a citizen’s journal by Thomas Nephew

Thoughts on Lawyers, Guns and Money at the End of an Election Cycle

Posted by Thomas Nephew on 6th November 2012

Dear sirs,

Thomas Nephew


As I’ve noted before, the level of disrespect and intolerance for alternative left viewpoints at the well-known “Lawyers, Guns & Money” blog and elsewhere bothers me.  So I’ve rewritten my comments here, and hope that a simple chart and reasoned discourse are better than the angry post I started off with.  Let us read  Robert Kuttner:

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Lockstep liberals police the field

Posted by Thomas Nephew on 29th September 2012

One weekend recently I was helping coach my daughter’s community league soccer team; to start the 2d half, we put in a new goalie so the first half goalie could get some field playing time.  But she’d never played the position before, so I thought I’d run over and give her a few tips even I was aware of: don’t stand squarely on the goal line, cut off angles, direct your defense, find the open outlet rather than just whacking the ball up the field.

Within about a minute, the opposing coach came kind of scuttle-walking over at high speed in a weird, bent-over, I’m-not-really-here-but-I’m-embarrassed-for-you fashion and informed me that coaches in our soccer league can’t be on the back line of the field.  Then he kind of banked and scuttled back.

His team was ahead 4:0.

I’m put in mind of this by any number of recent finger-wagging missives by supporters on the topic of what real progressives would do instead of complaining about Obama, e.g., Rebecca Solnit’s “Stop Leftsplaining” in Mother Jones, or Erik Loomis’s ongoing Lecture Series for Dull Progressives at “Lawyers, Guns & Money.”  Solnit, variously:

O rancid sector of the far left, please stop your grousing! Compared to you, Eeyore sounds like a Teletubby.  […] I want to lay out an insanely obvious principle that apparently needs clarification. There are bad things and they are bad. There are good things and they are good, even though the bad things are bad. The mentioning of something good does not require the automatic assertion of a bad thing.  […] …as a Nevada activist friend put it, “Oh my God, go be sanctimonious in California and don’t vote or whatever, but those bitching radicals are basically suppressing the vote in states where it matters.”

And here I was this close to donating some cash to the magazine for their role in the Romney 47% expose. Instead of a line by line rebuttal of Solnit’s screed, I’ll just say this: if a few “bitching radicals” can really “suppress” — honestly, how dare Solnit repeat that slander — the vote in Nevada by talking about stuff Solnit simultaneously says “a lot of us already know,” then bitching radicals aren’t her problem, her candidate is.

At least Loomis — who loved Solnit’s piece, of course —  is more specific.  I’ve already mentioned his spluttering “Only a White Person” rejoinder to the Friedersdorf “Why I Can’t Vote For Obama” Atlantic Monthly cri de coeur/quality concern trolling/call it what you need to, call it what you like. In an earlier post, Loomis explained that he “realized the folly of my own political errors and regretted my Nader vote” in 2000 because Nader, in his view,

…wasn’t committed to pushing progressive change from either within or outside the system. He took no leadership positions within progressive movements after 2000 to move the country back to the left except to make another vanity run for president in ’04.  […]  You turn the Democratic Party into what you want it to be by controlling the mechanisms of everyday party life. By becoming a force that must be reckoned with or at least co-opted.

Now I actually do try to do that — kind of — not by burrowing into the local Democratic Party, but by pushing local action about local civil liberties and civil rights concerns.  Thing is, as far as I can tell there often aren’t that many of us: the Washington Post recently reported that “Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35.”  It appears that power doesn’t just corrupt politicians, it can corrupt all too many of their supporters as well. Read the rest of this entry »

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Spam 3.0: issue-based comment spam

Posted by Thomas Nephew on 8th April 2010

Because I get fairly few comments — not whining about it, I promise! — I’m at leisure to screen every one of the new commenters who show up. Sadly, most of them are plain old spam — call them spam 1.0.  Once you could at least see that they were links to online Viagra sales sites or whatever; these days they’re often not even intelligible writing (these are generally from Eastern Europe and Russia), showing up as strings like “????? ????? ??????’? ????”, which is kind of mysterious, but whatever, maybe it’s homework for some Ukrainian “Internet Marketing 101” class.

Next came “suck up” spam: short notes pretending to congratulate me on a post — i.e., impersonating someone who has actually read the post, instead of just dropping in to deposit a dropping with a link back to their huckster site.  While it’s still pretty lame, it’s sufficiently innovative that I’ll call it spam 2.0.  I’ve collected the text from some of the more amusing examples, but like all the other spam comments, the “Akismet” spam filter catches them, I look at them, I yawn, I delete them.

Lately, though, I’ve seen something new.  While the web site link of the commenter remains a giveaway to a commercial interest of some kind, the comment itself is almost relevant to the post, and the commenter’s web site is also almost a  genuine looking web site or blog.

Here’s a comment of this sort, attempted for “In What’s Become a Bit of a Regular Occurrence” (a post about Obama’s reversal on offshore oil exploration):

Our major issue in this country is our two political parties. Our forefathers knew that a two party system would be our downfall and took steps to try to stop this type of politics, and thus anyone who seriously thinks that politics isn’t corrupt or slaves to Corporate America hasn’t not been paying attention. George Jr. will go down in History as one of the worst administrations in history and I could go on for hours showing why, but my point is that the Obama administration has offered nothing different (besides health reform, granted) and has in fact continued nearly every single Bush program. Obama has almost the same political donors and thus has the same pressures as Bush did. Health reform will turn out to be the most expensive and destructive waste of tax payer money ever. I just wish I could offer a better alternative for other frustrated people, but I can’t and those that think that the tea partiers are the future, remember that Sarah Palin is an important figure to them.

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On Facebook

Posted by Thomas Nephew on 10th March 2010

Part of the decline in output for this blog is because I tend to use “Facebook” these days as my main platform for pointing out articles and events I think are worthwhile or important (maybe 75% of the time there), and for saying what’s up with me, music I like, and personal stuff (maybe 25% of the time).

The reason is simple: comments and  full-fledged discussions are much more likely there than here, partly because your latest item is transmitted to all your friends, so there’s a chance they’ll see it — even if it’s rapidly buried in the snowfall of posts by all their other friends.  One comment then begets another and another, as the facebook software propels commented-on stuff to higher prominence in the so-called ‘news feed’ (as opposed to the instantaneous, unfiltered ‘live feed’).

Facebook also lets you easily add photos, form groups, and announce events, and even advertise them; there’s also a “chat” feature, though I never use it.  The look of one’s “wall” — the place where one’s messages, photos, and found objects from the Internet pile up — is fairly “clean,” and of a piece with the so-called “home page” news feeds where your friends’ posts etc. pile up.  For quick interactions in a smoothly functioning environment, it’s a very nice system, and it lets you fine tune the degree to which you’re visible to facebook users beyond your circle of approved online friends — anywhere from hardly at all to come one come all.

But the drawback is also clear: Facebook isn’t about long form writing.  (Yes there are “notes”, no, they’re not used much.)  There’s an upper limit on how long the initial post can be, so that you’re more or less compelled to do ‘heh. indeed’ or ‘oh my god’ quick hit comments on your item and then express your views more completely in comments.  It can be kind of fun to combine your teaser, the headline, and a followup comment into one coherent message, but it’s not the kind of writing and researching I do for posts here — posts, to be sure, that go all but unread.

So that’s the trade-off, roughly: write or be read, research or discuss, write as if the world were reading or just as if you’re at a kind of neighborhood get-together.  I find Facebook to be quite absorbing — some people are excellent sources of news and opinion pieces, and others are reliably interesting commenters.  But I miss the kind of writing I did here and the interactions I’ve had with friends and readers here, and I think it’s time to rebalance my efforts between these two outlets and — oh, right! — the actual, real world.

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A great disturbance in the Force

Posted by Thomas Nephew on 14th July 2009

hilzoy of “Obsidian Wings” is retiring from blogging after Friday. She explains:

The main reason I started blogging, besides the fact that I thought it would be fun, was that starting sometime in 2002, I thought that my country had gone insane. It wasn’t just the insane policies, although that was part of it. It was the sheer level of invective: the way that people who held what seemed to me to be perfectly reasonable views, e.g. that invading Iraq might not be such a smart move, were routinely being described as al Qaeda sympathizers who hated America and all it stood for and wanted us all to die.

I thought: we’ve gone mad. And I have to do something — not because I thought that I personally could have any appreciable effect on this, but because it felt like what Katherine called an all hands on deck moment. I had heard about times like this in the past — the McCarthy era, for instance — though I had never expected to live through one. Nonetheless, I was. And I had to try to do something, however insignificant.

That said, it seems to me that the madness is over. There are lots of people I disagree with, and lots of things I really care about, and even some people who seem to me to have misplaced their sanity, but the country as a whole does not seem to me to be crazy any more. Also, it has been nearly five years since I started. And so it seems to me that it’s time for me to turn back into a pumpkin and twelve white mice.

She’ll be missed; I’ll miss reading her, that’s for sure.

I suppose I hope she’ll rethink the need for her (and by extension, the need for people like her) to keep at it. It may not be an “all hands on deck” moment any more, but surely some steady hands are still needed. Now might be, or might have been, a good time to either help ‘nail down’ the country’s return to relative health, or to monitor whether the madness she speaks of is just in remission. (Item: Sarah Palin writing on global warming on the op-ed page of the Washington Post.) Plus it’s never a bad idea to hold to account those who’ve come to power, and instill the habit in others.

But enough of that. I hope the “Obsidian Wings” blog continues to be the thought-provoking, valuable community it’s become, essentially because of her. Good luck, hilzoy! And thanks.

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Department of followups

Posted by Thomas Nephew on 12th July 2009

An occasional review of further developments in stuff I’ve written about before.

Practice to deceive, 04/22/08 — This was a post about how several key figures like John Yoo, Douglas Feith, David Addington, and William Haynes II used outright deceit to advance the torture policies they favored. I argued that

“In each case, the deception was needed in order to grease the skids for an immoral and criminal policy, by either sidestepping persons or offices with inconvenient integrity, or by pretending to agree with them even as the diametrically opposite decision was taken. In each case above the deception itself answers the question, “was the torture policy advocate acting in good faith?”

That, in turn, arguably speaks to a so-called “consciousness of guilt“, which can be proven by showing such deceptions and which is admissible circumstantial evidence in criminal trials.

Eric Holder: Yes We Can

The question may well be on Attorney General Eric Holder’s mind.  A number of reports over the weekend have suggested that Holder is seriously considering a special prosecutor, at least of those actors who overstepped even the loose legal limits imposed by the flawed Yoo/Bybee and Bradbury OLC memoranda.  The memo writers themselves shouldn’t rest easy quite yet, either.  At the “Daily Beast,” human rights legal expert Scott Horton writes,

As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented.

(See also Marcy Wheeler’s comments here.)

It’s by no means clear (to put it mildly) that Holder will call for a special prosecutor; while he values the independence of the Justice Department, it can’t hurt to remind him you have his back if he bucks the likes of the West Wing Weasels (TM, but please use widely) David Axelrod and Rahm Emanuel on this.  Please avail yourselves of the opportunity to do so using the ACLU button to the right or the Holder “Yes We Can” button on the left.  You can also visit the “AfterDowningStreet” site linked by the orange “Torture is a war crime! Prosecute” button at the upper right; David Swanson is currently asking people to call or write the Justice Department at 202-514-2001 or

Weymouth: What did I know and when did I know it?, 07/09/09 — Washington Post ombudsman Andrew Alexander had a lengthy post-mortem of the “pay to play” Post ‘salon’ proposal in the Sunday, July 12 edition. Calling it an “ethical lapse of monumental proportions,”, Alexander found that early scapegoat and Post business exec Charles Pelton had in fact tried to sound out “questions about ethics […] with both [CEO K. Weymouth and executive editor Marcus Brauchli] months ago.” For their part, the two seem to have believed that their underlings’ silence at a June 24 meeting signalled consent, when of course it merely signaled wanting to stay employed:

Several [newsroom employees] now say they didn’t speak up because they assumed top managers would eventually ensure that traditional ethics boundaries would not be breached. […] Neither Weymouth nor Brauchli can recall anyone raising concerns, although both say they wish someone had. […] In an interview, Brauchli said it was his responsibility to vet the concept and that it is “understandable” that no news managers at the meeting raised a caution. “When the publisher and the editor both appear to have signed off on an idea, I think it is perhaps true that a certain complacency sets in,” he said. For that reason, lower-level managers might be less inclined “to stand up and say: ‘Whoa, this is a bad idea.’ ”

Ya think? Alexander draws on interviews with Weymouth and Brauchli for the piece. Meanwhile, in “Veteran editors offer advice to the Post,” Northwestern media ethics professor Loren Ghiglione displays a keen eye for the main chance: “The board has audit, compensation and finance committees. Why not one focused on the company’s values and ethics, headed by an ethics prof?” Oh hell, why not.

On the irrelevance of “Balkinization in particular and the legal profession in general, 05/25/09 — In an irritated post I decried the growing irrelevance of the legal blog ‘Balkinization’ to ongoing, urgent issues such as torture, the abrogation of habeas corpus at Guantanamo and elsewhere, and other abuses of executive power — all matters that the blog had once been at the forefront of covering.

Of late, though, there have been a number of posts on precisely these subjects, including ones by Jack Balkin, (“The Inspector General’s Report and The Horse that is Already Out of the Barn Door“, “We believe that anyone suspected of war crimes should be thoroughly investigated“)  Sandy Levinson (“A further disappointment from the Obama Administration“, and newcomer Deborah Pearlstein (“Post-Acquittal Detention“).

While I don’t agree with all of what they have to say, I agree with a lot of it.  Regardless, it’s all worth reading — and it’s rarely wise to generalize too much along the lines of “the dog that didn’t bark” with blogs or the busy people who are taking time out to write them.  I shall meditate on my impatience.

NOTES: links to my posts are highlighted in gray and dated. Washington Post item via Yglesias.

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On the irrelevance of “Balkinization” in particular and the legal profession in general

Posted by Thomas Nephew on 25th May 2009

Balkinization” is a blog developed by Yale law professor Jack Balkin that, during the Bush administration, became the go-to web site without equal for analysis of the constitutional and legal issues posed by that administration’s actions and lawlessness. It is the place I once used to visit within minutes of a speech like Obama’s last week.

By now I know not to bother; the site has become increasingly bogged down in arcana, minutiae, and fantasies ranging (of late) from Supreme Court rotation schemes to familiar hobbyhorses like a new Constitutional Convention to placing California in political receivership.  (This puzzling output is leavened, to be sure, with occasional promotions of various and sundry arcane and/or oddly overconfident books authored or edited by the blog’s contributors.) The one voice at the blog who has been carrying on in the “Torture Memos” tradition is Brian Tamanaha, but he can’t and shouldn’t have to carry this kind of burden by himself.

I’m nevertheless a bit shocked that none of the dozen or so “Balkinization” bloggers have even now said anything about Obama’s (or Cheney’s) speeches, days after a President and a former Vice President essentially agreed that (1) it would be unwise to investigate and prosecute known acts of torture committed by Americans and planned by high American officials, and (2) that Bush-era notions of military commissions and preventive detention would and should become the modus operandi of the United States.

While other factors have no doubt played a role in “Balkinization’s” shockingly rapid decline into irrelevance,* I have to wonder whether the elevation of former “Balkinization” co-blogger Marty Lederman to the post of Deputy Assistant Attorney General at the Office of Legal Counsel has had something to do with it as well.  Not to put too fine a point on it, have Balkin, Levinson, Griffin, Graber et al been co-opted by the appointment of their friend and colleague?

If so, I’d have to wonder why any of them got into this line of writing in the first place.  If there was ever a time when a well argued, well written blog post might actually make a difference, this would appear to be it — a generally liberalish president, one who allegedly welcomes debate, one who may even read blogs and use the words he finds there, one who appoints people to high positions who read their former colleague’s postings.  Assuming they’ve meant what they’ve said for the past six or seven years when it was President Bush, Balkin and his cohort of bloggers should be pushing President Obama hard on these issues.  Instead, they’re nearly silent.

For that matter, where is Lederman on Obama’s preventive detention and military commissions scheme?  Is he drafting it or opposing it?  There’s a pixel trail suggesting that once upon a time, in principle, Mr. Lederman opposed prosecuting only those you were sure of convicting, and locking up the rest indefinitely. At this point, I’d be relieved just to learn that he’s still alive, let alone what his opinions are on ‘prolonged detention.’ Personally, I should think he’d resign from the OLC, judging by this. But who knows; he was once quite vocal that no one at OLC should be prosecuted for their egregious opinions; perhaps he was looking ahead.

Truth to tell, though, it’s not just a legal blog or one of their former colleagues who seem to be missing in action on this and other fundamental constitutional and legal debates.  The legal profession as a whole has not covered itself in glory — though the yeoman work of a few on behalf of Guantanamo detainees and their rights is a counterexample, and a few other voices like Glenn Greenwald and Scott Horton also brighten the darkness.

Consider: one president commits lawless acts — from authorizing torture to authorizing warrantless electronic surveillance to (lest we forget) authorizing a war based on lies his administration carefully nurtured.  He abridges rights enshrined in common law and the Bill of Rights, the Geneva Conventions — and in whatever natural law simple rats obey when they refuse to torture each other for a bit of kibble.  True, he becomes a figure of scorn, and the leader of the opposition party is elected in a landslide.  But that president appears to be determined to ignore the previous one’s lawlessness — indeed, seems to take positive pride in doing so.

And yet the tens of thousands of highly trained lawyers in this country do not rise up and object to that.  In Pakistan — Pakistan, for crying out loud —  lawyers literally took to the streets and battled police when General Pervez Musharraf sacked a Supreme Court justice there.  They literally impeached Musharraf and forced him out of office.

Here… nothing. Is the law in the United States a calling, a profession, or just a way for verbally clever people to network and make up new rules as they go along?

Never mind, don’t answer that.  I imagine Obama will come out with a Bright, Shiny Supreme Court nomination this week or maybe next one.  Most Americans will understandably focus on that, though there’s of course the slight possibility that nominee will voluntarily weigh in on Obama’s National Archives speech or Cheney’s Death Star one.

But just as with impeachment, a class of professionals ostensibly trained to notice and object when fundamental rights and fundamental avenues of redress are being frittered away are — by and large — saying nothing.  Although there are honorable exceptions to the rule, the rule is silence, and the rule is therefore consent.

It may be too early to conclude this, but it’s not too early to suspect it: the American legal profession has, as a class, forfeited its moral authority to protecting our civil liberties, our civil rights, and our human rights.  In this, they would merely join our media and political classes.  If so, Americans who care about these rights must look elsewhere for guidance.  I don’t know where that should be, but we should probably not look back.

* Notably several of the writers recently shutting down comments –the very best way not to notice your commenters are less interested in what you’re writing than they used to be.  (Admittedly, it’s also the best way not to have to read yet another comment by Bart DePalma.)
UPDATE, 5/25: “Balkinization” co-blogger Sandy Levinson posts “Further notes on constitutional dictatorship,” touching on the issues above in his first point.

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Posted by Thomas Nephew on 18th February 2009

other blogs
all tied up nowhere to go
notes on a theory
maryland blogs
just up the pike
maryland juice


german blogs

specialist blogs
arms control wonk
panda’s thumb
real climate
savage minds
schneier on security

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A belated note on Obama and FISA: argh

Posted by Thomas Nephew on 27th June 2008

I share Nell’s, Avedon’s, eRobin’s, Mick’s, Paul’s, Kevin’s, Glenn Greenwald’s and many others’ anger and/or disappointment re the express train to Nixonland FISA capitulation by the Democratic Party and Obama.

While it’s justifiably the headliner aspect of the bill for opponents, the telcom immunity provision is only part of the problem. When you get long-time Jucidiary Committee staffers and Department of Justice veterans like James Dempsey and Marty Lederman scratching their heads and saying they’re still not quite sure what all is being authorized here — and neither is Congress — then it’s time to pull the emergency brake for that reason alone, not stoke the engine.

Given that “if you have to ask, you can’t afford it”, it seems likely we’re about to approve giga-scale “vacuum cleaner” data mining of a great deal of innocent e-mail and telephone traffic on “general principles” of some unknown nature, with a resulting huge spike in ‘false positives’ like those that have affected so many air travelers since 9/11 changed everything. Those positives will result in additional “warranted” yet essentially unjustified spying — fruit of the poisonous tree, declared tasty and nutritious by congressional fiat, Fourth Amendment be damned.

Re Obama: in one way or another, many of the bloggers above “told you so” about Obama’s propensity to lean towards whatever the DC establishment consensus is — not that I think they take great pleasure in seeing their analyses confirmed. But some didn’t, and Greenwald’s scoldings notwithstanding, I have to say that I’ve seen a lot of fairly fervent primary season Obama supporters be forthright about being disappointed with Obama now: hilzoy, Paul, and Kevin among them.

For my part, while I thought I was braced for that kind of thing, I confess I’m “Charlie Brown in midair” all the same to see Obama flatly renege on this so soon after his campaign promise last fall to support no FISA bill with immunity provisions. While I’ve been quiet online, I did fire off an e-mail to some Obama delegates I know; both replied that they shared my disappointment, and would pass along my comments to the campaign. Given that I couldn’t get through to the campaign with a phone call, I suspect they’re getting the message in Chicago; whether that message bothers them or not I can’t say.

There must be some kind of way out of here; seems like we’ve been here before. Meanwhile, Nell reminds me to go down fighting — there at least needs to be an amendment offered to strip immunity from the bill. I’m off to call my Senators; don’t expect much from Mikulski, but Cardin might hold the line on this.

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I agree — let’s all be more skeptical

Posted by Thomas Nephew on 13th April 2008

Sound advice for Obama supporters — in a barely friendly, clenched-teeth, … oh, what the heck, fairly hostile sort of way — from Obama-skeptic Kate Harding (at “Shakesville”). With the refrain “Obama is not a f*@%ing progressive,” Harding rehearses a well-researched list of many of the Obama negatives I’ve noted myself,* concluding

Obama has feet of clay, just like every other politician in history. Quit trying to pretend he doesn’t and start figuring out how to help reinforce them. Be realistic about who this candidate is, to whom he’s beholden, and how much he can reasonably accomplish, so you don’t end up under your bed sucking your thumb when the shit starts to fly.

For my part, this Kool-Aid Kultist welcomes — nay, applauds — Obama-skepticism (really) and even ninety-thousand word obscenity-laced posts devoted to it (not really). I merely hope for a correspondingly skeptical post about Senator Clinton by the Shakesville team in the near future. Someone I know called Obama the “new Teflon candidate” today — nothing sticks. But I wonder — is there an example of some industrial substance that got approved simply because everyone thought someone else would ban it?

Ms. Harding says her goal is simply to explore “Obama the myth vs. Obama the man” — but cannot forebear to note she voted for Clinton mainly (and merely) because Clinton knows how to fight the slime machine propaganda the GOP will throw at either candidate, and Obama allegedly doesn’t. In the key rhetorical move of the post, she wisely concedes Clinton is no “f*@%ing” progressive either — and wisely places that concession very, very early in her long, long march through Obama’s shortcomings.

But if that’s the case, progressivism isn’t this critic’s sine qua non, either, nor is skepticism per se. Instead we essentially have one intrapartisan’s demand that opposing intrapartisans step back, take a good look at their candidate, and find him wanting in characteristics … that she apparently doesn’t require of her preferred candidate either.

I looked at Ms. Harding’s post via Jeff Fecke (“Blog of The Moderate Left”), an Obama supporter and sometime Shakesville contributor who endorses Ms. Harding’s post more generously. His post actually was a genuine call for skepticism about either candidate, and for pushing them the right way towards the right goals:

By all means, recognize that both candidates have failings, and push them to correct them, especially if they are the candidate you support. But make sure that you’re doing it for the right reasons, and with the right goals in mind. If we push Obama or Clinton to the left, they will move to the left. But if we push them to the right — if we attack them as elitist, soft, emotional, out-of-touch — if we do that, they will move to the right. And that is not the direction we want them to go.

But push them. Push them. Push them.

Amen to that.

* E.g., here, here, here, and here. My principal Clinton-skepticism post is here.
EDITS, 4/13: “mainly/merely” and “allegedly” clauses and additional “e.g.” links added.

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