Begging The Question

So McCain went with the VP choice I’d been hoping for. Just becaue she was my first pick, I was convinced he was gonna go with someone safe and boring. Milbarge and I have already traded emails on our thoughts on the pick. Maybe the relevant back and forth can be summarized into another post.

For now however, I just wanted to mention that when the pick was announced, it generated an incredible amount of enthusiam at the office where I work. I of course have been reading the emails that get posted in the Corner. But people I’ve worked with for years that I didn’t even know followed politics were talking about what a great pick it was. To a man/woman they were all talking about how much they like Governor (not Mayor, as the Obama campaign would have you believe) Palin. Her politics, her toughness, her story, her family. All of it. This pick has created interest, and actual excitement about the Republican ticket for the first time this election. Excitement that is visible in actual people and not just on the interwebs. The fact that the excitement has to come from the VP and not from any of the large original slate of candidates speaks to what Glenn Reynolds calls the GOP’s need to work on their farm system. But the excitement is there none the less.

If she holds up in the debates with Biden, and I think she will, (McCain better have run her through some drills before making the call) then this one pick will have done more to change the election than anything that gone before in this 2 year process. This pick was genius, and not just because it’s the one I would have made.

I have signed up on the McCain – Palin website. Only the second time I have done this for a campaign. And if life allows I may be doing some volunteering. This is gonna be fun.

UPDATE: Unsurprisingly, Mark Steyn sums up Palin better than I ever could.

Well, the veepstakes are heating up, and everyone with an electoral college map and a congressional directory is making predictions. (Mine, from November, are comically wrong, but I’ll save the laughs for those willing to put in the effort to find that post.) The buzz this week on the Democratic vice-presidential nominee seems to be focused on Delaware Sen. Joe Biden, just as it was centered on Indiana Sen. Evan Bayh last week, and Virginia Gov. Tim Kaine the week before that.

As a native of Virginia, I took a little interest in the Kaine boomlet. I think there are decent arguments on his behalf, and decent arguments against him. And, ultimately, I don’t think he’ll be the choice. But I did want to comment on one argument against Kaine that I think shouldn’t be a major consideration: the fact that picking him will turn the Virginia governorship over to a Republican.

Virginia does not elect a ticket; its Governor, Lt. Governor, and Attorney General all run separately. In 2005, when Kaine was elected, the GOP took the other two spots. Bill Bolling was elected Lt. Gov., and Bob McDonnell won the A.G. spot. So, if Kaine did leave office, Bolling would indeed take over. But there are a couple of noteworthy quirks to all this.

First, Virginia’s governors cannot run for re-election. They are limited to one (consecutive) term. So Kaine’s tenure would be up in 2009 anyway. The other offices are not term-limited. The consensus seems to be that the GOP will coalesce around McDonnell as the 2009 gubernatorial nominee, with Bolling running for another term as Lt. Gov. (and probably setting himself up for nomination in 2013).

The other big quirk is that Virginia attorneys general have, for decades, followed a tradition of resigning when they run for another office, to minimize claims of partisanship in the AG’s office. I don’t think that’s usually necessary (or, if it is necessary, probably not sufficient), but that’s neither here nor there. It is what it is.

But what this could mean is that, if Kaine leaves office, Virginians could see the strange circumstance of the incumbent Governor (Bolling) running for the lesser office of Lt. Governor, and the Lt. Gov. and AG spots vacant, one because of elevation and the other because of resignation. (Technically, some placeholder would be named AG, but that person is usually an unknown without a statewide constituency. I think the Lt. Gov. position stays open, or is effectively filled by a Senate President Pro Tem or something, but I’m not sure. The point is, the officeholders won’t look anything like the ones voters elected in 2005.)

It might be amusing to see Barack Obama pick Kaine, just to see how all this would effect Virginia politics. Plus, Kaine may decide the ship is sinking and it’s time to bail out. But given Kaine’s closeness to Obama, and the fact that he won’t have another job come November 2009, I fully expect to see Kaine take some kind of position in an Obama administration, should Obama win this fall.

The natural fit for Kaine, a former urban mayor and housing lawyer, would be H.U.D. Secretary. Assuming Kaine has higher political aspirations, though, he might want some foreign policy experience. (This is the biggest knock against Kaine as a vice-presidential hopeful.) So, I’ll throw out another suggestion: Ambassador to Mexico. Kaine is fluent in Spanish and once served as a Catholic missionary in Central America. Kaine could take a role in formulating and implementing Obama’s immigration policies. Maybe a few years in Mexico City, then a move to a U.N. post or something. Something like a Bill Richardson path. Or, stick with the domestic experience at H.U.D. and be a Jack Kemp to a future presidential candidate with more foreign policy expertise.

Anyway, the point of all this is that I don’t think Virginia’s gubernatorial succession provisions should prevent Obama from choosing Kaine, although, as I said, I think there are other arguments against Kaine (or, to put it another way, stronger arguments in favor of other candidates). In any event, I still have a feeling that if Obama wins, he’ll end up picking Kaine for another post at some point, so they’ll probably have to go through those succession procedures before the scheduled transition anyway.

1. I wrote here recently about the Sirius-XM satellite radio merger. See also here for more background. But way back here, I wrote about another proposed merger, this one between grocery chains Whole Foods and Wild Oats. Basically, I analogized these two specialty stores to the satellite radio companies, and figured that if these two organic stores could merge and not threaten the greater grocery market, the satellite radio outfits could merge and not cause a blip in the larger music entertainment industry. Anyway, in my original post, I noted that a federal judge had refused the Federal Trade Commission’s attempt to block the merger. Well, a couple of weeks ago, the D.C. Circuit reversed that judgment, and sent the case back to the district court. The merger isn’t totally kaput (in fact, much of it has already happened), but it’s an interesting development in light of the recent approval of the radio merger by the DOJ and FCC. Lots of info about the appeals court decision is available via How Appealing here and here.

2. Going even farther back in time, way back here some four-and-a-half years ago, I wrote about lawsuits seeking to apply the Americans with Disabilities Act to stadium-style movie theaters. Very briefly, the issue (which has divided the courts of appeals) is whether the ADA requires theaters to provide only unobstructed sight lines for wheelchair-bound patrons, or if it requires the theaters to provide seats comparable to those higher up in the “stadium.” (Go to the linked post for more background; see also this follow-up with more thoughts.)

Again via the indispensable How Appealing, I see that the Ninth Circuit decided a related case, Miller v. California Speedway Corporation. This one involves the ADA’s application to racetracks. A NASCAR fan who is confined to a wheelchair wanted to watch the races, but his view was obstructed by the fans who stood up during the exciting parts of the race. He sought an order applying the ADA to the track in such a way as to require a sight-line for him comparable to standing fans. The Ninth Circuit allowed the suit to proceed. (The movie theater cases were cited in the opinion.)

These suits, at bottom, are about accommodations in public places for those in wheelchairs, and could potentially affect lots of venues. But the legal questions turn on the interpretation of the ADA, the Department of Justice’s regulations implementing the Act, and its Manual providing guidance for understanding the regulations, along with the deference courts will give to the Executive agency’s interpretations. Basically, an Administrative Law orgy. Don’t be surprised to see the Supreme Court take this case, if not during the next term then once the district court reaches a final decision.

Longtime readers know about my little obsession with chronicling all the Supreme Court’s “Cases” cases — that is, Supreme Court opinions styled (either popularly or in the U.S. Reports) as “The [X] Cases,” such as The Slaughterhouse Cases or The Civil Rights Cases. Here is my last post on the topic, with my current list.

A few days ago, Prof. Vladeck at PrawfsBlawg considered the matter, and pointed out a couple I hadn’t found yet (although he didn’t provide cites). Anyway, thanks to Prof. Vladeck for the tips. I think that between my efforts and his, I’m up to twenty-five “Cases” cases. I’ll update the full list soon.

Care to collaborate on an article, Prof. Vladeck?