I have already described the reasons why I should not be disappointed at Obama's reelection and why I am. There is a third question I should have asked and didn't, also relevant to my feelings—not the consequences of Obama winning but the implications of the fact that he won. His campaign made heavy use of soak the rich rhetoric, much of it, I think, deliberately dishonest; if he ever mentioned that higher income people pay, on average, a larger fraction of their income as federal income tax than lower income people, or that the bottom half of the income distribution pays essentially no federal income tax, I managed to miss it. (For my view of complications that those facts obscure, see an earlier post). The fact that that rhetoric worked at least well enough to get him elected—despite a collection of negatives that one might have expected to defeat him—is disturbing for what it might imply about the future. It is made only a little less disturbing by the fact that the popular vote looks to be split very nearly evenly—Romney may even win it.
But there is good news as well. It looks as though two of the three attempts to legalize marijuana—Colorado and Washington but not Oregon—are succeeding; they are ahead by sizable margins with about half the districts reporting. That will be the biggest defeat the War on Drugs has suffered in my lifetime. If, optimistically, it is the beginning of the end, that could be more important than which of the candidates I wanted to lose did.
It also looks as though Jerry Brown's attempt to raise my taxes may fail, although that is less clear; the vote is currently 51.8 against, 48.2 for, with only 16.8% reporting. The revision of the three strikes law, which I am in favor of, is winning by a sizable margin, although again that is with most of the vote not yet reported. The results on other ballot measures are mixed.
It looks, from a quick scan of the politico.com map of election results, as though Gary Johnson is going to end up with a little over 1% of the vote. That is nowhere close to the 5% he was shooting for, but I never expected him to get it; it is a pretty respectable showing for a third party candidate in a tight election. Perhaps equally important, in Ohio, the state that got Obama's electoral vote total past the magic 270 point, the margin of victory was only .2% and Gary Johnson got .9%. It is not clear whether Johnson was responsible for Obama's win—polling evidence suggested that he was going to pull votes from both sides. But it is clear that if those votes had gone to Romney he would have won Ohio. Whether that would have given him the election we do not yet know.
And, on an almost but not entirely different topic ... . Obama's win means that he is probably going to be able to appoint one or more Supreme Court justices, one of the arguments some libertarians offered for supporting Romney. It occurs to me that one possible candidate is my ex-colleague Cass Sunstein, a distinguished law professor with an important position in the current administration.
It would be a very interesting appointment. On the one hand, he is smart and charming, which would make him influential on the court, which could be a bad thing if he supports the sort of positions Obama would want him to support. On the other hand, he would be a wild card—an independent thinker who might easily come down on what I would consider the right side of some of the issues the court will face.
But my guess is that Obama won't appoint him—for just that reason.