Sending his text message at 3 a.m. — the time Hillary made emblematic — Obama picks Biden.

Here's the NYT report. I didn't stay up all night waiting to see the long-withheld news. Did you? I woke up naturally, and Obama's VP pick wasn't my first thought, but it was my third or fourth thought, and I picked up the iPhone and checked — no, not for a text message! — I wouldn't hand over my number — I checked Safari to see the news.

So it's Biden.

1. That's what we expected.

2. Why the hell did he drag it out so long?

3. Someone will be very happy and not just because I lost a bet to him.

4. Respect for Delaware, my home state, despite its piddling supply of electoral votes, instead of pandering to some better endowed, showier state.

5. Biden's a good guy, experienced.

6. Another senator, not a governor, all these senators.

7. McCain should pick a governor, and now McCain can pick Romney, because his somewhat awkward facial expressions will be fully balanced by Biden's — it's a wash, smile-wise.

8. He picked the guy who called him "clean" and "articulate," so maybe that means he's not as thin-skinned as he's seemed.

9. The man known for his orating powers has picked a man who loves to talk but is somewhat out-of-control in his speech — perhaps he sees him as some kind of counterpart, for Obama has plenty of verbal glitches when he's speaking spontaneously.

10. That 3 a.m. text-time will needle hold-out Hillary lovers.

11. What do I really think of Biden? I should go back over my old posts tagged "Biden" and see what I've said over the years. But that will be the next post. [Done here.]

"Half the Democrats are going to vote for McCain, and I'm going to be one of them."

Says Mickey Kaus. [WARNING: video.]

For a more subtle analysis of how McCain will succeed within the Electoral College structure, read this.

AND: Don't miss the fact that Mickey's statement is a year old. I'm noticing it because he linked to it today. I knew it was old because he just recorded a Bloggingheads with Bob Wright and he was not wearing that shirt. The funny thing is how much it sounds like something he could say today.

"I'd be more than happy to loan Sen. Obama the winning briefs that helped secure the election of the legitimate winner of the 2000 election."

Says Ted Olson, contemplating the prospect of a lawsuit, brought by Hillary Clinton in Florida state court, over the Democratic Party's refusal to recognize Florida's convention delegates. What if it makes the difference in the nomination and the Florida courts decide in favor of Mrs. Clinton? Would the Supreme Court step in?

Obama's big night: "We won North, we won South, we won in between."

Obama wins Washington, Nebraska, and Louisiana. Wide margins everywhere. And — as the quote above says — impressive geographic distribution. Those who would point to Hillary Clinton's consistent lead in the national polls need to remember that the Electoral College determines who wins in the end, and extra votes in California and New York are useless. And neither is popularity in states that will surely go Republican in any close race.

Here's an interactive Electoral College map. You'll see the swing states are beige, and you can pick a year and see who won the various states in past elections. Now, here's a map showing which states Obama and Clinton have won so far. Obama has strong appeal — or Hillary is unappealing — in the nation's midsection. Is a picture of Obama's electability emerging?

We were just talking last night about what the superdelegates can fairly do with their power. One argument is that they must vote to produce the result that would obtain if there were no superdelegates.

But isn't it fair for them to look at who can take the party to victory in the end? Isaac Chotiner argues:

Think of it like this: you are a superdelegate or party boss. You have been undecided but now must choose between two candidates with roughly equal numbers of delegates. Most of all, you want to win in November, which is now only three months away. And while one of your two choices is consistently beating the Republican nominee in polls, the other is consistently losing.

Chotiner hasn't gotten to the point where he sees that it's the Electoral College that matters, but his main idea is that superdelegates will be influenced by data about who's more likely to beat the Republican nominee.

Yesterday, I linked to Chris Bowers, who made this threat:

If the Democratic Party does not nominate the candidate for POTUS that the majority (or plurality) of its participants in primaries and caucuses want it to nominate, then I will quit the Democratic Party... [If the] "super" delegates nominate someone for POTUS other than the person who received the most support during Democratic primaries and caucuses, then I fail to see any reason to continue participating in the Democratic Party. If the Democratic Party is not a democratic institution, then to hell with the Democratic Party.

Well, he sounds angry, but what exactly is the standard?

A 1% lead or more in pledged delegates from all 50 states and every territory. If it falls in between the plus or minus 1% range, I'll cut some lack. Otherwise, none.

So, fine, he's not looking at a national poll or going on the numbers of voters/caucus-goers. This shows some sensitivity toward the electoral map. But he's not taking into account any subtleties of who has support in the states that will be hard-fought in the general election. He throws in the territories, which have no electoral votes, and he doesn't have a good way — as far as I can figure out — to deal with the botched process in the big swing states of Michigan and Florida.

It seems to me that the superdelegates are in a position to account for some complex considerations of democracy as it plays out in our peculiar electoral process. The only reason to lock the superdelegates into a formula the way Bowers wants is that you don't trust them to think in a sophisticated way about legitimate factors. You're afraid of the politics that will go on behind the scenes. I understand that fear, but so will the superdelegates. The check on behind-the-scenes deals and corruption is that they will know the people will be hypervigilant and easily outraged.

ADDED: Here's the way Barack Obama puts it:

My strong belief is that if we end up with the most states and the most pledged delegates from the most voters in the country, that it would be problematic for the political insiders to overturn the judgment of the voters. I think it is also important for superdelegates to think about who will be in the strongest position to defeat John McCain in November and who will be in the strongest position to ensure that we are broadening the base, bringing people who historically have not gotten involved in politics into the fold.

See? He's pushing a subtle, multi-factored approach that serves him well. I assume Mrs. Clinton will do the same. The linked article quotes her saying:

Superdelegates are, by design, supposed to exercise independent judgment. But, of course, if Senator Obama and his campaign continue to push this position, which is really contrary to what the definition of a superdelegate has historically been, I will look forward to receiving the support of Senator Kennedy and Senator Kerry.

Ha ha. It's an old quote. (Both Kennedy and Kerry have declared their support for Obama.) That was mean! Anyway, I look forward to seeing how she puts it to adapt to the changing circumstances.

ADDED: I misread the Clinton quote, which isn't old. It's a sound witticism.

"Clinton, Giuliani in a strange way may be helping each other."

Writes Marc Humbert:

While the [New York] endorsements came as no real surprise, the Giuliani camp made it clear there was a multilayer agenda at work. Besides demonstrating to other GOP contenders that he probably had New York locked up and they should keep their distance, Giuliani was also sending a message to Republicans nationwide that he was the one GOP contender who could put New York and other states in the Northeast in play for the party.

"This time we are not giving up on New York. This time we are going to win New York, and we are going to win California, and New Jersey, and Connecticut and Pennsylvania," he said in Syracuse. "We are going to contest this election in every state and not give away half the states before the election even begins."...

Such numbers, according to a top Clinton ally, show not why Republicans should pick Giuliani, but why Democrats need to pick her.

"You cannot win the White House as a Democrat without New York. It would be like trying to win the White House as a Republican without Texas. It just can't happen," said David Pollak, co-chairman of New York's state Democratic Committee.

"I don't think you could make the case that the others are bad candidates, I just think Hillary is by far in the best shape right now against Giuliani if he is the nominee because he does put New York in play," Pollak added. "I'm not saying he wins New York, but he puts it in play."

I realize she's the Senator from New York, but that doesn't mean she's all that much stronger than the other Democratic candidates in New York. Clearly, Giuliani is the only Republican candidate that has a chance in those big blue states. This has been one of Giuliani's big arguments. The question is whether Hillary can take that argument -- which is a good one -- and leverage an argument of her own -- which is not so obvious.

[Clinton and Giuliani] were opponents in the 2000 Senate race in New York until Giuliani dropped out in the face of prostate cancer and a disintegrating marriage. Polls at the time showed the two running about even.

That was also, of course, the year that saw the disputed presidential election being decided by court rulings that gave the Electoral College victory to Republican George W. Bush after Democrat Al Gore won the popular vote.

"It would be a twisted version of 2000 if Barack Obama won the presidential vote by a million votes, but lost the Electoral College because he didn't win New York," said Pollak.

Thanks for reminding us of Al Gore, who would not have lost in 2000 if he had won his home state.

Should bloggers do these conference calls with candidates?

I'm in the middle of writing a very important blog post, which is to say, a blog post that I'm inspired to write, and we're coming up on the time for one of these conference calls I sometimes get invited to do. I usually blow them off, but I said I'd do this one, on the second inquiry, because it's John McCain. How can you not tap into a conference call with John McCain? You can ask him a question. Okay. Well. But the funny thing is: I've been thinking about it and I don't have a question. I mean, not a question I could ask him personally. And you can't exactly horse around. They say you're cantankerous. Are you too cantankerous to be President? To some extent, is cantankerousness a good thing in a President?

As you know, I'm big on the separation between blog and campaign. The bloggers are flattered by the appearance of access, and it must be worth it to the candidate to get publicity and a greater likelihood of favorable coverage. I resist all that, but I have called in. I'll let you know how it works out. I'm on music hold right now. The song: "I Think I'm Going Out of My Head."

ADDED: Now, we're in "listen only" mode, which means we're a captive audience for McCain's statement. He says he's going to be talking with bloggers like this every two weeks.

... He's just talking about where he's been, naming towns, and he declines to go on about any issues, saying he knows bloggers like to ask questions and goes right to the questions, which I appreciate.

... The first question is about going after bin Ladin, which McCain, of course, intends to do.

... The second question is about the bill on funding the war in Iraq. He says he'd veto it, not just because of the time limit, but because of the pork. "What does $25 million for peanut storage have to do with the war in Iraq?"

... Lorie Byrd compliments him for his form of expression, specifically the way he said "Lighten up and get a life." McCain says he's going to keep being himself and keep his sense of humor. He mentions having bloggers on the campaign bus. He's not going to blame the media if things don't go well for him.

... Ah. I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."

... Someone asks about the Electoral College and what new states could be put in play. He emphasizes California and also mentions Pennsylvania and New York. "We gotta put more states in play."

... Someone asks about taxes and I can't hear it, but I can hear the answer, which includes a description of how taxes are collected in Estonia. You go onto a website that informs you what you owe, and you click "yes" or "no." They have nearly 100% compliance. I liked that detail.

... These notes don't cover everything that was asked. He took a lot, answered them all seriously, and sounded sharp and serious and not pompous. Several times he finished the answer with "see my point?" All together, he spoke to us for more than half an hour, nearly all of it on the questions.

So, was I coopted?

"A 'bill of particulars' against the Constitution."

Lawprof Sanford Levinson cites seven problems with the U.S. Constitution as a model for the rest of the world.

1. [The equal representation of the states in the Senate]...

2. [The Electoral College]...

3. Is it appropriate that a president can frustrate the will of a majority of both houses of Congress by vetoing legislation with which he disagrees on purely political grounds?...

4. Is it a desirable feature of the Constitution that the impeachment clause enables us to rid ourselves of a criminal president, but leaves us at the tender mercies of an incompetent one until the conclusion of his or her fixed term of office?...

5. Does it make sense that an incumbent defeated in a national election maintains the presidency for a full ten weeks beyond election day, fully capable of making policy decisions that may drastically effect [sic] the future of the United States?...

6. Do you really want justices on the Supreme Court to serve up to four decades and, among other things, to be able to time their resignations to mesh with their own political preferences?...

7. Do you support the ability of thirteen legislative houses in as many states to block constitutional amendments desired by the overwhelming majority of Americans and, potentially, by eighty-six out of the ninety-nine legislative houses in the American states?

This is the lead piece in a symposium in the Harvard Law & Policy Review. There are responses from Frank I. Michelman, Mark Tushnet, Adrian Vermeule, and Robin West.

Hello, Sausalito.

Home of the 6 millionth visitor to this blog. You arrived on the Electoral College post from an unknown URL. Whoever you are, thanks for clicking the first digit over to 6. Onward to 7.

"When people complain that it’s an end run, I just tell them, 'Hey, an end run is a legal play in football.'"

So says John R. Koza, a computer scientist who thinks he's devised way to bypass the Electoral College by statutes. But law isn't football, and judges like to see things for what they really are, especially when legislators openly admit to illegitimate ends and devious means. The Electoral College is a structural safeguard, built into the Constitution. If you want that changed, you need to change the Constitution.

Should you want the Electoral College abolished? One way to think about it might be to look at who supports reform right now:

[California Republican assemblyman Chuck] DeVore said, “I just took a look at who was behind the movement, and they were left-wing partisans.”

Dr. Koza acknowledged that he had been a Democratic elector, twice, and his living room is festooned with photographs of him beside former Vice President Al. Gore and former President Bill Clinton.

His living room? I'm sorry. I can't accept the judgment of someone who has a lot of pictures of himself with politicians in his living room.

It is -- I hope you see why -- utterly foolish to think that because Al Gore won the popular vote in 2000, he would have won the election if only we had had a system of election by popular vote in place at the time. Many people in safe states don't bother to vote, and the campaign would have been entirely different if the goal had been to win the popular vote.

The popular vote in 2000 probably favored Gore -- we don't know for sure because there were no recounts in states with safe margins -- but there is no reason to conclude that because of that, in future elections, the Democrat would do better if the method of election were by popular vote. Candidates and issues would be chosen in a completely different way. If the Democrats are now good at "winning" by a set of rules that don't apply, that may simply mean that the Republicans are better at focusing on the rules that do apply and functioning effectively in the real world. Why wouldn't you expect the Republicans to focus on whatever new rules actually apply and to adjust their behavior to keep winning?

The National Popular Vote proposal.

Working around the Electoral College -- which is impervious to constitutional amendment -- through state-by-state legislation. I think it's unconstitutional and doubt that its supporters foresee the strange effects it would have. What would presidential campaigns be like if candidates were basically trying to win through the Electoral College, but also had to worry that some big state that they had no shot at winning might mobilize a high turnout and tip the popular vote?

Who represents the majority?

I've been seeing this argument a lot lately:

Although conservatives now attack the filibuster as anti-democratic, liberals say it may be the last mechanism requiring the Senate to represent the wishes of the entire country, rather than the base of the majority party.

"A simple majority in the current Senate doesn't represent a majority of the United States, but Democrats are coming from states which represent a majority of the American population," [liberal legal scholar, Michael] Gerhardt said. "The filibuster helps to counterbalance the fact that a majority of the Senate right now may not speak for most of the country."

Now, how does this concept of the true majority really work? We know that the states each get only two Senators, and some very large states -- notably New York and California -- have two Democratic Senators. But there are still huge numbers of Republicans in those states who aren't going to feel that the Democratic Senators are representing the interests they care about in judicial appointments. If the state lines were redrawn to make 100 units of equal population and each of these new units elected one Senator, what would the party split be?

The filibuster is a crude mechanism for getting closer to the rule of the majority. Senators from really small states get to use it too, even states that are nearly evenly balanced between the two parties. So a very tiny fraction of American preference could prevail using the filibuster.

So what is the best way to come as close as possible to representing what the majority of Americans wants in picking the individuals to fill the judicial slots?

The best answer is to allow the President to have his choice. The effort of electing the President engages the entire country. He's the one person who represents us all, and the Electoral College process gives recognition to the individual states in a way that gives far more regard to the people of the large states than the Senate does. This is not to say the Senate ought to do nothing with it's advise-and-consent role. It ought to at least ensure that the President doesn't stock the courts with unqualified cronies. But if the President selects worthy jurists, there is a limit to how much a minority of Senators should be able to accomplish.