These aren’t just random statements on some late-night TV show. These are relevant to her service in the United States Senate, what sort of judges she would confirm.

What’s interesting here is the way Coons projects his liberal, litmus test-based approach to the judicial confirmation process on O’Donnell.  Liberal senators make no bones about demanding that judicial nominees share their views on abortion, public prayer, and a host of other social issues. But that’s not what conservatives like O’Donnell are looking for in judges.  Conservative senators focus on whether judicial nominees are willing to interpret the Constitution as umpires rather than as policymakers and philosopher kings, making a senator’s views on particular social issues irrelevant to the confirmation process.

Feminist attorney Gloria Allred continued her attack on California gubernatorial candidate Meg Whitman this afternoon:

Gloria Allred just went after Meg Whitman with a vengeance waiving a letter from the Social Security Administration sent to Meg back in 2003, putting Meg and her husband on notice there was a problem with their housekeeper’s Social Security number – a sign she was here illegally.

Allred is representing the housekeeper, Nicky Diaz Santillan, who was eventually fired by Whitman in 2009, immediately after Whitman says she found out Santillan was in the country illegally.

Whitman says her opponent, Jerry Brown, is behind the attacks.  I haven’t seen any proof yet but I wouldn’t be surprised.  After all, Allred has contributed to Jerry Brown’s campaigns and has a long history of involvement in Democratic causes (she was a Hillary Clinton delegate in 2008).

But forget Jerry Brown’s involvement for the moment.  As a lawyer, I’m most concerned about Allred’s legal ethics.  Perhaps Allred does great legal work for women – at least Democratic women – behind the scenes.  But every time I hear about her “representing” a woman, it seems the woman is little more than a prop for getting Allred on TV or enabling Allred to pursue some political cause.  Remember, Allred is the attorney who held a press conference the day before Governor Schwarzenegger was first elected, accusing him of fondling her female client.  After the election, Allred’s lawsuit against Schwarzenegger was dropped.

To be fair, Allred is hardly the first lawyer to push up against the ethical line by taking a case because of its publicity value rather than a careful consideration of the client’s interests.  But this time, Allred seems to have gone way over the line by ostensibly representing Santillan while actually throwing her under the bus.

How could it possibly be in Nicky Santillan’s best interest for Allred to announce on national TV that Santillan is in the country illegally?  At very least, the publicity makes it virtually impossible for Santillan to hold another job in the U.S. – after all, no employer can claim they didn’t know she was here illegally – and makes Santillan a sitting duck for any ICE agent in the mood to do their job.  No wonder Santillan was crying at yesterday’s press conference.

Perhaps you could argue that Allred is acting ethically if the damage she inflicts on Santillan is likely to be outweighed by the damages Santillan receives from a lawsuit against Whitman.  But don’t count on Santillan collecting anything more than, perhaps, a little back pay. Whitman may be guilty of knowingly employing an illegal immigrant.  But if so, she was doing Santillan a favor by not firing her or reporting her to immigration authorities in 2003.  So what are the damages?

The conventional wisdom has been that, while Sarah Palin will be a leading contender for the 2012 GOP presidential nomination if she wants it, her chances in the general election would be less rosy because she is reportedly viewed unfavorably by most independents.  That’s persuasive logic if you don’t think about it too much. But today’s Rasmussen poll makes me realize that the relevant question for electability is not how independents view the GOP nominee.  Instead, it’s how independents view the GOP nominee relative to the Democratic nominee, Barack Obama.

On that score, Palin’s general election chances looks good. Rasmussen reports today that 59% of voters not affiliated with either party say their views are closer to Sarah Palin’s than to President Obama’s.  Overall, 52% of American voters feel ideologically closer to Palin, while only 40% feel closer to the President.

An additional finding from the poll should surprise no one.  Among the political class, 68% of voters have views more like Obama’s, while 63% of mainstream voters – those outside the political class – are closer to Palin.  Rasmussen classifies voters according to his Political Class Index, which is based on three survey questions.