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A Report From Mass

There was a brief moment of hiss when Gregory opened with the Native American question. But Warren supporters quickly realized that the question was much more fairly stated than past versions and Gregory quickly boxed Brown into a corner, reducing him to repeating the same "character" lines. Despite a couple of zingers, Brown began to look weak because he essentially tried to dodge the question.

I have never been a fan of Gregory since he got his own show. He was a better reporter than anchor/moderator, with the capacity to ask probing questions and demand an on-point answer. That has quality has virtually disappeared since he became a network star, but it was on display last night.

As it turned out, Brown effectively refused to answer every single question--including several point-blank demands from Gregory for a "yes or no answer"--until deep into the night, only giving a responsive answer on the DREAM Act to the student who asked it. He failed to respond completely to the first student question, offering a few vague platitudes and unrelated policy pointers.

In contrast, Warren responded mostly on-point, although she did look evasive a couple of times before offering a response.

What the TV audience did not see was much of the Warren's reactions to Brown's continued condescension. Following "I'm not your student" remark, she was practically thrown back into her chair. She was visibly shocked, but the camera was kind and the editors did not go to split screen. But Brown's zinger might have also backfired, because he was literally schooled by Warren on some points.

Warren's weakest point might have been the initial "academic" response to Brown's accusations of being "gun for hire" for big companies. Although she adequately covered the Travelers angle this time, her response on LTV Steel was grossly insufficient, telling that her involvement in cases is based on academic interests and serves to extend the study of law, not personal interests. This plays right into the Brown trap of casting her as an elitist academic, aloof from daily problems of the average worker. But the second bite at the apple also delivered a comeback line of the day--Warren unequivocally stated that she was endorsed by unions, by asbestos workers and by coal miners of LTV Steel, not Brown. It should have left the impression that Brown was not telling the truth, but rather politicking a meaningless ploy into a gotcha.

Still, the whole night Brown hammered the point how independent he was, never once connecting himself to the Republican Party (although both Gregory and Warren both did it for him). The line seemed forced, but might have played well to undecideds--I don't have much respect for late undecideds and their mental capacity to divine the true center of each of the candidates. But it certainly would not win any converts, as the point seemed forced and rehearsed. He might have got away with it except for his last meaningful answers--which also happen to be the only two answers that were responsive to the original question.

In response to the DREAM Act question, Brown unequivocally equated the bill to "amnesty" and expressed his unwavering opposition. This should not play well in a Blue State, except for the sliver of conservative Catholic blue-collar segment (Irish, Italian, Polish, for the most part) that is already supporting him. It also happens to be the most sexist segment of Massachusetts voters that almost never votes for women candidates. But the answer should go a long way to dispel any notion of Brown's moderate stance.

To make it worse, he topped it off with his Scalia pick. No "independent" in his right mind--least of all, a lawyer, would select Scalia as his primary answer. In contrast, Warren's Kagan pick was symbolic on many levels. Kagan, unlike Scalia, has recused herself on a number of cases where her impartiality might have been questioned, she was a Harvard colleague, and, of course, Brown voted against her confirmation. But the DREAM Act and the Scalia response may well have undone the entire effort to self-identify as "independent".

But the most interesting point of the night was when both candidates tried to accuse each other of failing to release their client lists. Warren's list of clients whom she actually represented has been public at least since 2008 and updated every year--the initial release became a public document as a record of her federal appointment and her newer clients had been covered by Harvard internal disclosures. As the Globe article points out, however, this list does not include her consulting clients. And Brown seems to have gone after that list. There may be an ulterior motive here. Jakobson at Legal Insurrection has been effectively accusing Warren of Unauthorized Practice of Law (UPL, in legal ethic circles) because of her failure to obtain the Massachusetts Bar admission. The charge, to put it simply, is completely fictitious, as Warren never represented clients in state courts. Unsatisfied with this answer, Jacobson had dug up a case where Warren argue state law in a federal case involving a Massachusetts company (don't recall, at the moment, if it was her client or the opponent's). Legal Ethics Blog roundly dismissed this charge as well, as they found absolutely no case law that declared that one must have a state license to argue state law in a particular state. Warred did hold licenses in Texas and New Jersey, although she allowed both to lapse as she got more involved in the executive branch issues, where she would not have to represent clients or go to court. But there is yet another angle that the Globe story misses. It is possible that Brown people wanted access to the consultant list in order to argue that she represented Massachusetts clients. Even if the campaign does not make this claim themselves, they may well feed oppo research to selected mouthpieces, like Jacobson. The reality is, however, that consultants, especially academics, can get away with this because they don't technically represent clients and the advice is given in the abstract, not directly on the case. So there is no licensing requirements for case consultants. So the whole thing may be a scam.

On the other hand, Brown had claimed during the debate--repeatedly--that he had released his client list. He had not. He had offered a very short partial list last Tuesday that no one took seriously. More importantly, Warren had called him on it during the debate, pointing out that she had not seen any of it. It's highly unlikely that there is anything damning in Brown's client list--if he is accurately representing the nature of the work he had been doing on behalf of his clients--but Warren had also correctly stressed that the list did not include the nature of work done for the clients. Some of it might be private and protected, but not all.

In any case, this dueling list issue may well become a hot topic because 1) Warren's list is not at all damning, as Brown has been trying to pretend, and 2) Brown has directly lied about releasing his client list, which undercuts his character appeal.

The combination has led or should lead to erosion of Brown's likability in the state (58% at last count). Even the Herald's Marjery Eagan--no Warren supporter-- has slammed Brown on likability, following the debate. If Brown's likability erodes in the wake of the debate performance overall and, specifically, his pair of extremist comments, the rest of the campaign should get easier for Warren. I also want to point out (for anyone who has assistants with time on their hands) that Brown's only references to Warren are "Professor" (as noted by Gregory, who might have set it up with his initial introduction of "Miss Warren"--an odd choice, unless he was going to play his "Professor" question off it later) and "she", when not addressing Warren directly. The former is the appeal to the anti-intellectual block, the latter is just an example of overt sexism and disrespect. In an honest analysis, these two would have been highlighted as features that should erode his likability alone, but we get so few honest assessments these days.

Warren was by no means mistake free, but even the Republicans in the audience (I'd talked to several while waiting in various lines) were more respectful of Warren than their candidate. In fact, I overheard some of them even say, surprised, "That was a good answer!" following some of Warren's comments (especially her response regarding women not being able to win Senate and Governor races in Massachusetts--"I'm trying to do something about that!"). So there may be some new-found respect for Warren even among opponents. I doubt I can say the same about Brown.