(1)  My post on Thursday, arguing that Democrats should repeal the Defense of Marriage Act, provoked objections from numerous corners that doing so was premature, would be too politically risky and/or Democrats won't touch the issue (it also generated some support).  Today, the consummate voice of the vaunted "center-right" Beltway establishment -- The Washington Post Editorial Page -- called for the same thing as a response to the passage of Proposition 8:

It also may be time to press Washington to move in the right direction. President-elect Barack Obama opposes the Defense of Marriage Act, which bars the federal government from legally recognizing same-sex couples and gives states the right to ignore same-sex marriages or civil unions performed in other jurisdictions.

A Democratically controlled Congress may also be sympathetic. A good first step would be a measure to allow the federal government to extend the same benefits to couples in civil unions, domestic partnerships or marriages, whether they are gay or heterosexual.

Legalizing gay marriage remains very controversial.  But extending marriage-based government benefits equally to same-sex couples -- which is all repealing DOMA, especially Section 3, would do -- is not particularly controversial. 

How is it possible to argue otherwise in light of polls which conclusively prove that majorities of Americans favor (and have long favored) such policies, as well as -- more persuasively still -- the fact that the country just elected, by a landslide, a President who condemend DOMA as an "abhorrent law" and vowed emphatically to repeal it, while his Vice President said, in the debate watched by tens of millions of Americans:  "in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple."  That statement didn't create even a rippple of controversy, nor did Obama's emphatic opposition to DOMA.

Nobody is arguing that this is the first issue the Democrats should address.  It would be unwise -- both politically and substantively -- if the bulk of early attention weren't devoted to the economic crisis.  And there are several non-economic issues -- beginning with the closing of Guantanamo and the restoration of other civil liberties -- which Obama has pledged to support and which ought to be done quickly.  That's where I intend to devote the bulk of my own energies.

But there's a tendency for people to live in the political past and to be traumatized by past political losses, paralyzed with irrational fear by the obsolete battles of prior decades.  The fact that Bill Clinton was harmed politically in 1993 by the issue of gays in the military is not proof that Barack Obama and Congressional Democrats would be harmed in 2009 -- 16 years later -- by doing something he has emphatically vowed to do and which a solid majority of Americans support:  extend government benefits equally to same-sex couples.

(2) This lengthy, front-page article in Friday's New York Times by C.J. Chivers and Ellen Barry reports and documents that new evidence "call[s] into question the longstanding Georgian assertion that it was acting defensively against separatist and Russian aggression" and "instead, the accounts suggest that Georgia’s inexperienced military attacked the isolated separatist capital of Tskhinvali on Aug. 7 with indiscriminate artillery and rocket fire, exposing civilians, Russian peacekeepers and unarmed monitors to harm."

The article is principally notable not because it negates the prevailing orthodoxy in American politics that Georgia was the innocent victim of a Russian attack -- that has been known and established for some time -- but, rather, because of how journalistically excellent the article is.  It painstakingly lays out known facts and describes the evidence to support those facts and what its sources are for that evidence.  It carefully identifies what claims remain disputed and unresolvable.  Most importantly of all, the article has no extraneous agenda -- while highlighting the factually dubious claims made by the Georgian Government about how the war started, it also acknowledges the faults and excesses of the Russians and Ossetians ("both sides also have a record of misstatement and exaggeration"). 

Just ponder a world in which basic, solid journalism like this was the norm rather than the conspicuous exception.  This article, given its prominent placement, should render it marginally more difficult for our political class, and the new administration, to base their policies toward Georgia and Russia on the simple-minded, and false, Manichean myths that had been peddled about this conflict from the start.

(3)  I did an interview on AntiWar Radio with Scott Horton this week about the Obama administration and what we are likely to see in the realm of civil liberties and foreign policy.  It can be heard here.  My answer to almost every question was essentially the same:  we ought to wait to see what Obama does before forming conclusions about him and, certainly, before launching all sorts of criticisms at him.  He was just elected four day ago and he's not actually the President yet. 

There have been many different renditions of Obama and nobody knows -- including him, I believe -- how he'll govern.  It's true that he has espoused some liberal principles and supported some liberal policies, but over the last several years, his political approach has clearly been one of centrism and placating the establishment.   But none of that is a guaranteed indicator for what he will do with power.  That all remains to be seen, though it seems extremely clear that liberals who are convinced that he will be some sort of icon of progressivism are going to be quite disappointed.

I don't view the campaign, or much of what Obama said during it, as being particularly instructive on this question at all.  During the campaign, Obama maintained a single-minded fixation on one goal:  to win, and most if not all of what he said in the last six months was designed to achieve that goal, not to signal what he actually thinks or will do.  This blogger, in mid-October, provided one of the best descriptions of the Obama campaign and its success of any that I've read:

Obama, meanwhile, is doing what it is that successful politicians do--namely, telling people what they want to hear. He is going to get us out of Iraq, get bin Laden, help the middle class, build an electric car, stop outsourcing, raise wages, help small business, blah blah blah. He says these things plainly and often, never straying far from his set-piece oratory.

McCain's attempt to paint himself and his running mate as "mavericks" and "reformers" is dumb and doomed not because they're unconvincing in those roles, but because people do not actually care about "reform" or "getting rid of the old boys network." If they did, incumbency wouldn't be so reliable a predictor of victory in elections. Prompted with questions about "Washington" and "the way things are done" and "the tone of politics," people will of course respond that they find it all regrettable and that they disapprove.

The idea that this constitutes motivational opinion is wrong, silly really. People care about their paychecks and their bills, and if you can successfully reassure them that the former will increase and the latter decline, then for the most part they'll go along with just about any other bullshit that comes out of your mouth.

That's a bit reductive, but still largely true.  It makes perfect sense -- for the reasons Digby so aptly described this week -- for people to start pressuring Obama now to pay attention to their political principles and agendas.  And it's certainly likely that Obama will end up doing many, many things that warrant and provoke intense criticism.  I have no doubt about that.   But he's entitled to actually start doing things -- on Iraq, Iran, Afghanistan, civil liberties, the economy, and otherwise -- before judgments are formed.  

(4) John Amato makes a very good point about the irrelevance of the Right, using nothing but pictures.  Speaking of which, remember all of this?

"Daniel Pipes: If Obama Wins, Bush Will Attack Iran in November -- 'Should the Democratic nominee win in November, President Bush will do something. and should it be Mr. McCain who wins, he’ll punt, and let Mr. McCain decide what to do.'"

"'Bill Kristol says Bush might bomb Iran if he thinks Obama will win -- 'I think honestly, if the president felt John McCain were going to be the next president he would think it more appropriate to let the next president make that decision than do it on his way out. I do wonder with Sen. Obama, if president Bush thinks Sen, Obama win does he somehow think that, does he worry that Obama won't follow through on the policy'"

"John Bolton: Israel Will Strike Iran if Obama is Elected -- believes the Israeli attack would take place sometime between the day after Obama's win and his inauguration on January 20 of next year"

"[Norman] Podhoretz said [after a private meeting with George Bush and Karl Rove] he believes that 'Bush is going to hit' Iran before the end of his presidency."

Meanwhile, Commentary Magazine is currently debating the proposition, for Israel, that "flattening Hezbollah villages is probably better than starting a war with Syria" and ultimately concludes that "clearly BOTH tactics should be put into play and mutually support each other." This is the mentality that has dominated American government for the last eight years.  Regardless of what the Obama administration ends up doing or not doing, a  principal benefit of the election this week is that it keeps the neocon Right out of power. 

(5) I actually agree entirely with Sarah Palin about this:  the McCain aides willing to criticize her only behind the protective veil of anonymity are cowards.  But that is the way of Washington:  it's filled with people too craven to say what they think and attach their names to it, and criticisms are thus frequently launched, from all sides, only by people hiding behind reporters, who too often grant anonymity to protect and enable snide, petty sniping from cowardly Beltway operatives.

(6)  Pam Spaulding, who writes as insightfully as anyone on the relationship between gay equality and race, has some typically worthwhile observations on the tensions that have arisen as a result of the support for Proposition 8 among many African-American voters.

(7)  Wired's Ryan Singel details the latest developments in the efforts by EFF and others to argue that the retroactive immunity bestowed on lawbreaking telecoms by Congress is unconstitutional.  I'll have an interview or two in the next couple weeks with some of the key lawyers involved in that effort.

(8) My description the other day of Law Professor Orin Kerr as a leading apologist for radical and lawless Bush policies -- a description I documented in the update to the post -- spawned all sorts of consternation among his friends and admirers.   You see, he's so reasonable and civil and polite in how he conducts himself that it's really wrong to say anything so critical about him.  But, as one of his own commenters pointed out so adeptly, that is precisely the point:

Whether or not the policies are "radical" in terms of popular or political support, [Greenwald] believes them to be a radical departure from our constitutional principles. If you believed as he does, outrage would indeed be the proper response -- one of his objections to what's been going on is precisely the willingness to discuss outrageous policies (torture, unlimited executive authority) as if they were reasonable. The argument is simple: constitutional constraint depends on elites and ordinary citizens not merely *disapproving* of governmental overreach but *hating* it, being *outraged* by it -- if constitutional violations become merely one area of policy disagreement to be traded off against others, republican government is doomed.

That's exactly the point.  The Bush administration was able to get away with its extremism and lawlessness over the past eight years because elites and "experts" sat around oh-so-civilly and self-importantly and reasonably debating these actions as though they were legitimate, as though support for those policies was worthy of serious and respectful consideration, as though the advocates of these policies were Serious People within our political mainstream, and -- most of all -- as though outrage and anger and revulsion over what the Bush administration was doing was only for the shrill, irresponsible and uncouth rabble.

As but one example, just read what the Bush administration did to Ali Saleh Kahlah al-Marri.  Consider what the ramifications are for our core liberties.  Anyone who defends that -- as Kerr did -- is, by definition, an apologist for Bush radicalism and lawlessness, even if they use soft and polite tones and academic discourse when doing so.  I'll highly recommend once again this amazingly incisive satirical post highlighting the vital difference between civility and decency.  Professor John Yoo is unfailingly polite and soft-spoken.  So, for that matter, is Bill Kristol.  Those who defend or legitimize indecent policies with civility are still indecent.

(updated below)

In today's New York Times, Maureen Dowd reveals (as always) standard Beltway thinking by writing that Barack Obama "has the chance to make the White House pristine again" -- somethings, she says, we haven't had for 16 years:

But the monuments have lost their luminescence in recent years.

How could the White House be classy when the Clintons were turning it into Motel 1600 for fund-raising, when Bill Clinton was using it for trysts with an intern and when he plunked a seven-seat hot tub with two Moto-Massager jets on the lawn?

How could the White House be inspiring when W. and Cheney were inside making torture and domestic spying legal, fooling Americans by cooking up warped evidence for war and scheming how to further enrich their buddies in the oil and gas industry? . . . .

How can the National Archives, home of the Constitution, be as momentous if the president and vice president spend their days redacting the Constitution?

These things are not equal.  They're not even comparable.  But in her desperation to establish false equivalencies -- the central article of faith in the modern journalist's religion -- Dowd argues that Clinton dirtied the White House by having oral sex and liking hot tubs and, likewise, George Bush also dirtied it by destroying the Constitution, torturing people, invading and destroying another country based on false pretenses and spying on American citizens (and, just by the way, Bush and Cheney weren't "making torture and domestic spying legal"; they were doing those things in violation of the law).

The stain Bill Clinton left on Monica Lewinsky's dress isn't remotely comparable to the stain George Bush and Dick Cheney have left on the Constitution, our political values and our national image -- to say nothing of the indelible bloodstains on their hands.  But for so long, Beltway journalists have treated those things as though they're equal; more accurately, they were -- and remain -- far more offended by the former than the latter.  To this day, David Broder still insists that Bill Clinton should have been forced to resign over the sex he had with Monica Lewinsky, whereas nothing that George Bush did merits removal from office or even resignation, and especially not criminal investigation and prosecution (holding lawbreaking Bush officials accountable is to commit the ultimate Beltway sin of "criminalizing our politics").

There are numerous reasons for this false equivalency and for the refusal to internalize the true extent of criminality and extremism that has taken place over the last eight years.  Vapid reporters are more interested in, and capable of understanding, titillating sex scandals than they are dreary, boring matters like lawbreaking, torture, surveillance, and pretexts for wars.  They still perceive George Bush as political royalty and a strong and Serious protector, an inherently good man.  Many of them were supportive of these criminal policies, were vital in enabling them, and thus want to avoid any recognition of how extraordinary, how unique, they were.  But most of all, internalizing the full extent of lawbreaking, bloodshed and radicalism of the last eight years would compel us to hold the wrongdoers accountable and come to terms with what has really been done by our Government.  The overriding goal is to avoid that. 

Instead, we'll just dismiss the last eight years as nothing really notable -- just the standard, garden-variety failures, disappointments and corruption we normally see from politicians.  Hence: Bill Clinton had an affair and let contributors stay in the Lincoln Bedroom; George Bush tortured people, stomped on the Constitution, chronically broke our laws, started wars based on manufactured pretexts, committed felonies by spying on American without warrants, abolished habeas corpus, imprisoned human beings in "black sites," etc.  Boy, politicians sure are bad.  Let's move on and hope Obama doesn't do what Clinton and Bush both did.   That's the mentality that ensures that our current political leaders -- and their enablers in the Beltway establishment -- won't be held accountable for what they've done.

UPDATE:  The Obama appointments that will reveal the most about what he intends to do about these matters will be his Justice Department selections -- particularly his Attorney General and head of the Office of Legal Counsel (where John Yoo, among others, did their dirty work).  Regarding the latter position, Anonymous Liberal has an excellent suggestion.

(updated below - Update II)

The most potent ingredient making Tuesday's election bittersweet is the apparent passage of Proposition 8 in California.  It's one thing for a state to decide in advance not to allow same-sex marriages.  It's another thing entirely to watch a state strip a targeted group of citizens of the already vested right to marry. 

Gay marriage is still a big leap for the country -- even as recently as 10 years ago, it's something that was barely discussed, and the idea even engendered vehement debates among gay people (Andrew Sullivan's advocacy of gay marriage in his 1996 book, Virtually Normal, sparked as much opposition from gay activists as from anyone else).  So it's unsurprising that it will occur incrementally and there will be defeats along the way.  Still, the retroactive rescission of vested marriage rights makes the enactment of Proposition 8 a particularly toxic episode.

With their newly minted control over the White House and Congress, Democrats can easily provide a vital (if not complete) antidote to Proposition 8:  repeal of the so-called "Defense of Marriage Act" (.pdf).  Enacted in 1996, DOMA's principal effects are two-fold:  (1) it explicitly prohibits the Federal Government and all federal agencies from extending any federal marriage-based benefits, privileges and rights to same-sex couples [Section 3]; and (2) it authorizes states to refuse to recognize same-sex marriages from other states [Section 2].

While Section 2 is symbolically wrong (though ultimately inconsequential), it is Section 3 which is especially odious and damaging.  Opposite-sex couples receive a whole slew of vital marriage-based benefits and entitlements from the Federal Government which DOMA expressly denies to same-sex couples.  As but one particularly glaring example, if an American citizen marries a foreign national of the opposite sex (an increasingly common occurrence), then, under U.S. immigration law, the foreign spouse is entitled, more or less automatically, to receive a Green Card and, if desired, U.S. citizenship, so that American citizens can live in the U.S. together with their spouse.  

But if an American citizen marries a foreign national of the same sex, then DOMA bars the INS from recognizing the marriage as a basis for granting immigration rights.  As a result of DOMA, American citizens are put in the hideous predicament of having to choose either to (a) live apart from their spouse or (b) live outside their own country.  The U.S. now stands virtually alone in the Western World in imposing such a cruel dilemma on its citizens (worse still, many U.S. citizens have same-sex spouses from countries where the U.S. citizen cannot live, due to lack of resources or opportunities or because that country also refuses to grant immigration rights to same-sex couples; in those cases, DOMA means that Americans are forced, with no choice, to live apart -- oceans apart -- from their spouse).

Denial of equal immigration rights is just one example of the grave injustices spawned by DOMA.  A whole array of crucial marriage-based tax, pension, visitation, inheritance and legal standing rights are granted to opposite-sex couples but denied to same-sex couples.  These aren't abstract injustices; they heavily burden, and can even devastate, people's lives for no good reason.  And it is a severe governmental intrusion into the private choices and private lives of Americans.

Barack Obama has, on numerous occasions, emphatically expressed his support for repealing DOMA.  When he ran for the U.S. Senate in 2004, he wrote a letter to Chicago's Windy City Times, calling DOMA "abhorrent" and its repeal "essential," and vowing:  "I opposed DOMA in 1996. It should be repealed and I will vote for its repeal on the Senate floor."  But he went on to cite what he called the "the realities of modern politics" in order to proclaim (accurately) that DOMA's repeal at that time -- 2004 -- was "unlikely with Mr. Bush in the White House and Republicans in control of both chambers of Congress."  After Tuesday, that excuse is no longer availing.

Democrats have a particular responsibility to erase the stain of DOMA.  It was Bill Clinton who signed DOMA into law.  It passed overwhelmingly in the Senate (85-14) with massive Democratic support, including from Democratic icons such as Paul Wellstone, Chris Dodd, Pat Leahy, Tom Daschle, Patty Murray, Harry Reid, Barbara Mikulski, and the new Vice President-elect, Joe Biden (interestingly, Democrats ranging from Russ Feingold and Dianne Feinstein to Virginia's Chuck Robb and Nebraska's Bob Kerrey voted against it).

The politics are not nearly as difficult as many might imagine.  While same-sex marriage is still obviously controversial, the extension of equal rights to same-sex couples is not.  "Civil unions" -- the vehicle for that outcome -- has emerged as an interim majority consensus. 

Repealing Section 3 of DOMA -- even if one left Section 2 in place -- would enable the equal granting of federal rights to same-sex couples without having any effect on the definition of "marriage."  [While Section 2 is, as indicated, symbolically wrong, it is also legally irrelevant, since either: (a) states are already allowed, under the various exceptions to the Full Faith and Credit Clause, to refuse to recognize same-sex marriages from other states (in which case Section 2 of DOMA is superfluous); or (b) the Full Faith and Credit Clause requires states to recognize same-sex marriages from other states (in which case DOMA's Section 2 is unconstitutional)].  All of DOMA should be repealed, but repealing Section 3 is, without question, a politically palatable compromise (it's what Hillary Clinton advocated in the primaries, in contrast to Obama, who advocated its full repeal).  Doing that would grant equal rights to same-sex couples without changing the definition of "marriage."

This would be a vital step that Democrats could take quickly and easily.  But are they likely to do so?  The conventional Beltway wisdom has already ossified, quite predictably, that Obama and the Democrats must scorn "the Left" and, despite polling data showing widespread support for equal rights for same-sex couples, such a move would be deemed by Beltway media mavens as coming from "the Left."  Nancy Pelosi is running around decreeing that "the country must be governed from the middle," while Harry Reid emphasizes that Democrats have received no mandate from the election.  And, most significantly of all, Democrats are being told they must avoid the "overreaching" of Clinton's first two years, defined by his attempt to eliminate the ban on gay people serving in the military -- something likely to scare Democrats from touching any gay issues. 

Combine all that with the fact that only a small minority is actually affected by DOMA's injustices, that many Democrats will insist none of this is worth the "risk," and that many Obama supporters will refuse to criticize anything he does (marvel at the number of commenters here saying that Obama's choice of Rahm Emanuel as Chief of Staff is right because . . . it is Obama's choice -- just look at this, this, this, this, this, this, this, this, this).  Even as leading Democrats flamboyantly condemn Proposition 8, and even with Obama's long record of emphatically vowing that he will support DOMA's repeal, there will be very strong currents pushing Democrats to do nothing.  

Obama and Congressional Democrats deserve some time to figure out what they will do and what they will prioritize.  It's irrational to criticize them for things they haven't done.  It's probably politically wise for the first steps they take to be related to the economy, and there are numerous other non-economic priorities of vital importance that nobody should wait for (restoring habeas corpus, closing Guantanamo, imposing a government-wide ban on torture).  But repealing DOMA, and certainly its most destructive part, is a quick and important way to establish who they are, and doing that is consistent with, not contrary to, prevailing political sentiment.

UPDATE:  From the comments:

I'm one of the people Glenn's writing about, and I'm ready for some change I can believe in

I'm an American currently living in exile in Canada. My partner is from India. We're both struggling to adapt to the challenges of living in a new country. This wasn't how we wanted things to work out, but it's the best option open to us. I had to immigrate here before I could sponsor his immigration. It was expensive, it took a long time, and was difficult to leave my family an friends behind, but I had no choice. I'll forever be grateful to Canada for giving us this opportunity, but I hope one day to return to the States with my partner. Repealing DOMA would be big step towards realizing that dream. In the meantime I'm supporting http://www.immigrationequality.org/ with my donations, and encourage anyone interested in same sex immigration issues to visit their site.

As I indicated, I don't think this needs to be the first issue an Obama administration or a Democratic Congress address.  In fact, I said it shouldn't be.  But those wanting to proclaim this a "non-issue" or something that is just some abstract symbolism should understand that it's not.

UPDATE II:  Digby is absolutely, completely right about this, and it's a vital point that large numbers of people would do well to consider.  Simply reciting trite conventional wisdom from the TV is easy, particularly for those capable of nothing else, but that practice is exactly what has produced the last eight years. 

Some appear not to know that a candidate (named "Barack Obama") who has repeatedly and emphatically vowed to overturn the Defense of Marriage Act -- and who called it an "abhorrent law" -- just won a national election in a landslide.  And, in the very widely watched Vice-Presidential debate, this is what his Vice Presidential candidate, Joe Biden, said:

Do I support granting same-sex benefits? Absolutely positively. Look, in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple. . . .

It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do. . . . there should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple.

That's what repeal of Section 3 of DOMA would enable -- treating opposite-sex and same-sex couples exactly equally. That's all it would do; it would not re-define "marriage."

Given Obama and Biden's clearly expressed stance, it's a bit difficult -- at least for a rational person -- to argue that these issues are politically radioactive and that Democrats would lose power if they went near them.  And, as indicated with the link above, majorities favor civil unions and the equal granting of rights to same-sex couples.  Thus, those who come and slothfully repeat what they hear from their TV -- "oh, this would kill the Democrats politically if they did this" -- without citing a single piece of evidence are making claims that have no empirical support and are negated by the evidence that is available.  It's not 1994 any longer.

(updated below w/reply to Orin Kerr)

There are all sorts of reasons to view last night's events as an extremely positive development, including the fact that it was a truly crushing repudiation of the right-wing faction that has dominated the Republican Party for the last two decades. The GOP is very close to being nothing more than a broken regional party, confined almost entirely to the Deep South and a few small, scattered states in the Midwest, and entirely uncompetitive in huge swaths of the country.  All of that merits, and will undoubtedly receive, lavish analytical attention (and celebration) over the next few days and weeks.

But for the moment, here are three extremely clear, indescribably significant reasons why last night was important:

Court watchers almost unanimously believe that those first two Justices -- John Paul Stevens and Ruth Bader Ginsberg -- are certain to leave the court at some point over the next four years, while the third -- David Souter -- is highly likely to do so. To understand why that matters so much, just consider that all three of those justices were in very precarious, narrow majorities in crucial decisions such as these:

Boumediene v. Bush (2007):   Invalidating Section 7 of the Military Commissions Act as unconstitutional because it purported to abolish the writ of habeas corpus and because the kangaroo Guantanamo process designed by Donald Rumsfeld's Pentagon and approved by Congress was a constitutionally inadequate substitute.

Hamdan v. Rumsfeld (2006):  Declaring Guantanamo military tribunals to be both unconstitutional and illegal because the President lacked the inherent constitutional authority under Article II to order them and because they violated the Geneva Conventions' Common Article 3, the protections of which apply to all detainees.

Lawrence v. Texas (2003):  Striking down a Texas statute criminalizing same-sex sodomy as a violation of the Due Process Clause and overturning Bowers v. Hardwick, decided only 17 years earlier, which upheld such statutes.

Had McCain won last night, it is virtually certain that at least two -- and probably all three -- of the above-listed Justices would have been replaced  by those who would have decided those cases the other way, ensuring the opposite result.  It is also quite likely that a McCain victory would have meant the end of Griswold, Roe and their privacy-protecting progeny, which is now likely to be preserved for decades to come.

With numerous cases likely to be decided by the Supreme Court in the next several years that linger from the years of Bush radicalism -- involving truly vital questions of executive power and core individual liberty -- a McCain/Palin victory would have been, for this reason alone, a genuine disaster, possibly a final nail in the coffin of our constitutional framework.  Now, the Court majority which decided these landmark cases of the past several years, imposed some limits on the presidency, and upheld those core rights in the face of a true onslaught will be revitalized and strengthened, and will ensure that the Roberts/Alito/Scalia/Thomas faction remains, in most matters, an impotent minority for many years to come, if not decades.

George Washington University Law Professor Orin Kerr -- a leading apologist for many (though not all) of the lawless and radical Bush policies of the last eight years -- last night smugly predicted that Democrats who spent the last eight years opposing executive power expansions and an oversight-free Presidency will now reverse positions, while Republicans who have been vehement advocates of a strong executive and opposed to meaningful Congressional oversight will do the same.  I have no doubt that he's right to some extent -- some Obama supporters will become overnight believers in the virtues of a strong executive, defend everything he does, and will resent "intrusions" into his power, while huge numbers of Republicans will, just as quickly, suddenly re-discover their alleged belief in checks and balances and a limited federal government.

But I genuinely expect that those who have made the restoration of our Constitutional framework and preservation of core liberties a top priority over the last eight years will continue to pursue those goals with equal vigor, regardless of the change of party control.  And few things are more important in that effort than having a Supreme Court majority that at least minimally safeguards those principles.  It's hard to overstate the importance of last night's election outcome in ensuring a reasonably favorable Court majority and, even more so, in averting what would have been a real disaster for our basic rights and system of government had John McCain been able to replace those three Justices with GOP-approved nominees.  By itself, maintaining the Court more or less as is won't reverse any of the Constitutional erosions of the last eight years, but it is an absolute prerequisite to doing so.

UPDATE:  Orin Kerr, who specializes in using professorial and self-consciously cautious language to endorse radical surveillance policies, feigns shock that I characterized his positions the way I did, and asks: "does anyone know what 'lawless and radical' policies I apparently served as an apologist for?" Kerr could start here (endorsing the Protect America Act as "relatively well done" and proclaiming that "the basic structure seems pretty good" -- the same law which Yale Law Professor Jack Balkin denounced as a "cowardly contribution[] to this slow-motion destruction of our constitutional system").

Then, Kerr might want to look here (attacking the decision of Judge Anna Diggs Taylor, which ruled that Bush's NSA warrantless spying program was illegal and unconstitutional, criticism which Kerr voiced far and wide despite acknowledged ignorance about the legal issues on which he was opining). Kerr could also look here (condemning as "bizarre" and "puzzling" the Fourth Circuit's decision in Al Marri v. Wright, which rejected the Bush administration's perverse claim that the President has the authority to detain even people legally inside the U.S. as "enemy combatants"). As I wrote at the time:

Anyone who objects to the court's decision -- and particularly anyone who seeks to vest the President with powers of indefinite, due-process-less military detention of individuals on U.S. soil -- is, by definition, advocating nothing less than the establishment of martial law inside the U.S. That is the precise point the court made, at page 72 (emphasis added):

"Absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the U.S."

Kerr attacked that decision and insisted that Bush acted properly, legally and constitutionally in what he did to al Marri. Finally, here is Kerr praising the FISA Amendments Act of 2008 as "pretty good legislation" -- the same bill which retroactively immunized the telecoms from the consequences of their lawbreaking and which, as the ACLU put it, posed one of the most substantial threats to the Fourth Amendment in many years.

Those are policies that are radical and lawless. Kerr repeatedly served as an apologist for them -- hence, my characterization.  The fact that someone uses professorial and caveat-filled language when defending indecent policies like these may make them civil, but not decent.  Ask John Yoo (I'm not equating Yoo and Kerr), or see this superb satirical post on the vital and oft-overlooked distinction between civility and decency.

Just as was true in 2006, various factions from across the political spectrum insisted this election that the ultimate vote totals for the Democrats would be substantially lower than what polls predicted. Many on the Right claimed that this would occur because pollsters and the media organizations which sponsor them are biased in favor of liberals and therefore manufacture anti-GOP polls. Some on the Left (including some here recently) claimed this would happen due to GOP control and manipulation over electronic voting systems, which enable GOP operatives to switch large numbers of Democratic votes to Republican votes. And many pundits and others predicted this would occur due to the "Bradley effect," whereby voters intent on voting for McCain would lie to pollsters and say they were voting for Obama (or, relatedly, that McCain voters would be more reluctant to speak to pollsters at all).

The actual results from last night -- at least on the presidential level -- provide compelling empirical evidence negating all three of those theories. In the top 10 swing states, compare the predicted result from the final RealClearPolitics average to the actual results in those states:

With two exceptions (Nevada and New Mexico), the polls were extremely accurate in predicting the ultimate results.  And in all 10 swing states, Obama outperformed what the final polls predicted, meaning that there ended up being a better result in counted votes for Obama than the polls anticipated.

Roughly the same thing occurred in the 2006 midterm election.  As I documented after that election -- in response to the repeated claim by Hugh Hewitt and other reality-denying, right-wing polemicists that pollsters and their organizations were strongly biased in favor of liberals and against Republicans and their polls would therefore significantly favor Democrats -- polling in the most vigorously contested 2006 Senate seats was quite accurate.  And to the extent there were any substantial inaccuracies, those inaccuracies were favorable to Republicans -- meaning that, just like last night, the Democrats' actual vote totals exceeded what pollsters predicted.

There is no question that our voting system is in need of major reform.  Voter suppression efforts are widespread; paperless voting machines often malfunction and are too vulnerable to tampering; and the agonizingly long voting lines in many areas this year was a disgrace.  Those who have worked on voting integrity issues have performed and continue to perfom a vital service.  And none of this evidence directly bears on what happened in 2004 and/or 2000.

But for those wanting to persist in propounding these same theories -- particularly that Republicans can systematically control or even widely manipulate vote totals through voting machines (and/or that polls are biased in favor of liberals) -- this evidence can't be dismissed away.  If the various voting machine theories were valid (and/or if the "polls are biased against Republicans" theories were), then one would expect to find that, in key races, the actual results would be substantially worse for the Democratic candidates than final polls predicted.  In the last two elections, that is plainly not true; if anything, the opposite is.

I'll be blogging all day today over at Salon's Election Day group blog, which also includes Joan Walsh, Digby, David Sirota, David Talbot, Gary Kamiya and others throughout the day.  That can be found here. 

The first few posts are already up and it will be updated constantly throughout the day with updates, analysis, discussion, commentary, etc.  The comment section will be an important part of the discussion, so those inclined to do so should participate over there.

(updated below)

There's little point in writing about anything today other than the election, but what's there to say about that at this point?  So with those premises in mind, we can proclaim a one-day-only capitulation to the dark forces of horse-race-ism and use this post for predictions.  Mine are below; leave yours in the comment section and whoever is closest to the actual results will win nothing (here's an excellent Electoral Vote tool).  Or feel free to leave whatever commentary you want regarding tomorrow (or other topics).

Also, as a programming note, all day tomorrow, Salon is going to host a special Election Day group blog for running, interactive commentary, updates and analysis on the election, to include Joan Walsh, David Sirota, Digby, David Talbot, Gary Kamiya, me and perhaps others.  The comment section will be open and active the entire time.  We'll begin some time during the day tomorrow and continue until (at least) the presidential election is resolved, no matter the time.  The blog will be hosted at Joan Walsh's blog, here, and I'll leave a link at the top of the blog here tomorrow.

My predictions/views of tomorrow:

Popular vote:  Obama - 51.6%; McCain - 47.1%; Nader/Barr/others:  1.3%

Electoral votes:  Obama - 321-217 (Kerry states + CO, NM, IA, VA, NC, OH)

States I'm mostly likely to be wrong about:  (1) FL; (2) NC; (3) OH; (4) MT; (5) MO

Senate:  Dems - 59; GOP - 41 (including Lieberman and Sanders as Dems)

Senate Dem. pick-ups:  VA, CO, NM, AK, NC, OR, NH, GA

States I'm mostly likely to be wrong about:  (1) GA; (2) MN; (3) KY

House Dem. pick-up:  +31

Incumbent losses that would produce the greatest pleasure (among those with a reasonable prospect to lose):  (1)  Saxby Chambliss; (2) Michelle Bachmann; (3) Marilyn Musgrave; (4) Robin Hayes; (5) Elizabeth Dole; (6) Dave Reichert

Democrats whose defeat would prompt indifference (or even joy):  (1) Chris Carney; (2) Tim Mahoney; (3) Nick Lampson; (4) Jim Marshall; (5) Jack Murtha.

Five terms I hope never to hear again for the rest of my existence:  (1) Joe the Plumber; (2) Hockey Mom; (3) game-changer; (4) tightening; (5) Sarahcuda.

Three dumbest pieces of already-solidified conventional wisdom among the Right and the media (if Obama wins):   (1) The Liberal Media was unfair to McCain; (2) Obama better resist his "liberal impulses" and govern from the center unless he wants to spawn disaster; (3) The Pelosi/Reid Congress is going to pressure Obama to move to the Left.

* * * * *

I believe my presidential predictions are on the conservative side -- meaning that I think it's more likely that I'm under-estimating the margin of Obama's popular and electoral victory than over-estimating them.  There are numerous variables -- higher Democratic enthusiasm, Obama's superior ground operations, large influxes of first-time and African-American voters -- that are too unknown for me to factor in, but all of which militate in favor of an even larger Obama victory than my predictions suggest.

UPDATE:  Commenters have added numerous other phrases worthy of permanent banishment, including:  Drill, baby, drill; First Dude; throw under a bus; in the tank; Real Americans; The Mac is Back (or any permutations involving "The Mac"); my friends; and, for my most glaring oversight:  Maverick.

To be honest, I'd also be happy to go a good long while (roughly forever) without hearing "Yes, we can," but I'm generally unreceptive to political slogans, so perhaps I'm unrepresentative in that regard.