In it, but not of it. TPM DC

If Republicans truly plan to filibuster Dawn Johnsen--Obama's Office of Legal Counsel chief-designate--Democrats will be able to point to a long record of Republican statements decrying the very idea of obstructing a President's prerogative to choose his cabinet officials and advisers. The group People for the American Way is circulating a document quoting several high profile Republicans who once decried the practice in no uncertain terms.

When President Bush nominated the fairly controversial John Ashcroft to be his Attorney General, Republicans raced to his defense. Sen. Orrin Hatch (R-UT)--then chairman of the Senate Judiciary Committee--took to the Senate floor to argue that Democrats "must afford the President a significant degree of deference to shape his Cabinet as he sees fit."

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At post-court press conference, lead Franken attorney Marc Elias commented that the election contest is essentially over, with Al Franken the winner after the court had 351 previously-rejected ballots counted, which boosted Franken's lead from 225 votes to 312.

"Today is a very important step, as we now know the outcome of the election contest," said Elias, "and that is the same outcome as the recount, which is that Al Franken has more votes than Norm Coleman."

When asked whether he expected Coleman to appeal, Elias said: "That's a question at this point for former Sen. Coleman. I guess I would say the same thing about his appeal as I said about his case: That the U.S. court system is a wonderful thing, as it's open to people with non-meritorious claims."

In all seriousness, Elias also said that Coleman had weeks to lay out his case, call witnesses and produce evidence that he was the winner, in a very transparent process that involved members of all parties -- and that he has failed to do so, losing net votes at every stage of the process.

At one point, a reporter asked Elias what would happen if he found himself in front of Justice Scalia a year from now, arguing about Coleman's claims of equal protection. What would he say? "The only chance I'll wind up before Justice Scalia talking about equal protection a year from now is if we meet in a diner in Bethesda," Elias said, to the laughter of the reporters. "So I don't think that is at all a likelihood."

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Minnesota has just finished counting the 351 previously-rejected ballots approved by the three-judge panel as having been legally cast and rejected in error. The numbers: Al Franken 198, Norm Coleman 111, Other 42.

This means that Al Franken's lead has increased from the 225 he had going into today, up to 312 votes out of roughly 2.9 million. We still need to wait for the judges to rule on the remaining issues, but the vote-counting during the election contest-proper is done.

The only way for Coleman to overcome this lead would be to win an appeal against the election court's prior rulings in favor of strict standards to let in new ballots, or to somehow win his much more far-fetched proposal to retroactively declare a number of absentee votes illegal and deduct them from the totals based on countywide averages. The first one is more likely in terms of feasibility, and even that's a long shot, leaving the Coleman camp at their other proposal to "set aside" the election result entirely.

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Minnesota Elections Director Gary Poser is now counting ballots, out of a batch of 351 previously-rejected absentees, with Franken attorney Marc Elias and Coleman attorney Tony Trimble observing. More to come, after he's done.

Poser has just begun, but the earliest indications are that this pile could go to Al Franken by a healthy margin.

The proceedings can be viewed at The Uptake.

Late Update: Al Franken is currently at over 100 votes, ahead of Coleman in the 60s range. For Norm Coleman to have taken an overall lead of even one vote, he would have had to keep Franken to at most 62 votes here. Thus, Franken's lead is officially secure in this count, even if every single remaining vote were to go to Coleman.

Americans United For Change has this new TV ad praising the passage of President Obama's budget package by both houses of Congress (though it still has to go through the conference process), and blasting Republicans for unanimously voting No:

"Tell the Republican leaders that when it comes to future decisions on health care, energy, education and jobs, America doesn't want 'No We Won't,'" the announcer says. "We want, 'Yes We Can.'"

The ad will run on D.C. cable this week -- essentially aimed at the Washington media elite.

Here's the latest update from the the Minnesota election court. The court has selected 351 ballots to be counted today, out of 387 that were reviewed yesterday. You can view the proceedings, courtesy of our friends at The Uptake.

This number is too small to reverse Al Franken's current lead of 225 votes -- Norm Coleman would need to win 289 of them, or 82%, assuming that every single ballot had a discernible vote for one of the two candidates. Furthermore, this batch could very well favor Franken, since it was assembled from lists put forward by both candidates. But as for Coleman's list, the judges' opinion last week pointed out multiple times that Coleman had failed to produce sufficient evidence for various counties.

In any case, this won't be the end. After these ballots are counted, and Al Franken is still ahead and quite possibly by a bigger margin, Coleman will appeal to the state Supreme Court, and possibly take his case to federal courts after that.

One other thing: The court called a brief recess, but only after the inner secrecy envelopes containing the ballots were fully separated form the outer return envelopes, thus de-coupling the votes from the individual voters and guaranteeing that this cannot be reversed. State election officials are now opening the secrecy envelopes and putting the ballots into neat piles before counting.

Reporters aren't the only people mischaracterizing the proposed defense budget overhaul. Members of Congress are doing their part, too. Important members of Congress. Members like Rep. John McHugh (R-NY), the ranking member on the House Armed Services committee, who presumably knows a thing or two about defense budgets.

According to Reuters, "Representative John McHugh...also weighed in, saying the proposals would amount to $8 billion in cuts in defense spending."

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The new CBS/New York Times poll paints a nearly-identical picture as the Pew poll: Democrats overwhelmingly approve of President Obama while Republicans overwhelmingly dislike him -- and there aren't a lot of Republicans left.

Obama's top-line approval number is 66% to 24%, with 89% of Democrats approving and only 7% disapproving. Among Republicans it's 31% approval to 54% disapproval, for a 55-point gap between Democrats and Republicans on approving of Obama's performance. Meanwhile, independents approve by 63%-24%, nearly identical to the top-line.

But in a way, this really feeds into a narrative I've been noting for a while: That as the Republican base has shrunk, the ones who have peeled away were relative moderates while the people who remain are much more conservative and partisan. And those people would be much less likely to give Obama the benefit of the doubt.

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The big news from yesterday (still settling in across Washington) is that President Obama and Defense Secretary Robert Gates teamed up to propose a sweeping overhaul of the defense budget--calling for the elimination of unnecessary systems and spending the savings on special forces, intelligence equipment, and other tools of counterinsurgent warfare.

In other words, by retooling the Pentagon, Obama and Gates plan to move a lot of money around, but they also plan to increase the overall defense budget. In the final year of the Bush administration (and excluding the costs of the wars in Iraq and Afghanistan) the defense budget was $513 billion. In FY 2010, if Gates and Obama get their way, it will be $534 billion--$534 billion that will be spent much differently than last year's outlays were.

But you'd never know that from the news coverage.

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The Minnesota election contest is headed into one of its final steps this morning, with officials from the Secretary of State's office preparing to count previously-rejected ballots, after the judges reviewed 387 envelopes yesterday and approved counting an as yet undisclosed number of them. Judge Elizabeth Hayden has just handed down the list of ballots, but the number is not known at this moment.

Video is being carried by our good friends at The Uptake, and the counting itself could happen any minute now, after the envelopes are organized and the ballots separated from them.

Just now, Coleman attorney Tony Trimble just requested a 15-minute recess to review the list, and Hayden refused to grant it, saying the court was ready to proceed.

Meanwhile, the Franken camp sent an e-mail last night to their supporter list, from campaign manager Stephanie Schriock and lead attorney Marc Elias, with Elias explaining that things looked good for them:

Essentially, the Court agreed that the law should be followed as written. That's exactly what our argument has been all along. And although Coleman is likely to appeal in the hopes of finding a venue less picky about the rule of law, our analysis shows that the meticulousness of the Court's procedure and ruling would make such an appeal a difficult proposition.

Full Franken camp e-mail after the jump.

Late Update: Judge Hayden just let everybody know that even if an observer for a candidate were to leave the table, the process would still continue.

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