Taking child rape off the table

I worry about appearing totally in love with Barack, so let me quickly point out that I am certainly not happy with his less than strong opposition to the FISA bill.

And, normally, I'd agree with Ezra on this. Given the frequency of "mistakes" in death penalty cases, often involving eye witnesses, making the rape of a child subject to capital punishment is rife with opportunities for even more mistakes. Child witnesses, often pressured and sometimes years removed from the alleged act, represent less than trustworthy testimony, and we are talking about Louisiana here. I've been to Angola (the prison has a museum and gift shop, for God's sake, and we overheard the museum guard tell a young girl, "You want to see the shivs, honey?"). I can see why some progressives, death penalty foes and the like, would be disappointed that he did not at least hedge his bet a bit, by indicating his un-Dukakis-like revulsion for the crime, but not going so far as to "condemn" the Supreme Court's 5-4 decision.

But I don't agree. First of all, what a presidential candidate has to say about a court decision has no bearing on The Court's decision. But it does resonate. The Right is far more obsessed with the make up of the Supreme Court than is more mainstream America, so that's always going to be a powerful issue with McCain's base. They hear the dog whistles of "judicial activism" far more loudly than do moderates and even liberals, even when we scream, "Alito." If you need proof of that, I suggest you get in the way back machine and relive those heady days of the 2000 campaign, when Al Gore all but begged voters to be mindful that the campaign would have consequences not just with the Supremes, but with appointments to all Federal Courts. Gore lost because a great number of the same "progressives" now complaining that Obama isn't pure enough voted for The Ego instead.

But what will resonate with those mainstream voters who don't obsess over "originalism" and Roe, are commercials reminding them that Obama doesn't support executing people who commit heinous crimes against small children. Especially (apologies in advance for the sizeism) 300-pound men who rape their stepdaughters. And don't think that disgusting little (big) detail won't be mentioned in the 30-second spot.

Secondly, many of those who are "disappointed" with Obama on this assume he's doing it purely for political motive. A pander bear, indeed. Sniff; I thought he was going to "change" politics, you hear them mutter.

But the notion that he's being hypocritical on this simply isn't true, as exactly two seconds of "the google" would prove.

As an Illinois legislator, he helped rewrite the state's death penalty system to guard against innocent people being sentenced to die. The new safeguards included requiring police to videotape interrogations and giving the state Supreme Court more power to overturn unjust decisions.

He also opposed legislation making it easier to impose the death penalty for murders committed as part of gang activity. Obama argued the language was too vague and could be abused by authorities.

But Obama has never rejected the death penalty entirely. He supported death sentences for killing volunteers in community policing programs and for particularly cruel murders of elderly people.

"While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes — mass murder, the rape and murder of a child — so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment," he wrote in his book "The Audacity of Hope."

Finally, Obama is not, as Ezra complains, "expanding" the death penalty. Obama simply criticized the ruling that making child rape a capital crime is unconstitutional. He doesn't believe it is. I think he's right.

Obama is being what he is on this subject: smart, thoughtful, forceful, human, and not unmindful of the political ramifications of what he says.

And he's rightly taken this arrow out of the GOP's quiver (not to say they won't use it; they'll just be unequivocally lying if they do).

For God's sake people, on subjects like this, let's stop losing elections by thinking we're appealing to people's "reasonableness."

UPDATE: And it was a bad decision too, according to Publius.

UPDATE II: Just to clear things up, I meant Angola the prison/work farm, in LA.