BeldarBlog

Beldar on Bay vs. Steyn

InstaPundit draws our attention to an exceedingly good debate between Mark Steyn and Austin Bay — one far too detailed for me to summarize adequately here — over the prognosis for "Old Europe."

I see articulate and persuasive arguments from both sides here, with ample supporting factual data, historical context, and dynamic trends — all packaged in crisp, readable, sometimes wry prose. Each side should, and has, acknowledged genuine points scored by the other. So my hat's off to Bay, Stein, and their respective proponents here. I ultimately take the Bay side, however, for two reasons:

First, I believe that some ideas and some events are sufficiently compelling that they will probably eventually overcome Old Europe's prejudice, envy, lethargy, and denial.

The idea of freedom always staved off, and ultimately decisively slayed, the idea of communism — such that the latter's political and economic systems are now limited in their purest form to a couple of isolated backwaters, Cuba and North Korea. In 1987, one could construct crisp, readable, wry prose, with ample supporting factual data, historical context, and dynamic trends, to "prove" that communism would ultimately overtake all of Europe and eventually the world. Yet now the two-word synonym for communism, worldwide, is "ash heap."

As for events, I borrow from the language of chemistry: Never underestimate the transformative powers of a sufficient catalyst, for it can change not only the rate but the direction of a complex reaction. With no disrespect to those killed and maimed in the Madrid train station bombing, it clearly did not serve as "Europe's 9/11," or even Spain's. We're all shockingly jaded about death tolls running even into the several dozens and low hundreds, and even when the victims are school children. I'm in no way "wishing" for this, but I think it's possible that some larger, more ghastly and symbolic event, when it occurs, may have an impact on the Old Europeanist's collective thinking comparable to 9/11's on Americans'.

Second, I believe that Mr. Steyn's view overgeneralizes, and fails to recognize the way in which a change in thinking by even a modest percentage of "Old Europeanists" could produce a major swing in their countries' policies and actions.

Far from everyone in America "gets it." But prompted by the catalytic event of 9/11, just enough of us either came to understand, or else to rededicate ourselves to, the power of freedom as an ideal that should prescribe our country's national and international policies and actions. The consequences of that small (in population percentage terms) shift have been extraordinary — a muscular, ambitious, and resilient America willing to employ both bullets and ideas in a way that certainly would have been hard to imagine in, say, the Carter Malaise Days of 1979.

The basic premise of Mr. Steyn's pessimism is that Old Europeanists will continue to predominate and control countries like France, Germany, Belgium, etc. — that the tipping point is unattainable there, and that collapse is inevitable and transformation impossible. I don't think that does sufficient justice to the power of individuals — even French, German, or Belgian ones — to learn and change. And it doesn't take unanimous consent; not every molecule in the mix need undergo the chemical reaction. "Just enough" folks approve the aggressive freedom paradigm right now in the U.S., the U.K., Australia, Poland, Italy, Holand, Slovakia, Japan, South Korea, etc. Spain tipped back the other way, but by a razor-thin margin. Sure, if we're using our map colors to describe the current states' current states of affairs, we'd color France and Germany an inert ice-blue. But there's no basis to conclude that they must always be so. If you'd asked me in 1979 who America's likely boots-on-the-ground allies would be in a twenty-first century Middle Eastern shooting-and-ideological war, I'd probably have picked Britain and Australia and Israel — but Poland? Latvia? Bulgaria?

One more metaphor to complete my tangle: I guess I'm seeing the glass as not only being half-full, but its contents as being swirling; it leaks here and there, but there's also an incoming stream that gives me hope to see it become fuller. So cheers, Mark Steyn — I hoist the glass to you, but I hope you're wrong and that Austin Bay is right.

Fowl play north of the Red River

I have a feeling that the east and west coast MSM will pick up this story from the Fort Worth Star-Telegram:

When Oklahoma state Sen. Frank Shurden began relating his plan to put boxing gloves on roosters, a friend and former lawmaker couldn't believe what he was hearing.

"Boxing chickens?" ...

[The friend] burst out laughing. "What'll they wear, Frank?

"Little bitty trunks?"

"Vests," Shurden said. One green, the other red. "With electronic sensors." ...

Most states banned cockfighting in the 1800s. The practice was illegal in Oklahoma until 1963, when a flamboyant state judge reviewed the book of Genesis and ruled that chickens are not animals. This astonishing declaration meant that fowl weren't covered under an animal fighting statute that had been adopted about the time of statehood.

In 2002, 56 percent of Oklahomans voted to outlaw cockfighting.

There's much, much more, including this bit of useful trivia: "Chicken boxing is fashioned after Olympic fencing."

Beldar and the Aviator

I haven't seen The Aviator yet, but I read with interest Harold Evans' piece in today's WSJ OpinionJournal defending the reputation of Pan Am founder Juan Trippe against impressions the movie may leave: 

If you are one of the 3.6 billion who have flown on a 747, it's Trippe, not [Howard] Hughes, who merits the raising of a turbulence-free glass.

This line prompted a personal flashback — one of little consequence to anyone else, but still very vivid for me.

As an aviation-mad child of Sputnik, growing up during the Vietnam War era in small-town Lamesa, Texas, my occasional trip to a big-city airport, and even more rare ride on a passenger jet, was huge. My third-grader heart was broken a few months after I was prescribed my first pair of glasses, when I learned that my less-than-20/20 vision doomed my fervent goal of becoming a fighter pilot, but I remained obsessed with all things aeronautic.

In the Texas panhandle, Lamesa was a fairly short drive from the mountains of New Mexico, and I learned to ski during junior high and high school through two or three weekend trips each year to the Sierra Blanca Ski Resort outside Ruidoso. Sometimes I went with my Boy Scout troop or DeMolay chapter, and a few times just with my dad. On those occasions, we came to enjoy stopping for dinner en route at a unique bistro, the Silver Dollar Bar and Steak House, plopped down on a dark stretch of road between Roswell and Ruidoso in the tiny town of Tinnie. On one such Friday night in December 1969, my dad and I were enjoying the cuisine there — "C'mon, just try the escargot, Billy!" — when we overheard four handsome, clean cut men at the next table who were animatedly swapping pilot stories. They were talking with their hands moving in three dimensions, thumbs and pinkies splayed as wings. Angles of attack! Dogfights and ejection seats and afterburners, oh my! Eavesdropping on their conversation was even more interesting than hearing adults discussing sex.

"Dad!" I whispered, "Do you think they're astronauts? Fighter pilots?"

"Well, son," opined my pa, "You could go over and introduce yourself politely and ask 'em, if you really want to know."

So I did. They were gracious about my interrupting their dinner — they probably recognized the hero-worshipping eye-gleam even through my thick glasses lenses — and they explained that, no, although they were all military aviation vets, they weren't astronauts or fighter pilots. But they were something equally or even more cool — two test pilots from Boeing and two senior instructor pilots from Pan Am. Working out of a decommissioned SAC base with long, empty runways outside Roswell, they were doing the final certification, testing, and training for a big new jet — something called a "Boeing 747." Hey, would my dad and I like to stop by the air base on our way home Sunday afternoon for a little tour?

As promised, they'd left our names with the security gate, and the two Pan Am pilots greeted us like old comrades upon our arrival. They led me and my dad to the biggest airplane I'd ever seen — unimaginably big, with this enormous odd hump on its nose! "What's the biggest jet you've been on, Billy?" they asked. "Boeing 727!" I instantly replied. "Well, son, you could park that 727 under the tail of this jumbo. Wanna come aboard, sport?"

The rows and rows of seats inside the Clipper Young America were pristine — still covered in plastic, in fact. Our hosts led us through them to the very front of the plane and gestured to the forward interior door. "Wanna check out the cockpit?" I opened it — to find that it was a coat closet. Big laughs. "C'mon, fellows, the real cockpit door is upstairs." (Upstairs? On an airplane?!?)

Soon enough they had me planted and belted into the pilot's seat, and then they started pointing out the various controls and computers and whatnot. "Same technology used in the Apollo program," said one pilot. "This aircraft can take itself off and fly itself across the continent to a designated airport without our ever touching the controls, if we'd let her, but — no, no! don't touch that! You'll take us to San Francisco!" More big laughs all around. We toured the upstairs lounge, all of the passenger and crew and maintenance and cargo areas, the whole plane — even climbed up into the wheel wells. "We'd love to take you for a spin, maybe do some touch-and-goes, but the insurance folks won't let us," they explained. "This baby won't be certified for passenger service for another few weeks yet."

None of my friends at school believed any of this when I got home, of course. I barely believed it myself.

About a month later, though, I got a postcard in the mail. The picture side showed a 747 in Pan Am's distinctive, subdued paint job, flying above the clouds. The post-mark was from London, England. "Dear Billy," read the text inscribed by one of our new friends (as best I can recall it), "I thought you'd be interested in knowing that I just captained the first commercial flight of a 747. We went from JFK in New York to Heathrow here in London. Remembered seeing you in the pilot's seat in Roswell. Thanks for the tips, they came in handy. Hope you can make the trip to London with me some day!"

Show-and-tell time at school, baby! Show-and-toldya so!

Juan Trippe would, I think, have been pleased. Howard Hughes even might have approved. But for me, that classy, thoughtful Pan Am captain will always be The Aviator.

Putting the cart out front, then euthanizing the horse

My blogospheric friend and fellow bandwidth-devourer Tom Maguire has a fine post today on which I've added a couple of comments, further to my arguments about the propriety of excusing Judith Miller and Matt Cooper from testifying to the grand jury on grounds that "no crime was committed" in the Plame affair.

Are any of these lines from The New Yorker tongue-in-cheek?

Long ago, as far back as high school, I subscribed to The New Yorker in part for its crisp and elegant prose, but mostly for its consistently funny cartoons. I allowed my subscription to lapse for many years before resubscribing.

Now I read it in part for its crisp and elegant prose and its occasionally funny cartoons, but mostly for its consistently (if unintentionally) funny political prose.

Consider, gentle readers, the following bits from the February 14 & 21 combined edition (some or all of which may be online; I'm too lazy to hunt down the links if so).

*******

From Hendrik Hertzberg's opening comment on the Iraq elections (bold and underlining mine throughout):

There are plenty of Vietnam echoes in America's Iraq adventure, especially in the corrosive effects on domestic comity, the use of false or distorted intelligence to create a sense of immediate threat, and the arrogance, combined with ignorance of local realities, of many senior strategist. But the differences are large, beginning with the nature of the enemy. The Vietnamese Communists possessed a legitimacy derived from thirty years of anticolonial struggle — against France, then Japan, then France again, and finally, willy-nilly, the United States.

Tenacity, certainly. Ferocity, absolutely. Nationalistic zeal, without doubt. But legitimacy? Later in the same piece:

Critics of the Bush Administration can take comfort in the fact that the apparent success of the Iraqi election can be celebrated without having to celebrate the supposed wisdom of the Administration. Like the Homeland Security Department and the 9/11 Commission, the Iraqi Election was something Bush & Co. resisted and were finally maneuvered into accepting.

Ah, yes. Good thing for the Iraqis that Ted Kennedy & Co. — stalwart insisters on keeping America's promise to hold elections on time, doncha remember? — managed to tame our intrinsic American imperialism. That damned cowboy Dubya prolly woulda just slaughtered all them A-rabs, paved the country over, and run a pipeline to Houston if'n he'd had his way.

*******

Next, from a short piece by Adam Gopnik [sic; surely he can find a lefty lawyer willing to do a name-change for him for free, no?], in a piece bemoaning the larger street signs installed in Manhattan around the time of the GOP convention:

It has been five months now, and regrettably, unlike the Republicans, the new signs apparently are not going to go back where they came from....

... The reason these kinds of signs are necessary at the intersections of Los Angeles boulevards is that all the avenues and streets there look more or less alike. [Ya missed a chance to knock a Red State city like Houston here, Adam.] ... New York is not a hard place to get around in. If you don't know where you are, you don't deserve to be here.

*******

In a feature article by Jane Mayer called "Outsourcing Torture":

Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, told me that he had treated a number of people who had been subjected to such forms of near-asphyxiation [like "water-boarding"], and he argued that it was indeed torture. Some victims were still traumatized years later, he said. One patient couldn't take showers, and panicked when it rained. "The fear of being killed is a terrifying experience," he said.

One presumes that Dr. Keller's PhD may be in the subbranch of philosophy known as "Tautologies" (with minors perhaps in "Bleeding Hearts" and "Blind Moral Relativity"). Interestingly, though, millions of Iraqi voters were able to overcome their fear of being killed — and not by rain showers — to go out and vote last month. Apparently there actually are experiences more terrifying than the fear of being killed.

Later in that same piece:

But Gerhard Strate, [Mounir] Motassadeq's defense lawyer, told me, "We are not satisfied with the summaries [of testimony from Ramzi bin al-Shibh and Khalid Sheikh Mohammed, high-ranking al Qaeda members held in government custody]...." He added, "I don't know why they won't produce the witnesses. The first thing you think is that the U.S. government has something to hide."

Or maybe it just gives a rat's patoot about keeping American and coalition military and intelligence forces and sources alive, d'ya think? Or continuing to catch and punish the terrorists? Those are the first things that I thought, but then, I'm one of those soreheads who still sorta holds a grudge about 9/11. But wait, wait, there's more:

[Released suspect Hadj] Boudella's wife said that ... her view of America had changed. "I have not changed my opinion about its people, but unfortunately I have changed my opinion about its respect for human rights," she said. "It is no longer the leader in the world. It has become the leader in the violation of human rights."

Mr. Rove, cue the crowds: "U-S-A! U-S-A! We're Number One!"

*******

Then we have Nicholas Lemann's article entitled "Fear and Favor: Why is everyone mad at the mainstream media?" This one has a sweet revelation that 'splains boatloads to those of us who followed the MSM's coverage of the SwiftVets:

[WaPo executive editor Leonard] Downie had one sit-down meeting with people concerned about the Post's reporting — a group from the Kerry campaign, who had come to try, unsuccessfully, to influence a story that Michael Dobbs was working on about the claims made by the Swift Boat Veterans for Truth. They had sensed in advance what the piece, which appeared in August, suggested: that Kerry and the pro-Bush group had been less than candid about Kerry's military service.

"Unsuccessfully"?!? Holy Toledo. Michael Dobbs wrote one genuinely hard-hitting investigative piece on August 21st that — if you followed the jump to the back pages — squarely recognized that Sen. Kerry was stonewalling on signing Standard Form 180, and on his own personal diaries and a ship's log written by supporter Michael Medeiros. Then Mr. Dobbs either lost interest or — ahem — had his priorities reassigned for him by his editors. There was one more decent WaPo story on the SwiftVets controversies, an article not by Dobbs but by WaPo's Ann Gerhart. She obtained the most memorable quote from Doug Brinkley of the campaign season, responding to the senator's claim that his confidentiality agreement with Brinkley required him to stonewall by explaining that the papers were Kerry's property and in his full control: "Go bug John Kerry, and leave me alone." Otherwise, it seems that the "[Kerry] people concerned about the Post's reporting" managed to get WaPo to do for John Kerry what WaPo so resolutely refused to do for Richard Nixon — hush up about a cover-up.

[Chicago Tribune deputy managing editor for features James] Warren was frustrated that what seems obvious to him and his colleagues evidently doesn't to their audience. "We've done significant research with readers of the Tribune Company's three big papers, the Tribune, Newsday and the L.A. Times," he said. "There was an increasingly visceral distrust in us — a stated, increasing lack of confidence in the local papers, very consistent across the three markets. They didn't see what we were doing as materially different from local TV news — that was depressing.... They don't see any difference between an investigative reporter and a blow-dried idiot."

Ayup. That about nails it. Odd, how you can so precisely identify the consequences, yet remain so clueless about their causes, Mr. Warren.

*******

Sadly, I'm pretty sure that the only one of the lines that I've bold-faced above that was intended as tongue-in-cheek was Mr. Gopnik's. At least it produced my one genuine belly laugh that I think a New Yorker author actually intended.

There was also one terrific (apolitical) cartoon in this issue, depicting two women brunching. One remarks to the other, deadpan, "He thinks I'm a good cook in the same way I think he's good in bed." 

Well, guys, I guess I still think you're a great magazine in the same way you think Dubya is a great American.

Most wryly funny line I've read in a court opinion lately

Stories like this one (hat-tip to K-Lo on The Corner) make me glad I don't regularly practice family law (boldface mine):

A man who says his former lover deceived him by getting pregnant using semen obtained through oral sex can sue for emotional distress — but not theft, an appeals court has ruled.

Dr. Richard O. Phillips accuses Dr. Sharon Irons of a "calculated, profound personal betrayal" six years ago, but she says they had the baby through sexual intercourse.

The Illinois Appeals Court said Wednesday that Phillips can press a claim for emotional distress after alleging Irons had used his sperm to have a baby, but agreed that however the baby was conceived, Irons didn't steal the sperm.

"She asserts that when plaintiff 'delivered' his sperm, it was a gift," the decision said. "There was no agreement that the original deposit would be returned upon request."

(Originally I titled this post "Most dryly funny line ...," but I decided that may be inapt.)

This whole story is fascinating, in a repugnant sort of way. These are two physicians, fer pete's sake. Now, as a general rule I tend to like docs, notwithstanding that my ex is one. I've defended a few; I haven't (yet) had occasion to sue one; and I'm always, ummm, dryly amused that despite their carping about lawyers, doctors (in my own observation and experience) are more likely than any other professionals to dash to their own lawyers at the drop of a hankie (or perhaps in this case, a spit into a plastic baggie). I was terribly disappointed at the recent research showing that leeches actually do have some medicinal uses, because it robbed me of my favorite comeback line to grousing physicians: "While my professional predecessors were writing the Declaration of Independence and the Constitution, yours were killing George Washington by bleeding him to death with leeches."

The relationship ended, the suit said, when Phillips learned Irons had lied to him about being recently divorced and was still married to another doctor.

Irons, who practices internal medicine in suburban Olympia Fields, said in a telephone interview Thursday that Phillips knew she was still married during their affair, and also knew she was pregnant with his child.

"He was very supportive and very happy about it," she said. "He said, `You need to hurry up and get your divorce.'"

He promised to marry her and asked her to quit her job, she said, but several days before her last day at work, Phillips informed her that he "couldn't go through with it."

Nearly two years after their affair, Irons filed a paternity suit and Phillips was ordered to pay $800 a month in child support, said Irons' attorney, Enrico Mirabelli.

Curious indeed, this is. Back in the dark ages when I went to law school, long before DNA testing was common, the classic example of the "irrebuttable presumption" — actually an iron-clad rule — was that for policy reasons (basically to encourage societal interests in legitimacy), a child conceived during wedlock was conclusively presumed to be the offspring of the husband. Courts would refuse to accept any allegation or evidence to the contrary — even if, for example, the husband had been sailing the Indian Ocean with the U.S. Fleet for 13 months before the child was born. I can't find the opinion online yet, but apparently that old law wasn't applied here.

I'm also curious about the main ruling of the case, permitting Dr. Phillips to sue for his emotional distress (but apparently not disturbing the paternity and child support findings). What if instead of a spit-and-switch ploy, her alleged deceit was to have told him, falsely, that she was on the pill, or that she'd had her tubes tied? Would he still have a claim? Or what if it was — gasp — merely a contraceptive failure during conventional intercourse? Would he still have a claim then? Would it matter who'd chosen the type of contraception they were using? Or who decided not to use a back-up means?

Obviously I need a consult from a genuine family law specialist to satisfy my curiosity. Volunteers? Or (reasonably nonprofane) comments from interested nonlawyers? If so, think of it as "a gift" to me.

Needs no snarky commentary

From a transcript on the White House website of press questioning today during Dubya's Excellent European Adventure:

President and President Chirac Discuss Common Values, Vision
Ambassador's Residence
United States Embassy
Brussels, Belgium

7:13 P.M. (Local)

PRESIDENT BUSH: It's my honor to be joining Jacques Chirac for dinner. I thank you for coming, sir. I've really been looking forward to this moment....

Q: The first question to President Chirac. You have said, sir, yourself, that relations have always been excellent between France and the United States. We get the sense that in recent weeks they have become even better. They have become warmer and that there's a veritable new honeymoon, as it were, taking place.

And to you, President Bush, may I ask the following question: If, indeed, relations have improved, if certainly they are better between France and the United States, are they good enough as yet for that to warrant an invitation to President Chirac to go to the United States, or even to your ranch? (Laughter.)

PRESIDENT BUSH: I'm looking for a good cowboy. (Laughter.)

(Hat-tip to K-Lo on The Corner.)

Specter as ghoul in the middle?

A regular reader from Dubya's hometown of Midland, Texas, emailed me with this link to a USA Today article quoting Sen. Arlen Specter (R-PA), the chair of the Senate Judiciary Committee (internal hyperlinks omitted; ellipsis by USA Today, although it's unclear whether it's to indicate a verbal pause or a deletion):

[Sen. Specter] said he hopes Bush will consult not only Republicans about the next Supreme Court nominee but also Democrats like Minority Leader Harry Reid of Nevada and Vermont's Sen. Patrick Leahy, the top Judiciary Committee Democrat. Chief Justice William Rehnquist, ailing with thyroid cancer, announced Friday that he'll miss the next two weeks of oral arguments. "My hope would be ... that there's an orderly transition at the end of the term" in June, Specter said.

One can only hope that Sen. Specter was quoted out of context here — i.e., that he's not hoping for Chief Justice Rehnquist's imminent death or resignation due to illness. As my reader wrote in her email: "I wonder how Sen. Specter would feel if the Supreme Court Justices speculated on how Sen. Specter has cancer and thus will need to be eased out at the end of the current Senate term?"

It's hard to imagine how the last paragraph of this article might have taken Sen. Specter's statements out of context, however. Rather, it appears to be frighteningly candid (ellipsis again by USA Today):

Next week, [Sen. Specter] plans to open hearings on the first of 20 judicial candidates renominated by Bush after their failure to win confirmation last year. He hopes to dissuade Democrats from filibustering. "I think I may be helpful ... as the man in the middle," he said.

Denny Crane would have no trouble pegging Sen. Specter as a "nanzy-panzy." I wish the Senator a swift and full recovery from his own medical problems. But I also wish, in the meantime, that he didn't see himself as some sort of Jim Jeffords clone. I'm fairly certain that the Senate Republicans who entrusted him with the Judiciary Committee chair expected him to at least try to actually lead it, not play "the man in the middle."

More misleading MSM spin re renominated judicial candidates

I can't resist the urge to comprehensively fisk this badly misleading editorial from Newsday. My comments are bracketed and in green:

"The president looks like he is still more interested in picking fights than picking judges." That's Sen. Edward Kennedy's reaction to George W. Bush's decision to send seven nominations for the federal bench, previously derailed by Democratic filibusters, back to the Senate for another go. [This is just short of Sen. Minority Leader Harry Reid's brand of outright lying, but likewise promotes the false impressions that either the full Senate has previously voted on any of the resubmitted nominees, or that the full complement (or even a majority) of senate Dems has previously voted in favor of filibustering any of them.] Flip that pithy observation and you've got advice Bush should heed. [Sen. Kennedy and Newsday appear to believe that the Constitution imposes on the Senate an affirmative duty to "advise and block." These fights were quite literally picked — very selectively, based on which nominees their spin and disinformation could best be adapted to wound — and are being maintained by the very small handful of Democrats on the Judiciary Committee.]

Pick judges, Mr. President, not fights.  [Pithier advice for the Dems: Let every vote be taken!]

Bush has had great success in winning Senate confirmation for his judicial nominees: 204 confirmed, 10 blocked. He should declare victory and move on to new nominees rather than refighting old battles. But instead he has renominated seven of the rejected 10 for Senate consideration. [This was a major issue in the 2004 presidential campaign, in which Dubya was indeed victorious, and in a variety of Senate races that resulted in a larger Republican majority. Having won these elections, Newsday would now have Dubya and the Republican senators who campaigned on this issue break their promise to voters. By whose estimation would that be a victory? Perhaps instead the Senate Dems should recognize defeat, and move on to new battles.]

The White House says this fight is really about nominees for powerful federal appeals courts, where the numbers are less impressive: 51 nominees, 10 filibustered. [Actually, I am impressed by those numbers. They mean that eight percent of the Senate has, all by itself, blocked almost twenty percent of Dubya's circuit court nominees, and has kept one hundred percent of the Senate from holding an up-or-down vote. Impressive indeed! But hardly admirable or consistent with the Constitution.] Bush wants all of his nominees to have an up or down vote by the full Senate which, coincidentally, has a 55-member Republican majority. [Not a coincidence at all. See above re the 2004 election; see also U.S. Constitution, article 2, section 2, clause 2, providing for a simple majority advice and consent vote.]

But the handful of nominees blocked by Democrats were too far out of the judicial mainstream or too unforthcoming in committee hearings to warrant lifetime jobs as powerful federal appeals court judges. [Sez who? A minority of senators from the minority party. If fifty-one senators, of whatever party affiliations, agree that these nominees "were too far out of the judicial mainstream" or "too unforthcoming [sic] in committee hearings," then their nominations will be disapproved. But as things have been, a handful of senators have simultaneously strangled both the presidential nomination power and the Senate's advice and consent role. It's hard to imagine anything more elitist and less small-d democratic.] By shoving them back at Democrats, Bush has chosen confrontation over consultation or conciliation. [If we're going to get alliterative here — and by all means, let's! — I'd say Dubya has chosen constancy, candor, and constitutionalism over craven capitulation.]

His in-your-face move has set the stage for a disruptive, unnecessary fight over the filibuster, a time-honored Senate tactic that is one of the few weapons available to a party in the minority. It takes 60 out of 100 votes to end a filibuster and move on to an up or down confirmation vote. [This is highly misleading. No one is trying to end the historical practice of the filibuster outright. This is an attempt to restore the filibuster to its traditional and historic (albeit extraconstitutional role), in which it was used, sometimes nobly and oftentimes not, to temper blunt majority rule. Arguably that's a good thing for one chamber of a bicameral legislature to permit. But before 2001, the filibuster was never used to block Senate votes on judicial nominees to circuit or district court benches; with respect to those votes, this is not a "time honored tactic," but a radical power-grab by a minority of senators from the minority party.]

Senate Republicans could resort to the so-called nuclear option: Their majority could pass a rule expressly barring the use of a filibuster to block judicial nominees. If they do, Democrats have promised to respond in kind by using procedural tactics to grind Senate business to a messy halt. [We could call this the "nuclear option" and the "Jonestown counteroption." Ask Newt Gingrich how well the voting public responds to comprehensive legislative shutdowns. "Vote Dem in 2006! We can't win in a fair vote, but we know how to take our football and go home!"]

This is all just a warm-up for the main event: eventual fights over Bush Supreme Court nominees. [True.] But the nation is not well served by hyper-partisan warfare over the men and women who will serve as judges for life. [Also true. See comments above about who picked the fight, and who desperately wants to use hyperpartisan means to circumvent the last election returns and the Constitution's judicial confirmation process. See also the U.S. Constitution's provision cited above re the Senate serving the nation.] Reasonable people would reason together. Republicans and Democrats should, too. [And reasonable senators, Republican or Democrat, should do what the Constitution instructs and the voters expect them to do — after "reasoning together," then hold an open floor vote to reject or confirm this or any President's judicial nominees. That's called being a United States Senator first, and a partisan Republican or Democrat second.]

Fish, barrel, rat-ta-tat-tat.

If there's no fire nor even smoke, there's always hot air — Riiiight?

The Associated Press reports that

Bill Cosby will not face charges stemming from a woman's allegation that he fondled her at his suburban mansion after giving her medication that made her woozy, a prosecutor said Thursday.

Authorities found insufficient evidence to support the woman's claims, Montgomery County District Attorney Bruce L. Castor Jr. said in a statement.

But one of Dr. Cosby's hometown newspapers, The Philadelphia Daily News, breathlessly headlines its latest story with "D.A.'s dad aided Cosby's mansion buy":

MONTGOMERY County District Attorney Bruce L. Castor Jr.'s father helped to arrange Bill Cosby's purchase of the mansion where Cosby was accused of drugging and groping a woman, but Castor did not reveal the relationship to the alleged victim or her attorneys.

"Mr. Castor did not disclose that to us or our client," said Dolores Troiani, who, with her partner, Bebe Kivitz, represents the alleged victim....

Joseph F. Lawless, author of the book "Prosecutorial Misconduct," criticized Castor's disclosure to Cosby's attorney and not to the alleged victim's attorney.

"That absolutely speaks volumes about what happened in this investigation," said Lawless. "You draw your own conclusions about what that means."

But before you "draw your own conclusions," you might want to keep reading:

Cosby bought the house on New Second Street in Elkins Park in June 1983, records show. Millionaire philanthrophist F. Eugene Dixon gave Bruce Castor Sr. the power of attorney to handle the sale to Cosby on June 8, 1983, records show. Dixon could not be reached for comment yesterday.

The elder Castor signed the deed on June 23, 1983, records show. The purchase price was $225,000, and the Cosbys paid cash, records show. Dixon and his wife, Helen, paid $275,000 for the home and property when they bought it in 1977, according to records.

Umm-hmmm. Damning stuff, that is! But closely parsed, that mumbo-jumbo about "power of attorney" means that the current DA's father — a distinguished civil probate, trusts, and estates lawyer, now age 75 — represented the seller of the house Dr. Cosby bought. Still, we're supposed to conclude that because the DA's dad represented a party adverse to Dr. Cosby in a noncontroversial real estate transaction twenty-two years ago, the prosecution tanked the current investigation.

As I remember Bill Cosby saying in the great "Noah" sketch from one of his comedy albums that I memorized as a kid and imitated ad nauseum to my friends: "Riiiiiiight!"

Friends and neighbors, if there was any remote, arguable, theoretical, speculative appearance of prosecutorial conflict of interest — "Dammit, Dad always bitched about how that TV star had outsmarted him on that house sale! It nearly drove him to an early grave! Finally, now's my chance to get even!" — it would have disadvantaged Dr. Cosby (not his accuser), and needed to be disclosed to him, if anyone.

But it's clearly a conspiracy! Look at the pattern!

Castor's failure to inform Troiani and Kivitz or their client about his father's role in the purchase of the mansion was just part of the shabby way he treated them, Troiani charged....

Lawless criticized Castor's statement, specifically his comments that "insufficient credible and admissible evidence" exists to prevail in a court of law.

"I think it was a wildly inappropriate statement," Lawless said. "It's tantamount to commenting on the veracity of the complaining witness, in my view. I think his statement is over the top. It's an editorial comment on the integrity of the evidence.

No, sir. It's a prosecutor explaining to the press how he exercised his legitimate discretion — discretion intended in part to prevent criminal charges from being brought against someone whom the prosecution concludes it cannot convict based on "credible and admissible evidence." How would (the aptly named) Mr. Lawless (who as a former prosecutor should know better) have preferred that the prosecutor announce his decision? "Well, we think he's guilty as hell, because he's a big star, after all, but we just can't prove it. Damned rules of evidence and such, that stuff lets the bad guys get away all the time. And lemme tell you about that time he snookered my dad on this house deal ...." Yeah, that would be highly professional.

Final (non)surprise: "Troiani and Kivitz said they likely will file a civil suit against Cosby in the next couple of weeks." Uh-huh. Riiiiiiight!

Morgan and Lurch

This WaPo profile of actress Morgan Fairchild — currently starring in the "Mrs. Robinson" role in a stage production of "The Graduate," nude scene and all — makes me like her even better, not least because of these lines:

Fairchild has long enjoyed the friendship of political figures, scientists and journalists, and she can be outspoken on national affairs. During last year's election campaign, however, she was relatively muted. This is because at one point she dated John Kerry. It must have been a while back, because she's lived with producer Mark Seiler for more than 15 years.

"Long time ago," she allows quietly.

But don't ask her how long they saw each other. She won't say, and the laugh that follows doesn't entirely cover an edge in her voice.

What if the Rathergate forger(s) had had a clue?

A thoughtful reader emails with this question:

Perhaps I have missed it, but has anyone (yourself, Rush, etc.) ever discussed what the consequences would have been if Dan Rather's informant, being more astute, had typed the fraudulent documents on a period typewriter? Would we now be discussing the policies, etc. of President Kerry?!

It may well be that someone with a better crystal ball than mine has already thoroughly addressed this topic and that if so, I've missed it too. But I'm a fan of "alternative histories" and rarely shy about venturing opinions and speculation, so here's what my own crystal ball tells me.

*******

What if our presumed forger(s) — the anonymous source(s) from whom CBS News' source Bill Burkett purportedly received the documents — had used a contemporaneous typewriter, one of the sort available to Dubya's TANG unit at the time the documents were supposedly written? If that were the only factual change that we assume for our alternative history, then I think that before the election, the documents still would have ultimately been proved — to the satisfaction of a large segment of the well-informed and open-minded public — to have been forged anyway.

Recall that one of the "verifications" supposedly relied upon by CBS News was the White House staff's lack of an immediate denial when CBS News previewed the documents for them just before the broadcast aired. As things turned out, the blogosphere immediately snapped to the peculiarities, typographic and otherwise, of the documents. Eventually the White House (or at its request, the DoD and/or TANG) would have weighed in, probably saying, "We've re-checked and re-re-checked the official files, and we're highly confident that no copies of these documents were ever in them." Of course, the forger(s)' cover story was that they were from Col. Killian's "private files"; there's a history of mislaid or misfiled documents dribbling out (which surprises no veteran I've ever met, but some folks find significant); and some people won't accept Dubya's or the DoD's or the TANG's assertion that "all the files" have been searched and documents pertaining to Dubya released, no matter what.

But the other fishy circumstances — misuse of military terminology, abbreviations, formatting, etc., and the strong suspicions from other contemporaneous near-witnesses — by themselves raised very substantial doubts about the documents' authenticity. Add that to the lack of corroboration, and contrary opinions, of the near-witnesses, and I'm quite certain that the question of whether the documents were genuine would have come up, typeface notwithstanding.

So my guess is that not too many voters would have been swayed in this scenario — I don't think there were many voters for whom Dubya's TANG service was a key factor in voting for him, and those who felt it was a key factor in voting against him were already persuaded by the previous criticisms of his record by the MSM and liberal punditry. "Fishy" documents, even if not fully proven as forgeries, likely wouldn't have swayed enough votes to have changed anything important.

*******

If we alter the scenario to presume a much more competent forger — one who got not only the typography right, but who also got the military abbreviations and formatting and terminology spot-on — then it's a much closer call.

The absence of the documents from "official" records, plus the doubting opinions of near-witnesses, by themselves wouldn't have convinced many folks that there was a genuine question of the documents having been forged. CBS News might well have been able to continue to stonewall on the identity of its "reliable source" at least until after the election. (For a course syllabus in "Brazen-but-Effective Stonewalling 101," consult the John Kerry Military Academy; see also the Miller-Cooper Institute for Self-Righteous Journalists Concealing Sources' Identities on "Principle.")

Would this scenario have swung the election? I can see it swinging maybe one percentage point of the total vote.  I have no reason to think that, for example, it would have swung a disproportionate number of Ohio voters, but a one percent swing there could have made things Florida-2000 tight. My gut tells me that it still wouldn't have changed the election's outcome, and that one percent is an overgenerous guestimate. But it might well have undercut the basis on which Dubya has been able to claim having a broad mandate, however, with resulting significant weakness in his second term.

*******

The big historical change that I think is most reasonable to posit as the consequence of a more competent forger, though, doesn't have to do directly with the election, but instead with the consequences of Ra^thergate for Dan Rather, CBS News, and the MSM generally. Especially if we assume that CBS News would have been able to keep the identity of its source confidential (and the squirrelly and conflicting stories that its source told them), the case against Dan Rather, Mary Mapes, et al. would have been much less compelling. Dangerous Dan still hasn't admitted without qualifications that the documents were forged; without the typographic case, he certainly never would have, even in the face of impeaching evidence like the abbreviations/formatting/terminology problems.

What absolutely damns the whole crew to Journalism Hell is that they aired and then resolutely defended the story notwithstanding the huge red flags their own document experts (even though they were primarily handwriting experts) had raised about the typeface. Some of the smaller red flags that CBS News had ignored (e.g., relying solely on photocopies) and shortcuts they took (e.g., failing to probe Burkett's story more deeply, or not letting Lt. Robert Strong actually see the documents when they solicited his guess as to their genuineness) might have been excused by many folks — but that one cannot be excused by anyone with an ounce of integrity or common sense. It's the difference between shoddy journalism and outright fraud — with the experts' warnings providing absolute proof of the mens rea ("guilty mind") of the CBS News culprits.

In short, had the forger(s) been smarter, CBS News' credibility likely would not have been thoroughly destroyed, and there's little hope that anyone in the MSM or the public generally would have learned any convincing lessons from this episode. The jury is still out on the extent to which the MSM has actually absorbed and accepted those lessons, or will alter its future conduct based upon them. But a vast portion of the public had its eyes opened (pun on the CBS logo intended). And for that, we can be thankful that the forger(s) were so thoroughly inept.

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

UPDATE (Sun Feb 20 @ 8:00pm):  Charles Johnson at LGF reports that Congressman Maurice Hinchey (D-NY) — a/k/a The Hon. Gentleman from Woodstock — is apparently also a fan of alternative histories. In his, Karl Rove forged and planted the memos! The problem is, Rep. Hinchey is seriously trying to pass this fantasy off as truth. (He'd have been slightly more persuasive had he managed to remember which network Dan Rather works for, in my humble opinion.)

"Small world" department

I was surprised this week by this report from the Houston Chronicle on February 15th:

Rafik Hariri, the Lebanese billionaire and former prime minister who was killed in a bomb explosion on Monday, owned Houston's tallest office tower and held a stake in another.

Hariri owned the JPMorgan Chase Tower at 600 Travis downtown through his U.S. business subsidiary Prime Asset Management.

I'm realized when I read this that an offshore (Netherlands Antilles) trust that was of the two named plaintiffs in a six-week case I tried in late 1992 was almost certainly controlled by and set up for the benefit of Mr. Hariri and his family.  And coincidentally, this was also the same securities fraud trial in which I cross-examined John O'Neill as an expert witnesses who was supporting the plaintiffs' claim for attorneys' fees.

The plaintiffs' purchase of my client's securities had been handled by their investment adviser here in Houston, Prime Asset Management, and I took the deposition of Prime Asset Management's CEO (who also appeared for the trusts during the trial) in his offices in what is now the Chase Tower. One trust's ultimate beneficiaries were never disclosed as anything other than "a prominent and wealthy Lebanese family" during the litigation, nor were they directly involved in pretrial discovery or the trial of this lawsuit. I thus never became directly aware of Mr. Hariri or his indirect involvement at that time. And I seriously doubt that Mr. O'Neill did either, since his role was just to opine on the reasonableness and necessity of the seven-figure legal fees being sought by the trusts' lawyers.

Reading the reports of Mr. Hariri's family fortune and business acumen, however, I'm now less surprised than I was at the time that the trusts had refused their very prominent law firm's repeated requests to take the case on a contingent-fee basis and instead continued to employ them on an hourly-rate basis. As it turned out, that was a bad decision in hindsight, since the plaintiffs lost the case and, despite Mr. O'Neill's testimony (and in part due to his candor during my cross-examination), the jury set the reasonable and necessary value of their lawyers' efforts at zero.

Later during the 1990s, I officed my then-solo law practice on the sixty-third floor of the Texas Commerce Tower (now the Chase Tower), so I suppose that Mr. Hariri was also, indirectly, my landlord during that period. And I also helped represent the building's developer and Prime Asset Management's investment partner, Gerald D. Hines Interests, back when I was at Baker Botts in the 1980s.

It's indeed a small world. But I'm not sure where this would go on the NYT's famous SwiftVets linkage chart.

Blitzering the wrong Wolf

Prof. Volokh points us to this post by Overlawyered's Ted Frank about a plaintiff upset over entries on an electric bulletin board by "one anonymous poster, who has the especially credible username of Wolfblitzzer0 [sic]. So, [the plaintiff] has sued ... CNN and the real-life Wolf Blitzer!"

I rarely find myself disagreeing with Prof. Volokh, but I certainly disagree in part with this reaction:

Sounds like a sure loser of a case to me, perhaps even sanctionable (though that's a tougher call).

"Tougher call"? Nuh-uh. Not tough at all.

A lawyer who sues someone whom the lawyer knew, or clearly should have known (with an exercise of even minimal common sense, much less reasonable investigation), was the absolutely wrong defendant is begging for sanctions under Rule 11 of the Federal Rules of Civil Procedure. Even if a lawyer is in a huge rush to get his lawsuit on file — e.g., to beat a short statute of limitations (and indeed defamation actions generally are subject to short limitations periods, typically one year) — one can use a "John Doe" placeholder and then diligently crank up the discovery processes to try to find the correct warm body to add in an amended pleading.

Were I a federal judge considering this particular filing, I'd set a Rule 11 hearing sua sponte, whereupon the exchange would go something like:

JUDGE BELDAR: Counsel, look me in the eye and tell me on the record every reasonable basis that you had to believe, after diligent investigation, that CNN's Wolf Blitzer and "Wolfblitzzer0" on this bulletin board were one and the same. And your answer better not contain the words "might," "guessed," "similar," or "publicity."

COUNSEL: Uh, well, Judge, I, uh, well, you see — say, how about those Dolphins? Do you think they'll get a decent RB to replace Rickie Williams?

Seriously, unless the lawyer had some incredibly sound explanation (I can't even imagine what it would be, but that's why one holds a hearing), he'd be paying Mr. Real-Wolf Blitzer's legal fees and expenses, plus a nice-sized fine, plus watching me refer him to his state bar association and my own federal district's admission-to-practice gurus with a blistering recommendation that they consider further sanctions (like a license suspension).

Something NOT to criticize Miller/Cooper/Abrams about

I'm a fan of Rich Lowry's. I think he's a bright fellow and a good writer. But in a piece in today's National Review Online, he's simply way off the mark — not just wrong, but venturing into silly-world:

A much simpler, more obvious argument is available to the defense — that the Intelligence Identities Protection Act that was supposedly violated in this case wasn't. The act establishes an extremely high standard for a criminal violation — the agent in question has to be undercover (Plame wasn't), and the leaker has to know she was undercover and be intentionally trying to undermine U.S. intelligence (very, very unlikely).

But the Miller/Cooper defense hasn't made this argument, probably because it would be so embarrassing. You mean to say, after months of chest beating, the Bush administration's crime of the century wasn't even a crime? It was just a Washington flap played for all it was worth by the same news organizations now about to watch their employees go to prison over it? That's the truth that the media will go to any length to avoid. If Miller and Cooper go to jail — I hope they don't — they will have plenty of time to think about the hypocrisy and ridiculousness of their caterwauling colleagues.

I definitely don't believe that only lawyers or lawyer-pundits should be writing about these issues. But I expect a nonlawyer who weighs in to have at least a basic understanding of the respective roles of prosecutor, grand jury, witness, and judge and jury. I suspect that Mr. Lowry has that understanding, but temporarily mislaid it when writing this op-ed. Because he's arguing here that before an indictment has even been returned, before the prosecution has had a chance to decide whether to ask the grand jury for an indictment, before the prosecution or the grand jury have heard from key witnesses subpoenaed by the prosecution — essentially during the very first phases of the investigative processes, much less the trial or deliberative processes — the judge would and should direct an acquittal of the as-yet-unnamed potential defendant(s), simply to let the grand jury witnesses off the hook.

I've faulted Floyd Abrams for what I think were poor tactical choices by him (or perhaps his insistent clients) as to what to argue in the DC Circuit. And I also agree that whether a crime was indeed committed is still an open question, and that there will be substantial hurdles for the prosecution to overcome should it seek and obtain an indictment. Exactly how high those hurdles are will depend on lots of factors that we in the public and punditocracy certainly don't know yet. Indeed, the whole point of the contempt citations is that the prosecution and grand jury don't know yet either.

But even if the hypocrisy on the part of the journalists that Mr. Lowry suggests does in fact exist, that certainly wasn't what prevented Floyd Abrams from arguing to the district court, or to the DC Circuit, that "the Intelligence Identities Protection Act that was supposedly violated in this case wasn't." Mr. Abrams represents witnesses, not defendants, in a criminal case. His clients lack standing to try to get an indictment dismissed, and that subject is wildly premature ("unripe" in jurisprudential terminology) since no indictment has yet been returned by the grand jury.

Does Mr. Lowry really want a criminal justice system in which a grand jury witness can interrupt a criminal investigation — indeed, abort it altogether — based on the witness' own assessment of whether a crime has been committed? I think not. And I certainly don't. And that's certainly not the way our current system operates.

Beldar's scorecard on the DC Circuit's Plame decision today: Prosecution 34, Journalists 0

Credit where due: Adam Liptak's news article about today's DC Circuit opinion in the NYT's online edition tonight is really darned good. I fully expected to have to fisk it, but I see no fiskable lines except the final quote from his scofflaw colleague, Judith Miller, which Mr. Liptak can't be faulted for reporting:

"I risk going to jail," she said, "for a story I didn't write, for reasons a court won't explain."

Judy, Judy, Judy: You risk going to jail for disobeying a federal district court's direct order to testify about a possible crime that could imperil national security. Minx or no minx, you're not above the law, and the public is entitled to every citizen's evidence. But I shan't digress further in chastising Ms. Miller, for I've fisked this same stuff from her twice before at great length.

And on its own, the DC Circuit's lengthy decision today is absolutely fascinating for hard-core law wonks, especially ex-judicial clerks. Indeed, I feel the urge to write several thousand words about it — dry quotes from the written opinions, connected by an over-extended football metaphor, leavened with dollops of snark.

If that's not your cuppa tea, I will absolutely take no offense, gentle reader. And honest-to-Pete, Mr. Liptak's article probably has everything about today's decision that a reasonably well informed nonlawyer would want or need to know. Wapo's much shorter article isn't bad either; although more superficial, it also gets the basics right.

Overall Scoring Recap

Today's officials — the three-judge panel of the DC Circuit — were Circuit Judges David Bryan Sentelle (appointed by President Reagan to the federal district bench in 1985 and to the DC Circuit in 1987), Karen LeCraft Henderson (appointed by President Reagan to the federal district bench in 1986 and by President G.H.W. Bush to the DC Circuit in 1990), and David S. Tatel (appointed by President Clinton to the DC Circuit in 1994). All three joined in the initial opinion for the court written by Judge Sentelle, and each also wrote a separate opinion.

However, all three judges, and all four opinions, concluded that the district court's contempt citation should be affirmed. To recap and expand upon my scoring summary from this afternoon (slightly adjusted), all three judges —

• rejected the journalists' argument that they're entitled under the First Amendment to refuse to testify (20-yard TD drive for the prosecution, which started with great field position, plus a two-point conversion, for a total of eight points);

• rejected the journalists' arguments that Justice Powell's concurring opinion in Branzburg controls over Justice White's opinion for a five-Justice majority (including Justice Powell) in that same case (fumble out of the end zone by the journalists, for a two-point safety);

• rejected the journalists' argument that there is an absolute common-law privilege to the same effect, even if that privilege isn't created by the First Amendment as a matter of federal constitutional law (fumbled kickoff leads to a 10-yard prosecution TD drive, plus PAT, for seven more points);

• agreed with the prosecution that even if there were a conditional privilege under common law, the prosecution's presentation would overcome it (30-yard field goal for three more prosecution points; no TD here because the panel fractured on whether there is such a common-law conditional privilege, or even whether it should decide if there is one);

• rejected the journalists' argument that notwithstanding normal rules of grand jury secrecy, they were entitled to review all of the justifying evidence presented by the prosecution to the federal district judge for in camera review (a 55-yard TD drive for the prosecution, plus PAT, for seven more points); and

• rejected the journalists' argument that the Justice Department's special counsel had failed to comply with DOJ guidelines on issuing subpoenas to reporters, and also rejected the journalists' argument that such could be a basis for reversing the contempt citations in any event (a 50-yard TD drive for the prosecution, plus PAT, for seven more points).

My scorecard shows only one play for net positive yardage by the journalists, a completed pass on fourth down — persuading Judge Tatel that there is (or should be) a qualified common-law privilege — but Mr. Abrams was tackled short of the first down marker when even Judge Tatel concluded that it wouldn't apply on these facts.

Score with two quarters remaining to play (i.e., the possibilities of DC Circuit en banc rehearing and Supreme Court review): Prosecution 34, Journalists 0.

Smackdown on the First Amendment Argument

The popular press and the general public have tended to focus on the question of whether the First Amendment creates some privilege or immunity for journalists to conceal their confidential sources, and have tended to ignore the distinct, nonconstitutional arguments that Mr. Abrams advanced on his clients' behalf. In fact, however, Mr. Abram's First Amendment argument was the one least likely to succeed in either the district court or the DC Circuit, because it is the argument that those courts are duty-bound to reject unless and until the United States Supreme Court overrules its 1972 decision in Branzburg v. Hayes.

Branzburg was a five-to-four decision, but the critical fact — obvious to any first-year law student — is that all five Justices who agreed on the outcome (Burger, White, Blackmun, Powell, and Rehnquist) fully concurred in Justice Byron White's opinion — thereby making it a "majority opinion," one deemed to have been written as "the opinion of the Court." Thus, in today's decision for the three-judge panel, we read (at page 12 of the .pdf file):

We have pressed appellants [i.e., Mr. Abrams and his journalist clients] for some distinction between the facts before the Supreme Court in Branzburg and those before us today. They have offered none, nor have we independently found any. Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment privilege protecting journalists from appearing before a grand jury or from testifying before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source. The Highest Court [i.e., the United States Supreme Court] has spoken and never revisited the question. Without doubt, that is the end of the matter.

Mr. Abrams was in effect asking the DC Circuit to overrule Branzburg. But no federal district court, nor circuit court of appeals (even sitting en banc), has the power to overrule a Supreme Court decision. That can only be done by the Supreme Court itself, or by an amendment to the Constitution.

Duh. Well, count this one as a "gimme" for the prosecution.

The Journalists Fumble Out of the End Zone on the "Justice Powell" Trick Play

The panel absolutely rejected a ploy by Mr. Abrams to engage in John Kerryesque logic (a la "I actually voted for the $87 billion, before I voted against it"). Mr. Abrams had argued that the panel should focus not on the official majority opinion written by Justice White in Branzburg, but instead on very mushy language in a separate concurrence written by Justice Powell, who was one of the four others besides Justice White who fully concurred in Justice White's opinion for the majority. The panel slapped this down vigorously (at pages 13-14 of the .pdf file; internal citation omitted, boldface mine):

Justice Powell's concurring opinion was not the opinion of a justice who refused to join the majority. He joined the majority by its terms, rejecting none of Justice White's reasoning on behalf of the majority. [Justice Powell] wrote separately "to emphasize" what seemed to him "to be the limited nature of the Court's holding." Justice White's opinion is not a plurality opinion of four justices joined by a separate [opinion from] Justice Powell to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants [i.e., by the journalists].

Granted, to "preserve the point for further review" — to keep alive his hope that the Supreme Court itself may overrule Branzburg if it ultimately agrees to hear this case — Mr. Abrams had to at least "raise" (i.e., state and argue briefly) why Branzburg should be overruled, and no court would be annoyed had he limited himself to that. But quite frankly, a lawyer of any lesser reputation than Floyd Abrams probably would have been mauled for even trying this ploy. Certainly any first-year law student who attempted to make such an argument in class would be humiliated by his professor — with something like "It says what it says, and it's a majority opinion for the Supreme Court, you blithering idiot."

Viewed in the harshest possible light, Mr. Abrams arguably tried to trick the DC Circuit panel into doing that which all three judges on the panel immediately — and quite properly — recognized can only be done by the Supreme Court itself. "Trick" would be too harsh a word for my tastes, and I'm not saying that the making of this argument was unethical — although it may have been uncomfortably close to that border. But this particular argument, at this court level, was certainly such a nonstarter that I'm frankly disappointed that Mr. Abrams made it. If he hopes to persuade the Supreme Court to overrule Branzburg, he needs every ounce of credibility he can muster — and I think he threw some credibility away with this gambit.

Another Ten Points for the Prosecution on Common-Law Privilege

I also question Mr. Abrams' judgment in seriously arguing for an absolute common-law privilege — one that would protect journalists from disclosing confidential sources no matter what the facts might be in any individual case. Floyd, baby, tuck that away in a footnote to preserve the argument for the Supremes if you think you can make it fly there. But giving journalists an absolute privilege is never going to fly — it would be like giving them a license to embed with al Qaeda and drive the suitcase nuke into Manhattan in a NYT press van. The journalists had no precedent to support the absolute privilege pitch, and frankly no even semi-plausible arguments in its favor. The panel unanimously rejected it (pages 16-17 of the .pdf) in one brief paragraph. Another easy TD for the prosecution.

The argument over whether there should be a qualified (i.e., limited) federal common-law privilege — one that can be overcome in cases of extreme prosecutorial need and/or limited "public interest" value in what the confidential informant has revealed — was by far the journalists' best hope in the DC Circuit. Many state legislatures have passed comparable partial shield laws protecting journalists in at least some circumstances (although who they define as "journalists," and how much protection they give, is all over the sandlot).  And there was arguably a gap in prior precedential coverage that didn't wall this off the way Branzburg did the pure-First Amendment argument — a seam in the zone. Thus, the journalists' one completed pass today was persuading Judge Tatel that there either is, or ought to be, such a qualified common-law privilege. But Floyd Abrams couldn't quite get the first down, much less score (which would have required getting two judges to go all the way with the journalists and vote to reverse the district court's contempt citations).

And when the prosecution got the ball back on downs, it put another quick three on the board: All three judges agreed that even assuming some such qualified privilege were assumed to exist, the prosecution's showing that it had exhausted other available sources, plus the low "public interest" in protecting this particular leaker and the high risk to national security from the leak, meant that the prosecution had overcome the qualified privilege based on the facts of this case.

That's why I think the facts of this case make it a terrible vehicle for the MSM to try to make new federal law. To fire up any judge to the point that he's willing to write new precedent, you need a genuinely (or at least arguably) patriotic whistleblower exposing public corruption and being protected by a crusading journalist who actually writes the story — not (as this arguably was) some craven pol threatening national security by leaking slime for purposes of political spin that the journalists pretty much ignored anyway.

Re-running this play in the third (DC Circuit en banc) and fourth (Supreme Court) quarters is still the journalists' only real hope to pull the game out. In theory, it's the journalists' best legal argument. But I continue to think they simply don't have the right hosses on the field to execute the play as it's drawn up in the playbook.

Two More Easy TDs

Pre-indictment, prosecutors have huge discretion, and grand juries are secret. Journalists don't like secrets. But the notion that journalists should get to pry into the prosecution's case for repeated adversarial mini-trials over whether a subpoena should be enforced — that's just another nonstarter. The journalists do get the chance to challenge a subpoena in court, as they did in this very case (but without success). But judges make determinations on privilege questions in camera and ex parte all the time — and unless and until the judge finds that the privilege has been overcome or doesn't apply, the public and the press and the other side don't get to know the prosecution's secrets. Score another seven for the prosecution.

Likewise, the DOJ guidelines are just guidelines, not laws. They say on their face that they don't create rights even if they're violated. And the journalists failed to convince either the district judge or any of the DC Circuit three-judge panel members that the DOJ's Special Counsel had violated them anyway. Tally seven more for the prosecution. Mark up both these scores to bad strategy and weak execution by the journalists' team.

Miscellaneous First-Half Notes

If you knew nothing else about these three judges except which Presidents had appointed them, which one of them would you predict would be in favor of (1) writing sweeping new caselaw from the bench, (2) of the sort that state legislatures have been writing, (3) that Congress could write for the federal courts but hasn't, (4) that readjusts the prior law in a way that favors the mainstream media over law enforcement, and (5) that would require intricate, vague, multi-step "balancing of interests" tests (6) which will pretty well let every trial judge rule however he pleases based on the facts of each given future case? Ayup. That's Judge Tatel's plan, the Clinton appointee. Reads like a law review article, not a judicial opinion based on the case and controversy actually before him. To his credit, he nevertheless got to the right result for this particular case.  But do you still think it doesn't matter who's nominating the new members of the federal bench, or whether the Senate confirms them?

Judge Tatel's separate concurring opinion does, however, make quicker reading than its 41-page length might suggest, because most of pages 30-39 are blank — redacted for reasons unstated, but presumably because that's where he discusses the prosecution's in camera showing on the basis of which he concluded (like the other two judges) that any qualified privilege has been overcome on the facts of this case. One presumes that the en banc DC Circuit and the Supremes will get to read the unredacted version. If so, that's actually more bad news for the journalists — basically a detailed explanation from the most liberal judge on the panel why these particular journalists should lose, no matter what the law might be rewritten to be.

As I mentioned in my post this afternoon, Volokh Conspiracy's Orin Kerr quotes an exchange from today's decision that includes a sweet citation in Judge Tatel's concurring opinion (page 59 of the .pdf) to an NYT op-ed that law prof/blogger extraordinaire Eugene Volokh wrote last December. IIRC, however, Professor V's point, with which I agree, was that all citizens ought to get exactly the same protection, which actually cuts against making special rules for either me in my pajamas or Judith Miller in her — well, whatever female NYT reporters wear when on the job these days. The exchange between Judges Tatel and Sentelle over bloggers-as-privileged-journalists will be the subject of much buzz in the blogosphere over the next couple of days. But I think Judge Sentelle has the better of the argument — and clearly he "gets" the basic concept of blogging at a minimum. That's just way cool on its own.

Judge Sentelle is clearly the least special-rules-for-the-MSM-friendly of the three, and Judge Tatel the most solicitous of the MSM. But if you want to read a great illustration of what a true "judicial conservative" does — sticking to the case before him/her, making the minimum rulings necessary to resolve it, avoiding making new precedent unless obliged to do so — read Judge Henderson's concurring opinion. I genuinely admire it. Appoint and confirm more Judge Henderson-types, faster please.

Second Half Predictions

The fractured panel on the toughest legal issue (the existence and scope of a qualified common-law privilege) actually works to Mr. Abrams' severe disadvantage in seeking en banc rehearing. Between them, these three judges covered all the bases on that legal issue; the chances of another DC Circuit Judge saying, "AHA! They completely missed the such-and-such argument, the whole court should take that up en banc!" are very remote. Everything in the concurring opinions is dicta (i.e., nonessential to the panel's ruling to affirm or reverse, just like Justice Powell's concurring opinion in Branzburg); en banc rehearings are rarely granted just to correct dicta. By contrast, all of the actual bases for the unanimous ruling on the outcome — i.e., that the district court's contempt citations should be affirmed — are pretty much settled law.  En banc rehearings are more often granted when a panel has made too much new law or failed to go along with prior precedent, which just didn't happen here. I peg the chances of the full DC Circuit granting en banc rehearing at five percent or less. (To extend my football metaphor, the third quarter is likely to be scoreless, but running down the clock favors the prosecution.)

As for Mr. Abrams' chances before the Supremes: He's very good, and if anyone can pull a rabbit out of this hat, it'd be him. But I think the chances of getting the current Court to overrule Branzburg outright are slim to none. If Mr. Abrams had an attractive fact pattern, he would have a decent shot at getting four Justices to vote to grant certiorari on the qualified common-law privilege point, but even then, I'm highly doubtful that he could get five of them to go along with Judge Tatel. And because his fact pattern is so awful, I think that by far the most likely outcome — I'd guess an 80 percent probability — is a simple "cert. denied" without comment, concurrence, or dissent. The second most likely outcome (maybe a 10 percent probability) is that cert will be denied, but maybe two or three Justices will dissent (which is basically meaningless except as an invitation to other litigants to try again with a different case in the future).

As I said this afternoon, I think the impossible minx and her buddy are eventually gonna see the inside of the DC federal pokey. And that's how it should be.

But remember, folks: Even if Ms. Miller and Mr. Cooper think this is their Super Bowl, for the prosecution team this is still pre-season! We still don't know whether a crime was committed here — and it's entirely possible that after the prosecution finally extracts the testimony of Ms. Miller, Mr. Cooper, and whoever else they're popping with subpoenas, the Special Counsel will decide not to seek an indictment. Or that if he does, a judge or jury will acquit. I'm not yammering either for or against an ultimate conviction. But by golly, I want to see the prosecutors be allowed to get on with their job and the system eventually do its work, let the chips fall where they may.

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UPDATE (Wed Feb 18 @ 1:20am): Slate's Jack Shafer has a provocative post about today's decision entitled "Memo to Cooper and Miller: Fire Floyd Abrams. Hire Bruce Sanford." Mr. Shafer shows that he can be a pragmatist as well as a First Amendment absolutist when he recommends that Ms. Miller, Mr. Cooper, and their respective employers ought to cut a face-saving deal with the prosecution and pick a better fact situation in which to try to establish a federal common-law qualified privilege; I agree entirely with that. And he's critical of Floyd Abrams on some of the same points I made in this post.

But what occurs to me, reading Mr. Shafer's post — and I ought to have mentioned it in my own — is that it may not be fair to attribute these misjudgments to Mr. Abrams. It's entirely possible that fighting this case to the hilt — arguing every point to the max at every court level, and not making a deal with the prosecutors — is something Mr. Abrams has been instructed to do by his clients, perhaps contrary to his own recommendations in his privileged and confidential attorney-client advice to them.

Ultimately such decisions are the clients' to make, and if the lawyer has recommended a more prudent course but the clients have rejected it, the lawyer has no choice (short of quitting) but to take off his counselor's hat, pick up his advocate's sword, and have at it as best he can. And of course the lawyer can't defend himself from charges like Mr. Shafer's (or mine) without breaching attorney-client privilege — which means that Mr. Abrams might be reading Mr. Shafer's (or less likely, my own) observations, gritting his teeth, and saying under his breath, "Yeah, that's just what I told 'em, but would they listen? Nooooo." We'll almost certainly never know who to pin any misjudgments on.

DC Circuit rejects appeals of contempt citations in Plame matter

The NYT's Judith Miller (Jack Shafer's ridiculous "impossible minx") and Time magazine's Matt Cooper — bigtime MSM journalists who think their jobs require them to defy lawful court orders — are a step closer to doing jail time in connection with the Plame investigation. In opinions totalling 83 pages that were released today, the United States Court of Appeals for the District of Columbia has rejected their appeals from the district court's orders holding them in contempt for refusing to testify.

This result at this stage is absolutely no surprise to anyone even vaguely familiar with solid U.S. Supreme Court precedent on point. I suspect that Floyd Abrams considered the DC Circuit a mere way-stage en route to his attempts to convince the Supremes to change the law.

I haven't read the DC Circuit's opinion yet, though, and want to do so tonight before I venture any predictions as to Mr. Abrams' chances of getting certiorari granted (or, preliminary to that, an en banc rehearing before the entire DC Circuit). However, the indispensible Howard Bashman — whom I'm sure will be providing more links throughout the day to press coverage and punditry — notes that "it's not every day that a three-judge panel produces a decision consisting of four opinions."

My money's still on the minx and her buddy from Time eventually going behind bars, though. I continue to think that this is probably the worst possible fact pattern from which to ask the Supreme Court to create some new federal constitutional immunity unique to court-defying journalists.

(Hat-tip to Jonah Goldberg on NRO's The Corner.)

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UPDATE (Tue Feb 15 @ 3:20pm):  Orin Kerr quotes interesting language from the opinions about bloggers' ability to claim the privilege that Mr. Abrams and his clients are trying to create.  Dicta, but interesting.

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UPDATE (Tue Feb 15 @ 6:10pm):  I'm twenty pages into the opinion, but I can already draw this confident conclusion: 

Do not be fooled by whatever positive or hopeful spin that Time, the NYT, Ms. Miller, Mr. Cooper, their lawyer Mr. Abrams, or anyone else tries to put on this — their team has just been soundly and competently whipped. Despite the length of today's DC Circuit decision and the existence of three separate concurring opinions, it would be a serious mistake to infer that the DC Circuit was confused about what it was doing, or that anything its three-judge panel said today is likely to help these particular journalists make new law, either in the en banc DC Circuit or in the U.S. Supreme Court.

In all probability I'll wait for the news analysis pieces in the NYT and WaPo to come out later tonight before writing about the details of today's decision myself in a separate post. I have a strong hunch there will be some serious fiskin' needed.  I'll also rub my crystal ball to come up with "Beldar's Odds On Further Review," but I can tell you now that Mr. Abrams' clients will be underdogs by overwhelming margins. To use a football metaphor: They're behind by four touchdowns, a field goal, and a safety entering the third quarter, and the journalists haven't so much as made a first down yet in the whole first half. [Edits: I've adjusted the metaphor slightly after re-reading the opinions; see the new post immediately above for details — Beldar]

What the Davos tape still won't tell us about Eason Jordan's ouster

Further to my previous musings about the proximate cause(s) of Eason Jordan's departure from CNN:

I agree with, for example, Patterico (as one among many) that we know very little about the real reasons that CNN ousted Eason Jordan.  And I also agree with him (and many others) that it would be very interesting and useful were the videotape to be made available.

But I'm not at all sure that the videotape would provide a definitive answer. In fact, if the question being asked is "Why did CNN axe Jordan?" rather than "What did Jordan actually say at Davos?" it's quite likely that the videotape, by itself, would not answer that question.

The tape hasn't been released to the public. Was it seen, though, by anyone in CNN's management structure? If the answer to that question is yes, then the tape — and the actual words spoken in and tone of Jordan's remarks (and "walking back" from them, as claimed by David Gergen) — may indeed have been a key decisionmaking factor in Jordan's ouster. If the answer is instead that CNN's execs acted without having seen the tape either, then they were just speculating along with the rest of us about what it might show, and what inferences might reasonably be drawn from Jordan's failure to call for its release.

As I wrote earlier, I believe it's altogether likely, even probable, that the blog swarm around Jordan's Davos comments was one proximate cause of his ouster. But there may have been many others — and perhaps others that were far more significant than either the blog swarm or the videotape's contents in the minds of the CNN execs who actually swung the axe.

For example, Howard Kurtz' WaPo article suggests that there was concern among CNN's management about lingering gossip regarding Jordan's personal romantic life. If so, and if that was indeed another proximate cause, then that perhaps ought to be more troubling to Jordan's defenders and sympathists than the "blogospheric scalp-taking frenzy." (I say "perhaps" because I don't know, and am not interested in, the details of Jordan's romantic life; I can imagine a set of circumstances in which what would otherwise have been a purely personal matter could have become a legitimate, nonprurient concern of CNN's management.) Howard Kurtz is no fool, but he's treading a tightrope — blessed with extraordinary inside access, cursed with the fact that it comes through being on CNN's payroll himself. Was Kurtz hinting through the mysteriously edited references to the "gossip about Jordan's personal life" that this was indeed a big, big factor — perhaps a bigger factor than either the Davos remarks or their aftermath?

Likewise, the blogosphere has documented Jordan's past pattern of making remarks similar to, and as outrageous as, those reported from Davos. We don't know whether those past episodes weakened the camel's back, so to speak, nor if so, how much. The preexisting state of the camel's spine would be useful information if one truly wants to know whether the blog swarm was an anvil, the proverbial "last straw," or simply one of the last among many other sufficient straws.

Look, too, at the timing of Jordan's resignation — early on a Friday evening. Was that deliberate, trying to drop the decision into one of the rhythmic lulls of the weekly news cycle? Could be. But it's equally consistent with a week-long internal argument inside CNN management over how to deal with the problem. Perhaps it was an argument that escalated into a late-afternoon shouting match, or an ultimatum unmet. "By God, you'll either apologize on-camera or you're outta here, buddy!" "Well by God I won't, and f--k you and the horse you rode in on, you fascist!" "Oh yeah? Well you have fifteen minutes to compose your 'resignation letter,' Mister Ex-Executive!"

You giggle? Hey, such things happen in boardrooms as well as in marriages. And if there was indeed a knock-down, drag-out personality-and-principles clash — one that escalated a "we'll tough it out (but he's got to clean up his act)" situation into simply "he's outta here" — you'd nevertheless expect the sort of bland press release that CNN and Jordan in fact issued.

The "blogospheric scalp-taking" explanation for Jordan's ouster is the obvious and convenient one — easily understood through a few clicks on hyperlinks — and perhaps it therefore makes a nice kernel around which to foment a devoutly desired backlash. Even if, in the view of the CNN execs who made the decision, there were other, more significant causes, the cynic in me wonders whether those same execs are perfectly happy for the right hemisphere of the blogosphere — us Bible-thumping knuckle-draggers — to take the rap. Thus the goat (in the unblinking internal assessment of the CNN execs) is turned for public purposes into a martyred sacrificial lamb (in the eyes of his sympathizers and defenders). Was that intentional? If so, was it a primary goal or a mere bit of lagniappe?

But in my wildest, most hopeful fantasies, I imagine a group of enlightened CNN executives saying to one another, "You know, whether these bloggers are right or not, we need to be ahead of them on the curve. Making statements like Jordan's at Davos, even under the most charitable interpretation of them, suggests a lack of management judgment, and the way he responded to this tempest demonstrates a lack of journalistic ethics. This guy's snap instinct and his considered reaction were both to go in the wrong direction. He's just not the guy to be leading our network forward when we're facing sagging ratings and lost credibility anyway. This is no time to act like we're CBS News and no time for half-measures and more warnings. Let's get proactive here; we need a visionary and a paragon of ethics and transparency in this slot, and Eason Jordan's clearly not that guy."

Discretionary employment decisions being what they are, and corporate execs having the multiple motivations for concealment that they do, I doubt we'll ever have answers to any of these questions — videotape or no. That prospect leaves me and many others unsatisfied, of course. But in the big picture, the long-term picture, I'm less troubled than I might otherwise be. Whether the blog swarm was the only proximate cause of Jordan's ouster, or the most significant of several, or a minor one, the net result will be that folks in positions like Jordan's are going to feel more accountable and less bulletproof in the future. Even if I have gnawing questions, I still chalk that result — not Jordan's ousting as such — up in the "win" column for the blogosphere.

A post-Valentine's Day tale

There are over two million stories in my home city of Houston — and this is one of them, albeit a small one.

I just returned from a quick trip to the neighborhood convenience store. On the sidewalk outside its door lay a single left shoe — an expensive, name-brand athletic shoe, sized to fit a toddler of perhaps three, with Velcro closers, reflective strips, etc. Almost brand new.

No toddlers, lopsided or otherwise, inside or outside the store. None in any of the waiting cars getting gas or parked in the lot. Looks of blank incomprehension in response to my repeated question — "You gotta kid who's lost a shoe?"

What can ya do, but push it over a little farther from the curb and closer to the door, hoping it'll be visible if someone comes back for it?

But I can see the rest of the story clearly:  Earlier tonight, or perhaps later or tomorrow morning, some mom is frowning at her toddler. A frantic search — of the bedroom, the living room, the kitchen, the car — ensues. Two new high-quality toddler track shoes are expensive, but one's an embarrassment, and probably someone — most probably Dad, having been sent out on the errand with Junior — is gonna get a tongue-lashing.

So Happy Valentine's Day, harried and hypothetical Dad who didn't notice the missing shoe when you piled Junior back into the car for the trip home. Take your lumps from Mom, and volunteer to make the next shoe-shopping run. Take comfort in knowing (but don't you dare defend yourself by arguing, not at least until next week) that you did get the most important thing back into the car, safe and sound, and that even nearly-brand-new toddler sneakers are replaceable (if only in pairs).

Most baldfaced lie I've read today

In tomorrow's New York Times (and probably elsewhere), you'll find this statement of opinion, immediately followed by two assertions of fact, made by the duly elected voice of the Democratic Party in the United States Senate:

"The president is at it again with the extremist judges," said Senator Harry Reid, the Nevada Democrat is the minority leader.

Mr. Reid said the Senate had made clear its position on the seven nominees.

"We should not divert attention from other pressing issues facing this nation to redebate the merits of nominees already found too extreme by this chamber," he said.

Sen. Harry Reid is a liar.

None of the seven judicial nominees just resubmitted by President Bush have ever received an up-or-down vote on the floor of the United States Senate. None of them were voted down by "this chamber." The only portion of the Senate to "[make] clear its position on these seven judicial nominees" were the Democrats on the Senate Judiciary Committee — a tiny minority of the minority party — whose abuse of procedural rules has permitted them to deny these nominees the floor vote contemplated by the Constitution.

I don't know what percentage of the voting public genuinely understands the Senate's advice and consent role with respect to judicial nominees in general. But I'm quite sure that only a tiny fraction of the electorate understands that the total number of senators who have successfully colluded to deny an up-or-down vote to President Bush's nominees could fit comfortably in an average-sized minivan, and would leave the gap between second and third bases empty if they tried to field a baseball team.

So when Sen. Reid solemnly looks into the cameras and intones that "the Senate" has made clear its position, and that "this chamber" has "already found" these nominees to be "too extreme," only that tiny fraction will immediately recognize that the Honorable Gentleman from Searchlight, Nevada, is deliberately, brazenly lying through his teeth. It's not spin; it's not interpretation or opinion; it's not debatable. It's just a damned lie.

Restoring the constitutional integrity of the judicial nomination process for the third co-equal branch of the federal government isn't at the top of the list of national priorities. But I can count the more important issues on one hand with fingers left over.  Sen. Reid's suggestion that the Senate just is too busy with other more important matters is almost tantamount to another bald-faced lie. But at least it's the kind of slanted misinformation common to politicians — a matter of opinion rather than pure fact.

The so-called "nuclear option" — a term frought with rhetorical overkill for a procedural countermove that will do nothing more than oblige the Senate to perform its constitutional duty — looks more attractive to me every day. Senate Majority Leader Bill Frist was quoted today as saying he believes that he has the votes to employ it if need be. It will be ugly, provoking much wailing and moaning and doubtless more desperate spin and outright lies from the likes of Sen. Reid. But if it's handled properly, it will have the important collateral benefit of educating some larger fraction of the public.

And that will be a good thing, because in the end, Harry Reid and his party can't continue to lie through their teeth effectively to people who already know better.

Bill Clinton's Grammy award

On NRO's The Corner, Tim Graham has this to say about Bill Clinton winning a Grammy Award last night in the "Best Spoken Album" category for Mr. Clinton's recording of his autobiography, "My Life":

[C]an we all agree that giving Bill Clinton another Grammy is just liberal pandering? Do we really believe Clinton's My Life deserves a Best Spoken Word Grammy for Clinton's narration? Or even less believably, for the book's content? (It's probably dangerous to drive and listen to sentences like "I flew from South Korea to Tokyo, where Prime Minister Hashimoto and I issued a declaration designed to reaffirm and modernize our security relationship...") I somehow can't imagine the music elite handing out a Grammy to Ronald Reagan, but when you see this is the third Grammy for the Clinton family, you know someone's just playing kissy-face.

I respectfully disagree. One hundred years from now, Ronald Reagan will be remembered as a successful President, popular despite his willingness to take unpopular positions, who won the Cold War and saved the Free World (and was also a former actor). But Bill Clinton will be remembered as an undistinguished President, popular because he was a panderer and triangulator, who saved his butt from conviction in the Senate after impeachment in the House (and was also a media "rock star").

So Grammy Awards for the Clintons seem altogether appropriate to me. I predict that one day in the not too distant future, in hopes that it may compete more aggressively for sagging ratings from a jaded public, we'll see a combined "People's Choice/Golden Globes/Oscar/Grammy/Tony/Nobel Prize" awards program, jointly hosted from Hollywood, the U.N. Building, and Stockholm, with Bill Clinton as the overall Master of Ceremonies (and top award winner). It will lose in that night's ratings battle, however, to "Apprentice American Idolater, the Fearful Survivor."

As a trial lawyer with experience in products liability cases, however, I certainly agree with Mr. Graham's implicit suggestion that Mr. Clinton's tapes and CDs of his book ought to bear "driving/operating heavy equipment" warning labels. Fortunately, since I'm unaware of any instance in which the performer's overinflated ego has caused a tape or CD player to explode violently — electronics designers perhaps having prudently anticipated and engineered against that obvious risk? — I think that additional hazard is so remote that it likely need not be warned about.

Reviewing Michael Standaert's LAT review of Hugh Hewitt's "Blog"

Although both appeared on the same day, when I wrote my own review of Hugh Hewitt's Blog: Understanding the Information Reformation That's Changing Your World, I had not yet read Michael Standaert's book review in the Los Angeles Times. In mine, I described Hugh's prose (in the book, and on his radio show and his own blog) as "never, ever mean or bitterly sarcastic." Alas, I cannot say the same for Mr. Standaert's prose (nor always for my own) — but that is a question of style, and my intent here is to comment on substance.

And indeed, Mr. Standaert's fundamental misunderstanding of Hugh's book appears in his review's initial paragraph:

People who pick up the book "Blog" are likely to think that it's about blogs. For the most part, it's not about the Internet phenomenon of blogging, the term for individual or group Web-based chronicling and instant publishing. Rather, this book is a sustained effort of partisan hackery aimed at further eroding trust in what the author Hugh Hewitt calls "mainstream liberal media," which for him means anything to the left of Rush Limbaugh. This regurgitated mantra, in the hands of skilled marketers, can be applied to the latest hot brand — in this case anything to do with blogs.

As I noted in my own review — and as anyone even vaguely familiar with Hugh, his books, his radio show, or his blog well knows — Hugh is indeed a partisan, and fiercely (if very politely) so. "Hack," of course, is a loaded term — perhaps the most loaded term one can fling at a journalist or a pundit or any other sort of writer. To sustain it, however, one ought to at least try to provide a few examples of hackery — and in my judgment, Mr. Standaert conspicuously fails at that task.

Now, it is true enough that Hugh's book is "sustained." It is also true that part (but far from all) of the book is about the mainstream media and the erosion of public trust in it. But "Blog" is not an effort to further that erosion, but to explain and comment on it — and in particular to comment on the connection of blogs to that phenomenon. Somehow Mr. Standaert concludes from this that Hugh's book title is misleading. I'm sorry folks, but to say that this book isn't really about blogs is — gosh, I'm searching for another word, but the one that seems to fit best is "hackery."

I suppose that Hugh may take some comfort for being recognized as a "skilled marketer," and indeed he is one. But his stock in trade consists of ideas and the very broadest of social and political trends. Hugh, at least, understands that what's going on with the blogosphere makes it more than "the latest hot brand." I'm not at all sure that Mr. Standaert does understand that. He seems to think that the emergence of blogs is something like the emergence of minivans or hula hoops.

Mr. Standaert writes, for example, that "[w]ithout traditional media to feed off of, there would be little for most political bloggers to link to and comment on," and that "the other fallacy is that blogging will supplant mainstream media." But Hugh never argues the latter, nor denies the former (although the current pattern includes both controversies that originate on blogs and migrate to the MSM and vice versa). Instead, "Blog" is about the effects of the blogs on public consciousness and opinion, and upon mainstream media (recent past, present, and future). Only a — gosh, here I go again — hack would put words in an author's mouth that the author never used, or that oversimplify and indeed misrepresent what the author has actually said, for the sole purpose of knocking them down.

There's also the problem that — well, how to put this delicately? — Mr. Standaert doesn't seem to have actually read the book very closely.  I don't know how else to explain a sentence like this one: "Hewitt never shies away from celebrity name bashing, dropping every right-wing pundit's favorite punching bag — Barbra Streisand — into the mix." Barbra Streisand is mentioned once in "Blog," and it was because she's a blogger. But Mr. Standaert's review uses that one instance to give the impression that it's an example, instead of an exception. What would we call a writer who takes a single instance and tries to leave the impression that it's representative of a common occurrence?  Would it start with an "h"? In any event, it's an odd book reviewer who confuses a serious book on media trends with People magazine.

Mr. Standaert writes that

unfortunately Hewitt's "independent" position advocates right-wing, corporate or advertisement blogging and not independence as such.

In a Jan. 15 entry on his blog (HughHewitt.com), Hewitt is a bit more forthcoming about the ethical dilemma faced among the top tier of political bloggers who may or may not get paid to advocate for causes, saying "bloggers should disclose — prominently and repeatedly — when they are receiving payments from individuals or organizations about whom or which they are blogging." But in the book, Hewitt describes how blogs should be used by opinion makers to get their points across through directly influencing the most prominent bloggers.

What's rather conspicuously missing here, however, is context and the rest of the timeline. In his January 15th post, Hugh was writing about the then-swirling blog swarm over the Kos/Armstrong Williams alleged nondisclosures (or inadequate disclosures) of concealed conflicts of interest arising from what Mr. Standaert aptly calls "payola" (a term that goes back to covert bribes paid by record companies to radio disc jockeys, if I recall correctly). Amazon.com lists the official date of publication for "Blog" as January 14th, but of course it was actually written weeks before this particular controversy erupted.

And more importantly, nowhere in "Blog" does Hugh suggest or even imply that opinion makers ought to make covert payments to influence bloggers. Rather, in a section explicitly addressed to opinion makers who don't yet "get" blogging, Hugh suggests (chapter 9) that they advertise on blogs (a self-disclosing potential conflict), and perhaps (chapter 10 at page 140, italics mine) that if such opinion makers cannot find "a superstar blogger in [their] midst," they should email some talented medium-traffic bloggers "offering them employment as a blogger." In my own review, I expressed skepticism about the practicality of this latter suggestion because I'm not sure the talent, the "knack," is transferable — but if they are writing on the GM or Coke website as disclosed, paid employees of those companies, I have no doubts about either the bloggers' or the companies' ethics.

Now what kind of reviewer would lead his readers to believe that Hugh's ethical positions in his book and in his blogging were inconsistent with each other, when they're not? And what kind of reviewer would fail to note that the controversy over blogger payola had developed after "Blog" was already at the printers? Gosh — are half-truths and cheap shots characteristic of "hackery"? Or is that just part of being a "literary" (i.e., non-literal, i.e., fictional) critic?

Even the credit that Mr. Standaert is willing to give to Hugh and the blogosphere comes grudgingly (boldfacing mine):

Though at times Hewitt makes important points about how blogs have kept scandals such as Rathergate and Sen. Trent Lott's flub over Strom Thurmond's segregationist past in the public eye, his fanatical fervor leads him down the path of triumphalist bombast.

I was glad I'd set my soda can down and swallowed before I read that sentence, for I was one of many metaphorical midwives to the term "Ra^thergate" (helping publicize it and offering instructions on how to superscript the "th" for the .html-challenged).  At the time that it first appeared (eventually to make its way into the consciousness of even those like Mr. Standaert, superscript and all), no one in the mainstream media had yet started writing seriously about the forged Killian memos, and CBS News was still resolutely ignoring the blogosphere. "Keeping [the scandal] in the public eye"? Mr. Standaert seriously thinks that's the sum total of the blogosphere's contribution? And yet he expects us to take him seriously as a writer and a book reviewer about the blogosphere? (Oh, wait — perhaps Mr. Standaert expects the readers of the LAT who don't also read blogs to take him seriously. That might be a more achievable goal.)

But about that last phrase — "triumphalist bombast."  Oh, that is very rich indeed!  Did Mr. Standaert read these paragraphs (boldface and bracketed portion mine; italics Hugh's) in the introduction to Hugh's book?

A word about the scoffers. I hear from them every day — every day. They think they have the internet figured out; they have a strategy; they don't see the sales; they don't care about amateurs; they even blog a little themselves [Mr. Standaert writes a literary blog called Nipposkiss that's not listed in TTLB's ecosystem, has no obvious Sitemeter-type counter, but for which a Technorati search produces "13 links from 12 sources," as compared to "2,438 links from 1,740 sources" for HughHewitt.com—Beldar] and they don't get the big deal. The best word they have is "triumphalism." "A little too much triumphalism in that point of view," the scoffer will say.

Well, John Kerry was probably once a scoffer as well....

If people like Kerry, Raines, Rather, and Lott can be humbled by the blogosphere, so, too, can you, your company, your movie, your church,  your anything.

"Triumphalism" isn't exactly an obscure word, but neither is it exactly common. Gosh, I wonder if Mr. Standaert's use of it in his review was an example of unconscious plagiarism? Naw, that's far too harsh and speculative a charge. On the other hand, now, that H-word ... Well, I'll leave it to you, gentle readers, to decide if that shoe fits.

Mr. Standaert would doubtless class mine as among the "bevy of rightist blogs" whom "Blog" supposedly fawns over, and I plead guilty to having been a fan of Hugh's long before his nine generous references to BeldarBlog in the book. But with respect to Mr. Standaert, perhaps we can all agree that the word "scoffer" certainly does fit. And I suppose time will tell whether his scoffing is justified. In the meantime, I also plead guilty — in being a reviewer of a reviewer — to being a scoffer at a scoffer.

Most unintentionally funny (and self-revelatory) lines I've read today

From the comments of "Jude" — whom I believe to be Jude Nagurney Camwell (a/k/a "Iddybud"), because she'd commented earlier there and has written similar things elsewhere — in a thread on Eason Jordan's downfall in Jay Rosen's blog:

We have to meet it [i.e., the threat from "blogstorm troopers"] dead-on, expose it for what it is, and weaken its freedom-crushing power.

It's all about ethics. With reason and strength of conviction, we need to drown this right-wing machine they're calling "new media" in the bathtub.

So stipulated! — that it's all about ethics, that is. However, some of us from outside the MSM happen to believe that following journalistic ethics actually forbid one from making up and publicizing defamatory claims of fact, and also require that journalists who've done so be held accountable.

In theory, at least, that also seems to be the position of the Society of Professional Journalists.  Its Code of Ethics demands in its first-listed item that journalists should "[t]est the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible." Under the heading "Be Accountable," the SPJ also opines that journalists should "[a]dmit mistakes and correct them promptly," "[e]xpose unethical practices of journalists and the news media," and "[a]bide by the same high standards to which they hold others."

(Other bits from the SPJ's Code of Ethics that also seem to me to be pertinent here:  "Make certain that headlines, news teases and promotional material, photos, video, audio, graphics, sound bites and quotations do not misrepresent. They should not oversimplify or highlight incidents out of context." Also: "Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention." And: "Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.")

Perhaps someone should also explain to Ms. Camwell that many bloggers happen to believe that exercising free speech through blogging is the exact opposite of "freedom-crushing." To quote another recent post on this subject by someone far, far wiser than "Jude":

I will, however, explain to you where my passion comes in.

I am proud and happy to be a political blogger.

I am free to speak about issues which I believe are crucial to the health of our democracy and no one can fire me.

They can only target me for critcism [sic] .... I believe that’s a good thing. As President Bush would say, “Bring 'em on.”

Oopsies! That was also Jude Nagurney Camwell, also writing about Eason Jordan on "The American Street."

Ms. Camwell goes on there to write (boldface hers):

When I see blogs being used in a way in which I believe American journalism will approach another step closer to being pure propaganda, I will say so.

I’m saying so.

Well, Ms. Camwell, I have some trouble following that. Maybe it's just a syntax problem — an implied or assumed causal link between the way "blogs [are] being used" and "American journalism [approaching] another step closer to being pure propaganda." That linkage seems kinda dubious to me, ma'am. I always understood "propaganda" to be something dictated by a ruling elite, operating in absolute harmony of purpose under precisely dictated orders. I double-checked my spam blocker this morning just to be sure, and — nope, Karl Rove and the RNC still haven't even been trying to dictate what I blog about, much less what I think!

On the other hand, I'm feeling an unaccountable sensation of fear when I look at my bathtub since reading your comments. If there's a noise outside my door when I'm in the tub tonight, should I be worried that it's Karl — or that it's you, Ms. Camwell?

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

UPDATE (Mon Feb. 14 @ 11:10pm): As promised in her comment here, Ms. Camwell has published a well-tempered (if to me unpersuasive) reply on her own blog, to which I've left a comment as well. My tub no longer frightens me.

Can Patterico goad the MSM elephants into a new corrections policy?

Is there any principled argument against this proposal by my blogospheric friend Patterico in his very fine op-ed in today's Los Angeles Times? If there is, I surely can't think of it:

A substantive correction should be at least as conspicuous as the original article in which the error appeared. A correction of a substantial error in a front-page article should run on Page 1. The policy would make it more likely readers would actually see corrections of significant errors. It would give reporters and editors greater incentive to get stories right. And it would encourage more vigorous scrutiny for political bias, latent or overt.

Despite the LAT's agreement to run Patterico's piece in the "experimental column in which the Los Angeles Times invites outside critics to rip [it]," I don't expect the Dog Trainer to be the first to implement this policy.

But what if, say, the Wall Street Journal, the New York Sun, and the Washington Times simultaneously instituted it — with some introductory hoopla and a running sidebar (even on page 2) showing which of their competitors has and hasn't followed suit?

Did the blogosphere "cause" Eason Jordan's ouster?

Law schools teach would-be lawyers to reexamine and then describe events through the peculiar terminology and structures created by caselaw and statutes.

Thus, for example, does many a first-year law student — having just bought a hot dog at a baseball game — find himself no longer thinking about the game or savoring the flavors and textures of the hot dog, but trying to pin the labels of the law on the transaction he's just completed: "Was there an offer and acceptance between me and the hot dog seller? Where was the offer? Was it express or implied? When I said 'Two extra-longs with chili,' was I making an offer to buy, or accepting the offer the seller had made when he posted his price signs? Or was the acceptance when I eyed the dogs, confirmed that there were two and that the chili had been added, and handed the vendor my $20 bill?"

If the law student gives way to the urge to say this sort of stuff out loud, his civilian friends will quite properly respond, "What the heck are you babbling about?!? Shut up and eat yer dog and watch the game, fer Pete's-sake!"

And I wouldn't blame you if that is your exact reaction to this post.

*******

But the buzz in the blogosphere about the resignation Friday of CNN's Eason Jordan has me musing over what legal concepts and tags might be applied to this event. What started my musing was a post from my fellow lawyer-blogger Deacon over at Powerline, who wrote (in blessedly nonlegal terminology) of the (perhaps deliberative, even quasi-conspiratorial) noncontributions of the Mainstream Media in the Jordan affair (emphasis mine):

Several weeks ago, I appeared on a radio show to discuss the influence that blogs like Power Line have. The liberal host suggested that blogs don't have any real influence until they push a story into the MSM. I demurred, stating that by virtue of being read by 100,000 people or more, some of whom are themselves quite influential, a blog like Power Line has influence. But I agreed that, in the case of something like Rathergate, blogs cannot make a difference without MSM coverage.

After the Eason Jordan affair, I wonder whether I conceded too much. Most of the MSM never touched the story, yet Jordan is out. It can be argued that he's out because CNN realized that the MSM was on the verge of covering the story. But one can also make the case that he's out largely because some U.S. Senators learned about the story from blogs and expressed concern about it to Larry Kudlow. In that scenario, the fall of CNN's news chief can be explained entirely without reference to the MSM.

Deacon's observation — that the MSM essentially played no direct causal role in Eason's fall — set me to wondering, "Who did, then? Does the blogosphere deserve the 'credit' it's claiming or the 'blame' those like David Gergen would pin on it?" Which in turn summoned up in my mind what's probably the single most common legal instruction given by Texas judges to Texas juries:

PROXIMATE CAUSE means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

To pin civil tort responsibility on someone who's been accused of having set a course of damaging events in motion, a plaintiff generally has to show that the defendant's action was a "proximate cause" of the result that injured the plaintiff. No "proximate cause," no liability.

Every event has zillions of mere "but-for" causes, "without which cause such event would not have occurred." If Eason Jordan's mom had not thrown his dad that come-hither look some time in 1960, for example, Eason Jordan might never have been born and none of this would have happened. In tort law, showing "but-for" causation is necessary, but not sufficient, for establishing the defendant's liability.  And likewise, when a pundit asks "What caused Eason Jordan's ouster?" he probably isn't talking about those sorts of remote and distant "but-for" causes.  The pundit really wants to know about the cause (or causes) that were closer in time, and more intimately connected to, the natural and continuous sequence that produced the event and that could reasonably have been foreseen to result in that event.

Deacon's observation, then, could be rephrased in the language of his and my common profession into "the Mainstream Media was not a proximate cause of Eason Jordan's ouster." There were no significant actions, no meaningful words or deeds, from the MSM in the sequence of events that led to Jordan's ouster (although fear of consequences from the MSM's increasing involvement may have motivated some key actors at CNN). And by obvious contrast, the MSM eventually did become a key participant in the Trent Lott and Rathergate affairs.

Because the MSM was not the proximate cause of Eason Jordan's demise, then something or someone else must have been — and the obvious suspect that jumps to the mind of someone seeking to claim credit or assign blame is therefore the blogosphere. To again employ the language of tort law, it's not hard to trace the "natural and continuous sequence" by which the blogosphere's fact-checking, opinion-spouting, and relentless publicizing of Jordan's Davos comments eventually produced Jordan's ouster. And Jordan's ouster also was not only foreseeable (given prior examples like those mentioned above), but indeed it was the precise goal of at least some in the blogosphere.

So yes: The blog swarm (to use Hugh Hewitt's apt if nonlegal term) over the Eason Jordan affair was a proximate cause of his ouster.

*******

But this conclusion naturally enough tempts some to draw inferences as to relative power to produce similar results in other cases.  "Oh my gosh, look what the blogosphere has the power to do!" and "We [or 'they'] can do this sort of stuff either with or without the Mainstream Media!"

That, however, is too far a leap under either a legal or practical analysis — because as the above-quoted instruction warns, "There may be more than one proximate cause of an event." Put in less legal phrasing, the blogosphere may be responsible for Jordan's ouster, but it is not necessarily the only responsible party.

Of course, no one (including Jordan's supporters and apologists) believes that the polished and word-smithed explanations given by Jordan himself, or by the CNN top execs who actually swung the axe, were comprehensive and fully candid. Howard Kurtz' WaPo article points to other possible proximate causes when he reports that "Jordan was eased out by top executives who had lost patience with both the controversy [over Jordan's Davos remarks] and the continuing published gossip about Jordan's personal life after a marital breakup." Deacon and others have also pointed to Jordan's previous "covering up Saddam Hussein's atrocities," CNN's fear of Congressional investigations, CNN's concerns over public reaction when and if the Davos videotape were to be released (with the controversy suddenly "going visual"), and even CNN's long-term falling ratings.

In the decisionmaking process within CNN, all of these factors may have been proximate causes of Jordan's ouster — not the blog swarm alone. And it's entirely possible that none of them alone could have tipped the result — Jordan may have fallen victim to a "perfect storm" — and that various of the decisionmakers gave different weights to the differing causes.

*******

All of this is a long-winded way of using the peculiar terminology of the tort system to express a fairly simple warning: Neither the celebrants nor the lamenters of the blogosphere's role in the ouster of Eason Jordan should draw overbroad conclusions about the blogosphere's power to achieve such results by itself in other cases.

And one need only view Dan Rather's still-grinning presence on CBS News' Sixty Minutes, if not in its evening anchor chair, to find a contrary example in which the blogosphere's swarming wrath — even abetted by eventual MSM attention — failed to achieve a fully comparable result, notwithstanding what was (in my judgment) a far more culpable original offense that should have justified an outright sacking.

Reviewing Hugh Hewitt's "Blog" in the aftermath of Eason Jordan's destruction

Upon returning from a vacation from blogging last month, I promised a nontrivial (which is my codeword warning for "long-winded") review of Hugh Hewitt's latest book, Blog: Understanding the Information Reformation That's Changing Your World. The announcement on the front page of today's WaPo — that CNN's chief news executive Eason Jordan has resigned — prompted me to make good on that promise.

Indeed, someone should send U.S. News & World Report editor at large David Gergen a copy of Hugh's book immediately, because poor Mr. Gergen — a old-school journalist and pundit whom I generally respect even when I don't agree with him — may be suffering from fossilization of the cranial arteries when it comes to blogs and bloggers, as this quote in Howard Kurtz' fascinating WaPo article demonstrates:

Gergen said Jordan's resignation was "really sad" since he had quickly backed off his initial comments. "This is too high a price to pay for someone who has given so much of himself over 20 years. And he's brought down over a single mistake because people beat up on him in the blogosphere? They went after him because he is a symbol of a network seen as too liberal by some. They saw blood in the water."

I can't resist the impulse to digress from my review of Hugh's book to fisk that particular paragraph, so here it is again with my bracketed interlineations in green:

Gergen said Jordan's resignation was "really sad" since he had quickly backed off his initial comments. [I don't doubt that Gergen is genuinely sad, nor do I begrudge him professional or personal sympathy for a sadly self-destructive colleague. Gergen certainly tried to help Jordan "back off his initial comments" in Gergen's own account of the Davos session, and maybe Gergen's interpretation — Gergen as mind-reader, wishfully guessing that Jordan instantly realized he had blundered — is correct. And if, within hours or at most a day or two after the comments, Jordan had gone further than merely diluting or "backing off" his comments — if he had squarely disavowed them, and then apologized for them, instead of having tried to defend, re-spin, and divert attention from them — then Gergen might have a point. But Jordan didn't, so Gergen doesn't.] "This is too high a price to pay for someone who has given so much of himself over 20 years. [No, it's exactly the right price to pay for a senior MSM journalist and network chief who's slandered our men and women in uniform with false accusations and who then systematically refused to make a full retraction or to show genuine contrition. Because Jordan apparently believed he could lie about such matters in such a forum and before such an audience, and yet remain exempt from just consequences of that lie, he destroyed his own credibility.  And despite the MSM's conspiracy of near-silence about the controversy, his masters at CNN (some of whom probably have read Hugh's book, or at least have independently come to some of the same conclusions expressed in it) realized that Jordan had become an intolerable liability. As for the 20 years, that rather blinks reality — it implies, incorrectly, that those 20 years have been blemish-free, and they were anything but that.] And he's brought down over a single mistake [see above] because people beat up on him in the blogosphere? [By "beat[ing] up," Gergen apparently means "digging out and drawing attention to the factual truth, and then expressing opinions — some of which were outraged, some of which were sympathetic — based on that truth." Gergen makes his own living "beating up" public figures in this very same sense. Also: the blogosphere hung the lantern from the broken mast and then beat the drum, but the actual keelhauling was performed by CNN execs.] They went after him because he is a symbol of a network [this much is true; Ted Rall says equally stupid and offensive things all the time but is now mostly ignored because he doesn't have the responsibilities or the bully pulpit power of a cable news network executive position to say them through] seen as too liberal by some. [Also true, but not causally connected to the first statement; see Jordan's critics from the center-left like Mickey Kaus et al.; cf. right-leaning bloggers' same dogged treatment of Trent Lott.] They saw blood in the water." [Definitely true, but it misses the point, which is that Jordan was trying to deny, and the MSM was trying to ignore, the bloody water. See generally Monty Python and the Holy Grail, Scene 4, "The Black Knight" ("Just a flesh wound ... I'm invincible!").]

*******

The reason Jordan's resignation is such a good cue for a review on Hugh Hewitt's book is the book's excellent definition in chapter one of the phenomenon Hugh calls a "blog swarm." If Hugh writes a second edition, the Jordan debacle will certainly join Hugh's list of examples — Trent Lott, Howell Raines, John Kerry and the SwiftVets, and Rathergate. The definition from page one:

When many blogs pick up a theme or begin to pursue a story, a blog swarm forms. A blog swarm is an early indicator of an opinion storm brewing, which, when it breaks, will fundamentally alter the general public's understanding of a person, place, product, or phenomenon.

And then an explication of his examples, as mentioned above, with this common observation about them:

There was no shared plan of attack among the blogs. There was no coordination between them and their allies in talk radio and a few corners of MSM such as FOX News. There was, however, a network and there was an understanding of what mattered — facts — and a desire for speed and, crucially, a target. The destructive energy of the blogosphere is fierce indeed when focused.

Mr. Gergen clearly thinks this is a bad thing. But he seems to have quite a bit in common with a fellow member of his profession whom Hugh quoted (at page 6):

A senior journalist for the Los Angeles Times told me in the middle of "Rathergate" that he writes with the fear that he will be "blogged," meaning exposed as careless or agenda-driven, thus mocked and shamed and perhaps fired.

That fear — a good thing for journalists to carry with them — should also be on the minds of every public figure and corporate leader....

"Careless" (or simply exaggerating to the point that it's indistinguishable from lying); "agenda-driven"; "mocked and shamed and perhaps fired." Oh yes! Sing it with me, brothers and sisters, for this is the hymn of accountability in the Twenty-First Century! The light is bright, sometimes harsh, sometimes even distorting (bright lights can make harsh shadows) — but the light is ever shifting and from countless sources, so the distortions are generally self-corrected by the invisible hand of the marketplace of competing ideas. And what we have left in the end, brothers and sisters, is "the truth." (See generally A Few Good Men, the closing scene in the military courtroom, Col. Jessup: "You can't handle the truth!")

It's fair to say, I think, that this is the central teaching of Hugh's book, and his main purpose for writing it. Hugh's main target audience is everyone who "doesn't yet get blogging" — those who (as the book jacket notes) still need to "catch up with and get ahead of this phenomenon."  If, when you read this book, you have an almost irrepressible urge to click on the hyperlinks that aren't there (because dead-trees-text can't display them), then you've already been assimilated, and you are probably not at the core of Hugh's target audience.

However, almost anyone who reads blogs will enjoy this book too. Indeed, the most eager readers of this book are doubtless other bloggers — the most dorkish of whom will bemoan the book's lack of an index, because that means they we had to dog-ear pages and use yellow fluorescent highlighters to mark Hugh's references to our own blogs. (BeldarBlog was graciously mentioned on pp. xxiii, 30, 41, 44, 78, 110, 148, 200, and 207 — not that I was counting or anything. Heck, I still haven't made Hugh's own blogroll; a Google search of his site turns up only nine references to my blog; I've only been on his radio show twice; we root for different football teams, went to different law schools, clerked for different U.S. Circuit Judges, and I've never been in a snowmobile accident. But there's your full disclosure. Oh wait — someone at his publisher, I think, sent me a free review copy of the book, too. I intend to pass it along, immodest dog-ears and all, to some liberal friends now that I've reviewed it.)

*******

Like most ambitious but hyper-timely books (and much blogging), this one is sometimes a bit disjointed; not all the transitions are seamless, and not all of the ideas have fully ripened. I found myself generally receptive to Hugh's comparison of the outbreak of the blogosphere to the Protestant Reformation and the invention of the printing press. I found myself likewise fascinated by the comparison between "blog swarms" and modern "netcentric" and asymmetrical military warfare. Hugh's treatment of these comparisons isn't shallow, but neither is it (nor does it attempt to be) as exhaustive and reflective as, say, a PhD thesis would be.

The one comparison I found offputting — not necessarily invalid, but uncomfortable and more strained than the others — was between what the blogosphere is doing and what internet-using terrorists are doing. For the most part, Hugh's book is about the American and international "blogosphere proper" — not about the internet and websites in general, or communications even more generally. I think the role that indigenous bloggers will play, and are already playing, in the transformation of despotic regimes into open and free democracies is an important topic; and I think the adaptations of jihadist terrorists to use internet websites to manipulate the mainstream media and thereby public opinion is also an important topic. But other than the fact that both of them are accomplished via the internet, I'm not convinced yet that I see a connection or even a meaningful comparison.

Business executives are also among Hugh's target audience, and appropriately so. As one who has represented public corporations in court fights that have sometimes spilled over into the media and the general public consciousness, I concur in Hugh's recommendations that large companies and organizations need to understand the new role of the blogosphere in helping shape public opinion. I'm troubled, though, by his suggestion that such companies and organizations raid the blogosphere for talent. Certainly there are very good bloggers who also happen to be looking for day jobs of any sort, or who would like to make their blogging self-sustaining or even profitable. But I think this suggestion presumes a sort of fungibility and transferability of talent that probably doesn't exist. Whatever odd quality in my writing brings people to read BeldarBlog, for example, probably wouldn't work so well if General Motors (or for that matter, the Republican National Committee) phoned me up and said, "Hey! We want you to write our organizational blog!" And without intending to demean anyone who does write a blog for such an organization, I associate the quality of "blogness" with someone (or sometimes a group of like-minded someones) writing independently and without obligation.

Indeed, like Hugh's own and most other blogs, "Blog" is written in a highly personal voice and from a distinct first-person viewpoint. Hugh's personal interests include politics, evangelical Christianity and religious history, law, talk radio, and football — so you'll find all of those subjects interwoven into his book about blogging and blogs. And therefore, if you're looking for something dry and impersonal and academic, you'll be disappointed. (Of course, since you're reading BeldarBlog, which if anything is far more idiosyncratic, you probably aren't put off by that writing style anyway.)

Although he's far more often compared to a cheerleader than to a rabid dog, Hugh is also politically conservative on his own blog and radio show — hawkish on the Global War on Terror, supportive of Dubya, etc. And that viewpoint also affects, and probably to some degree necessarily undercuts, the book's discussion of the left hemisphere of the blogosphere. I believe that Hugh recognized, and made an effort to overcome, those limitations; for example, "Blog" discusses dKos, Atrios, Talking Points Memo, and some other prominent blogs of the center- and far-left that I know Hugh at least skims from time to time. This book is far less aligned with, and addressed to those receptive to, conservative political philosophy than was his most recent previous book, If It's Not Close, They Can't Cheat: Crushing the Democrats in Every Election and Why Your Life Depends on It. But Hugh has watched and participated in the events related in "Blog" from the right (as have I), and it might be interesting to read a book-length collaboration on these same topics between Hugh and, say, Josh Marshall, Kevin Drum, or Mickey Kaus.

*******

There's plenty of substance covered in "Blog" — as I mentioned earlier, it's a very ambitious book — but it's broken up into bite-sized chunks with clear signposting and organizational structure. Long-time, bemused readers of Hugh's blog (since the days before he figured out how to spell-check his text using other software) will be pleased to know that Hugh (and/or his editors) have polished up his text (that is, cleared away distracting typos and such) in this book. Any day now, Radio Blogger (a/k/a Generalissimo Duane) or someone will hogtie the man for a badly needed weekend of hypnotherapy on blog fonts and html formatting. But while the book is slick (or as much so as any medium without hyperlinks can be), the basic prose is the same that you read on Hugh's website or that you hear him deliver on the radio: vivid, clear, conversational, sometimes wry, but never, ever mean or bitterly sarcastic. In the introduction (at page xiv), Hugh writes:

"Life is a habit, Hughie. Life is a habit." Jerry Tardie has said this to me about a thousand times. Jerry was once a basketball coach, and a very successful one, at Mater Dei High School in Santa Ana, California. He speaks in coach talk, the repetitive, specific, motivational, and tutorial style that all good coaches use.

Well, "Blog" is an entire book that's written in "coach talk." If you want to join the team or become a serious fan — or especially if you want to position your political party/news organization/major corporation to prepare for, participate in, and respond to the changes the blogosphere has wrought — this book is certainly worth your while to read.

Vets suing those who disrespect them

Prof. Glenn Reynolds has this short blurb up today:

ACADEMIC FREEDOM UPDATE: Are you a professor who criticizes the military or the war? Watch out — you may be creating a hostile environment for veterans!

This is idiotic, of course, but it's the natural consequence of hostile-environment theory, and I suspect that we'll see a lot more of these shoe-on-the-other-foot complaints.

The linked post from Prof. Eugene Volokh is typically eloquent and astute on the free speech/First Amendment issues involved, and I have no quibbles with or anything meaningful to add to his legal analysis. And I likewise agree with Prof. Reynolds that "hostile environment for veterans" claims — at least when matured into full-blown lawsuits — would usually be "idiotic." I do have a reaction as a practicing trial lawyer, though, that neither of these wise and witty law professors mentioned, and it's this:

Yes, there have been times when litigation has been a legitimate tool in advancing important social policies. The paradigmatic example was the civil rights litigation of the 1950s and 1960s. But in general, as a conservative (and despite being a trial lawyer), I'm very leery of trying to accomplish via civil lawsuits what you can't get passed by your state legislature or the Congress. For all their obvious flaws, those entities have tools to make value judgments and policy decisions that trial and appellate courts will always lack. And it's their main job. Because courts, by contrast, are supposed to decide the respective rights of the specific parties before them — albeit with sensitivity to the precedents they're setting that will affect others who are similarly situated — courts not infrequently blow it when they try to set broad social policies. And they're less responsive and accountable to the public than are legislators.

On this specific issue — public perceptions of and reactions to military veterans — the most important forum is not the law courts or the legislatures, but the proverbial "court of public opinion." And indeed, that's precisely where opinions have changed the most dramatically (and in my view for the better) during my lifetime. Veterans and active-duty forces are already winning on the homefront, just as they have on the battlefield.

Were a veteran to come to me, as a trial lawyer, asking for representation on such a claim of "hostile environment," before I ever agreed to pick up my sword for him or her in my role as an advocate-for-hire, I'd first spend some time in my role as counselor-in-private. I'd spend some time talking with my would-be client about flaws and limitations inherent in the lawsuit process. And in particular, I'd stress to my client that courts are particularly, frighteningly efficient tools for stripping away litigants' dignity. It's sometimes for better and sometimes for worse, but in every lawsuit, there's a trained professional whose job is to throw rotten eggs at you, and he also gets to root around in your private affairs to look for more rotten eggs to throw.

In his role as counselor, it's a lawyer's duty to not only answer the question of "Can we win in court?" but to also ask, and get an informed answer, to the question of "Should we even try?" I can postulate some extreme circumstances when the answer to that question on behalf of a veteran might be "Yes, we should," and when I therefore might take on such a client and case. But I certainly would want my client to understand that the uniform he or she has earned the right to wear so proudly is going to be put at risk of rotten egg stains, and that there may be, and probably are, more subtle (if slow) and effective (in the long term) alternatives to asking a judge to referee this fight.

In short, Prof. Reynolds may be right that more of these complaints, and possibly lawsuits, may be inevitable. Too many of my colleagues at the bar are long on zeal and short on judgment, and anyone who can pay the filing fee can get through the courthouse door. But suffice it to say that Lawyer Beldar won't likely be leading this particular counter-assault at the courthouse, despite my enormous personal and political sympathies and respect for our vets.

Kerry: "I didn't flip-flop on anything"

By far the funniest line I've read since the 2004 election comes from the conclusion of Michael Kranish's interview of Sen. John F. Kerry in today's Boston Globe (hat-tip to an alert reader who emailed me the link):

Asked what hurt him the most during the campaign, Kerry mused about how ''all of us are flawed as human beings" and ''I think I have a strong record" before raising his voice and declaring: ''One thing I know is that I didn't flip-flop on anything."

Surely that line must induce soda-through-the-nose chortling among even many loyal but clear-eyed Democrats. It would be like Dubya declaring, "One thing I know is that I don't have a Texas accent." It leaves one wondering — actually, it leaves me in a state of absolute conviction as to — whether John Kerry really does inhabit an alternate, not-quite-parallel universe.

But now that Sen. Kerry's a big-time national loser, previously friendly MSM interviewers like Kranish or Meet the Press' Tim Russert have become strangely, very belatedly interested in whether he'll finally sign Standard Form 180. Sen. Kerry responds exactly like a child who's already been grounded but is still being questioned about the neck of the broken cookie jar draped around his wrist (bracketed portion by the Globe):

The furor over military credentials hasn't ended with the campaign. Kerry pledged to sign Form 180, releasing all of his military records, but challenged his critics, including Bush, to do the same.

''I want them to sign it, I want [swift boat veterans] John O'Neill, Roy Hoffmann, and what's their names, the guys on the other boat," Kerry said. ''I want their records out there. They have made specific allegations about my record, I know things about their records, I want them out there. I'm willing to sign it, to put all my records out there. I'm willing to sign it, but I want them to sign it, too."

Kerry later confirmed that his decision to sign the form is not conditional on any others signing, but he expressed lingering bitterness over double standards on military service.

''Let me make this clear: My full military record has been made public," Kerry said. ''All of my medical records and all of my fitness reports, every fitness report involving each place I served, is public. Where are George Bush's still? Where are his military records? End of issue."

End of issue? End of issue?!? I suppose that's true in the sense that the 2004 election effectively destroyed John Kerry as a politician of national scope — to the point that I feel slightly frivolous in bothering to write this post.

But doesn't this sound a lot like the "Tommy was stealing cookies too" defense? Earth to Astronaut Kerry: The "guys on the other boat" — which boat, which "guys"? shouldn't it be "guys on the other boats" (plural), plus "the guy on my boat"? — and even your opponent weren't running for President as self-proclaimed war heroes. You were.

And Dubya's military records have been sliced, diced, puréed, and even (when the real records were not deemed sufficiently damning by his enemies) forged and promulgated worldwide through a mainstream media conspiracy that, thank goodness, the blogosphere exploded.

By contrast —

• An official Navy Department spokesman confirmed during the campaign that the Navy had "withheld thirty-one (31) pages of documents from the responsive military personnel service record as we were not provided a release authorization" — i.e., the now-finally-promised (but still-not-signed) Form 180.
• WaPo's Michael Dobbs wrote way back on August 22nd (and then seemed, conveniently, to forget he'd written) that only selected medical records had been shown (and then snatched back) from the press; that the Kerry campaign was "continu[ing] to deny or ignore requests for other relevant documents, including Kerry's personal reminiscences (shared only with biographer [Douglas] Brinkley) [and] the boat log of PCF-94 compiled by Medeiros (shared only with Brinkley)"; and that there were "at least a hundred pages" of records that the Navy Department had withheld on privacy grounds (again, no signed Form 180) in response to WaPo's Freedom of Information Act request.
• Kerry's own pet biographer, Douglas Brinkley, has said to the press of the "massive archive" of Kerry's private papers that he (Brinkley) had reviewed in writing his book, "go bug John Kerry" since "the papers are the property of the senator and in his full control."

In short, not only many details of John Kerry's active duty service record, but of his discharge status and his Paris trips (plural) to meet with the Viet Cong and North Vietnamese, still remain shrouded behind Sen. Kerry's very effective stonewall.

If the American public had come to believe that Sen. Kerry had the sort of passionate dedication to protecting us that I believe he has for protecting his own secrets, the guy might actually have been elected. To complete my backhanded compliment, I'll add that John Kerry could have taught Richard Nixon the true meaning of the terms "brazen" and "cover-up."

And yet John F. Kerry, the self-promoting "war hero" and former presidential candidate, has the unmitigated gall to suggest that the "guys on the other boat[s]" be put under the microscope he's repeatedly and successfully deflected from himself.

I suppose to have a sense of shame, one must first have a sense of reality — and John Kerry is so shameless precisely because he lacks any grip on reality. He's still living in the fantasy world of his Super 8 home movies and war diaries — the noble, tragically misunderstood Last Action Hero of his own peculiar alternate universe.  Of course, he's got friends who live there with him — Michael Moore, Garrison Keillor, Al Gore, Jimmy Carter, Al Sharpton, etc. The question confronting the Democratic Party, however, is whether they all want to live there with him.

Boot scores

It's not often that I read an op-ed in the Los Angeles Times and conclude that I agree with every word — the substance, the tone, the historical and social perspectives, everything. But Max Boot's op-ed today, titled "George Bush Talks Big, and He Delivers," exactly nails it on Bush's foreign policy.  Key lines (but read the whole thing, registration req'd):

There is no doubt that Bush has made plenty of mistakes.

The mistake he has not made, however, is the most important of all: He has not lost his nerve.

(Hat-tip InstaPundit.)

Beldar's SOTU reaction

With respect to the foreign policy portions of the President's State of the Union speech, I expect to read critiques in tomorrow's mainstream media about Dubya trying to play "Daddy-figure" to the world — scolding Syria, almost inviting insurrection in Iraq, squinting at and impliedly criticizing Egypt and Saudi Arabia. That's a reliable snarky way to diminish the President while seeming not to endorse the state actors he was addressing.

But international relations are about competing national self-interests, not about warm fuzzies. Dubya was sending several very clear messages — Damascus, for example, is certain to have "gotten" the one directed to it, although what it does in response remains to be seen — and the message was indeed stern, but that doesn't equate to "paternalistic." Yes, indeed, I sometimes remind my kids, on the fortunately rare occasions when they've been behaving badly, that actions have consequences and some of those consequences may indeed come from me in my starring role as their papa. But when the global superpower's leader singles out your country for a message, it's not to appeal to some sense of childlike obligation or responsibility. Fathers aren't the only parties entitled to issue a "Shape up!" warning. And the consequences of Syria's continued support for terrorists go beyond being "grounded." All in all, I applaud Dubya's good use of his bully pulpit tonight to grab the attention of those state actors who might otherwise doubt America's resolve to fight the Global War on Terror.

My reaction to the domestic portion of the SOTU address is more mixed. I disclaim the actuarial and mathematical skills to assess the future financial soundness of the current Social Security system, but as someone on the tail-end of the baby boom, I have a general sense of the demographics and therefore a vague unease that makes me receptive to the notion of "reforms" for the system. And I also am a strong supporter of the President's "ownership society" meme. The Dems mouth the words about supporting more individual choice, but it's hard to identify any issue except abortion on which their policies match their words.

But I think Dubya is not necessarily guilty of, but still vulnerable to, the Dems' charge — made from political cynicism, but that doesn't mean it won't stick — that he's using fear over Social Security's solvency to create momentum to enact personalization/privatization. The Dems, of course, are the acknowledged past masters of whipping up hysteria over Social Security — hearing Harry Reid, as the self-proclaimed Senator From Las Vegas, talk about gambling with our seniors' security was absolutely hilarious — but if there's a compelling reason to believe that personalization/privatization will address and solve the solvency concerns, I haven't heard it explained yet in words that can penetrate my liberal-arts-major consciousness.

Like the ones over the Iraq War, the debate over personal accounts is going to be hot and divisive. I think the Administration would be better served by frankly acknowledging the fears the plan raises, and addressing those fears with specifics and hard numbers, along with the very appealing principles of personal choice and responsibility. And I'd frankly rather see the solvency and personalization issues de-coupled from one another, and the former perhaps deferred to the second half of Dubya's second term or to that of his successor.

About the Blogads on Beldarblog

My blogging expenses through TypePad are minimal, but last fall I decided to start accepting Blogads and to put up a Tip Jar link to defray them, and over the long term I've about broken even. That's fine with me, for as I've repeatedly written, I post mostly to scratch my own itch rather than as a commercial venture or even to please anyone else in particular. (Thus I feel relatively unentangled and guilt-free when I decide to take several weeks or even months off from blogging, as I did in most of January.)

The Blogads service allows bloggers to reject ads for any reason or no reason at all, but as I posted when I started accepting them, my acceptance does not imply any endorsement of the products or positions being advertised, and I've made very little effort to investigate any of the advertisers. There's some threshold somewhere that I wouldn't cross — and running an ad for al Qaeda or Holocaust deniers or offshore sexual enhancement drug vendors would all be well beyond that threshold, for example, wherever it is.

An ad that I accepted today threw up a red flag because it reads, "See the ad [Fox News Network] won't run." Now, I did follow the link from the Blogad, but I haven't thoroughly explored the linked website or watched whatever videos or read whatever manifestos it might provide, and I have absolutely no idea about the validity of any views it may express. I will comment that there's no First Amendment right for anyone to force Fox — or BeldarBlog or The New York Times or the National Enquirer — to accept an advertisement. And any media outlet, whether "old media" or new, is and should be free (within very broad limits) to set their own thresholds as to what advertisements it chooses to accept or reject.

Potential conflicts of interest and the power of advertising dollars (and other financial ties) to influence bloggers is another kettle of fish — one that's been much debated in the blogosphere recently, and on which I will likely comment further in my promised review of Hugh Hewitt's latest book. To the extent that accepting Blogads creates any potential for conflict of interest or advertiser influence over what I write, at least it's essentially self-disclosing; in other words, you the reader can presume someone's paying me at the (in my case comparatively trivial) rates you can also investigate by following the "Want your Blogad here?" links below the ads in my sidebar. Perhaps if the John Kerry campaign or one of George Soros' political action committees had started buying ads last fall while I was writing about the SwiftVets, you'd have had cause to wonder; but at least you'd also have had a basis for deciding for yourself whether my judgments and opinions had been affected or compromised.

The Internet, including blogs like this one, is a part of the international marketplace of ideas and products. And I'm a free-market enthusiast. But remember, please: Caveat emptor — buyer beware — and please don't assume that by accepting any ad, I've endorsed (or even closely vetted) the ideas or products being advertised.