BeldarBlog

Price of passivity

Alas. My employer is pleased that I've been a more diligent lawyer since the election, but no doubt due to my less frequent posting since then, BeldarBlog's rank in TTLB's blogospheric ecosystem has slipped to "Marauding Marsupial" from "Large Mammal." I'm de-evolving! But there are clients with needs to be met, and Beldar has bills to pay and Christmas presents to buy for the little Coneheads — even if as a blogger I'm on my way back to an insignificant microbe.

Thanks to those of you who continue to drop by to encourage my longwinded ramblings!

Dubya at the diner

Try to imagine John F. Kerry in this picture. Any imaginable version would definitely call for a snarky caption.

Reuters' caption: "U.S. President George W. Bush shakes hands with diners at the Coffee Station restaurant near Bush's 1,600 acre ranch in Crawford, Texas, November 26, 2004. President Bush, first lady Laura Bush and the first lady's mother Jenna Welch enjoyed a post-Thanksgiving lunch at the small restaurant before returning to his ranch."

Note the "hat-hair" — Dubya's been wearin' his Stetson, but hung it up upon entering (probably on a deer-antlers hatrack). Grandson of a senator, son of a President, Yale College and Harvard Business School — but this is a man who's entirely comfortable, entirely at ease, meetin' and greetin' in a roadside diner. He wouldn't turn up his nose at a couple of scoops of cherry cobler served in an orange Melmac bowl, either. That his napkin was paper, and came from a stainless-steel dispenser next to the catsup bottle (note: Heinz), wouldn't bother this man a bit.

I know that drives my blue-state countrymen nuts. But it makes me feel like I understand this man, and that he understands me.

This past summer, I wished I'd had my digital camera with me while I was lunching at Otto's Bar-B-Que in Houston.  Poppy Bush was two tables away, surrounded by guys with radio earpieces and wearing windbreakers with bulges under 'em — eatin' sauce-drenched beef ribs with his fingers.  (Lotsa paper napkins came out of his stainless-steel tabletop dispenser that day.)

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Update (Sun Nov 27 @ 12:50pm): I have to admit that this photo of Dubya would be fair game for a snarky caption. Reuters' caption: "U.S. President George W. Bush walks to an APEC leaders group photo with Russian President Putin (R) in Los Naranjos courtyard in Santiago, November 21, 2004." Putin looks considerably more embarrassed.

Sorta brings to mind the photo of Calvin Coolidge wearing an Indian headdress:

Swift Boats of 2004

This is just cool:

Reuters' caption: "U.S. Marines and Iraqi Special Forces backed by members of Britain's Queen's Dragoon Guards launch a river boat raid on a suspected insurgent area, south of Baghdad, November 28, 2004."

In favor of "going nuclear" to end Senate filibusters on judicial nominees

Howard Bashman's How Appealing links to this provocative article in yesterday's Austin American-Statesman headlined "Senate Republicans threaten to go 'nuclear' to end judicial filibusters":

Senate Republicans, boldly confident after their Nov. 2 electoral success, are preparing to end months of frustrating delays over President Bush's judicial picks by hitting Democrats with their ultimate legislative weapon.

But the Republican threat to neuter long-cherished filibuster rules by steamrolling Democrats is risky — so potentially destructive that Capitol Hill calls it the "nuclear option." Democratic retaliation would be swift and long-lasting, raising the prospect of escalating clashes in a body that prides itself on gentility and cool judgment.

Even so, Republican leaders are signaling their intent to go nuclear in word and deed.

"We're going to use every tool we possibly can," said Senate Majority Leader Bill Frist, R-Tenn., who also unveiled a kinder, gentler phrase for the potential rules change: the "constitutional option."

"Republicans are loaded for bear, spoiling for a confrontation with Senate Democrats on judicial appointments," said Norm Ornstein, an expert on Congress for the conservative-leaning American Enterprise Institute. "For a lot of conservatives, this has really become an issue that leaves them passionate."

Democrats, with a new leader after the election defeat of Majority Leader Tom Daschle, D-S.D., have yet to form a filibuster strategy for the 109th Congress, which convenes in January. But early indications show continued passion for blocking nominees considered too conservative, including Texas Supreme Court Justice Priscilla Owen.

"I think they would be making a huge mistake to try to mess with the rules," said Sen. Harry Reid, D-Nev., who will replace Daschle as minority leader. "My position is this: 203 federal judges were approved — 203. Ten were turned down. Does that require any kind of a nuclear option? I would certainly think not."

Thus does Sen. Reid inherit the mantle of disinformation from Sen. Daschle.  Ten nominees weren't "turned down" — rather, they were refused an up-or-down vote that most or all of them would have won on the Senate floor under the majority-vote standard of the Constitution. So what is the "nuclear option," exactly?

The nuclear option would be a last resort if other measures fail, said Sen. John Cornyn, R-Texas, who will likely play a central role in the debate as a member of the Judiciary Committee and chairman of the Constitution subcommittee.

Cornyn argues that judicial filibusters unconstitutionally require a 60-vote supermajority to approve nominees, not the simple majority mandated in the Constitution.

Democrats "must stop not only for the good of the Senate but out of respect to the president, who received almost 60 million votes on November 2, and out of respect for the Constitution itself," Cornyn said. "No group of senators has the right, no minority has the right to tyrannize the majority of the Senate."

The nuclear option would begin with Frist taking the Senate floor to seek a ruling from the presiding officer, likely to be Vice President Dick Cheney in his role as Senate president, to determine whether judicial filibusters violate the Constitution.

Cheney's affirmative response would initiate a vote on changing the filibuster rule, which also would be subject to a filibuster unless Cheney overrules the Senate parliamentarian on whether normal debate rules apply. Then, only 51 votes would be needed for approval.

Another option includes changing Senate guidelines to disallow judicial filibusters, which also would require the Senate president to declare that normal filibuster rules do not apply, so 51 votes could prevail. Changing Senate rules should occur early in the session to gain legitimacy, some Republicans say, making this option potentially less appealing.

Either way, it would be pure power politics, leaving Democrats unable to respond. Other Senate rules, however, would give the minority party plenty of opportunity to express its anger [by jamming normal Senate processes on other legislation] in the months, and years, to follow.

So is this a good thing or not? Before considering that question, there are a couple of important points to consider, one of which this otherwise pretty good article doesn't sufficiently emphasize, and the other of which it doesn't mention at all:

• First, the point not mentioned: This constitutional drama, if it comes about, will almost certainly take place entirely within the United States Senate — without the meaningful involvement of the judicial branch. If the opponents of the "nuclear option" lose in the Senate, they'll surely bring a court challenge in federal district court. But that challenge will almost certainly be doomed to a swift procedural demise — a dismissal in the district court, affirmed in the court of appeals, and either cert denied or affirmed in the Supreme Court — on grounds that the internal functioning of the Senate is a "nonjusticiable political question" in which the federal courts will defer to the constitutional interpretation of the coequal branch of government as the superior maker and interpreter of its own rules.


• Second, the point insufficiently emphasized: The "nuclear option," if exercised, doesn't mean the complete end of the Senate's traditional filibuster practice. Rather, it would represent a constitutional response to the past term's historically unique use of the filibuster to categorically block an up-or-down Senate vote on a large handful of the President's judicial nominees. And its rationale — that this use of the filibuster to prevent the Senate from carrying out its constitutionally-mandated advice-and-consent procedure on such nominees is an unconstitutional application of the Senate's internal voting rules on extended debate and cloture to close that debate — does not extend to "garden variety" legislation, even very important and controversial legislation (e.g., on civil rights or abortion rights). The Senate precedent that would be established by the exercise of the "nuclear option" would be limited to judicial nominees.

There's no provision in the Constitution for filibusters, nor, indeed, for the long-standing Senate tradition of (relatively) unlimited debate. It's a tradition, not something that has the force of constitutional law, and it's been modified and restricted in the past — for example, by changes in Senate rules on the number of votes needed to "invoke cloture" (i.e., suspend debate and thus end a filibuster). The federal courts have, should, and will, give the Senate a large degree of independence in writing its own rules, changing them, and interpreting them — recognizing that how the Senate goes about interpreting and performing its own constitutional duties is something for it to decide, without intervention from the executive branch (or than through the Vice President's constitutional role of presiding over the Senate) or the judicial branch.

It is true that in historic practice, the Senate — as the "more deliberative" legislative chamber — has functioned as the political saucer to cool the political hot coffee of the House. That tradition has been an institutional check on the passage of controversial legislation. Whether one views that as a good thing or a bad thing oftentimes depends on one's views on the legislation at issue. But even if one believes that maintaining this institutional check is a desirable and important thing, that's not a good argument against the "nuclear option" with respect to the President's judicial nominees. The Constitution doesn't oblige the Senate, either expressly or impliedly, to bring every proposed bill to an up-or-down floor vote. But I believe that the Constitution's intent is that the Senate has an affirmative duty — and until this past term, the Senate's history has recognized that duty — to actually render its "advice and consent" on the President's judicial nominees.

The Democrats who've obstructed the President's judicial nominees have used the filibuster rules to impose, in effect, an extra-constitutional requirement that the President secure the support of 60 senators to even get an up-or-down floor vote on his judicial nominees. That, in my view, is the radical change that threatens the constitutional process — not the proposed "nuclear option." Sen. Dick Durbin (D-IL)'s recent explanation makes clear just how small a group of Democratic senators claim the right to frustrate the Constitution:

Unless and until every Democrat on the Judiciary Committee votes against a nominee there is no discussion of using a filibuster. What (former Minority Leader) Tom Daschle did and (Minority Leader) Harry Reid is likely to do is to take these issues to the full Democratic caucus and it makes a decision.

If a nominee has one or more Democrat voting for him, then it will not go to a caucus and there is a free vote. It (a filibustered nominee) happened to us 10 times in the last four years, that's out of more than 200 nominations.

In other words, every judicial nominee who's opposed by all of the Democrats on the Judiciary Committee will be filibustered, and that handful of senators will almost certainly ensure that each such nominee will never get an up-or-down vote on the Senate floor. The Democrats on the Judiciary Committee are essentially given a veto over a power delegated by the Constitution to the President, when the Constitution clearly intends that such a veto only be exerciseable by a majority vote of the entire Senate.

It's been given a rhetorically overblown nickname — chosen to suggest that it will blow the Senate apart in some sort of cataclysmic event.  But the only substantive result of having the Vice President rule "constitutionally out of order" the attempt to use the "normal" filibuster-and-cloture rules to block up-or-down floor votes on the President's judicial nominees will be that the Senate will do its constitutional duty: The Senate will indeed render its advice on — and will either consent to or (presumably, still, in some cases) refuse its consent for — the President's judicial nominees.

Yes, I recognize that someday the shoe may be on the other foot, and that then, to my political dismay, it may be a liberal Democratic President submitting judicial activist nominees for consideration by a less-than-60-member-majority of Democratic senators.  But the requirement that a judicial nominee gather an affirmative majority of Senators voting is still a significant institutional check on the President's power — and it's the precise check written into the Constitution, no more and no less.

On balance, I think that the (nonjudicial) precedent that would be set by the so-called "nuclear option" is one that would promote the intended and traditional functioning of our constitutional representative democracy. It isn't revolutionary in itself. Rather, it will lift the revolutionary stranglehold that's currently being used to to confer disproportionate power on a minority of obstructionist, hyperpartisan senators in an attempt to control the composition of the judicial branch in a counter-constitutional manner.

U14

Am I the only person who's sick to death of hearing and seeing the Apple iPod TV commercials in which U2 launches into some rousing song by counting off "Uno, dos, tres, catorce"?

One, two, three, fourteen?  Is there some meaning there I'm missing?  Or is this just really inane?  I suspect the latter.

About that Longhorn one-point safety

I don't do a lot of sports blogging as a rule. I'm a fan, but in moderation, and don't bring any particular knowledge or skills base to my sports blogging.  But today's Texas A&M versus Texas game may be an exception — one in which the game officials needed a lawyer on the spot to help persuade the ABC Sports commentators that the officials knew whereof they spoke.

As best I could tell, here's what happened:  Early in the second half, Texas blocked an Aggie punt, recovered it, and advanced it for a touchdown. Texas' regular placekicking holder was out with an injury; the backup holder bobbled the snap and Texas' placekicker muffed the Point-After-Touchdown kick, booting it through the offensive and defensive line into (but not all the way out of) the end zone. One of the Aggie defenders recovered the live ball — took possession of it, and advanced it out of the end-zone (trying for a two-point counter-conversion) — and then fumbled it back into the end-zone.  [Update (Sat Nov 27 @ 2:40am): But see the update below: The AP says the ball never quite made it to the A&M end-zone before being recovered by the A&M player who fumbled it into the end-zone.] Thereupon it was recovered, either by himself or by another Aggie, who was immediately tackled in the end-zone. The officials' ruling — to the complete perplexity of the ABC Sports broadcasters — was to award Texas a one-point safety, tying the score at 13-all.

A one-point safety?!? Now if that's not enough to send a lawyer-fan to his web browser, I dunno what is! And of course the place to go is the official NCAA website, specifically to the .pdf file containing the 2004 football rules.

There, on the 101st page of the .pdf file (internal numbering FR-100), we find Rule 8, entitled "Scoring," in which section 1 decrees:

Scoring Plays

ARTICLE 1. The point value of scoring plays shall be:

Touchdown		6 Points
Field Goal		3 Points
Safety (points awarded to opponent)		2 Points
Successful Try	Touchdown	2 Points
	Field Goal or Safety	1 Point

A "regular" PAT would be a "Field Goal" during the "Try Down" that comes after a touchdown (per Rule 8, Section 3), and a two-point conversion would be a "Touchdown" during the "Try Down." The one-point safety (which I've highlighted in red print in the table above) is an example of a "rouge" that occurs during the "Try Down."  Football.com helpfully explains about "rouges" in general:

A rouge is scored if the ball can not be returned out of the endzone. Fieldgoals are live and can be returned for a touchdown. Should the defending team not return the missed field goal out the end zone a single point is awarded to the kicking team.

For example: The first team kicks to the second team. A player on the second team attempts to catch the ball in his team's endzone, but fumbles the ball and is subsequently tackled. The other team scores a rouge, as the ball became dead in possession of a player in his own goal area.

[Update (Sat Nov. 27 @ 1:30am): But see Voice of Reason's comment below, justifiably quibbling with my use of the Canadian-rules term "rouge" for this situation, and my reply immediately below that comment, which contains more quotes from the official NCAA rules, secondary source and historical references, and contrasts with the NFL rules.]

Conclusion: Although it didn't figure in the final outcome ('Horns 26, Ags 13 — Hook 'em!), the refs got it right. And all the rest of us have learned something today!

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Update (Sat Nov. 27 @ 2:20am): Here's the AP's explanation, as carried in the Austin American-Statesman:

But Texas holder Matt Nordgren dropped the snap, Dusty Mangum kicked the ball into the line and it rolled away just shy of the goal line. In the ensuing scramble for the football, officials ruled that A&M had gained possession of the ball then fumbled it into the end zone.

A&M safety Jaxson Appel recovered the fumble just before several Texas defenders pounced on him.

Game officials conferred for about a minute before ruling that the Longhorns would get a point for downing Appel in the end zone. The mostly orange-clad crowd of 83,891 exploded into cheers once the scoreboard recorded the point, tying the game at 13-all.

But then the AP report cites the NCAA rule for regular 2-point safeties. Heh. I'll claim my post as another episode of blogospheric accuracy outdoing the mainstream media.

Happy Thanksgiving

Since the election, my blogging has been fitful as I've tried to catch up on work-related tasks that I'd deferred due to distraction. 

Yes, I have an opinion on Dan Rather's announced departure from the CBS News anchor chair, but I'm still too angry at CBS News for not firing the sum-bitch outright to spoil a nice Thanksgiving holiday by venting into the blogosphere.

But I'd be seriously remiss not to take this occasion to thank my readers who've continued to drop by looking for new content.  My list of things for which to be thankful today is a long one, but the opportunity to write here — and actually to be read, sometimes appreciatively — is certainly on that list.  Happy Thanksgiving to you all!

Showing up in court

Woody Allen — a source of many wryly wise sayings, despite the abominable wreck of his own personal life — famously quipped that "80 percent of life is showing up."

In litigation, the winning percentage for those who merely manage to show up is somewhat lower, but still substantial. A couple of the tick marks in my "wins" column as a young lawyer came from small claims court cases in which my corporate client — required by Texas law to appear through a lawyer and unable to appear "pro se" as a natural person might have — paid me to show up, and the person suing it didn't.

At that point in each case, I solemnly rose to my feet to make a "motion for entry of judgment nihil dicit" — which in one instance drew a chuckle from the judge and in the other, an uncomprehending stare. The Latin phrase "nihil dicit" — literally "he says nothing" — traditionally is used with reference to a judgment entered when the defendant fails to deny the plaintiff's claim, but can also be used, as best I was able to determine, when the plaintiff files a claim and then fails to appear to present it at trial. Perhaps the uncomprehending look was from a Justice of the Peace with superior Latin skills to my own meager ones, though; regardless, we both agreed that since I was there for the defendant and the plaintiff wasn't, the defendant should win with no further ado.

There are, of course, analogs in the criminal courts, as this story from today's Houston Chronicle indicates:

After demanding her day in court, Shannon Rechter decided not to show up.

The 38-year-old mother who claimed she was assaulted in the carpool line of a west Houston private school did not come to municipal court Wednesday morning for the scheduled trial of Sandra Chiang.

Chiang, a 40-year-old mother of two, was accused of slapping Rechter in the face for cutting in the carpool line on Dec. 13, 2003.

But without Rechter to testify, the misdemeanor assault charge was dismissed....

Rechter's absence came as a surprise after she had vigorously pursued the case by calling police, filing charges, frequently calling the city prosecutor's office and complaining that officials at the school did not take her claims seriously.

She said she gave up after another parent from school refused to testify on her behalf.

"Without a witness, I had no case," Rechter explained Wednesday afternoon, when reached by telephone.

Of course, at least in this particular courtroom, Ms. Rechter technically "had no case" either with or without supporting witnesses. Despite the Chronicle's misleading headline — "Plaintiff fails to show up for trial of carpool mom" — Ms. Rechter wasn't a "plaintiff," nor in charge of the case, but rather the "complaining witness" whose claims had prompted a (probably justifiably reluctant) prosecutor to press charges. The case belonged to the City of Houston, for an alleged offense against the peace and dignity of the City — not to Ms. Rechter.

What annoys most people about this story is the notion of going to court over a childish squabble that may or may not have involved physical contact, but in no one's version of events involved any damage more lasting than a briefly reddened cheek (perhaps from a slap, perhaps from anger). What particularly annoys me, though, is the notion that Ms. Rechter went so far out of her way to start the wheel of the criminal justice system rolling, and then hijacked the prosecutor's decision over whether to proceed. She wasted my tax dollars by treating the criminal justice system as if it were her own to control.  That's a poor lesson for a parent to teach her children.

NYPost gossips about possible Kerry defamation lawsuit against SwiftVets

Reader and frequent commenter "Raving Atheist" emailed me a link to a very amusing blurb written by Richard Johnson in the New York Post's "Page Six" column entitled "Kerry Fit to Sue 'Unfit' Author," which begins:

Liberal loser John Kerry might be planning to strike back at John O'Neill, the "Unfit for Command" author who claims some of the credit for Kerry's defeat, sources say.

In the book, published by Regnery not long before the election, O'Neill — who, like Kerry, commanded swift boats in Vietnam — attacked Kerry's war record and branded him a traitor.

(Another reader thoughtfully emailed me with this link to a NewsMax write-up on Johnson's blurb, but it doesn't add much to the NYPost's own gossip.)

I first wrote on the topic of the Kerry campaign's threats of a defamation lawsuit last August 11th, when The New Republic's Kenneth Baer argued (in an article that's now been moved to TNR's subscription-archive, but that I quoted extensively) that such a lawsuit would be well-founded. For reasons both legal and factual, I rather strongly disagreed, and for reasons entirely political, I thought that such a lawsuit would not possibly be filed during the campaign season. Nothing that happened later during the SwiftVets vs. Kerry saga in any way changed any of my original opinions as to the lack of legal and factual bases for such a lawsuit. But Mr. Johnson's unnamed source apparently thinks that the political dynamics no longer would prohibit such a case from being filed:

Now, "the Kerry camp is thinking about filing a libel lawsuit against Regnery and O'Neill," a source close to the candidate's inner circle tells PAGE SIX. "I don't know if they will actually go forward, but consideration is serious. If Kerry plans on running again in 2008 — and I'm hearing he will — it would make sense that he'd file the suit."

Kerry's rep, David Wade, said he hadn't heard about any proposed lawsuit, but promised to look into it.

Let's just say I'm not holding my breath waiting for this lawsuit to be filed. Nor, I strongly suspect, is SwiftVets' spokesman John O'Neill. According to Mr. Johnson's blurb,

O'Neill, who charged that Kerry faked his wounds and won his medals under false pretenses, says he won't write another book if Kerry runs in 2008, but will definitely campaign against him again.

That's actually a substantial overstatement of the SwiftVets' allegations — they never claimed that Kerry "faked his wounds." They did claim, however, that all three of Sen. Kerry's Purple Heart wounds (or four, if you count the bruised elbow) were trivial, and that two of the three Purple Hearts were undeserved because they resulted not from enemy action, nor even from someone else's "friendly fire" while there was incoming enemy fire, but rather from Kerry's own unintentional carelessness (on one occasion while firing a M-79 grenade launcher and on another when using a hand grenade to scatter a rice pile thought to be a Viet Cong food cache).

Regardless, however, if these or the SwiftVets' larger set of allegations were altogether false and groundless, they could have been exploded with a stroke of Sen. Kerry's pen on a Standard Form 180 — during his just-past campaign. The undisclosed military records still being withheld by the Navy Department, Sen. Kerry's and a crewman's wartime journals, and other documents that Sen. Kerry successfully stonewalled throughout the campaign would all become grist for the pretrial discovery mill in the early stages of any defamation case he ever files, however. I remain confident in my previous inference that if those documents were uniformly flattering to and supportive of Sen. Kerry, we'd have long since seen them, and in my further inference that because they aren't, we never will.

Beldar continues to confidently predict: Ain't gonna be no defamation lawsuit. If there is, I'll gladly eat Sen. Kerry's lucky CIA hat.

NYT's confusion on the basic concepts of government

According to an article in Monday's New York Times entitled "Southern Democrats' Decline Is Eroding the Political Center," those damn dumb conservative Texans have shot off one of Dubya's toes (boldface added):

This [dwindling in the number of remaining conservative southern Democrats] could also have important implications for Mr. Bush's domestic agenda. He needs bipartisan support to achieve major changes in Social Security, for example, but two Democrats considered most likely to work across party lines for entitlement "reform" will not be there: Mr. Breaux and Mr. Stenholm. Some Democrats on Capitol Hill said last week that the Republicans, who campaigned hard against Mr. Stenholm, had perversely cost themselves a potential ally.

Oh, dangnabbit! How will Denny Hastert and Tom DeLay ever get Nancy Pelosi and Lloyd Doggett and Sheila Jackson-Lee to vote for Dubya's programs now that Charlie Stenholm's not around to sweet-talk them into it?

Feh. The fact of the matter is that Charlie Stenholm couldn't sweet-talk any hard-left Dems into anything — past, present, or future. The real world doesn't work that way now, if it ever did. And on the few issues in which remaining "moderate" or so-called "conservative" Democrats in the House could be persuaded to vote with Dubya and the Republicans in the last term, they'll be just as persuadable again without Stenholm as a "bridge." As for his own vote, Stenholm sometimes, but far from reliably — whether because of his own views, or because his constituency was indeed solidly conservative — would vote with the Republicans. His successor, Randy Neugebauer, campaigned as both a conservative and a Republican who'd methodically support his party and its candidate for President.  This was a straightfoward case of voting for someone straightforward.

If there were any realistic chance that in the foreseeable future, the bulk of the Democratic Party might swing back toward the center — if there were a chance that it might regain control of the House, and if its moderate and so-called conservative elements were then in a position to actually dictate the Democratic Party's positions — then an old warhorse like Stenholm might have been a useful ally for Dubya and the Republicans. But that ain't gonna happen anytime soon, friends and neighbors, and the folks like Pelosi who actually do run the show within the currrent Democratic Party are no more sorry to see Stenholm leave than Tom DeLay is.

The fact of the matter is that the voters of Stenholm's district — as redrawn in 2003 to eliminate the gerrymandered advantages that kept him in office despite the state's growing Republican trend — replaced an unreliable conservative who was member of the minority party's increasingly irrelevant fringe with a reliable conservative who's a mainstream member of the majority party. They may drive pickup trucks in a cherry-red state, but as I see it, they seem to have a better handle on this "democracy" thing than the brilliant political reporters of the New York Times — who clearly think that political gamesmanship and duplicity is business as usual, and that straightforwardness is "perverse."

"Star-Search Palestine": Do we want to encourage another drama queen to succeed Arafat?

Does anyone know off-hand if NYT op-ed columnist Thomas L. Friedman has kids? Friedman consistently amuses me by the way he turns "moderation" into "mush-headedness." His column today starts off fairly enough by noting that "any honest history of Yasir Arafat will judge him on his voids, not his visions." But he concludes with this bit of cluelessness:

If only President Bush called in Colin Powell and said: "Colin, neither of us have much to show by way of diplomacy for the last four years. I want you to get on an airplane and go out to the Middle East. I want you to sit down with Israelis and Palestinians and forge a framework for a secure Israeli withdrawal from Gaza and progress toward a secure peace in the West Bank, and I don't want you to come back home until you've got that. Only this time I will stand with you.

"As long as you're out there, I will not let Rummy or Cheney fire any more arrows into your back. So get going. It's time for you to stop sulking over at Foggy Bottom and time for me to make a psychological breakthrough with the Arab world that can also help us succeed in Iraq — by making it easier for Arabs and Muslims to stand with us. I don't want to see you back here until you've put our words into deeds."

Any parent who's had any success dealing with his or her kids knows that there's a difference between discipline and drama. Drama — including that generated by family summits ("Tell me how you were feeling, Molly, when you decided to slam your textbook into your brother Adam's left ear?") — can and often does encourage more of the misbehavior you're trying to discourage.

One of the key reasons that Yasser Arafat got away for so long having done so little constructive (and indeed, with having continued to do that which was incredibly destructive) was that American Presidents, European leaders, the Nobel Peace Prize committee, et al. continually put him into the dramatic spotlight. They treated him with a dignity he'd never earned and respect for which he'd consistently proved himself unworthy. They gave him ample incentive to continue misbehaving, and until Dubya's administration, they never included being ignored and isolated and marginalized as among the permissible range of diplomatic options.

I hope that genuine leaders will emerge to represent the Palestinian people. I believe that quiet, behind-the-scenes diplomacy from the United States — emphatically not conducted in summits with Colin Powell in front of CNN's and al-Jazeera's TV cameras — may materially assist in that prospect. Inviting the Palestinians to promote a new drama queen to take Arafat's place, however — defining "success" primarily in terms of what America and Israel do (or whether Cheney and Rumsfeld are being properly supportive of Powell, for pete's sake), and thereby allowing thugs like Arafat to "succeed" by doing nothing more than frustrating everyone's hopes — is exactly the wrong thing to do.

Competition for Dubya's presidential library doesn't include Yale

"Bill Clinton is a rock star," said Skip Rutherford, head of Clinton's nonprofit foundation that built the $165 million library and continues his post-presidential AIDS-fighting and racial reconciliation initiatives. "He is Elvis."

His drawing power will be on full display this week, when the current and former U.S. presidents, foreign leaders and celebrities are expected to be among 30,000 invited guests gathered on the library lawn, overlooking the Arkansas River in downtown Little Rock.

Thus CNN reports the opening of Bill Clinton's new presidential library in his home state of Arkansas. But today's Houston Chronicle includes an AP story, entitled "Five vie to land library," on the competition among cities and universities to host the presidential library of his successor, George W. Bush:

Bush has not chosen a site, and those plans "will be announced at some point," said White House spokesman Taylor Gross.

The cities and educational institutions that are listed in the AP story as competing for the Bush-43 article are —

• Baylor University: In Waco; the Baptist university is about 30 miles east of Bush's Crawford ranch.
• Southern Methodist University: In Dallas; the alma mater of first lady Laura Bush.
• University of Texas at Austin: Where Laura Bush earned her master's degree, the alma mater of one of the couple's twin daughters and the home of the Lyndon Baines Johnson Library and Museum.
• Texas A&M University: In College Station; home to the presidential library of Bush's father.
• Texas Tech University: In Lubbock, 110 miles north of Bush's childhood home in Midland.
• Midland College: Near Bush's childhood home.
• City of Arlington: Where Bush was managing partner of the Texas Rangers baseball team before he was elected governor.

Counting Clinton's, there are twelve existing presidential libraries scattered around the country. A considerable amount of ego gratification and a certain amount of political pork-barrelling is involved in these institutions. But each successive administration generates its own increasingly massively sized archives of paperwork and other materials that become legitimate grist for historians, and some sort of accessible and responsible repository must be set up for them, so I'm not much offended by their being distributed outside of Washington.

Certainly when I was a student from 1975-1980, I enjoyed the broad sloping lawns and tasteful fountains and plazas of the LBJ Library because they were adjacent to my three other primary campus hang-outs at UT-Austin — Townes Hall (home of Texas Law School), the Music Building-East (home of the Longhorn Band), and Memorial Stadium. I recall some snickering over the LBJ Library being sited at UT-Austin because it was not LBJ's alma mater; but LBJ certainly had family ties to Austin and had long chosen to underplay his own nearby alma mater (then Southwest Texas State Teachers College, now Texas State University-San Marcos). Neither, of course, did Bush-41 ever attend Texas A&M or live in College Station, Texas, where his library is sited; the University of Houston might have made more historical sense, given that G.H.W. Bush lived and lives in Houston and once represented one of its congressional districts, but A&M is bigger and has vastly more political clout.

Putting JFK's library at Harvard was, I suppose, a comparatively easy and apt decision. Unremarkable too, I suppose, were the decisions to put Hoover's in West Branch, Iowa; FDR's in Hyde Park, New York; Truman's in Independence, Missouri; Ike's in Abeline, Kansas; Gerry Ford's in Ann Arbor, Michigan; Carter's in Atlanta, Georgia; Reagan's in Simi Valley, California; and Clinton's in Little Rock.

Conspicuously absent from the list of existing sites for presidential libraries, however — and from any mention as a serious candidate for Dubya's — is the college or law school alma mater of our last three presidents: Yale University of New Haven, Connecticut. Shunned by Elvis, and shocked by the still-smoldering wreck of alumnus John F. Kerry's presidential campaign, Yale no doubt continues to keep its powder dry and await a grateful presidential alumnus acceptable to its blue-state values.

Indeed, a childish part of me wishes Dubya would choose Yale out of spite — for such it would have to be, and so it would be perceived and received. I imagine tasteful marble plinths, imported from the Texas hill country, each supporting a polished brass spittoon tastefully underwritten by Skoal Tobacco — and perhaps an ivy-covered "Mandate Monument" in the center of footpaths under shade trees for the perpetual protesters.

Realistically, though, there's no chance that George W. Bush's presidential library will be sited anywhere outside Texas, and my guess is that Baylor and Waco probably have the inside track. That'll leave the Yalies plenty of opportunity for self-righteous smirking, and everyone will be happy.

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Update (Sun Nov 14 @ 2:15pm): Prof. Bainbridge quotes a few archly choice lines from The Economist about the Clinton Library.

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Update (Mon Nov 15 @ 9:40pm):  My commenters below have exposed and corrected my mistaken assumptions about the locations and university affiliations of some of the presidential libraries listed above.  Mea culpa, and thanks as always to them for their courtesy,  diligence, and shared knowledge.

Funniest line I've read tonight

Jay Nordlinger, in the Nov. 29th edition of National Review (subscription version):

On Election Day — before the results were known — a Harvard graduate student yelled joyously in a hallway, "I love America! I love democracy!" Someone shushed him, saying, "Enough of your homophobic views!"

Carts, horses, and Senate Judiciary Committee chairmen

I have a due, but not undue, appreciation of lawyers and judges — having been one of the former for twenty-four years, and having spent my first of those twenty-four years working as a law clerk to one of the latter and the rest of my career arguing before others.  Among my core principles — not just as a lawyer, but as a citizen-student of, and participant in, our democratic republic — is that judges' duties do not include "taking up the slack" whenever they perceive legislators to have been insufficiently progressive or enlightened. Give me instead the judge who has the wisdom and courage to say, "That may be a wise and good idea, counsel, but it's not my job to implement it. You're in the wrong forum, and you need to seek relief elsewhere if you're to get it."

Abortion is an issue that I've not blogged about very much. I'm in that odd group of people in the middle who are highly critical of Roe v. Wade and its progeny as a matter of constitutional law, but who — despite being sympathetic and respectful of those on either end of the spectrum on this issue — are not absolutely against all abortions as a matter of social and ethical policy. The reason I haven't blogged much about the subject in detail, and don't intend to, is that I don't feel that I have much to add to the debate beyond some very subjective, and somewhat muddled, personal views that I'm frankly not inclined to spread on the internet.

But while I respect the intensity of the passion of folks on both sides of the political debate about abortion, I'm frustrated when they use the issue — and try to enlist the passions of those who agree with them — on broader issues with more sweeping ramifications. I mean no disrespect to the single-issue voters on either side of the abortion issue. But I respectfully and firmly submit that how we, as a nation, go about selecting and confirming judges to hold lifetime appointments on our federal courts is by definition a broader issue with more sweeping ramifications, because abortion cases are only a tiny fraction of the cases — by volume or by significance — that federal courts must decide every day, every year.

During the year that I clerked on the Fifth Circuit, my judge handled (and I was privileged to assist her on) hundreds of cases — many involving life or death issues, others involving tens and hundreds of millions of dollars, and others involving important cutting-edge precedents in every conceivable area of the law. What we were doing, just one step removed from the Supreme Court and subject only to its (or the en banc Fifth Circuit's) rare review, was extremely important — to us, to the litigants before us, to the litigants and citizens who'd be affected by the precedents we set, and hence to the nation. But we didn't have a single abortion case that year in our chambers.

So as I've previously written (at less length, although there are some fabulous comments on that post arguing both sides), I'm disappointed that the debate over whether Pennsylvania Senator Arlen Specter should assume the chairmanship of the Senate Judiciary Committee has focused so much on his own views about abortion and on how judges who are before that committee might approach the legal issues on abortion. And thus, I'm frankly disappointed to read that Texas Senator and Judiciary Committee member John Cornyn — whose own service as a state-court trial and supreme court judge, and as a state attorney-general, give him ample cause to know better — may be falling into that rhetorical and political quagmire:

A conservative member of the Senate Judiciary Committee said he could support Sen. Arlen Specter (R-Pa.) as chairman of the committee if Specter issued a public statement saying he would not try to block a Supreme Court nominee who opposes abortion rights.

Sen. John Cornyn (R-Tex.) said Specter assured him in a conversation Tuesday he would push for swift up-or-down votes on nominees without regard to their positions on abortion. Cornyn indicated he was satisfied by Specter's comments but wanted them expressed in an official statement.

Asked if he thought Specter would get the chairmanship, Cornyn said, "Today, yes, I do."

Cornyn also said Specter is seeking a meeting with Republicans on the judiciary panel next week to resolve doubts prompted by his comments last week suggesting that the Senate was unlikely to confirm nominees who would overturn the 1973 Supreme Court decision legalizing abortion nationwide. Conservatives have flooded the Senate with protests, urging Republicans to reject Specter as chairman.

Now, it's possible that Sen. Cornyn sees the big picture, and that the WaPo reporter or editors — as would be typical of members of the press — picked the abortion issue as their lede and main focus even though Sen. Cornyn may have intended not to emphasize it. But the chairmanship of the Senate Judiciary Committee is important for many, many reasons having nothing whatsoever to do with abortion.

My own reasons for opposing Sen. Specter for that important position have nothing to do with abortion. They have everything to do with the fact that based on his statements and his record, I simply don't trust the man to ably and consistently and enthusiastically and loyally support the President in his commitment to appoint federal judges who believe that their duties do not include "taking up the slack" whenever they perceive legislators to be insufficiently progressive or enlightened. I don't believe the chairmanship is Sen. Specter's entitlement. The Senate's rules no longer require that he get it based on seniority, and the residual custom and presumption can and should be overcome in appropriate circumstances, which I believe exist here. I don't believe he's earned it as a reward; to the contrary, his conspicuous lethargy in supporting the President's reelection, after the President had supported him in a hotly contested primary, argues that he's entitled to no such reward. And I think that the risks of opposing him for the position, as argued by my esteemed friend Hugh Hewitt and others, don't justify the risks he poses if he gets the position.

To ensure democratic accountability in our republic, we need judges who understand what their role is — and what it isn't. As important as the abortion debate may be — as a matter of constitutional law, public policy, morality, ethics, and religion — it's not the only thing, or the most important thing, at stake here. Focus on the horse and where it's headed; the cart and its various contents, both precious and common, will follow, and can be adjusted appropriately as needed afterwards.

CBS' apologies and efforts to make amends

Commendably, Glenn Reynolds is using both his MSNBC column and InstaPundit to keep the heat on CBS News to complete and announce the results of its long-silent investigation of Ra^thergate. Meantime, he and PunditGuy note that CBS has apologized for preempting the closing minutes of a recent episode of "CSI:NY" with the news of Yasser Arafat's startling death. According to Reuters,

CBS, owned by Viacom Inc., said it has scheduled a repeat of the episode for Friday so viewers who missed the ending can see the entire broadcast.

I suppose that's one way of making amends. Which leads one to wonder:  Will CBS interrupt its regular programming with the results of the Rathergate investigation?  I bet there would be huge ratings for a live, exclusive telecast of Dan Rather cleaning out his desk, trudging with an armload of boxes down through the hallways and elevators of Black Rock, and trying to hail a cab.  (Work in some special effects — something like that trucks-and-cold-gutter-slush scene from the new "Bridget Jones" movie promos ... yeah, that's the ticket!)

And while we're on the general subject of "fake but accurate":  Shouldn't the crack CSI:NY forensic team — which clearly outranks CBS News in Viacom's pecking order — be assigned to figure out Arafat's mysterious cause of death?

Or better yet — shouldn't they be dispatched to help Dick Thornburgh and Louis D. Boccardi get to the bottom of Rathergate? Lots of us are hoping that that particular "episode" will ultimately involve a whole series of [career] fatalities — even though the political candidacy it was designed by its culprits to slay survived and fully recovered.  And those guys are pros — they get every case solved by the closing credits, within the hour.  Messrs. Thornburgh and Boccardi, by contrast, seem to be having problems meeting their announced schedule.

In fact, I think they ought to make this a joint effort — Thornburgh and Boccardi should be joined by the full teams from CSI:NY, CSI:Miami, and CSI:Las Vegas. (Have I left any out? Is there a "CSI:Abilene"?) Otherwise, this might end up being solved on "Cold Case," which would be a genuine miscarriage of justice.

Another misleading Reuters headline

"Arafat Makes Final Journey Home to West Bank," reads the headline. But as I understand his religion, or my own, it's merely the shell of the man once known as "Yassar Arafat" which has made that journey. That which made him a man had already completed its journey to face the judgment of Allah or God.  The process of judgment for him must have been an awe-full and awful one — quite dissimilar to Arafat's earthbound funeral proceedings (which, as I heard them just now in a tape-recorded BBC reporter's piece on NPR, involved lots of mob screaming and gunfire into the air).

I suppose Reuters should be commended for managing to avoid use of internal scare quotes in this direct quote:

Palestinians named a collective leadership comprised mainly of veteran moderates in Arafat's circle, reviving world hopes of a return to peacemaking that Israel had ruled out as long as the man it called "a master terrorist" was in charge.

World hopes indeed, in which I certainly share: May the next funeral of a Palestinian leader, whenever it comes, be characterized by calmer reflection on the career of a genuine  peacemaker, someone who's shown the courage to stand up against violence and terrorism, and to seize the peace and the statehood that's there for the taking, if only hatred can be sufficiently subdued.

Ex-CBS News correspondent Eric Engberg compares blogs to CB radio and to ticks on a dog

I was fully prepared to lather myself up into a full-blown rant over ex-CBS News correspondent Eric Engberg's provocative op-ed entitled "Blogging As Typing, Not Journalism."  But after re-reading his piece a couple of times, I'm only half lathered, and half bemused. Mr. Engberg is a self-described "retired mainstream media ('MSM') journalist — and thus a double-dinosaur." His op-ed certainly shows that even old-media dinosaurs can snark it up with the best bloggers, however, and it's a lively read. His lede:

As the election campaign unfolded, operators of some of the internet’s politics-oriented blogs, no doubt high on the perfume of many "hits" and their own developing sense of community, envisioned a future when they would diminish then replace the traditional media as the nation’s primary source of political news and commentary....

Big plans and big claims are to be expected from folks — pajama-clad or not — who are dabbling with new technology and new modalities of public expression.... But I worked on a school paper when I was a kid and I owned a CB radio when I lived in Texas. And what I saw in the blogosphere on Nov. 2 was more reminiscent of that school paper or a "Breaker, breaker 19" gabfest on CB than anything approaching journalism.

Let's give Mr. Engberg a pass on his CB faux pas — any self-respecting Texas CB user would know that's supposed to be "Breaker one-nine," but perhaps he's the victim of an editor who over-zealously applied some stylebook rules and accidentally garbled the CB jargon.  Ditto for Mr. Engberg's op-ed's headline — "keyboarding" being the current word I think he was looking for, as my sixteen-year-old son recently corrected me when I asked him whether he was benefiting much from his "typing class."

*******

I must, however, give Mr. Engberg credit for picking an easy target of blogospheric hubris (Andrew Sullivan) for quotes to set up his straw man, and then for choosing an excellent factual example (election coverage and, in particular, the promulgation of badly misleading exit poll leaks) to knock the strawman back down.  I don't know of any serious person, however, much less a serious and respected blogger — including Andrew Sullivan (whom I think Mr. Engberg has quoted out of context) — who expects bloggers to wholly "replace the traditional media as the nation’s primary source of political news."  Diminish, yes; augment and supplement, absolutely.  But not replace.  That's just rhetorical overkill.

As a trial lawyer, my particular profession gives me a considerably more potent set of tools to develop factual information than Mr. Engberg or his mainstream media colleagues can even dream of — chief among them the ability to subpoena witnesses, compel their production of documentary and other types of evidence, and cross-examine them in front of a videographer and court reporter, on penalty of going to jail for contempt of court if they refuse to cooperate, or to prison for perjury if they deliberately lie. But although my professional experience and training certainly aid and influence my blogging substance and style, nevertheless, when I'm blogging, I'm pursuing an avocation, a hobby. As a blogger, I'm keenly aware not only that I have to leave the pointy parts of my professional toolbox behind, but also that I lack the access that politicians and other newsmakers routinely — eagerly — grant to professional journalists. BeldarBlog can (and did) rant and rave and thunder about Sen. Kerry's stonewalling on his military records; Sen. Kerry can (and did) ignore me. And since I must doff my pajamas and pursue my day job from time to time, and lack the financial and logistical resources to hang around "the action" (wherever that may be for a given story), I'm pretty much dependent on other sources — sometimes other bloggers, sometimes a non-media knowledgeable professional, but yes, mostly members of the mainstream media — to gather the facts and quotes that can't be found online.

But there are abundant recent examples of bloggers offering news analysis who themselves have "PhD-style expertise" that professional journalists lack. The lawyer-bloggers —  including yours truly —  who helped expose CBS News' Rathergate fraud, for example, deal with document authentication (and other experts in that particular field), chain of custody, and bias on a day-to-day basis. Other bloggers brought their own substantial technical expertise on computer fonts and printing to bear as well. I respectfully submit that in writing an op-ed about the just-past election season without ever mentioning that tawdry episode, Mr. Engberg has shown that he has brontosaurus-sized testicles — and mole-like vision. 

Likewise, when it comes to doing "background" factual research, savvy bloggers using Google (and for some of us, Lexis/Nexis and other online databases) have found quotes and other pertinent facts that mainstream media reporters flat out missed and sometimes — for example, in the cases of Sen. Kerry's "Christmas in Cambodia" seared memories, or his Belodeau Eulogy (both from the Congressional Record) — shamefully continued to largely ignore.

Commentary, of course, is another matter altogether, and Mr. Engberg badly errs in lumping both it and news analysis in with news reporting. It's not a coincidence that Glenn Reynolds' blog is called "InstaPundit" instead of "InstaReporter." And the election season just past has proved in spades that new media (blogs, talk radio, cable TV) have already dramatically "diminish[ed] ... the traditional media as the nation’s primary source of political ... commentary." Walter Cronkite could almost single-handedly prompt a reshaping of American public opinion about the Vietnam War when he changed, and expressed, his own opinion after the Tet Offensive. But no mainstream media source — nor all of them put together — will ever have that much practical power again. If Mr. Engberg doesn't recognize that, he's not just a "double-dinosaur," or even a fossil — he's the Piltdown Man.

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I agree with quite a bit of what Mr. Engberg wrote about the blogosphere's propagation of misleading exit poll data. He writes, for example, that

[w]hile out on the campaign trail covering candidates, my own network’s political unit would not even give me exit poll information on election days because it was thought to be too tricky for a common reporter to comprehend. If you are standing in the main election night studio when your network’s polling experts start discussing the significance of a particular state poll, you the reporter will hear about three words out of one hundred that you will understand. These polls occur in the realm of statistics and probability. They require PhD-style expertise to understand. The people who analyze them for news organizations, like the legendary Warren Mitofsky and Martin Plissner at CBS News — have trade associations like doctors do to certify their work.

But as he himself points out (while seeming to miss the point), the folks at Slate.com who contributed to the spread of misleading exit poll information on Nov. 2 actually are professional journalists. And it's a safe bet that the ultimate sources of the raw exit poll data leaked to the amateur bloggers Mr. Engberg criticized are almost certainly also professional journalists. Mr. Engberg retired two years ago; it's a pity, then, that he's already forgotten the absolute dog's breakfast his own network and the rest of the mainstream media made of their over-reliance on exit poll data in the 2000 election, when their premature and inaccurate projections and flip-flops almost certainly influenced hundreds of thousands of votes. Apparently Mr. Engberg has retired now to a subterranean bunker in lovely Palmetto, Florida, and he's forgotten all about the shattered glass house (a/k/a Black Rock) from which he previously plied his profession.

*******

Thus, I can't take too much serious offense at Mr. Engberg's snarky hyperbole when he concludes:

The public is now assaulted by news and pretend-news from many directions, thanks to the now infamous "information superhighway." But the ability to transmit words, we learned during the Citizens Band radio fad of the 70’s, does not mean that any knowledge is being passed along. One of the verdicts rendered by election night 2004 is that, given their lack of expertise, standards and, yes, humility, the chances of the bloggers replacing mainstream journalism are about as good as the parasite replacing the dog it fastens on.

My CB radio actually did pass along quite a bit of useful knowledge back in the 1970s — mostly about speed trap locations — and I never imagined that I was Edward R. Murrow when I used it. Nor do I mistake myself for Dan Rather now that I'm blogging. I'd actually much rather be compared to a flea or a tick, and my own loyal and well-tempered dog deserves better than being compared to Dan Rather.

Opposing Specter for Judiciary

I've just finished Hugh Hewitt's If It's Not Close, They Can't Cheat.  I wish I'd finished it before the November 2nd election, but I heartily recommend the book to anyone — including Democrats! — who's interested in politics.  Hugh's prose is crisp, concise, and lively — in other words, he doesn't write in a style that would immediately lead you to conclude that he's a lawyer or a policy wonk.  A comparatively small part of the book is specific to the election just past, and in particular his Chapter 12, entitled "Parties Can't Govern Without Majorities or Pluralities of Seats," contains little-appreciated wisdom for the ages:

Americans generally have very firm opinions on everything and want what they want to be "just so."

Unfortunate this demand for particularity doesn't work at all when applied to politics. In fact, insistence on personal taste is disastrous for political parties. There are only two real choices in America — Republican or Democrat. To demand more is to be disappointed before you begin, and to hand a victory to the set of choices most repellent to you.

Hugh explains the overwhelming importance of having one's own party in majority status, from which position it can choose the members and in particular the leaders of key House and Senate committees. Because of this, Hugh argues that as a general rule, one should almost always support the politicians of one's own party — even those who frequently desert its ranks on particular votes and issues — because

[i]t is an individual who governs as president, but it is the party with a majority that legislates. It is simply foolish to condemn as unsuitable any denominated member of a party of grounds of issue divergence.

Speaking of two particular Republican senators who've been challenged within their own party as insufficiently conservative, Hugh writes:

Neither [Pennsylvania's Arlen] Specter nor [Arizona's John] McCain is a weak incumbent in general elections. Conservative purists should not only leave both men alone; they should enthusiastically support their reelection efforts....

Please absorb this basic fact about American politics: majorities, not individuals, govern. Without an understanding of this, the GOP's return to near permanent minority status — and the powerlessness it includes — is all but guaranteed.

I entirely agree with Hugh's book on this general point, and thus was pleased to see both Senators Specter and McCain cruise to easy re-elections last Tuesday. But does this principle of supporting party-over-particulars also extend to the majority party's selection of key committee chairmanships in the House and Senate? This week, Hugh offers the following thoughts on his blog:

I see that there is a blog swarm forming around the expected assumption of the chairmanship of the Senate's Committee on the Judiciary by Pennsylvania's Arlen Specter. The opposition to Specter seems headquartered at [NRO's in-house blog,] The Corner. Many friends post at The Corner, so I paused, considered their arguments, and thought it through. On reflection, it seems to me a very bad idea to try and topple Senator Specter from what in the ordinary course of events would be his Chairmanship. I hope my colleagues on the center-right that embrace pro-life politics will reconsider.

For probably any other Senate or House committee, I would agree that it would be unduly destructive — an example of devouring one's own young — to undercut particular legislators of one's own party to prevent them from ascending to a chairmanship that seniority would otherwise prescribe. But I must respectfully disagree with Hugh as to Sen. Specter and the chairmanship of the Senate Judiciary Committee.

My own opposition to Sen. Specter's Judiciary chairmanship isn't based on his pro-choice views. Rather, it's based on my perception of Sen. Specter as not being a reliable "team player" in general. Dubya expended substantial political capital and showed remarkable party loyalty in supporting Sen. Specter in a tough primary fight; I think he was wise to do so, on grounds that if Sen. Specter had lost in the primary, his successor candidate might well have lost in the general election, handing that seat over to the Democrats. But in marked contrast to other Republicans like Rudy Giuliani and Arnold Schwarzenegger, Sen. Specter refused to risk any of his own political capital on behalf of President Bush's re-election — and in a battleground state that Dubya lost by only two percent, and might well have won had Sen. Specter campaigned aggressively for him.

John J. Miller makes a compelling and fact-specific case that Sen. Specter's only true and reliable allegiance is to Arlen Specter.  But the chairman of the next Judiciary Committee has to be the sharp point of the President's spear in getting his judicial nominees confirmed. He needs to be not just a dutiful warrior for President and party, but an enthusiastic and creative one — both in his public pronouncements and in his backroom arm-twisting. The Democrats will again field their "first team" to oppose Dubya's nominees — a team that has positively tied the President's plans in knots, and that may still have the practical power to continue doing so if not more skillfully opposed than they have been. And not just the occasional important piece of legislation is affected by this committee chairmanship, but the long-term trend and fate of an entire branch of our government.

The Republican Party simply can't afford to have this key position in the hands of someone whose loyalty to party and President is intermittent at best.  It's not a question of the Republicans devouring one of its young, but rather of giving an unruly and untrustworthy rebel a bit of a "time out."

My candidate for the chairmanship?  Texas' John Cornyn, whose own background includes distinguished service as both a trial and appellate judge and a state attorney general.  Arizona's Jon Kyl would also suit me fine.

Dubya's mandate

USA Today's state-by-state map (screencapped and edited here to remove the javascript bells and whistles) and accompanying text dramatically illustrate the "red-state versus blue-state" breakdown now that the final disputed states have been fairly definitively tallied.  The county-by-county breakdown is even more visually dramatic:

Of course, both of these graphics show the election results geographically rather than numerically, and the visual drama therefore is skewed by the fact that rural and less-heavily populated states and counties trended heavily Republican.  But the numbers — especially when looked at in a historical context — are also quite impressive, as Matthew Dowd's final campaign memo from Wednesday makes clear:

President Bush won a historic victory yesterday by defeating John Kerry by more than 3.5 million votes, 58.6 million to 55.1 million (51% to 48%) and winning the Electoral College 286 to 252. In doing so, President Bush:

• Becomes the first presidential candidate to win more than 50% of the popular vote since 1988.
• Received the most votes by any presidential candidate in history — over 58 million, even breaking President Reagan’s 1984 mark of 54.5 million votes.  [Updated figures actually show over 59.6 million — Beldar]
• Becomes the first President re-elected while gaining seats in the House and the Senate since 1936, and the first Republican President to be re-elected with House and Senate majorities since 1924.
• Received a higher percentage of the popular vote than any Democratic presidential candidate since 1964.
• Garnered 7 million more popular votes than in 2000 — more than twice the amount that President Clinton increased his vote between 1992 and 1996.
• Increased his percent of the vote from 2000 in 45 out of 50 states, including a 4 percent increase in John Kerry’s home state of Massachusetts.

President Bush ran just as strongly in the key battleground states as he did nationally. In the 14 most competitive states (AR, CO, FL, IA, MI, MN, MO, NH, NM, NV, OH, PA, WI, and WV), President Bush won 51% of the vote to John Kerry’s 49% — an improvement of 2 points from his 2000 performance in those states. Yesterday also revealed that the Republican Party has made historic gains with minority voters and women. Exit polling revealed that President Bush won 42% of Hispanics (up from 35% in 2000), 11% of African-Americans (up from 9% in 2000), 24% of Jewish voters (up from 19% in 2000), and 47% of women (up from 43% in 2000). In Florida, 55% of Hispanic voters supported President Bush, an increase of 6 points from 2000.

Just as we predicted, undecided and late-deciding voters went to the President Bush by a small margin. Despite media predictions that Kerry would win up to 90% of late-deciding voters, exit polling reveals that President Bush won voters who decided in the week before the election, 51% to 48%.

Furthermore, as we predicted, yesterday was the first time in modern political history that an equal number of Republicans and Democrats turned out for a presidential election. The Democrats’ 4-point advantage in 2000 evaporated, with Republicans and Democrats both at 37% of the electorate in 2004.

Was the election a "landslide"?  No, it wasn't, either in the popular or electoral votes.  But it was a genuine "mandate" by almost any method of measuring.

By employing that term, I do not mean to suggest that Dubya's mandate gives him or the Republican party a license to ride rough-shod over their opponents.  Nor, despite the gloom-and-doom predictions from the political left and the celebrations from the political right, do I expect them to try to do so.  The reality of the situation is that the Republicans lack a filibuster-overriding majority in the Senate, and the actual working majority that President Bush will be able to command will vary from issue to issue, bill to bill, and nominee to nominee.

Where I expect his mandate to be most significant, however, are on the subjects of the Global War on Terrorism and domestic security.  Sen. Kerry's campaign refrain was that "a vote for Bush is a vote for four more years of the same" — and on those subjects, that is indeed what we should expect.  But Sen. Kerry's refrain was highly misleading to the extent it implied that Dubya's performance since 9/11 has been static, predictable, or one-dimensional.  In fact, while maintaining rhetorical consistency — which accounts for Dubya's so-called inability to "admit his mistakes" — his policies have been quite flexible, varied, and creative. 

The old saying is that "to a man with a hammer, every problem looks like a nail."  The United States military is the most profoundly powerful hammer, relative to any other comparable force, that any country has ever possessed throughout world history — and indeed, President Bush has shown himself willing to swing it.  But to extend the metaphor, Dubya has also shown an awareness that this country's mighty hammer is not the only tool in our toolbox. 

There were sound bases in international law for America to act, either unilaterally or with willing allies, to depose Saddam Hussein in 2002; and there were nontrivial arguments that President Bush could have done so without seeking further approval even from America's own Congress.  But Dubya decided to first get Congressional approval, and then to return to the United Nations for a final resolution (No. 1441) demanding that Saddam Hussein comply fully with its prior resolutions or face "serious consequences."  In so doing, he gave Saddam additional months to prepare for war and to hide his wrongdoing.  But it was essential that Saddam, and that other world leaders, fully understand that America is no paper tiger, and that they cannot count on America to give any other country an effective veto over its foreign policy and military options.  Tuesday's election results cannot fail to be understood by world leaders — friendly, neutral, or unfriendly — as anything other than a dramatic ratification of President Bush's overall strategy.

So when Dubya continues to put pressure on Iran or North Korea to reform their ways — when he again enlists the aid of other nations, like our NATO allies in dealing with Iran, or North Korea, Japan, China, and Russia in dealing with North Korea — even though the American President isn't yet swinging the hammer, the leaders of Iran and North Korea must be feeling like potential nails.  This, I submit, is a very good thing.

And even our non-state enemies, like the nutcase Osama bin Laden slinking from cave to spider hole, cannot fail to read the returns from Tuesday's election.  Bin Laden famously counted on America to react to 9/11 as it had to the Cole and Somalia and Lebanon.  I'd readily concede that he would have been wrong even had Clinton still been President, or had Gore been elected in 2000.  But it would not have been unreasonable for him and his ilk to at least think and hope that a President Kerry might have reacted more like Dubya's predecessors (yes, including the Republican ones) to future provocations less massive than 9/11, and that a President Kerry would be more constrained and less aggressive and methodical in pursuing their doom.  They cannot possibly be under any such illusions about George W. Bush.  And both they and whatever new recruits they summon to their banners of hate and terrorism can be under no illusions that the failing will of the American people will rescue them either.

Finally, but not at all insignificantly, Tuesday's election results constituted a mandate from the American people to its men and women in uniform.  Yes, Senator Kerry talked the talk about "supporting our troops" and "staying the course" and not "cutting and running."  But our troops could certainly be forgiven for doubting his sincerity, given his record of conspicuously failing to walk that walk, and the vocal and powerful elements within his party who not only refused to talk the talk, but ridiculed our troops' incredible accomplishments and undercut their ongoing missions at every opportunity.

In the only public opinion poll enshrined in our Constitution, the American public has spoken.  Through the mechanisms specified in that Constitution, the results of that polling have become abundantly clear.  Of course there are risks and uncertainties in the future; that would have been true too even had the result Tuesday gone the other way.  But President George W. Bush does indeed have a visible, demonstrable mandate to back his constitutional powers and his discharge of his constitutional responsibilities.  Without gloating, without belittling those whose votes were for his opponent, that is something that I am proud to celebrate.

Yesterday's big winners in the eyes of future world historians

My prediction:

Twenty-five years from now, yesterday's election victory will be regarded as a key step in the continuing spread of democratic freedom.  Although the indirect benefits from that spread of democracy will certainly be seen to have benefited Americans' domestic safety and security, the long-term big winners — in comparison to what was at risk, and what they will have gained — will be widely recognized to have been people in places like Iran and other repressed Middle Eastern nations, North Korea, and Cuba.

Blowing smoke from nether orifices

Taken from the Ohio Sec-State's website as of this posting:

 

Precincts Reporting: 99.90%
Office Candidate President/Vice President	Party	Votes	% Of Votes
Bush, George W.	Republican	2,780,285	50.98%
Kerry, John F.	Democratic	2,647,121	48.54%
Difference:		133,164	2.44%

Even if one assumes that there were 200,000 provisional ballots, every one of which is ruled valid, and that those 200,000 additional votes went to Sen. Kerry by a ridiculously high 67% margin (134,000 added to Sen. Kerry's total and 66,000 added to to Pres. Bush's), that would still leave Pres. Bush with total of 2,846,285 to Sen. Kerry's 2,781,121, leaving Pres. Bush with a margin of 65,164 votes.

One effect of the incredible closeness of the 2000 election in Florida was perhaps to create a misimpression in the minds of the public that recounts, challenges, and so forth can sway huge quantities of votes. 

Friends and neighbors, I'm no expert in election law, but I'm enough of a lawyer and a student of civics to tell you that no recount procedure is going to change a 65,164-vote margin.

Go ahead and color Ohio red for this election in permanent ink.  No amount of lawyering is going to flip this state.

Update (Wed Nov 3 @ 8:15am):  As of this posting, the Ohio Sec-State website shows a total of only 135,149 provisional ballots cast, but lacks any totals from 10 of 88 counties.  I don't know the names or population sizes of Ohio counties, but I find it hard to believe that the 10 unreported counties, plus whatever else comes in via mail or otherwise, are going to produce enough additional provisional ballots to get to the 250,000 numbers the Kerry campaign was touting last night.

Per CNN,

Ohio Secretary of State Ken Blackwell issued orders for counties by 2 p.m. Wednesday to report total numbers of provisional ballots. Counting of those ballots will not begin until Thursday, according to Blackwell's directive.

It is not clear how long the ballot-counting will take. Initially, Blackwell said the counting of provisional and absentee ballots would not begin for 11 days.

He said he could not immediately put an estimate on the number of those ballots but said 250,000 might not be out of the realm of possibility.

While he said the exact number of provisional ballots was unknown, he said it is "trending toward 175,000."

Blogospheric snapshot, from center- to far-left

A predictable continuum:

Gracious:  Andrew Sullivan:

IT'S OVER: President Bush is narrowly re-elected. It was a wild day with the biggest black eyes for exit pollsters. I wanted Kerry to win. I believed he'd be more able to unite the country at home, more fiscally conservative, more socially inclusive, and better able to rally the world in a more focused war on terror. I still do. But a slim majority of Americans disagreed. And I'm a big believer in the deep wisdom of the American people. They voted in huge numbers, and they made a judgment. Not a huge and decisive victory by any means. But at least a victory that is unlikely to be challenged. The president and his aides deserve congratulations. And so, I think, does Senator Kerry, whose campaign exceeded the low expectations of many of us.

FOR NOW: But the most fundamental fact of this campaign - and one of the reasons it has been so bitter - is that we are at war. Our opponents at home are not our enemies. The real enemy is the Jihadist terror network that, even now, is murdering innocents and coalition soldiers in Iraq. Our job now - all of us - is to support this president in that war, to back those troops, and to pray for victory. We saw yesterday, in the cold-blooded murder of a Dutch film-maker for his open criticism of Islamist misogyny, that the enemy is still at large; and aiming directly at our freedoms and security. In Fallujah, our troops are poised for a vital battle against terrorists and theocrats intent on derailing a free future for Iraq. Democracy is on the line there and throughout the world. I've been more than a little frustrated by the president's handling of this war in the past year; but we have to draw a line under that now. The past is the past. And George W. Bush is our president. He deserves a fresh start, a chance to prove himself again, and the constructive criticism of those of us who decided to back his opponent. He needs our prayers and our support for the enormous tasks still ahead of him. He has mine. Unequivocally.

Realistic:  Kevin Drum:

In other words, it doesn't look like the provisional ballots are going to save Kerry. I know that conclusion won't be popular with my readers, but that's the way I see it. We'll know more by Wednesday morning.

Sullenly silent so far:  Joshua Micah Marshall.

Predictably vulgar, deluded, and graceless:  Markos Moulitsas Zúniga a/k/a Kos.  I'm not going to debase my blog by quoting his filthy rant, and only offer the link for those seeking schadenfreude.

Funniest line I've read tonight

From NRO's The Corner:

ISN'T THIS FANTASTIC?! [John Podhoretz]

The media won't call it, even though it's happened. They're graceless. So is Kerry. They are tying themselves to this depressing loser. It's everything I ever wanted.

I so agree. In my view, a Kerry legal challenge in the face of a 3.7+ million popular vote majority for Bush just extends the parade the Vietnam veterans never had. Kerry hung them out to dry; now they get to watch him twist and squirm under torture.

In a victory for (small-d) democracy, Texas voters "re-enfranchised" in Congressional elections

Tonight the tenacious and pernicious effects of a pro-Democratic gerrymander dating back to 1991 were finally erased.  Due to the successful redistricting completed by the Texas Legislature in 2003 — the first and only redistricting completed by that body, in the due performance of its assigned duties under the state and federal constitutions, to account for the results of the 2000 Census (and Republicans have pledged that there will not be another until after the 2010 Census) — Texas' congressional representation in the next Congress will now reflect the Republicans' strong majority-party status in this state.  Republicans will hold 21 of 32 Congressional seats, or 66 percent of the total.  Dubya pulled just over 61 percent state-wide, suggesting that the pro-Republican tilt to the 2003 map is pretty mild and reasonably accurately reflects Texas' overall Republican-Democratic voter proportions.

My title for this post is tongue-in-cheek.  Those who've read my many, many past posts on the Texas redistricting will know that I've consistently objected to Democratic claims that redistricting — even highly partisan gerrymandering — "disenfranchises" voters.  Disenfranchisement means depriving someone of his right to vote.  Redistricting/gerrymandering doesn't do that; under both the old map and the new map, essentially every eligible voter in Texas who wanted to do so, was indeed able to cast his or her vote and have it counted.  One has a sacred right to vote, but one doesn't have a sacred right to have his or her preferred candidate win.

What the 2003 redistricting accomplished — within the limits imposed by the Voting Rights Act, which essentially transformed minority-race Democratic incumbents into untouchable sacred cows whose districts must remain gerrymandered to ensure their perpetual re-election — was to unpack Republicans (who'd previously had their votes purposefully diluted by the pro-Dem gerrymander in 1991) into a larger number of districts. 

The sacrificial lambs of the 2003 Texas redistricting and the 2004 Congressional election thus became incumbent white male Democrats who — stripped of their own gerrymandered advantages — turned out not to be so well beloved by their new mix of constituents as they'd claimed they would be.  Charlie Stenholm, Max Sandlin, Nick Lampson, and (most sweetly, because he was the architect of the earlier pro-Dem gerrymander) Martin Frost took dirt naps.  Another white male Dem incumbent, Chet Edwards, is leading as I write this, and if he indeed wins that will show that the redrawn districts were not entirely uncompetitive.  White male Dem incumbent Lloyd Doggett won, as expected — but only after moving to run in a new district that was created with the expectation that it would be Democratic-leaning and that the Dems would pick a hispanic candidate.  (El Patron Doggett used all of his many advantages of incumbency, fund-raising, and name recognition to squash his Democratic primary opponent, former judge Leticia Hinojosa; I'm still waiting for the Dems to scream "racism" and "sexism," but there's been a strange silence.)

I've consistently maintained that the Dems' resistance to redistricting was profoundly anti-(small-d)-democratic.  Yes, gerrymandering is brutal; yes, we should consider some sort of redistricting reform (although I've yet to see a plan that I could endorse unreservedly).  But tonight's Texas Congressional election results can be traced directly back not to the decisions of Texas voters who in 2002 put both chambers of the Legislature and the Lieutenant Governorship and Governorship into the hands of the Republicans.  Tom DeLay merely guided his statehouse colleagues in using the voting majorities that Texas voters had placed into Republican hands. 

As I wrote on October 18th, I believe that the nominally still-pending legal challenge to the 2003 map will be summarily rejected again by the three-judge panel that approved that map in January, and that the panel's decision will then be summarily affirmed, probably without oral argument or written opinion, by the Supreme Court.  Edwards' win effectively drives a final coffin nail into the argument that the Dems have no chance of prevailing in any of the non-minority-incumbent redrawn districts.

I'm well pleased.  It was a good night for small-d democracy in Texas.

(Footnote for out-of-state readers who remember Ra^thergate:  David Van Os, one-time lawyer for CBS News source Bill Burkett, was soundly trounced (60/40) in his race for a Texas Supreme Court seat by superbly qualified incumbent Scott Brister.)

Ohio Sec-State's presidential voting returns website

The official website is here.

I will state for the record that although protracted legal proceedings in Ohio and/or other states over the next few days or weeks would probably do wonders for my own blog's traffic, I would gladly forego that whole ordeal.

Beldar's nomination for the unsung hero of Election Day 2004

Readers of a certain age will remember the Mennen's Skin Bracer commercial in which droopy and foggy-eyed boxer Joe Frazier stared into his bathroom mirror, and then — after vigorously slapping his own cheeks with the product — suddenly appeared miraculously refreshed, exclaiming:  "Thanks!  I needed that!"

Today Hugh Hewitt (via this post and also, I suspect, some pointed and well-directed private emails and/or phone calls) performed that function for the right hemisphere of the blogosphere during the panic over the hugely misleading exit polling early in the day.  Someone of his stature — someone who'd be immediately noticed and seriously considered by other pundits and bloggers — badly needed to administer those sharp slaps.

And in near Butterfly Effect-fashion — Hugh being able to float like a butterfly (avoid giving offense), but sting like a bee (make his point forcefully) — it worked.  I don't know how many Bush voters who might otherwise have given up based on panic in the blogosphere, but instead took heart and voted — but I believe it was a non-negligible number.

Thanks, Hugh.  We needed that!

Update (Wed Nov 3 @ 8:55am):  Power Line also sings Hugh's praises.

Open election thread

Everything I have to say about the election before the returns come in, I'd already said — probably ten times — before the polls opened today.

But if you have something you'd like to say, here's a new thread for it!  (Please be civil and nonprofane, as always.)

----------------

Update (Tue Nov 2 @ 6:10pm):  Actually, I do have something to say before any significant returns have come in — something that I think may express a genuinely widespread and bipartisan sentiment:

Thank you, men and women of the United States Armed Forces, and of the military forces from our gallant allies in the Global War on Terror, for putting your lives on the line — and in some cases giving up life or limb — to protect our freedom.

 

If anyone had asked me on 9/11/01 what the odds would be that Americans could go to the polls today without having suffered another major terrorist attack here sometime in the interim, I'd have confidently and grimly predicted more disasters.  Certainly our enemies would have attacked us, if they could have.  That they couldn't, and therefore didn't, we owe to you.  Regardless of the outcome of this election, you all have my profound gratitude and admiration and respect.

Michael Moore is proud to have Osama bin Laden mimic "Fahrenheit 9/11"

I cannot adequately express how much it disgusts me to read this, in Michael Moore's own boastful words on his own website, as part of his so-called pre-election letter to the President of the United States:

There he was, OBL, all tan and rested and on videotape (hey, did you get the feeling that he had a bootleg of my movie? Are there DVD players in those caves in Afghanistan?)

Instead of expressing shame or remorse that his bogus talking points have found their way into a pathological maniac's videotaped taunt of and threats to America — instead of emphatically disassociating himself from Osama bin Laden's use of his material — Michael Moore boasts and jokes of it.

I would defend to my death Michael Moore's First Amendment rights to make himself into the most offensive and ridiculous piece of excrement in the United States.  But there is no living American for whom I have more loathing.  That Sen. Kerry has not used Michael Moore for his own "Sister Soulja moment" makes me long for the political cunning or comparative marginal integrity, however you'd like to characterize it, of Bill Clinton.

Former Navy Sec'y Middendorf delivers broad hints on Kerry's discharge

Art Moore at WorldNetDaily.com just put up a stunning article — not for what it says directly, but for what figuratively bounces off the page at anyone willing to read between the lines even just a little bit:

A former secretary of the Navy is urging Sen. John Kerry to open up his personnel files to resolve the question of whether the Democratic presidential nominee received a less-than-honorable discharge from the Navy.

William Middendorf, the Navy chief from 1974 to 1977, told WorldNetDaily today that Kerry, who began inactive reserve status in 1972, would have been issued a document three years later either for a reserve reaffiliation or a separation discharge.

An "honorable discharge" from 1978 appears on the Kerry campaign's website, but a Navy lawyer who served under Middendorf believes that document is a substitute for one that would have been issued in 1975.

However, no such document can be found among the records Kerry has made available.

"I should think it would be in his interest to open up the files, to clear up any misunderstanding," said Middendorf, who later served as ambassador to the Netherlands, European Union and Organization of American States.

Middendorf said he cannot comment specifically on any action taken on Kerry, because he is barred, under the 1974 Privacy Act, from discussing personnel matters.

However, he enthusiastically vouches for the character of Mark Sullivan, who formed the basis for a story today in the New York Sun by Thomas Lipscomb, the first to report discrepancies in Kerry's discharge record.

Sullivan, who served in the secretary of the Navy's office in the Judge Advocate General Corps Reserve between 1975 and 1977, says the "honorable discharge" on the Kerry website appears to be a Carter administration substitute for an original action expunged from Kerry's record, Lipscomb reported.

Asked by WorldNetDaily to address Sullivan's findings, Middendorf cited the Privacy Act.

"I shouldn't comment other than to say I respect Mark Sullivan as one of the finest Navy officers we had."

Friends and neighbors, I know that hard-core Kerry partisans will pooh-pooh this because of its source.  "Right-wing hacks," they'll fume, "hatchet jobs, quotes Corsi too (and he's a racist thug)," etc., etc.  I wish this had been on the front page of the WaPo, the NYT, and the LAT, and leading Dan Rather's and Tom Brokaw's nightly news broadcasts, a month ago.  It wasn't — and that in itself is an ugly story.

Yet these are direct quotes, on the record and with attribution, from someone of spotless record who demonstrably was in a position to have personal knowledge of whether John Kerry was attempting to get an originally less than fully honorable discharge upgraded.  Former Navy Secretary Middendorf just can't — because of the privacy laws that Sen. Kerry is hiding behind — simply come out and tell what he knows while Kerry continues to stonewall on signing Standard Form 180.

But this is a pretty broad hint.  In fact, it couldn't get any broader without breaking the law.

Can America take a hint?

Today's NY Sun article on Kerry's discharge status

Reporter Thomas Lipscomb's article in today's New York Sun — which Big Trunk at Power Line correctly describes as the "capstone of a series of pieces this year that should earn him a Pulitzer Prize for Journalism" —  is entitled "Kerry's Discharge Is Questioned by an Ex-JAG Officer."  The lede:

A former officer in the Navy's Judge Advocate General Corps Reserve has built a case that Senator Kerry was other than honorably discharged from the Navy by 1975, The New York Sun has learned.

This article builds and expands upon Mr. Lipscomb's October 13th article in the Sun, which has since been moved to a subscription-only archive.  I blogged at considerable length about that article, with meaty quotes, in a post entitled "Was Kerry's original discharge less than honorable?" and no doubt Mr. Lipscomb's October 13th article can be found in full various other places on the net.  My commenters have done a commendable job of providing additional links and arguments, pro and con, both on my original thread and in a newer one from last Friday.  If you have the patience to parse through Mr. Lipscomb's two articles and my two prior posts and their comments, I daresay you'll be about as well informed as any layman in the country on the question of whether an inferential case can be built that Sen. Kerry's original discharge was less than fully honorable — based on the records reproduced on Sen. Kerry's website and the records that experts say should be there, but aren't, if Sen. Kerry's original discharge was indeed fully honorable.  What Mr. Lipscomb's article today adds to the inferential case are the opinions of Navy lawyers — JAG lawyers — who have first-hand experience in dealing with these regulations and procedures from within the Navy Department that I certainly lack. 

What fascinates me most about Mr. Lipscomb's new article, however, is this quote — purportedly based on first-hand recollection rather than inference (boldface added):

Certainly something was wrong as early as 1973 when Mr. Kerry was applying to law school.

Mr. Kerry has said, "I applied to Harvard, Boston University, and Boston College. I was extremely late. Only BC would entertain a late application."

It is hard to see why Mr. Kerry had to file an "extremely late" application since he lost the congressional race in Lowell, Mass., the first week of November 1972 and was basically doing nothing until he entered law school the following September of 1973. A member of the Harvard Law School admissions committee recalled that the real reason Mr. Kerry was not admitted was because the committee was concerned that because Mr. Kerry had received a less than honorable discharge they were not sure he could be admitted to any state bar.

Both law school and bar applications require quite comprehensive disclosures from the applicants and inquire specifically about past military service and the conditions of the applicant's discharge.  And given young John Kerry's then-existing fame, it is entirely unsurprising that a member of Harvard Law School's admissions committee would clearly remember discussing the circumstances of his application, even thirty-odd years later.  On its face, then, this report from Mr. Lipscomb's source definitely qualifies as someone with first-hand knowledge of Sen. Kerry's application and his statements therein about the character of his then-existing discharge status.

But is the source reliable?  I'm quite certain that Mr. Lipscomb, and his editors at the Sun, would have much preferred to use an on-the-record quotation attributed to his source by name.  However, the reasons why such a source would decline to speak on the record and for attribution are obvious:  although probably not protected by legal teeth comparable to those in the federal privacy laws that govern Sen. Kerry's military records, both Sen. Kerry's application and the Harvard Law School admissions committee's deliberations on it were undoubtedly considered by the committee to be confidential, both in the interests of the applicant and of the institution.  Whether one characterizes this source as a deplorable "leaker" or a courageous "whistleblower" largely depends, of course, on one's political predispositions.  But either way, this clearly is a classic example of a situation in which reporters have traditionally relied upon and reported information from confidential sources.

Here's another important bit from Mr. Lipscomb's article:

Kerry spokesman David Wade did not reply when asked if Mr. Kerry was other than honorably discharged before he was honorably discharged.

If I'd asked the same question of the Kerry campaign — here on my blog, or in an email or a telephone call — the campaign would have almost certainly ignored me.  But there can be no doubt that the Kerry campaign is aware of Mr. Lipscomb (who, I'm told, earned his spurs as a journalist at the New York Times) and his previous reporting on Sen. Kerry's military record in the Sun and the Chicago Sun-Times, and they've explicitly responded to his questions and reacted to his reporting in the past.  The odds that the Kerry campaign simply ignored Mr. Lipscomb's inquiry altogether (as they would have my own) are therefore nil.  Rather, Sen. Kerry and his surrogates deliberately decided not to respond.  If Sen. Kerry's original discharge was fully honorable — if the Harvard Law School admissions committee member is mistaken or lying, and if the inferential case argued from Sen. Kerry's records is mistaken — why did the Kerry campaign not simply flatly answer with an affirmative assertion that his original discharge was fully honorable?

You don't have to be a crusty old trial lawyer, with many seasons of cross-examining reluctant witnesses, to spot that as a huge red flag and draw appropriate inferences from it.  But the Kerry campaign — perhaps correctly, if audaciously — is gambling that because Mr. Lipscomb's article is in the New York Sun instead of in the New York Times, no significant portion of the voting public will notice. 

John Kerry is stonewalling, and he's gambling that he'll get away with it, at least through the close of the last poll tomorrow.

"Swimming against the mainstream" honor roll

As I noted briefly in an update to my post earlier tonight about "Politicians' secrets," there are indeed some mainstream reporters who've done yeoman's service in attempting to dig into Sen. Kerry's military records, and other topics that the "top of the mainstream media pyramid" hasn't probed deeply.  One of my media-savy readers, for example, makes these nominations (listed alphabetically) to the "honor roll":

Jay Ambrose at Scripps Howard.
Bob Caldwell at the San Diego Union Tribune.
Paul Campos at the Rocky Mountain News.
Zev Chafets at the New York Daily News.
Jeff Jacoby at the Boston Globe.
Jack Kelly at the Pittsburgh Post-Gazette.
Tom Lipscomb, writing for the Chicago Sun-Times and New York Sun.
Deroy Murdock at Scripps Howard.
Ralph Peters at the New York Post.
Jim Pinkerton at Newsday.
John Podhoretz at the New York Post.
Jim Wooten at the Atlanta Constitution Journal.

I'd add Howard Kurtz at the Washington Post and Pete Slover at the Dallas Morning News, and I'm sure that there are many others who deserve recognition for "swimming against the mainstream." 

I respectfully submit that now — before the dust has settled at the polls — is an excellent time for the blogosphere to compile such an honor roll.  To my readers — and especially to my fellow bloggers — who would you nominate?  Please feel free to make your own additional nominations in my comments (or on your own blogs, with a trackback ping here, please).  And feel free to explain your nominations.

I don't have in mind any sort of "judging," nor even the compilation of a "master list."  Nor am I particularly interested in soliciting criticism or disagreement about anyone who's "nominated"; my present purpose here is to provide encouragement and recognition, not constructive criticism.  And I certainly don't mean to limit this to pro-Bush or anti-Kerry reporters, or those whose personal politics may be identifiably from the center or the right (although there may be a positive correlation that way, given the general direction of the main stream). 

In short, if there are mainstream media reporters — broadly defined here as someone with "old media" connections who's been digging and providing factual content beyond just pure punditry (but I'm not going to quibble) — whom you think deserve recognition, I cordially invite you to take this opportunity to share your views!