BeldarBlog

Best of the Ford tributes

Of all the various tributes and remembrances I've read since President Ford's passing, Quang X. Pham's in today's WaPo is only one that taught me something about him that I didn't know, and I think overall it's the best. The by-line informs us that Mr. Pham "was born in Saigon [and] served as a Marine pilot in the Persian Gulf War." He was 10 in April 1975, when the last helicopters left the American embassy in the city and country of his birth, and he and his family were among the 130,000 "blessed South Vietnamese" (less than 1% of its population) whom the United States was able to relocate into "refugee camps across the United States."

Key graphs (italics mine; bracketed portions and second ellipsis in original):

In the end, after two decades of flailing diplomacy in that tiny peninsula, Gerald Ford dealt with the aftermath: empty guarantees made to an ally, promises he could not keep and a "peace with honor" that the congressional Watergate class would not enforce....

In a May 1975 article in the New York Times, Sen. Robert Byrd (D-W.Va.) commented that "barmaids, prostitutes and criminals" should be screened out as "excludable categories." Sen. Joe Biden (D-Del.) "charged that the [Ford] Administration had not informed Congress adequately about the number of refugees" — as if anyone actually knew during the chaotic evacuation. "I think the Vietnamese are better off in Vietnam," sniffed George McGovern in Newsweek.

At the time, unemployment in the United States hovered near double digits. Perhaps this had something to do with the anti-refugee emotion. In Larry Engelmann's "Tears Before the Rain: An Oral History of the Fall of South Vietnam," Julia Vadala Taft, head of the interagency task force for refugee resettlement, recalled such opposition. "The new governor of California, Jerry Brown, was very concerned about refugees settling in his state. Brown even attempted to prevent planes carrying refugees from landing at Travis Air Force Base near Sacramento.... The secretary of health and welfare, Mario Obledo, felt that this addition of a large minority group would be unwelcome in California. And he said that they already had a large population of Hispanics, Filipinos, blacks, and other minorities."

The refugees were extremely fortunate. Our biggest supporter, outside of Julia Taft, was the president of the United States. Even though he had described the Vietnam conflict as "a war that is finished as far as America is concerned," Ford's attention was now focused on the refugees. In May 1975 he visited the camps, and soon after refugees began leaving to start new lives across America. The government wanted to disperse the refugees to spread the cost among many states and communities. By Christmas of that year, all refugee camps had been closed, and the refugees were resettled in every state.

I am not aware of any other politicians, antiwar protesters, esteemed journalists or celebrities visiting Fort Chaffee, Ark., where my family was temporarily housed for two months. But Gerald Ford did.

The same supposedly compassionate doves, in other words, who'd opposed America's efforts on behalf of the South Vietnamese people wore their compassion on their sleeves, but quickly replaced that with armbands of bigotry and racism — while Jerry Ford, stymied and forced by Congress to watch as our nation broke its promises and abandoned an American ally, nevertheless did his own best to mitigate the harsh effects of that betrayal.

Mr. Pham doesn't use the phrase "cut and run." But see if you can read his op-ed without thinking of that phrase — and its likely consequences, and the parallels from Mr. Pham's history lesson and Jerry Ford's life — in the context of today's Iraq.

Ought John Edwards' career as a plaintiffs' personal injury lawyer disqualify him from being elected President?

My blogospheric friend and fellow legal professional Stephen Bainbridge writes (much more concisely than I'm about to) about John Edwards' formal announcement of his candidacy for the 2008 Democratic presidential nomination (links in original):

Back in 2004, I wrote that Edwards policies on corporate governance were "demonstrably wrong." I also criticized Edwards' impact on the economy as a trial lawyer. Given the deleterious effects the trial lawyer industry has had on the American economy, as ably demonstrated by the Manhattan Institute's Trial Lawyers Inc. project, I remain unconvinced that a trial lawyer ought to have much authority over the economy.

I would be loath to gainsay Professor Bainbridge on anything involving corporate governance, and this essay only addresses the remaining points in his post. And we agree, certainly, that neither of us would ever be able to support Edwards for high political office. But I get to that conclusion via a different logical path, and I respectfully disagree, albeit only in part, with that followed by Prof. B.

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I certainly agree with Prof. B that Edwards' specific career history as a lawyer is relevant to his fitness for public office. If he were shown to have been either incompetent or unethical as a lawyer, that would certainly be probative of his unfitness as a matter of personal character. But that would be true whether Edwards was a deal lawyer or a courtroom lawyer or any other kind of lawyer. (I argued in the 2004 election, for example, that John Kerry's comparatively dismal academic career and showing as a prosecutor before he turned to politics were among the many reasons to doubt his fitness for high office.)

And as always, I must voice my quibble over terminology: I believe what Prof. B objects to is not that Edwards is a lawyer who has frequently gone to trial (a category that includes, for example, prosecutors, criminal defense lawyers, personal injury defense lawyers, both sides in business litigation, and me), but rather, that Edwards is a lawyer who primarily represented plaintiffs in personal injury cases.

But that quibble aside, I also agree in general, at least on a macroscopic level and specifically at the margins, with most of Prof. B's and the Manhattan Institute's concerns about what the plaintiff's personal injury bar (many of whose members in fact do not frequently go to trial) may collectively have done, or be doing, or be likely to do, to our economy and our society. (I also think that it's dangerous and misleading to over-generalize on that topic. One of the reasons I like the writing of Walter Olson, Ted Frank, and their colleagues is that I believe they conscientiously try to avoid overgeneralizing, or at least to be very specific in their complaints — and they mostly succeed.)

I'm also at least somewhat inclined to think that because of the mode of most of our legal training, and for many of us the nature of our law practices, lawyers in general — not just plaintiffs' personal injury lawyers — may be more prone than those in other occupations to split hairs, play devil's advocate, rationalize, indulge in post hoc justifications, and fall prey to the perils of cultural relativity. All of which is to say, there are things about this profession that can often make it hard to maintain a principled, moral personal compass. Indeed, that may have proven true for some of the law school professors with whom Prof. B is familiar (although I'm confident that all of his own compasses are steadfast and true).

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So there is much upon which I think we probably agree. Where I part company with Prof. B, however, is over whether Edwards' career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.

It's perfectly possible, for example, for a lawyer to be polite, honest, and ethical; literate and well-educated; a fiscal conservative; a hawk on national defense and foreign policy; a libertarian on most issues involving personal liberty; a federalist; a textualist in statutory interpretation, an originalist in constitutional interpretation, and a proponent of judicial restraint; an opponent of both racism and racial preferences; a God-fearing Christian who nevertheless believes in evolution and the death penalty, but is horribly conflicted on the subject of abortion; and a lifelong Republican — and yet to have also represented plaintiffs in personal injury cases with some regularity. I know a few of those, and although plaintiffs' personal injury work has never been the bulk of my practice, I have from time to time been among that small but still significantly significant number. (That a huge portion of Angry Left Democratic candidates' funding comes from members of the plaintiffs' personal injury bar does not mean that all plaintiffs' personal injury lawyers support those candidates, no more than all members of the mainstream media do.)

And I'm not sure it's fair to use Edwards' membership in a subgroup of lawyers who may, in the aggregate, be bad for society or the economy, as a basis to extrapolate the kinds of national or international economic decisions he'd be likely to make as President. Lawyers who work on a contingent fee basis may indeed be keenly motivated by the prospect of sharing in their clients' recovery — again, that would describe me, from time to time, and it's the entire premise of the contingent fee system. But I don't think Edwards' decision-making as President would likely be motivated by personal greed for money, whatever his motivations have been during his career as a plaintiff's personal injury lawyer.

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Instead, I think John Edwards would be likely to make presidential decisions less through principle of any sort than through constant focus-grouping and opinion polling. He would be a weather-vane President — always acting with an eye toward satisfying his Angry Left base, yet usually also trying to fool the moderates in order to thereby ensure his re-election. His greed would be not for money — he has plenty — but instead for power, and for the means for obtaining and retaining it.

I'm not sure there is a genuine center to John Edwards: I'm confident that he can certainly be a persuasive advocate, but I'm not at all sure that he's capable of being a strong-willed principal.

I believe, in other words, that if elected, Edward would likely be a lot like a former President, William Jefferson Clinton, or another Presidential wannabe, Hillary Rodham Clinton — neither of whom have ever been plaintiffs' personal injury lawyers, but both of whom are lawyers, or were until Bubba had to surrender his license. Indeed, both Clintons have been law professors. And they're both capable of debating what the meaning of "is" is, or of rationalizing methods by which small change has become a small fortune in futures trading.

Abe Lincoln was, by all accounts, a first-rate trial lawyer whose cases included representation of plaintiffs suing to recover for personal injuries, and who often worked on a contingent-fee basis. But that doesn't mean that he had much in common with John Edwards, or with Bill or Hillary Clinton, in terms of any of their fitness to be President.

NYT blames Bush's Iraq policies for muting the "joy" over Saddam's execution

I'm sure that Dubya and his press office are long since used to their Catch-22 problems in dealing with mainstream media organizations like the New York Times, which will include in tomorrow's edition the following remarkable paragraphs (boldface mine) in a "news analysis" piece headlined "Joy of Capture Muted at End":

CRAWFORD, Tex., Dec. 29 — The capture of Saddam Hussein three years ago was a jubilant moment for the White House, hailed by President Bush in a televised address from the Cabinet Room. The execution of Mr. Hussein, though, seemed hardly to inspire the same sentiment.

Since his arrest on Dec. 13, 2003, Mr. Hussein has gradually faded from view, save for his courtroom outbursts and writings from prison. The growing chaos and violence in Iraq has steadily overshadowed the torturous rule of Mr. Hussein, who for more than two decades held a unique place in the politics and psyche of the United States, a symbol of the manifestation of evil in the Middle East.

Now, what could have been a triumphal bookend to the American invasion of Iraq has instead been dampened by the grim reality of conditions on the ground there....

A "triumphal bookend"? But for the "growing chaos and violence in Iraq" that the NYT would attribute to Dubya, we'd feel "joy" at this execution — "joy" that now must be muted?

When he was the governor of Texas, Dubya didn't have to worry about his press statements on the many, many executions he was asked to stay causing regional or sectarian violence between, say, Episcopalians in Austin and Baptists in Dallas. But he still knew how to behave in a dignified and solemn fashion with respect to solemn events that require dignity. That's exactly what he's done here, with a short and simple statement marking the occasion, but containing no "triumph" nor "joy" nor celebration of any sort.

As for the Catch-22: Can you imagine what the MSM and their favorites from the Angry Left would have done had Dubya, for example, high-fived Dick Cheney in public to celebrate Saddam's execution? Had the President invited a few key friends and generals over to watch the TV coverage? Or even had Mr. Bush called a simple press conference specifically occasioned by this event? "Ghoulish!" the NYT would have cried. "Unbefitting of an American president, but entirely in keeping with his record as one who presided over so many executions in Texas and then presided over the wanton slaughter of so many innocent civilians in Iraq!" we'd have heard from Nancy Pelosi or Harry Reid.

With respect to those whose hatred of the Bush-43 Administration drives and shapes their reaction to every current event, it's indeed true that no good deed by this President goes unpunished.

Meanwhile, the same NYT story contains a quote from a world-class ass-hat blow-hard:

Senator John Kerry, the Massachusetts Democrat who ran against Mr. Bush in 2004 and has become increasingly vocal in his criticism of the war, said executing Mr. Hussein was hardly worth the cost.

"To go to war to kill one guy? Please," said Mr. Kerry, who recently returned from a visit to Iraq....

Thus does the former prosecutor who bragged during the 2004 presidential campaign that he'd created "a victim's rights unit that was the first of its kind in Massachusetts and one of the first in the nation" honor the memory of hundreds of thousands of innocents slain by this monster.

Class and the absence thereof with respect to the late Pres. Gerald R. Ford

The first vote I ever cast in a presidential election was for Gerald R. Ford in 1976. He'll be remembered as an honest and decent man — a class act whose presidential skills, if not equal to those of Ronald Reagan, at least looked considerably better by the end of Jimmy Carter's disastrous presidency.

It's ironic, then, that Bob Woodward and the Washington Post, who played such a substantial part in the political demise of President Ford's predecessor, have chosen the occasion of his death to publish a remarkably classless front-page "news report" breathlessly entitled "Ford Disagreed with Bush About Invading Iraq."

Explains Woodward: "The [July 2004] Ford interview — and a subsequent lengthy conversation in 2005 — took place for a future book project, though he said his comments could be published at any time after his death." One wonders if Woodward got that permission through a candid and honest request, which would have gone like this:

"Hey, Mr. President, I know that to induce your cooperation, I told you these interviews were intended for a reflective and in-depth book I'm planning to write some years from now. But actually, within hours of your death and before you've even been laid to rest, my newspaper and I plan to quote selectively and sensationally from anything you tell me for the deliberate purpose of trying to make the incumbent president look bad — since after all, you won't be around to refute my spin then. With respect to anything remotely critical or negative that you say about Dubya or Cheney or Rumsfield, I'm going to make out like this was you entrusting me to deliver on your behalf some important posthumous political message — maybe even a warning from beyond the grave! — to the whole American public. We'll pick that time to 'break' this 'news story' because that will be the moment of maximum good feeling toward you in the public's sentiments, and thus your comments as spun by us will do the maximum amount of damage to the current administration. Oh, sure, we've talked here for several hours over the course of two separate interviews over two years. But I'm going to pick out the seven sentences I like best, edit out anything and everything else that might have provided any context, and then put up a transcript and audio recordings of just those seven sentences on the Washington Post website as 'support' for my 'revelation.' Is that plan okay with you?"

Woodward shows that he can also selectively ignore major elements of history:

In the end, though, it was Vietnam and the legacy of the retreat he presided over that troubled Ford. After Saigon fell in 1975 and the United States evacuated from Vietnam, Ford was often labeled the only American president to lose a war. The label always rankled.

"Well," he said, "I was mad as hell, to be honest with you, but I never publicly admitted it."

Why would President Ford have been "mad as hell"? That's obvious to anyone who knows that the proximate cause of the fall of the South Vietnamese government in April 1975 was the refusal of the post-Watergate radical-dove Congress to continue the economic and indirect military aid that President Ford had urgently requested. That refusal led directly to what was, in my view, not America losing a war, but America's most shameful betrayal ever of an ally — but however it's characterized, the blame for it cannot be laid at President Ford's feet.

I'd wager that Woodward knows those facts, and that he knows that most Americans of this era don't. But is Woodward's disingenuous misreading of history important? Only if you expect, as I do, that the new Democratic majorities in the House and Senate will begin trying to run American foreign policy in Iraq and elsewhere through similar hyper-management of the military's purse-strings.

I'd make a wish that someone, someday, would selectively spin-quote Woodward to promote some politically nasty purpose within hours of his death, whenever that happens. But that would accord Woodward a degree of implied respect that he's long since forfeited. Gerald Ford was a dedicated and noble public servant who deserves to be honored and mourned. Bob Woodward is a worm who would begin gnawing his corpse before it's even in the ground.

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UPDATE (Thu Dec 28 @ 6pm): Bill Bennett posted a very, very different reaction to the Woodward article over on The Corner (ellipsis in original):

[J]ust how decent, how courageous, is what Jerry Ford did with Bob Woodward? He slams Bush & Cheney to Woodward in 2004, but asks Woodward not to print the interview until he's dead. If he felt so strongly about his words having a derogatory affect, how about telling Woodward not to run the interview until after Bush & Cheney are out of office? The effect of what Ford did is to protect himself, ensuring he can't be asked by others about his critiques, ensuring that there can be no dialogue. The way Ford does it with Woodward, he doesn't have to defend himself ... he simply drops it into Bob Woodward's tape recorder and lets the bomb go off when fully out of range himself.

It's hard for me to imagine that Mr. Bennett would reflexively assume that Bob Woodward's participation in this was benign, altruistic, and unspun, but that President Ford's intent was to throw bombs, via Woodward, at the Bush-43 administration after President Ford's death. I believe that peddling that notion was precisely Woodward's and the WaPo's intention, but I'm surprised that Mr. Bennett would be so completely fooled by it.

NRO's Jonah Goldberg, meanwhile, posted a link to a Thomas DeFrank piece in today's New York Daily News that, as Mr. Goldberg points out, is "a good deal more nuanced than the Woodward version." It includes this (first bracketed portion and boldface mine, second bracketed portion in original):

Ford was a few weeks shy of his 93rd birthday as we chatted [during a May 2006 interview] for about 45 minutes. He'd been visited by President Bush three weeks earlier and said he'd told Bush he supported the war in Iraq but that the 43rd President had erred by staking the invasion on weapons of mass destruction.

"Saddam Hussein was an evil person and there was justification to get rid of him," he observed, "but we shouldn't have put the basis on weapons of mass destruction. That was a bad mistake. Where does [Bush] get his advice?"

I suppose I'm one of the most consistent supporters of the Bush-43 administration left in America. I'm the sort of person who'd respond to the late President Ford's question, for example, by pointing out that concerns over WMD were legitimate, but in any event they were only one out of a long list of justifications offered by the Bush administration and the Congress for overturning Saddam's regime.

But if a newspaper reporter were, for some odd reason, to spend two hours interviewing me about events since January 2001, I'm quite certain that at the end of the interview, that reporter could — if he were unscrupulous — extract at least seven sentences that he could post in partial-transcript form, and on the basis of which he could run a story breathlessly headlined: "Beldar Bashes Bush!" That, of course, would not be a newsworthy headline, and the deception not worth the reporter's or his newspaper's efforts. Unfortunately for President Ford's posthumous reputation with people like Mr. Bennett, however, that sort of ghoulish spin apparently was considered worthwhile by Woodward and the WaPo.

Gasped from Mass: "Et tu, Teddy?"

"I have no plans of supporting anyone else at this juncture. I'm also not going to just wait indefinitely until he's made a judgment or a decision."

Thus, as quoted in the Boston Globe (hat-tip K-Lo), did the senior Senator from Massachusetts land a torpedo below the waterline of the junior Senator from Massachusetts' swift boat. According to the Globe, "Kennedy said he has informed Kerry that he may get behind another Democrat for president," but of course, Teddy also reserves the right to vote for the latter-day JFK, even if he's now voting against him:

Later in the day, Kennedy's office issued a statement clarifying that Kennedy will support Kerry if he declares his presidential candidacy "in the near term," though Kennedy aides declined to define that schedule.

Such comments from aides sound a lot like lesser Roman senators offering Julius Caesar their soiled hankies as he bleeds out on the stone floor, don't they? Meanwhile, back to Brutus' remarks while the dagger was still fresh in hand (bracketed portion by the Globe, ellipsis mine):

Kennedy's praise for Obama and Clinton adds to the growing perception that the two are distinct front-runners for the Democrats' 2008 presidential nomination, with Kerry trailing along with a cluster of lesser-known governors and senators. If Kerry runs again, he'd have to break through a crowded field of emerging contenders, Kennedy said.

"You'd have to say that there's a number of people who are out there — Barack and Hillary, if Barack runs and Hillary runs — they're obviously very formidable figures," said Kennedy....

"They're obviously having a good deal of appeal, because I think that's what people want to hear about," he added. "They are ringing the bells, because they're talking about what people were, I think, concerned about during the course of the [congressional] election."

But surely, Senator Kennedy — consistent with the spin your aides are going to try to put on your comments later today — you'll be urging Sen. Kerry to jump into the race right away, won't you?

Quoth the Leviathan on that topic:

Kennedy acknowledged that Kerry has more flexibility to decide than some of the other candidates, because he has wide name recognition and a campaign war chest of $13 million. But Kennedy, a presidential contender himself in 1980, demurred when asked his advice for Kerry.

"I've known John long enough and been with him enough and he's a good enough friend — this is going to be something he's going to, you know, make up his own mind about," he said.

"A good enough friend." R.I.P., Kerry '08 Campaign — for there (if I may be allowed to switch my character allusions and revise their dialog just a bit) is your political epitaph, from one who came not to praise, but clearly to bury you.

Tom DeLay's blogroll

I think I'll eventually be able to overcome my disappointment at not being on Tom DeLay's blogroll (hat-tip OTB). Let's see: I learned he had a blogroll at 5:01 pm today. And I now (5:04 pm) seem to be over it. Yup.

As a believer in the two-party system, I've always been appreciative of Mr. DeLay's mostly behind-the-scenes effectiveness in enforcing party discipline. I thought his involvement in the Texas redistricting battles was an example of brutal but long-precedented hardball politics — and ultimately something that was driven by small-d democracy. (Red-state Texas was not going to retain a majority of Democratic Congressmen for much longer whether Tom DeLay had been involved or not.) I don't think he's been a productive public face for the Republican Party, though, nor an appropriately parsimonious steward of the public piggy-bank. We'll see how he turns out as a blogger.

I'm wondering if one or another of his less renowned co-bloggers actually compiled that blogroll, though. Somehow I have a fairly hard time picturing former Congressman DeLay actually reading Frank J at IMAO on a regular basis.

On the other hand — that could explain a lot.

Questions not to be read while imbibing fizzy drinks

Let's hope John Fund's readers aren't mid-swallow when they read the title of his essay in today's OpinionJournal: "Pelosi's Promise: Will the next speaker live up to her word and clean House?" The droll Mr. Fund had an answer already in mind when he, or someone, wrote that title, but read the whole thing.

I'm one of the five

Over on The Corner, John Derbyshire writes that

[i]f anyone deserves th[e] title [of "uberwonk"], it is surely NR's publisher Jack Fowler. At an editorial meeting this morning we were discussing the House of Representatives. The issue of cloture came up. Jack, briskly: "The House doesn't have a cloture rule."

I don't know about you, but I found this sensationally impressive. I mean, how many people — people not employed on Capitol Hill — know that? Five?

I don't doubt that Mr. Fowler and Mr. Derbyshire are both extremely knowledgeable, but the reason that the House of Representatives doesn't need a cloture rule is because it doesn't have rules that otherwise permit unlimited debate. Mr. Fowler probably was able to be particularly "brisk" on this topic because he knows that House leaders have long been able to make their members siddown and shaddup, but that that's not so in the Senate. Indeed, that's one of the fundamental historical differences between the two chambers, and a very large part of the reason why minorities in the Senate have been able to block legislation when comparable minorities in the House haven't.

I'm pretty sure that considerably more than five of my readers knew that, wonks or not.

Spitzer smile freezes as sharp-tongued Schumer slaps Rangel

If ever there were a photograph that deserves a caption contest, it's this one from a NYT story headlined "Spitzer Visits Capitol Hill With Long List." (The subhead should, I believe, say something about "naughty and nice" and "checking it twice.")

The NYT's actual caption is much, much more boring than the photo: "Eliot Spitzer, New York's governor-elect, middle, met with Representative Charles Rangel, right, and Senator Charles Schumer, at a breakfast with the New York congressional delegation."

I'm sure you can do better. Comments are open.

One small step for a man ...

After a giant leap on July 20, 1969, mankind has mostly stood pretty still, looking around and even backtracking.

(And yes, Neil Armstrong actually did say "one small step for a man," which makes vastly more sense in context. Armstrong is a pragmatic, in some ways enigmatic fellow, but he's no dummy, and fully appreciated the significance of the moment. Modern voice-analysis software has confirmed that his "a" was indeed spoken, although inaudible over the moon-to-earth radio link.)

The space shuttle has certainly added lots to our scientific knowledge. The space station was a great idea that's been only poorly realized for the most part. But even the most enthusiastic supporters of those programs must concede that nothing has remotely matched the drama and excitement and enthusiasm that attended the first moon landing.

I was about to start the sixth grade, and I can remember that day vividly. As I watched on television with my family, I was surrounded by plastic scale models of the Eagle and the Columbia and the Saturn V, and I could describe for you in detail every stage of the Apollo 11 mission. Those men, and their predecessors in the space program, were the heroes of my childhood. I was a Sputnik baby, born a month after the space race began in 1957, and I could name every Mercury astronaut, and every Gemini astronaut too.

I cried for days over Apollo One. I was in the midst of a jury trial when the Challenger blew up on January 28, 1986. I heard about it over my lunch break, as I was eating a stale tuna-fish sandwich at the courthouse while preparing my closing argument, and wondered if I could manage to hold down that lunch and get through the day. And I was blogging on the morning of February 1, 2003, when the shuttle Columbia was destroyed during re-entry. Each of those setbacks hurt. But it never once seemed to me that they were good reasons, or any reasons at all, to give up on manned exploration of space.

My own four kids, by contrast, have only the vaguest of appreciation for our astronauts of today — notwithstanding having grown up in "Space City USA," home of NASA and Mission Control, the city whose name was the first word spoken from the surface of the moon, the city where John Kennedy first announced (in a speech that still reads awfully well today) that we would go to the moon in that decade, not because it was easy, but because it was hard. My kids read a fair amount of science fiction. But to them, it's little different from reading fantasy. Dragons, trolls, faster-than-light spaceships — all sort of alike in the category of speculative fiction, something entertaining but not something to which they directly relate. My kids have never tediously assembled plastic models of the shuttle or the space station, not because they lack imagination, but because our society hasn't sufficiently challenged and tantalized their imagination with tangible, current adventures in space.

Sure, there are lots of other things for governments, including ours, to spend money on. There always will be. But what kind of penny-pinching, short-sighted fool has such a limited imagination that he can't see the opportunities, the destiny here? I have no patience with such people, and I cannot identify with them at all.

So I'm pretty gung-ho about the newly announced NASA plans for a permanent moon colony and its eventual role as a way-station to Mars and beyond. In my "topics" choice for this post, I've included "politics" along with "current affairs" — but this ain't about politics, and it's really not even about what's current. I don't have a category set up for blog posts about "really important stuff connected with the destiny of our race," but this is all about the future, and it's really, really important — not so much for me or my own kids, but for theirs and their grandkids and their grandkids' grandkids.

Lawyerus Politicus

Why is this man smiling?

Actually, "smiling" is an insufficient word. "Beaming," perhaps. Or "Filled with mirth, glee, and spectacular merriment" might do. But why? Sez the New York Times, in answer:

Moving swiftly in his efforts to change the culture of Albany, Governor-elect Eliot Spitzer said Thursday that he would unilaterally stop accepting campaign contributions greater than $10,000, which is less than a fifth of the $50,100 in individual donations currently allowed by state law.

Mr. Spitzer also said that from now on he would refuse to take advantage of several notorious loopholes in the state’s campaign finance laws that allow corporations and limited liability companies to circumvent donation limits by contributing through subsidiaries and other related entities.

Oh, that's nice. Mr. Spitzer, of whom I've written before in a post on "Spitzerism," is dropping the size of the contributions he'll accept from roughly 25 times the federal limit for individual campaign donations to merely roughly five times that limit. (The NYT gets the federal number wrong, I think, unless I'm badly misreading the Federal Election Commission's website. But the Times informs us that "New York’s current limit on single donations, $50,100 to candidates for statewide office for their primary and general elections, is the highest of any state that has contribution limits," which I'll assume is correct.)

My favorite line from the NYT's story on Mr. Spitzer's spiel is this one:

Mr. Spitzer announced a number of areas where he said he planned to hold his administration to a higher standard than the law demands.

"Not quite criminals!" Now there's a campaign slogan for re-election in 2010!

Mr. Spitzer is one of the most prominent members of the species Lawyerus Politico currently to be found in the United States. In his plumage and attention-attracting habits, this avis vulgaris puts my law school colleague Bill White, currently the Mayor of Houston, utterly to shame. But who better to creatively flout the spirit of campaign finance laws, while simultaneously trumpeting (now that he's elected) his voluntary ethical surpassing of the same, than the immediate past attorney-general of the State whose bar inspired national reverence fear contempt appreciation for the phrase "New York lawyer"?

The concluding paragraph of the NYT story is classic, probably without intending to be:

When Mr. Spitzer was asked if his decision to limit his contributions reflected confidence in his ability to be re-elected in four years against a candidate not bound by such self-imposed limits, or confidence that he would be able to persuade the Legislature to overhaul the state’s campaign finance laws, he said, “The logic is, this is the right thing to do to send a message that we meant what we said throughout this campaign, which is that we are going to change, in a fundamental way, the way government functions.”

Yes, indeed! Welcome, New York State government, to the "perpetual campaign," just as practiced by one current and one retired specimen of Lawyerus Politicus — both prominent examples of this (unfortunately all too common) species, they are! — your State's junior senator and her husband.

Least surprising, yet most chilling pitch I've read this week: "Spitzerism"

TNR's Noam Scheiber, in an article in this week's NYT Sunday Magazine, speculates about the possibility that New York Attorney General Eliot Spitzer is what the Democrats really need on a national basis. "[I]s Spitzerism useful only in the narrow context of Democratic law-enforcement officials running for higher office?" he asks. "Or is there, lurking somewhere in Spitzer's experience, an approach that Democrats around the country could mine for political success?" I guess that depends on what Spitzerism is, which Mr. Scheiber explains very clearly and, I think, accurately:

Attorneys general are, by definition, law enforcers. But Spitzer expands this template: he casts himself not just as an enforcer of the law per se, but also as an enforcer of a broader social compact between ordinary people and large institutions like government and business.

Ah. So there's a contract between ordinary folks, government, and business. It's very broad. But it's not written down. In fact, the only person who knows how broad it is, and what's in it, when and if he deigns to tell us those things, is Eliot Spitzer. Whose job, as he views it, is to use the power of the State of New York to enforce not "the law per se," but ... well, whatever he damn well pleases whatever he thinks will get him elected to his next target office whatever his keen insight perceives as being within that broader, unwritten social compact. (Or maybe its penumbras and eminations.)

You remember agreeing to that social compact, doncha? It was in the fine print on the back of one of those credit card applications you really shouldn't have sent back in. The one with the low introductory rate (gradually increasing until Eliot Spitzer owns your soul).

And I think that pretty much explains why so many Democratic senators voted against confirming Chief Justice John G. Roberts, Jr. He's just too much of a "law per se" kind of guy for their taste, huh? Just not Spitzeristic enough. (Or is it "Spitzerific"? Would Sen. Specter say "Super-duper Spitzerific?")

At the conclusion of this article, Mr. Scheiber tells us:

If you had to distill Spitzerism into a single expression, it might very well be something like: "Making risk work for the middle class." Getting that message across may be just as important to the Democratic Party as it is to Spitzer himself.

I think they can simplify that message even further: "Spitzerism: Risk. Class war." It probably won't get him the 2008 Democratic presidential nomination, but might get him the Veep spot on a John Edwards ticket.

I blush ...

... at the last sentence of this post. Thank you, Mr. Ponnuru.

But it is true that I'm available, even to Dick Morris, at a much lower hourly rate than Dick Morris.

"Roberts 2008" presidential campaign kicks off in Newsweek

I was indeed ready for some comic relief from Rita, and (via Howard Bashman's How Appealing) I've found it in this irredeemably silly bit from Newsweek's Eleanor Clift:

Roberts has led such a charmed life that heading the Supreme Court may not be the end of the road for him. Sid Davis, former Washington bureau chief for NBC news, has a recurring dream that Roberts will become president someday. This is the scenario: Roberts looks like William Holden, a Hollywood leading man when Ronald Reagan was still a B actor. A son of privilege with a Kennedyesque family, he recalls the heady days of Camelot. He’s a man of great intellect, and in about 10 years time, maybe longer, he’ll be bored with the high court, and a Republican Party starved for charisma will draft him to run for president. “I’ve been floating the idea and people think I’m nuts, but I don’t think I’m nuts,” says Davis.

I suppose the reference to NBC's Sid Davis as having come up with this nonsense was intended to make Ms. Clift look less silly than if she'd originated it. And I think there are indeed many in the mainstream media who — like their allies on the Democratic side of the aisle in the Senate — are utterly flummoxed by how thoroughly, and with what apparent ease, Chief Justice-presumptive John G. Roberts, Jr. has demolished the reflexive anti-Dubya efforts to oppose his nomination. I suppose it ought not be a surprise, then, when they engage in fabulous and implausible speculation that John Roberts might therefore similarly slay any type of opposition he might meet for any governmental position.

Still, that Ms. Clift and her editors at Newsweek could devote bandwidth to this sort of fantasy is an indicator of how thoroughly they perceive the Supreme Court and the rule of law to be just another variety of political game. John Roberts' career has been that of a secular monk dedicated to the study and preservation of pure law at its most highly distilled and refined level. It was his absolute dedication to and mastery of that realm which enabled him to shrug off every political entreaty or demand thrown at him by any senator. But members of the mainstream media are like ex-jock football commentators being asked to speak intelligently on, say, architecture or origami.

How long will it be before the mainstream media begin labeling Supreme Court Justices like they do senators — "Chief Justice John G. Roberts, Jr. (R-IN)"? How long before they start running breathless Justice-by-Justice opinion polling: "An exclusive new MSNBC/WaPo poll reveals that if a Senate confirmation hearing were held tomorrow, Associate Justice Clarence Thomas would lose by a better than two-to-one margin to either Harvard Law's Professor Larry Tribe or Boston Legal's Alan Shore (as played by James Spader)!" Mr. Spader is approximately as likely a Supreme Court candidate as Judge Roberts is a presidential candidate.

NYT opposes Roberts solely because he won't precommit to votes they'd prefer

It's a very high threshold to cross, but I do believe that this is the most stunningly disingenuous editorial I've ever read in the New York Times. The Times editorialists acknowledge that —

• "John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week";

• even "[w]eighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval";

• "few lawyers in America can compete with Mr. Roberts in professional accomplishments";

• "[i]f the test were legal skill alone, Mr. Roberts would certainly pass"; and that

• "[i]f he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice."

And those concessions — all of them blindingly obvious and indisputable — ought to be enough for any President's Chief Justice nominee to be confirmed. But of course, the present President is George W. Bush's nominee, and the shorter and more honest version of this editorial would have read: "Any nominee from this President for anything must be defeated."

Here's the crux of the Times' lie: "[I]n many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach." If you substituted "commitments as to how he'd vote" for "solid indication of his legal approach," this would be a true statement, and the former is in fact the only thing the Times cares about. The only thing remotely close to a principled reason to oppose the Roberts nomination that the Times advances is his refusal to precommit that on the merits of the most controversial and divisive cases the Court may face, he'll vote for the results the NYT prefers. That's as good as their argument gets, folks.

Well, okay then. If that's the standard, then the Supreme Court is solely a creature of politics. Let's just drop any pretense that we value "the rule of law" or "judicial independence" or "appearance of impartiality and propriety." Let's rename the Supreme Court and call it the "Supreme Soviet" instead. If that's the standard, then with respect to those vacancies that occur when the President and the Senate are controlled by the same party, the Senate will rubber-stamp every nominee; and with respect to those vacancies that occur when different parties control the White House and the Senate, the Senate's role will vanish entirely, and the President will keep the Court functioning solely through his power to make recess appointments that bypass the Senate. If that's the standard, then we've all been wasting our time on these confirmation hearings, and Dubya ought to just go ahead and recess-appoint, oh, say, Karl Rove as Chief Justice the next time the Senators leave town. (There's no constitutional requirement that the Chief Justice be a lawyer, after all.)

The only way a person of even marginal political intelligence could write an editorial like this would be if he's absolutely certain that he could immediately thereafter retreat behind anonymous storm- and logic-proof shutters, from which he's free to pretend that no counter-arguments exist. A three-minute debate would explode this point of view with a violence that would put the Hindenburg disaster to shame. I really do prefer my bomb-throwing revolutionaries without the hypocritical pretense of commitment to principles like "rule of law" and "judicial independence." Give me a Mark Tushnet who straightforwardly says (my paraphrase) "Dems, vote against this guy just because he's Dubya's nominee and you're against Dubya" over the polished, disgusting liars of the New York Times.

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UPDATE (Sun Sep 18 @ 1:00pm): I hasten to add that this nonsense from Phyllis Schlafly is every bit as disgusting to me as the NYT's editorial:

As John Roberts sailed through his confirmation hearings, conservatives stepped up pressure on George W. Bush to choose his next Supreme Court nominee more squarely in the strict-constructionist, Antonin Scalia mold. Another Roberts, according to conservative activist Phyllis Schlafly, would be "a betrayal." Why? Because Roberts left it unclear whether he would uphold Roe v. Wade, and Schlafly and others want a sure vote to reverse it.

From the right or the left, anyone who thinks Roe v. Wade is the only important issue the Supreme Court may face is an idiot. And anyone who thinks judges and justices ought to be picked and confirmed based on their precommitments to vote particular ways in particular cases doesn't understand — and hence is an implied enemy of and/or danger to — the rule of law.

Also, this   editorial from the Washington Post is about as vivid a contrast to the NYT editorial as one could imagine two consistently left-leaning newspapers producing. Key sentences:

[O]n a number of important issues, Judge Roberts seems likely to take positions that we will not support.... These [issues on which he may vote against the way we'd like] are all risks, but they are risks the public incurred in reelecting President Bush.

That almost gets it just right; my only quibble is that the word "risks" imputes a from-the-left frame of reference to the American public that I don't think can be justified, given the result of that election. But otherwise, the WaPo editorial reads like something written by grown-ups who understand the basic premises of both politics and justice. The NYT editorial reads like something written by teenagers who lack that understanding of either, and who're trying very hard, but without success, to hide the fact that they're still mid-tantrum over the last election.

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UPDATE (Sun Sep 18 @ 2:15pm): In her very good post contrasting the two editorials, Prof. Althouse makes some of the same points I've offered here — for example, that "The Times doesn't even face up to the issue of the illegitimacy of binding the nominee to particular outcomes" — along with the very interesting observation that none of the senators ever questioned Judge Roberts about the famous French Fry Case, Hedgepeth. She offers an interesting guess as to why, and I offer a different (and more self-important) guess in her comments.

Memo to Sen. Kerry

TO:	Sen. John F. Kerry
FROM:	William J. Dyer (a/k/a Beldar)
RE:	Limitations

Spectacular lawyer though you may (or may not) be in your own right, I know your staff includes some agile and diligent legal minds. Nevertheless, in the interests of fairness, I feel obliged to remind you of the fact that Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — which spent several weeks at No. 1 on the NYT Bestsellers List before last year's presidential election — was published on or about August 25, 2004, just over one year ago.

I'm quite sure you'll recall that many of your supporters, defenders, and admirers argued enthusiastically that fall, and even after the election, that you ought to sue Mr. O'Neill, Dr. Corsi, and their publisher, Regnery Publishing, Inc., for defamation — more specifically, for libel based on the book and slander based on their public comments in connection with it.

I'm less sure — but will nevertheless give you the benefit of the doubt — that you'll remember from law school and perhaps from your bar review course that defamation lawsuits are generally are based on state law, and that they are generally subject to state statutes of limitations, regardless of whether they are filed in state or federal court.

My concern, however, is that you may not be aware that most state statutes of limitations for defamation are quite short. In Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and you have your own regular place of business), those jurisdictions' respective statutes of limitations on defamation claims expire only one year after the alleged defamation is published.

Thus, in most of the logical, permissible, and likely venues in which you might have brought such a defamation lawsuit against Mr. O'Neill, Dr. Corsi, and Regnery Publishing, you've already allowed your potential claims to become time-barred, Sen. Kerry! D'oh! Why'd you let that happen?

There may be still be a few permissible venues — perhaps Massachusetts, which has a shamefully generous three-year statute of limitations for defamation — in which your sloth (or whatever else may explain your inaction to date) has not yet extinguished your potential claims.

Nevertheless, you're also doubtless aware that with each additional day that passes, the evidentiary trail grows colder; potential witnesses' memories fade; and the chances that jurors are likely to take your potential claims seriously continue to evaporate. There is no possible tactical or strategic benefit to your continuing to withhold your claims, and there are overwhelming downsides to doing so. Your delay is inexplicable if you believe your claims are meritorious.

On the other hand, regardless of limitations, truth is a defense to a defamation claim — whether that claim has been brought in days, weeks, months, years, or even decades after the alleged libel or slander is published. A defendant might even voluntarily choose to waive his or its limitations defenses. And even a defendant who has asserted an applicable statute of limitations as an affirmative defense may nevertheless choose, as a tactical preference, not to bring an early summary judgment motion. Indeed, some defendants may quite relish the opportunity to begin discovery on the merits, being delighted to finally have an opportunity to have subpoena power, oaths, and penalties of perjury to help them finally dig out the truth.

In fact, just based on my own personal experience with him, Senator, I'd sorta bet that John O'Neill would not only waive limitations, but even pay your filing fees for you!

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

The 2008 campaign season is right around the corner, Senator, and nobody is likely to forget the SwiftVets' allegations before then. If you believe that you have a legitimate defamation lawsuit, sir, you must use it or lose it. Put up or shut up. You snooze, you lose.

Tick-tock, Senator. Tick-tock!

Teddy tells it true

Mark in Mexico pointed me to this quote:

"[Conservative bloggers have] got material out there that we don't know about," complained Sen. Edward Kennedy, who's leading an effort to force the White House to turn over any documents it has on [Supreme Court nominee John G.] Roberts.

Yeah, or at least material that he pretends he doesn't know, like DC Circuit caselaw on privilege that's been carefully hidden in the Federal Reporter, Third Series.

Stupidest thing I've read in the NYT this month

The folks at the NYT are acting like a full-bladdered male hound dog stuck in a round room:

Mr. Bush's political opponents say the president is in a box. In their view, either Mr. Rove and Mr. Libby kept the president in the dark about their actions, making them appear evasive at a time when Mr. Bush was demanding that his staff cooperate fully with the investigation, or Mr. Rove and Mr. Libby had told the president and he was not forthcoming in his public statements about his knowledge of their roles....

There is a third option, that neither Mr. Rove nor Mr. Libby considered their conversations with the journalists to have amounted to leaking or confirming the information about Ms. Wilson. In that case, they may have felt no need to inform the president, or they did inform him and he shared their view that they had done nothing wrong.

How about Option Number Four: "The President meant what he said when he said he intended to let the investigation go forward, cooperating with, but not interfering in it, and he knows he's not the prosecutor, so he has carefully stayed the hell away from the kind of quizzing/coaching of his staff that, oh, a certain recent President did with his staff members about their grand jury testimony, which led in large part to his impeachment." Since, ya know, Option Number Four is what the law requires, and doing anything else would possibly create obstruction of justice problems, or at least put Dubya and probably others in the Administration at risk of being accused of that pretty much no matter what, I think Option Number Four ought to be at least considered as a possibility.

A headline you'll never see in the NYT: "President Bush obeys law again today."

I swear there must be people at the NYT whose blood pressure is going up ten points for every day Judith Miller stays in jail — not out of concern over her, but out of the frustration that she's causing them. She needs to take pity on them and obey Judge Hogan's order, so the prosecutor and grand jury can finish up and either indict or no-bill, lest her colleagues explode with frustration. They are not at all doing a good job in the meantime of waiting.

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UPDATE (Sun Jul 24 @ 10:30am): Andy McCarthy's blogging radar is so similar to mine that it's scary.

Dubya should use the Roberts nomination to end "Estradification" forever

Todd Zywicki has an interesting post up over at The Volokh Conspiracy on

what some Republicans are calling "Estradification" — requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the Solicitor General office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) ....

Prof. Zywicki notes that he hadn't "found any legal commentators who think that requesting these sorts of documents is appropriate," and that "[d]uring the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it." [Edit: Actually, the letter was written by former Clinton SG Seth Waxman on behalf of every living ex-SG as of the date of the letter in 2002, from both political parties, going back to JFK's SG Archibald Cox; and I'm quite sure the only additional ex-SG as of today, Ted Olsen, would concur as well.] Now, perhaps Prof. Zywicki was trolling for Schumerites, ladling out some chum when he wrote, "my impression is this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there." But sure enough, he's hooked a few in his comments, where variations of Sen. Chuck Schumer's "He's got to fill out his application fully to get the job!" meme are being asserted with apparently straight faces.

I reprint here a slightly edited version of the comment that I left on Prof. Zywicki's post, followed by a closing recommendation to our President and the Senate Republican leadership:

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

John G. Roberts, Jr. has argued dozens of cases before the Supreme Court — performing under the brightest public spotlight a lawyer can ever have shined upon him. He's written, or been involved in the writing of, hundreds of briefs that are available to the public. His academic and employment records are extraordinary and known to all. The FBI has thoroughly investigated him before and will do so again; these investigations include interviewing hundreds of people he's interacted with, and if there are any red flags found, the Senate will have the benefit of knowing about them. As a lawyer and a judge, John Roberts has interacted with hundreds of professionals, including prominent Democrats, who have had a thorough opportunity to get to know his capacities and his character, and who have a sound basis to share with the Senate their considered opinions about his fitness. In sum, there is a more than adequate basis to evaluate his fitness for the Supreme Court bench without having to start trampling fundamental principles of justice — and the attorney-client privilege is certainly one of those, even before you add in the constitutionally important dimension of federal separation of powers.

Shredding these privileges would hurt the public. Effectively disqualifying the most public-service-minded lawyers from nomination to the federal bench, on penalty of having to waive or see trampled the  privileges associated with their advice and work product, would drain a huge fraction from the pool of potential nominees, including many of the very best and most qualified.

Historically, nominees to the Supreme Court, other federal courts, and many other positions requiring Senate consent — including many lawyers who've practiced for the government — have been confirmed or rejected on the basis of a tiny fraction of the evidence that this Senate will have about Judge Roberts. The Presidents who've nominated those lawyers have never, ever been required to produce privileged documents in whose creation these nominees have been involved. Was the Senate ignoring its manifest duties in all those hundreds and hundreds of confirmations over the decades since the founding of the Republic? Or is Estradification a contrived excuse for a partisan witch hunt?

Liberal special interest groups insist that they want to ensure that Judge Roberts will be sufficiently committed to protecting rights; yet to show that, they insist that the President who nominates him forfeit the rights of the Executive Branch. Rights for thee and not for me? Who's not respecting fundamental rights here?

It's hugely amusing to me that many of the same people who'd eagerly abrogate attorney-client and executive privileges here think reporters ought to have an absolute privilege they can use to shield law-breakers. Perhaps Judge Roberts should just leak his privileged documents to Judith Miller, huh?

I can think of absolutely no better provocation for the Republican leadership in the Senate to employ the "nuclear option" than a Democratic filibuster based on such a transparently bogus ground. I believe that the American public does have an adequate understanding of attorney-client privilege to appreciate just how fundamentally wrong this "Estradification" has been and would be. The Dems would lose big not just on the Senate vote count, but in the eyes of the public. Surely the Senate Democratic leadership is not that stupid, but if they are, I'd say, "Bring it on!"

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

My closing taunt in my comment on Prof. Zywicki's post was not just rhetorical. Perhaps it would be premature, but I wish that Dubya would re-nominate Miguel Estrada to the DC Circuit to fill the seat that Judge Roberts may leave open. Mr. Estrada probably doesn't want the headache, and might again withdraw from consideration. Certainly he's had more than his fair share of unjustified grief already. But it would be a good way of making the point — in a headlines-grabbing and -holding manner, with as much possible public attention as can be generated — that the federal bench has already been deprived of one damned good nominee for the most sorry, contemptible, and indefensible of reasons.

The Administration and the Republican leadership ought to simultaneously announce that they're not going to crater on the Dems' demands made in connection with Judge Roberts' nomination, and that they're absolutely prepared to use the "nuclear option" to break up any filibuster purportedly waged on account of their refusal to waive attorney-client, work product, and executive privileges.

"Estradafication" ought never, ever happen again; a precedent against it should be clearly set; and the Roberts nomination strikes me as a very good one to do it in.

This is a winning issue for Dubya because the American people are not as stupid as Sen. Schumer apparently thinks they are. And now — while the Roberts nomination is still in its honeymoon, while the Dems are still flailing around, and before their special interest groups have worked up a full lather with the inevitable cooperation of the MSM — would be exactly the time for Dubya & Co. to take the offensive on it. Frankly, it's a fight that needs to be picked, and now's the time.

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

UPDATE (Sun Jul 24 @ 4:45am): Duncan Currie also writes about this topic in the online version of the Weekly Standard. Reading his article, I have three reactions: First, it's a serious mistake for Republicans to draw comparisons between the Dems' present demands for documents relating to Judge Roberts and Dems' previous demands for documents pertaining (arguably) to the Bolton nomination. The situations are not comparable, the arguments as to the documents' purported relevance is completely different, the precedents are different, and the privileges being asserted aren't at all the same. The comparison should be to Estrada, period. Second, Republicans should stress than any of three separate legal privileges — attorney-client, attorney work product, and executive privileges — would block production of these documents. But after making that point briefly, the main focus should be on attorney-client privilege. People understand that, at least on the most basic level. Executive privilege is poorly understood by the public, and probably half of the lawyers in the country couldn't tell you the difference between attorney-client and attorney work product privileges. Third, don't dribble out some documents and try to cut compromise deals with Kennedy/Kerry/Schumer/Leahy on this. Take the offensive; tell them on national TV: "Not only 'no,' but hell no, never, period, and you should be ashamed for even asking! And for our next witness to explain why, we call Seth Waxman, Solicitor General from the Clinton Administration."

When/whether Dubya will fire a leaker/lawbreaker

I have a high regard for Tom Maguire and his blog, Just One Minute, and for NRO's Ramesh Ponnuru. But I found myself chuckling over their parsing of Dubya's and his press secretary's various pronouncements over time regarding when and whether the President will fire someone who's accused/convicted of a crime/leak in the Plame/Wilson national security breach/circus act.

Guys: Dubya doesn't parse language and he really sucks at dissembling. He doesn't wonder what the meaning of "is" is. He's not a lawyer. Dubya is the anti-Clinton. These are some of the very things that I — and, I believe, tens of millions of other Americans — like best about him.

If Dubya concludes that someone deserves to be fired, he'll fire that someone. If he doesn't, he won't. But right now, it's too soon for him to draw a conclusion one way or the other. Explaining the decision, or the criteria for the decision, or the predicted criteria for the decision, or the evolution over time of the predicted criteria for the decision — these things don't much matter to Dubya. The decision will, but only when it's time for one.

It is exactly that simple. And it should be.

Same lame Plame blame game

A lawyer friend who also reads and comments here with some frequency suggested that I stay away from this topic until my blood pressure has really stabilized. But having finally caught up on my reading — there's no wifi at The Methodist yet, and I had to spend almost a week disconnected from the net, drat! — I can now comment pithily and pungently, without popping any pressurized pathways.

Any blogger, pundit, cable-TV talking head, talk-radio jock, national print or electronic media columnist or reporter, major- or minor-party chairman, or flack from any part of the socio-ecopolitical spectrum, or anyone else who claims to know all about — or even to have any deeply penetrating and almost-certainly-valid insights into — the entire Plame/Wilson/Niger/Novak stuff ... is farting through his/her hat and trying to convince you that it's gospel singing.

I'm tired of reading and listening to it, I'm tired of pretending that it's well modulated or that any of it smells sweet, and I'm still not going to play the gossip-and-speculation game about "how it's all going to turn out." In fact, the one thing we can be abso-positively-freakin'-lutely certain about is that not even any of the principals — whether Amb. & Mrs. Wilson, Messrs. Novak, Rove, Libby, Cooper, and Fitzgerald et al., Mlle. Miller, His Honor Hogan, Dubya, and/or the D.C. Dogcatcher — know how this is likely to turn out either.

So just respect the process, people!

The process is designed to figure out whether there's enough reason to believe that a crime has been committed in order to charge someone with that, and then to figure out whether he/she is guilty. The process doesn't always work perfectly, and it rarely works quickly. But it works far better than anything else anyone's come up with yet. We've been polishing it up for hundreds of years. And in this particular set of matters, it's way far from being finished yet.

The only people it's worth getting worked up about at all yet are those who've been trying to subvert or short-circuit the process. It's hard to imagine a scenario in which Judy Miller will ever be more than a supporting actress in this drama/comedy/melodrama, but right now she's seized the stage and won't let any of the other actors speak their lines, play their parts, or demonstrate whether the pistol brandished in Act 1 must indeed be fired by the end of Act 3. Judith Miller is demonstrating why there's a reason that Nature rots tomatoes and shapes them so as to minimize their air resistance and fit comfortably to hand. But right now, except for her, we don't know who deserves the tomatoes or the roses, the yawn, the golf-clap, or the wild applause.

There's a reason they call the process "due." Until the process has proceeded, the proceedings are neither properly probative nor particularly penetrable. Hence my plea to the blogosphere: Please let the prosecutor and the grand jury — and depending on their results, then possibly a trial judge and a petit jury (and then probably some appellate courts too) — just "due" it.

Judy's jail

Am I the only one who's wondering — after reading this NYT description of Judith Miller's jail, her privileges to mingle, and the identity of her co-inmates — whether Zacarias Moussaoui is about to become her next "confidential source"?

Talk about your small worlds! I suppose if Moussaoui is looking for the one fellow inmate whom he's reasonably sure won't someday snitch him out, Judy might look pretty good right now. And from her perspective, you know what they say: "One [jail] door closes, another opens!"

And I appreciated this gripping crowd scene photo, also from the NYT:

I can't quite make out all of the text on this fellow's chest, but I believe it says something about "Niger," "yellowcake," and "this lousy t-shirt." Anyway, although I know that Bill Safire and the NYT have expressed worries for Ms. Miller's safety, I think they can now at least discount the risks of her being accidentally injured by the supportive mob streaming over the barricades.

This bit, from the same article, is also fairly amusing:

In remarks outside the courthouse on Wednesday, Floyd Abrams, another of her lawyers, hinted at a possible strategy in the coming weeks.

"At some point before the expiration of that four-month period," Mr. Abrams said, "a lawyer can go back to Judge Hogan and say: 'Blank period of time has passed. She has not revealed her source. There's no reason to think that she will. And so we ask you to free her now.' That is something that does come up routinely in civil contempt situations."

But Charles L. Babcock, a lawyer specializing in First Amendment issues with the Jackson Walker law firm in Dallas, said he was dubious about that strategy's chances of success, given Judge Hogan's rulings.

Mr. Babcock is indeed the local equivalent of Floyd Abrams, the Texas go-to guy and lawyer of choice for media organizations. He's not quoted directly, and I suspect that however he expressed his "dubiousness" to the NYT, he was extremely polite and deferential to Mr. Abrams. I'll try to restrain my own snark, and limit myself to observing that in my own humble opinion, for Mr. Abrams' pitch to be likely to work, he'd need to be able to truthfully replace his "blank period of time [having] passed" phrase with "Hell having now definitely frozen over." I'm not expecting Judge Hogan to be the first one to blink here.

A related point that I haven't seen mentioned in the MSM: It's true that the suspension of the contempt sanctions pending Ms. Miller's DC Circuit appeal and Supreme Court cert petition has effectively shortened her short-term potential jail time. But when this grand jury's term expires, another one will be empaneled immediately; that which has been presented to this grand jury will be available to the next; subpoenas that were issued for this grand jury but were never fully complied with can and almost certainly will be re-issued for the next; and Judge Hogan is absolutely entitled and quite certain to take into account Ms. Miller's defiance of him and this grand jury in considering a re-filed civil contempt charge in connection with the next. If she gets one at all, Ms. Miller's release from jail at the conclusion of the present grand jury's term may be a very short holiday indeed. I'm confident that Mr. Abrams has so advised Ms. Miller and her employer. There aren't table stakes; this is a game of no-limit poker, and Judge Hogan has the nearly unlimited chip stack that goes along with the robe and the gavel.

Beldar to Brian Williams: "Revolutionary" ≠ "terrorist"

I belatedly found, via a link from Will Collier, what Will correctly calls NBC News anchor Brian Williams' "rather pompous non-apology apology" for writing and broadcasting last week that "several U.S. presidents were at minimum revolutionaries, and probably were considered terrorists of their time by the Crown in England." Mr. Williams' self-defense/non-apology included this assertion:

While I insist that a re-reading of my question will prove that in no way was I calling the framers "terrorists" (for starters, the word did not exist 229 years ago), I regret that anyone thought that after a life spent reading and loving American history, I had suddenly changed my mind about the founders of our nation.

Actually, "for starters" without being way too cute about it, the words "terrorist" and "terrorism" may indeed not have existed 229 years ago, but they certainly did exist well over 200 years ago — and the people and practices those words described in their earliest uses were as ugly then as those people and practices are now:

Terrorism is not simply a modern phenomenon. Rather, the word, along with terrorist, first appears in English in 1795 in reference to the Jacobins of France. They ruled France in what was called the Reign of Terror from 1793-94. By 1798, the term was being applied generally to anyone who attempted to achieve political goals through violence and intimidation.

The word is thought to have been coined by the Jacobins themselves, but the French terrorisme is not recorded until 1798. If the Jacobins did coin it, they are the only ones to have used it self-referentially. The term has always had negative connotations since then.

One of the reasons that the Reign of Terror was indeed recognized at the time to be so terrible was its vivid contrast, both in methods and results, to the experience of the then-very-recent American Revolution that had originally inspired the French Revolution. The Columbia Encyclopedia tells us that the Reign of Terror was

characterized by a wave of executions of presumed enemies of the [French] state. Directed by the Committee of Public Safety, the Revolutionary government’s Terror was essentially a war dictatorship, instituted to rule the country in a national emergency....

Responsibility for the police measures taken during the [Reign of Terror] lay also with the Committee of General Security, which had control over the local committees formed to ferret out treason. The Law of Suspects (Sept. 17, 1793) defined those who could be arrested for "treasonable" activities; it was enforced by the Revolutionary Tribunal. Estimates vary as to the number of victims; thousands were guillotined, and over 200,000 were arrested. Representatives on mission, who were agents sent out by the Committee of Public Safety, had absolute power to enforce the terror, including the establishment of special courts.

The counterrevolutionary uprising in the Vendée (Oct.–Dec., 1793), which was suppressed with a heavy loss of life, and revolts against the Convention in Lyon and several other cities served as a backdrop to the intensification of the terror of Jan.–Mar., 1794. In Nantes mass drownings called noyades claimed at least 3,500 lives. In June, 1794, the Committee of Public Safety introduced a new law, which strengthened the power of the Revolutionary Tribunal; the court could return only verdicts of either acquittal or death. Executions increased greatly.

But Mr. Williams is also wrong about how the British Crown perceived the American revolutionaries. It's true, of course, that some of those fighting for American independence from Britain were rough and violent men. Tory colonists fled, or were sometimes roughly driven, into exile, and there were occasional incidents of violence against civilians by both sides or their sympathizers. The Brits had pioneered these rough practices in and after their own civil wars; no one (and certainly no Irishman) ever called Oliver Cromwell "Mr. Lord Protector Nice Guy"; and a sizeable chunk of the American colonists or their forebears had fled similar and worse practices under the British government. King George III famously accused the American people in general of such "knavery" that Britain might be better off without them, and his 1775 declaration of rebellion specifically accused the American revolutionaries of treason; rebellion; disturbance of the peace; making war against him; and the "obstruction" of, and the "oppression" of those carrying out, "lawful commerce" (that tea party business). But terrorism, by that or any other name? Nope.

Heck, Ben Franklin only broke familial relations with his Tory son, rather than trying to have him beheaded. Patrick Henry's cry was "Give me liberty or give me death!" rather than "Give them all death, the guilty and the innocent alike, slowly and painfully and publicly!" Nathan Hale wasn't quoted as saying, "I regret that I haven't killed thousands of innocent women and children for my country." George Washington was not Guy Fawkes, and although his artillery bombardment (partly directed by Alexander Hamilton) of British fortifications at Yorktown was indeed terrifying, those who marched out with Cornwallis were Redcoats, not civilians. Whatever his other personal failings, Thomas Jefferson had never murdered, raped, and pilaged his way through Canada. James Madison and James Monroe are rather more closely associated with the Bill of Rights than with jihad or fatwa. When John Adams, John Jay, and Ben Franklin signed the Treaty of Paris on America's behalf in 1783 to formally end the war, not one of them had explosive charges strapped around his waist; and his Britannic Majesty's express purpose in joining in that document was not to put a stop to anything remotely akin to "terrorism," but rather "to forget all past misunderstandings and differences that have unhappily interrupted the good correspondence and friendship which [Britain and the United States] mutually wish[ed] to restore, and to establish such a beneficial and satisfactory intercourse between the two countries upon the ground of reciprocal advantages and mutual convenience as may promote and secure to both perpetual peace and harmony."

If indeed Brian Williams' life has, as he claims, been "spent reading and loving American history," he should just have said:

I was badly wrong, and I'm very sorry for it. No U.S. President has ever been a "terrorist" even as that word came to be used shortly after the American Revolution. The British Crown considered the Founding Fathers to be revolutionaries and traitors, but never would have suggested that their primary means of trying to achieve political power was by the systematic and deliberate use of violence and threats of violence against civilians, because that was not even arguably true even from the British Crown's point of view.

While he was at it, he could also have mentioned that Gitmo also isn't the gulag of our times, I suppose.

But as it is, we're left with three possible conclusions, or some combination of them: Mr. Williams is indeed very stupid; or Mr. Williams lacks even a rudimentary understanding of morality and decency, right and wrong; or Mr. Williams was being less than fully truthful when he claimed to be a student of history. "Revolutionary" and "terrorist" are not now, and never have been, synonyms.

You know you're a wonk when ...

... as just happened to me, your TiVo decides (based on your recent viewing patterns) to record C-SPAN's coverage of the U.S. Senate among its "Suggestions."

Does Biden's plagiaristic past preempt his presidential prospects?

InstaPundit Glenn Reynolds writes today of Joe Biden's non-coy declaration of his intention to seek the Democratic Party's presidential nomination in 2008 (hyperlinks in original):

WITH JOE BIDEN RUNNING FOR PRESIDENT, we're likely to hear more about the rather lame plagiarism scandal that sunk him in 1988.

You can read a defense of Biden in that role, from my book (with Peter Morgan), The Appearance of Impropriety, if you like. I think that Biden was shafted by the Dukakis campaign, with help from the press, and that the whole flap was silly.

Lest you think Prof. Reynolds is a Biden supporter, I must also note that his post goes on to argue that Sen. Biden's candidacy "ought to have been sunk" based on substantive positions he's taken on legislation in the past and his performance as a senator. However, having not only read the chapter excerpt from his and Mr. Morgan's book that Prof. Reynolds links, but having actually bought and read the entire book, I felt semi-qualified to respond to his bit of instapunditry on the specific topic of Sen. Biden's plagiaristic history.

*******

To round out my research before counterposting, I turned to every blogger's best online friend. And in an ironic coincidence, I promptly found one online resource — an opinion piece written by a journalist-pundit whom I like and respect, and with whom I've occasionally traded emails — which appears to have incorporated, without attribution, a one-paragraph description of Sen. Biden's 1988 campaign implosion that appeared in a second online resource (apparently published some years earlier) almost word-for-word.

Was this more or less consequential than Sen. Biden's well-publicized lifting of campaign speech language from British Labor party leader Neil Kinnock and other, previous examples of Sen. Biden's "stressless scholarship"? I admit to a pre-existing bias, but I would still argue that it's substantially less consequential. In all likelihood, my pundit friend had begun his writing by gathering background facts on the internet; perhaps he cut-and-pasted the paragraph into his notes, lost track of the original source, and/or forgot that it was a direct cut-and-paste, rather than his own summarization, when that paragraph made its way into the factual predicate of his own opinion essay. The facts summarized in that paragraph are essentially undisputed; the language used is unremarkable, comprising crisp but not soaring prose. The essay ought to be judged based on the merit of the opinions expressed, and its writer isn't running for president.

And yet: That pundit's reputation and credibility will inevitably affect the way his opinions are received and perceived. His reputation and credibility are in part based upon his record for accuracy and integrity. So yes, he should have included an attribution, or else have been more careful not to lift even this noncontroversial material wholesale. It appears that he was, at a minimum, very sloppy on this occasion. And sloppy may be excusable, but it's still not good.

*******

I agree with a great deal of the Morgan-Reynolds book — a central premise of which is that the more-or-less continuous post-Watergate frenzy over public ethics has unjustly flattened the moral landscape and led to the trivialization of genuinely bad acts. I also agree — and it would be hard for anyone to dispute, I think — that Sen. Biden's 1988 campaign was the victim of the Dukakis campaign's very hardball primary politics. And even had he not been caught in them, Sen. Biden's  bad acts in lifting some moderately well-crafted phrases from Kinnock's campaign speeches into his own, or in lifting five pages from a law review article into his own law school class submission, or his exaggeration of his academic record weren't going to actually win him any elections, or confer any substantial advantage upon him as a politician. Yes, there's a pattern; but it's a pattern of small-scale thefts, not grand larceny. And I emphatically agree with Prof. Reynolds that Sen. Biden's substantive record and political positions more than suffice to make him an unattractive candidate (although in every instance, he's been pandering to a constituency who will almost by definition disagree with that assessment).

Still, I can't quite swallow Prof. Reynolds' near-dismissal in his post today of Sen. Biden's past pattern of plagiarism. Rather, I think that the pattern does indeed speak to Sen. Biden's fitness for high public office. But it's not relevant because it shows that he is irredeemably craven or immoral. No, the real problem with Biden is not the alleged sin but the obvious stupidity it bespoke.

That last sentence I've lifted almost verbatim from the Morgan-Reynolds book (at page 146), by the way. (The "bespoke" is my own; Glenn's rarely that stuffy.) And to make my rhetorical point — here, that Prof. Reynolds himself has previously recognized the same significance of the Biden plagiarism record for which I'm arguing here — I absolutely must include an attribution!

*******

When I include that attribution, a diligent scholar can learn that Messrs. Morgan and Reynolds were, in turn, only quoting — with full and footnoted attribution — a Chicago Tribune column from September 1987 by Jon Margolis entitled "For Joe Biden, as with Hart, It's the Stupidity that Hurts." That diligent scholar will further find that in my near-quote of the sentence in which Morgan and Reynolds quoted Mr. Margolis, I've omitted an important qualifier: The full sentence written by Morgan and Reynolds reads (anally compulsive bracketed comma mine, but double quotation marks and footnote superscript in original):

The real problem with Biden, we were told[,] "is not the alleged sin but the obvious stupidity."²¹

So in fact, the sentiment I've attributed to Prof. Reynolds — arguably inconsistent with his post today — isn't necessarily attributable to him or to Mr. Morgan, but to Mr. Margolis!

When writing about ideas, and in particular other people's ideas, then, proper attribution can become very important indeed — not just so that credit is given when due, but so that conflations or misstatements can be identified and exposed more readily. When Prof. Reynolds is writing — whether for his InstaPundit blog or his MSNBC column, or for a popular press book, or for a law review article — his intellectual honesty obliges him to compulsive attribution. And I feel the same compulsion to "show my own work" and distinguish it from others' work; as I've written before, I think this instinct and habit is commendably common among bloggers.\^*/

I don't expect politicians to necessarily share in that compulsion, much less to adhere meticulously to standards for academic publications. But I, and I think the American public, do insist that presidential-caliber politicians not be consistently, self-destructively stupid in the minor transgressions that we might otherwise forgive.

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

\^*/Then why, you may ask, have I not linked the two online sources I referenced in the beginning of this essay? It's because I'm speculating, and not making an accusation; I could be mistaken; and I've emailed the pundit in question, with a link to this post, to point out the similarities in the language in case he has an explanation that hasn't occurred to me.

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

UPDATE (Mon Jun 20 @ 5:20pm): The unnamed pundit referenced near the beginning of this essay responded promptly and graciously to my emailed inquiry. He acknowledged the irony not only of his own failure to credit his original source in writing about Biden's plagiarism, but additional irony from the fact that his source was someone with whom he was well acquainted and whom he'd have been very happy to credit. He agrees that he was indeed sloppy with respect to the paragraph in question, and I'm quite certain that his self-chastisement now that it's been brought privately to his attention will prompt him to avoid this particular sin in the future. Given all that and the inconsequential content of this particular paragraph, my own judgment is that no good purpose would be served by my being more specific as to names or providing direct links. If he should ever run for president, however ....

Why'd some rabid Dems vote for Griffith, and "moderate" Dems against him?

Edward Whelan, writing on NRO's Bench Memos blog, points to peculiarities in the roll-call vote on the confirmation of Thomas Griffith to the United States Court of Appeals for the D.C. Circuit:

It should come as no surprise to learn that Bayh, Byrd, Johnson, Landrieu, and Salazar were on one side, and Biden, Dodd, Durbin, Levin, and Schumer on the other. But what was a surprise — to me, at least — is that the former set of five more moderate Democrats voted against Griffith’s nomination, and the latter set of five very liberal Democrats voted for the nomination.

I'm by no means "closer to the Griffith confirmation battle" than Ed, but I'm going to hazard a guess as to an explanation anyway.

The main objection to Mr. Griffith's nomination was his bar status — his arguable practicing of law in Utah without a proper license there, and his neglect in ensuring that subordinates had properly paid the fees to maintain his license in the D.C. Bar.  Although I was briefly on an unauthorized practice of law committee of the State Bar of Texas some years ago, I'm not a real expert in that subject. But from what I know of it and of Mr. Griffith's situation, I'm inclined to accept that since he wasn't regularly appearing in court in Utah, and since his "office practice" as an in-house university lawyer there was conducted along with licensed Utah lawyers, the first criticism isn't valid. I think the second is a far more troubling problem, however, given how long it persisted. It was a serious lapse in professional diligence on his part. But I think it's ultimately excusable in, and outweighed by, the context of his entire career and record, and I'd have voted to confirm him were I a senator.

Whether valid and outcome-determinative or not, however, these criticisms aren't issues of politics, ideology, and judicial philosophy, but of personal competence and professional character. If one credits Bayh, Byrd, Johnson, Landrieu, and Salazar with principled concern for personal competence and professional character, that could explain their votes.

No one, however, would ever be confused into believing that Biden, Dodd, Durbin, Levin, or Schumer care much about anything except their party's success on matters of politics and ideology. Their votes were cynically political, a recognition that the Griffith fight was a loser for their side; and as such, solely to reduce the public perception of monolithic Democratic opposition to Dubya's judicial nominees, they threw their votes to the "aye" side without regard to Mr. Griffith's individual merits and problems.

My instinct toward snark as a blogger counsels against ever ascribing principle to any political opponents. But that would explain the "moderate" Democrats' votes. Snarky instincts and my willingness to sometimes rise above them notwithstanding, however, you'll never persuade me that the normally rabid group came to a measured, sincere conclusion that Mr. Griffith is duly qualified and that they therefore should put aside partisan politics to confirm him. That a rabid dog didn't bite one potential victim does not mean the dog has been cured, even temporarily, of its rabies.

"If we gang-mimed the guy ..."

James Lileks is the snark-master. Good snark is built on extreme sarcasm that reveals underlying truths, though. And so, as part of a post in which "the true horror of American Torture has been revealed," Lileks correctly explains that 9/11's would-be-20th-hijacker Mohammed al Qahtani "was broken by the concise application of cultural insensitivity." Read the whole thing, but not while drinking any beverages capable of nasal irritation.

U 2 can B smart if U read The New York Times Magazine

Jeffrey Rosen sports degrees from Harvard, Oxford, and Yale, and he's a tenured Professor of Law at The George Washington University Law School. His short biography on that law school's website reveals that he's the legal affairs editor of The New Republic, and he's a contributor to The New York Times Magazine, The Atlantic Monthly, and The New Yorker (where he has been a staff writer). Clearly, this is a man so smart that he can choose to work and write only for institutions that include a capitalized indefinite\^*/ article as part of their names. I almost feel like I should refer to him as "The Jeffrey Rosen."

Prof. Rosen's latest effort is in today's The New York Times Magazine. In an essay called "Center Court," Prof. Rosen takes this data for his premise:

An independent poll conducted by Quinnipiac University found that 55 percent of respondents thought the filibuster should be used to keep unfit judges off the bench, as opposed to 36 percent who thought it should not... [And i]n the days before [what Prof. Rosen earlier has described as "the compromise reached by a bipartisan group of senators last month that defused, or at least delayed, a showdown on judicial filibusters"], a CBS News poll found that 68 percent of respondents said that Congress ''does not have the same priorities for the country'' as they do. By contrast, the Quinnipiac poll found that a 44 percent plurality approved of the way the Supreme Court is handling its job.

Now, although I never have attended Harvard, Oxford, or Yale, I do claim to have heard of them before. But I'm certain that it must be some deficit in my own education which prompted my puzzlement over Quinnipiac University. The power of Google has permitted me to learn this morning that Quinnipiac is "a community of more than 8,000 students, faculty and staff located in Hamden, Connecticut." And in the case of CBS News' poll in particular, I'm reminded of a bit of wisdom that I'm told is a part of the core curriculum at Harvard, Oxford, and Yale: "Even a blind hog can sometimes find an acorn." So let us presume and stipulate for purposes of my own essay this afternoon, gentle readers, that Quinnipiac University and CBS News are both trusted and respected institutions whose polling results, as quoted and compared by Prof. Rosen, may safely be taken as gospel — a sound basis from which to draw profound conclusions about the current state of the American polity, including its public's opinions of and relations to various branches of its federal government.

For that is what Prof. Rosen has done. He writes (boldface mine):

[I]t would seem that, on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O'Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid. Congressional Republicans and Democrats are pandering to their bases, wooing conservative or liberal interest groups that care intensely about judicial nominations because they're upset about the current direction of the Supreme Court. Meanwhile, the country as a whole seems to be relatively happy with the court and appears to have no interest in paralyzing the federal government over a confirmation battle that would do little to affect the court's overall balance — a battle that is likely to take place this summer if Chief Justice William Rehnquist steps down.

How did we get to this odd moment in American history, when unelected Supreme Court justices are expressing the views of popular majorities more faithfully than the people's elected representatives?\^**/

And he restates his conclusion a few paragraphs later, in case you missed it the first time:

[T]he conservative interest groups have it exactly backward. Their standard charge is that unelected judges are thwarting the will of the people by overturning laws passed by elected representatives. But in our new topsy-turvy world, it's the elected representatives who are thwarting the will of the people, which is being channeled instead by unelected judges.

Well, golly. This struck me at first as more than just a little bit odd, momentary or not. As I once heard the Chancellor of Harvard University say (or maybe it was the Dean of the Yale Law School), "I never woulda thunk it!" But lookie at Prof. Rosen's proof, friends and neighbors: not one, but two — two! — polls. One of them has a "plurality" — and that sure sounds to me like a bunch.

(I'd have looked up that word "plurality" on Google, but I got distracted by a sidebar in Prof. Rosen's article that quotes the results of another poll, this one by some outfit called Gallup, which sez that 16% of the public trusts the Supreme Court "a great deal," and 25% trust it "quite a lot." Another 38% trust it "some," sez this Gallup group. And 19% of Americans trust the Supreme Court "very little to none." This got me all confused into thinking that if you take five average Americans, two will give the Supreme Court a thumbs-up, and three won't. But I apologize for this diversion. Math isn't my strong suit, and certainly the clever editors of The New York Times Magazine wouldn't print a poll showing that the, umm, biggest single chunk (whatever that's called) of Americans only trust the Supreme Court "some" — certainly not in the very same article where Prof. Rosen has already proved that the Supreme Court and the whole danged American public are purty much exactly on the same wavelength.)

But the really important thing that Prof. Rosen has taught me from this logical exercise, gentle readers, is how you can take these poll results from Quinnipiac and CBS News and use 'em to prove even more. Now, I'm not quite sure how he gets there — maybe the editors trimmed out the math part — but Prof. Rosen warns us that if "the president and Congress may try to push the courts toward the extreme right to please their base," then

the Supreme Court, over the long term, could become just as much in the thrall of ideological extremists as the White House and Congress. And then the views of a majority of the American public might not be represented by any of the three branches of the United States government — an alarming prospect for the world's leading democracy.

I'm going to step way out of line here and criticize Prof. Rosen for one thing: He's figured out and proved, it appears, that the White House and Congress are "in the thrall of ideological extremists" and that neither of them represent the views of a majority of the American public! Now that's big news, it seems to me! It ought to be up at the top of his article, I'd say. And I think the editors of The New York Times Magazine should have left in the math parts where Prof. Rosen proves that a majority of the American voters last Nov. 2004 actually voted for John Kerry and the Democrats.

That leads me to one last thing I need to explain, though, so that Prof. Rosen's points will all be clear to you. You may have heard, from time to time, people talk about "polls" meaning those places where people vote in elections to pick presidents and senators and congressmen and such. Those aren't the same kind of "polls" that Prof. Rosen's article is based on. He uses the ones that really count — the ones from CBS News and Quinnipiac University. Don't get confused by that. If you'd been to Harvard, Oxford, and Yale and were a Professor of Law and wrote for all those "The" publications, you'd understand pretty much automatically that those "vote"-kinda polls, where everyone who's registered can cast a ballot, don't matter. And if you pay attention to them, you'll just get all confused, and then you won't understand that Sandra Day O'Connor and The Jeffrey Rosen know what you're thinking even better than you do.

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

\^**/I don't want to give away here the surprise answer that Prof. Rosen's come up with to this question, but I'll give you a hint: It's mostly due to the efforts of a former exterminator from Sugarland, Texas. But don't worry, because The Terminator will save the day in the end.

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

UPDATE (Sun Jun 12 @ 4:30pm): Andy McCarthy makes the same points I did, and some more, but with way less snark.

Three-judge federal panel again tosses Dem complaints about 2003 Texas Redistricting

I. Introduction

When it comes to congressional redistricting law, as compared to someone like Rick Hasen — a law professor who studies and teaches the subject, and blogs about it as well — I am, admittedly, a dilettante. Put another way, neither side in the on-going legal struggles over Texas' congressional redistricting has been beating down my office door to hire me, and instead they've preferred, quite appropriately, to turn to genuine specialists in this arcane-but-important legal discipline.

But one of my goals as a lawyer-blogger has been to try to simplify — to translate, if you will — the legal concepts and events of that struggle into language that a diligent and well-educated nonlawyer can understand. I'm also a pundit, though, with a self-admitted political viewpoint; and I readily admit that my interpretation and commentary on those concepts and events reflects that viewpoint. In short, while I've been trying in my many, many posts on the 2003 Texas redistricting to give a layman-intelligible explanation of what's been going on in the court challenges to the 2003 Texas redistricting plan, I've also been arguing for the legal and practical fairness of that plan. I don't defend partisan gerrymandering as being a wonderful thing in the abstract; but given that it exists, I've been defending this particular exercise of it as being both fair and legal.

At the moment, I'm rubbing my eyes after reading 58 pages of very, very dense and very, very carefully crafted legal prose: yesterday's decision by the three-judge panel to whom the United States Supreme Court sent back the Texas redistricting case for reconsideration "in light of" the Supreme Court's 2004 decision in the Pennsylvania redistricting case, Vieth v. Jubilirer. It's tough sledding, folks — it presumes a whole lot of pre-existing knowledge on the part of its readers that, quite frankly, even most lawyers lack.

Now, I don't fault the judges for this, because a written opinion that was both comprehensive and user-friendly would have run into the thousands of pages, given the ground that this decision tries to cover. This is definitely MEGO-inducing ("mine eyes glazeth over") stuff. So it's also no surprise that the mainstream media — for example, the Associated Press, the Houston Chronicle, and the Dallas Morning News — don't tell their readers very much more that's obviously meaningful besides who won (the Republicans, again) and what both sides said about the result (Dems: "Just a way-station on the way back to the Supreme Court"; Republicans: "This ought to end it.") Prof. Hasen provides his initial short (but substantive) take — definitely better than the MSM's reporting — here, but it's still "inside baseball" that presumes a lot of pre-existing knowledge (and reasonably so, given his blog's intended audience of professionals).

So once again, while I invite you to read it for yourselves, I'll plunge into the dense prose to try to tell you what I believe has happened. And then I'll tell you what I think of it, and what I think is likely to happen next.

II. Who was on the three-judge panel, and what did it do?

Yesterday's decision was from the same three-judge panel that initially rejected the Dems' legal challenge to the 2003 Texas redistricting in a 127-page decision that I blogged about in January 2004: United States Circuit Judge Patrick E. Higginbotham  (appointed by Pres. Ford to the district court bench, elevated by Pres. Reagan to the Fifth Circuit), and United States District Judges Lee H. Rosenthal (appointed by Pres. G.H.W. Bush)\¹/ and T. John Ward (appointed by Pres. Clinton).\²/

Yesterday's result — Dems lose — was the same. But unlike the January 2004 result, yesterday's ruling was unanimous among all three judges on the panel. This time, however, the main opinion for the panel was specifically identified as being written by Judge Higginbotham. (I'd have guessed as much from its style; and I suspect that again it was largely his own initial drafting, rather than coming from his law clerks.) Judge Ward, who dissented in part from the January 2004 decision, this time concurred fully in the result, but again wrote a separate opinion expressing his own views.

III. What did the three-judge panel say?

Of the U.S. Supreme Court's decision in October 2004 to send this case back to the three-judge panel for further consideration, I wrote "it's a shallow, technical, procedural, and — in all probability — a purely temporary victory for the Dems that at best gives them one more bite at an apple they've already gone hungry on before." And as Prof. Hasen wrote then, and I agreed,

What is the lower court to do? The lower court [judges on the panel] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with.

But no one can fault this panel for failing to give it the old college try. "The light offered by Vieth is dim," writes Judge Higginbotham dryly, and with considerable understatement he notes that "the search for a core holding is elusive." Politely but accurately, he adds: "This observation is not a criticism, but a recognition that Vieth reflects the long and twisting historical narrative of political gerrymanders in the United States."

Next in Judge Higginbotham's opinion follow accurate descriptions of the various opinions from the fractured Vieth Court, and of the factual history in Texas of Democratic gerrymandering and Republican counter-gerrymandering as the parties have switched majority status over the last four decades. The context of the latter, though, can give the panel no help resolving the conflict and confusion within the former. The panel rejects — rightly and persuasively, I think — all of the suggested interpretations of Vieth and attempts to harmonize its conflicting approaches that were offered by the Dems. The panel opinion also has an interesting discussion of whether gerrymandering does or doesn't cause noncompetitive districts, but I think that's mostly an academic digression that's not key to any result that the panel reached.

So what "further consideration ... in the light of Vieth" could the panel give to its own January 2004 ruling upholding the 2003 Texas redistricting? Well, since Vieth produced no "core holding," the panel here ultimately resorts to the roughest — but in my view, the only appropriate — use of that precedent. In a nutshell: Since the partisan skew resulting from the Pennsylvania gerrymander was worse than the partisan skew resulting from the Texas gerrymander, and since the Supreme Court left the Pennsylvania gerrymander in place anyway, yesterday's opinion says this panel won't overturn the Texas gerrymander for being "too partisan." Here's the panel's own explanation:

In short, under the plan passed by the Pennsylvania General Assembly and upheld by the [Supreme] Court in Vieth, the party that garnered, on average, less than half the vote in statewide races was able to capture nearly two-thirds of Pennsylvania's congressional seats. In contrast, the plan passed by the Texas legislature resulted in the election of twenty-one Republicans and eleven Democrats to the House of Representatives in 2004, when the Republican Party carried 58% of the vote in statewide races and the Democratic Party carried 41% of the vote.

... [I]f the effects of the Pennsylvania plan did not provide a basis to find excessive partisanship in redistricting, it is hard to see how the effects of the Texas plan make it constitutionally offensive.

That's the nub of this 58-page decision, friends and neighbors.

The Dems, anticipating the likely result of this brutally simple comparison, had labored mightily to persuade the panel that the result of Vieth ought not dictate the results reached by this panel. But they utterly failed to persuade the panel to reconsider the original rejection of the Dems' "twice in one decade" argument from the Dems' first challenge to the 2003 Texas redistricting, which the Dems launched before the third legislative special session in 2003 had succeeded in passing a plan. This is no surprise: the Dems had no precedent for that argument then, and had none now either.

But the Dems, supported by an amicus group of "University Professors"\³/ had made another ingenious and ultimately disingenuous attempt to distinguish the Texas situation from Pennsylvania's. The "one person, one vote" ("OPOV" for short) line of Supreme Court cases, they argued, effectively prohibited the Texas Legislature from doing their mid-decade redistricting based on three-year-old results from the 2000 Census. The Dems knew, of course, that — as Judge Higginbotham's opinion also recognized — it would be impossible for Texas to duplicate the national Census mid-decade and solely within Texas, so the effect of this proposition would be to indirectly prohibit all mid-decade redistricting. But the Supreme Court has approved many redistrictings that were based on more than two-year-old Census data — specifically including redistrictings done by state legislatures wishing to replace (as here) an earlier-in-that-decade court-crafted map. And in fact, even if redistricting is done in an -01 year, the data from the previous year's Census will already be substantially inaccurate. Therefore, in the panel opinion for yesterday's majority, Judges Higginbotham and Rosenthal refuse to allow the perfect [i.e., mathematical precision based on absolutely current census data] to become the enemy (actually, the assassin) of the good [i.e., our system's deliberate historic choice to prefer that redistricting be done by (democratic) state legislatures rather than (un-democratic) three-judge federal court panels].\⁴/

Judge Ward's special concurrence buys into this pitch, but basically says that only the Supreme Court has the power to turn it into binding law. As such, I'm quite certain that it will be the cornerstone of the Dems' inevitable appeal back to the Supreme Court — which leads to my next topic.

IV. What will happen next?

The one thing that is absolutely certain is that the Dems will make good on their announced and inevitable intentions to appeal yesterday's ruling back to the Supreme Court. For obscure reasons unique to voting rights cases that I've explained before, the Supreme Court cannot just refuse to rule on the merits of that appeal by issuing one of its typical "cert denied" orders. But while it must (in theory) address the merits of yesterday's ruling, the Supreme Court need not grant oral argument or write a full-blown opinion (or more likely in any of these cases, set of opinions). And I predict that the Supreme Court will, in due course and in no particular hurry, summarily affirm yesterday's ruling without either entertaining oral argument or explaining their decision.

It's theoretically possible, of course, that the arguments of the amicus University Professors (as embraced by the Dems) will persuade the Supreme Court to hold oral arguments and to make new precedent. It's possible that by some sort of miracle, a coalition of at least five Justices (perhaps including one or more new Justices by then) will coalesce out of the chaos that ruled in Vieth. Impassioned briefs will indeed be written and filed (and impressive legal fees will indeed be charged and paid for them). But as Judge Higginbotham's opinion notes, the University Professors' argument "as presented comes unadorned with supporting case citations." This is a polite way of saying: "Cute, guys, but you're just makin' this stuff up as you go, and you can't point to any other court that's already done what you're asking us to do now." That doesn't bode very well for the Dems' chances in their next trip back to the Supreme Court.

Realistically — and on this, I think even the Dems' lawyers would agree, if you could ever get them to be privately candid on this subject — the Dems' chances have gone from "long-shot" to "moon-shot" status. The fat lady sang a long time ago in this opera, and all that's left are some assorted violas and bassoons still squawking because they won't/can't/don't want to admit that the conductor has already left the podium. The 2003 Texas redistricting map will almost certainly remain in place for the rest of this decade.

Gerrymandering causes perennial (or at least decennial) bloodbaths not just in Texas but elsewhere, so the Supreme Court will have many future occasions to reconsider Vieth and to provide something more coherent than its "dim light." But Beldar sez: Don't hold your breath for the next five years (unless you're working and getting paid by the hour to do so).

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\¹/Disclosure: As I've noted before, I practiced law with Lee Rosenthal for several years at Baker Botts in the 1980s; I like and admire her greatly; and I still consider her a friend (although we've had no social contact for many years, and I only rarely appear before her professionally these days).

\²/As I've also written before, I think it is facile, misleading, inaccurate, and insulting to suggest that the results of these cases correspond directly to whether the panels are composed of appointees of Republican or Democratic presidents. But those appointments are objective bits of information, and some folks insist on making arguments from them (nevertheless often misstating those objective facts in the process).

\³/The question "What left-wing domination in academe?" is even funnier, of course, than "What liberal bias in the mainstream media?"

\⁴/I recognize that in writing a sentence like this one, I'm utterly failing — alas and alack, mea culpa maxima! — in my goal of translating the panel's dense legal prose into clear lay language. At least my version is boiled down to one obscure paragraph, though, instead of filling multiple pages.

Hypothetical profiles in courage from the floor of the Senate

Sen. Patrick Leahy (D-VT) just mentioned "Profiles in Courage" while lamenting the time being spent in the Senate for debate on Dubya's political nominees. This prompts a flight of fantasy on my part.

From the Congressional Record (Neverland Edition) for Thursday, June 9, 2005:

THE PRESIDENT: The chair recognizes the Distinguished Senator from Nevada.

MR. REID: Mr. President, the Majority Leader and I had previously agreed to split between our respective parties the many hours of further debate permitted on the Senate floor for each of President Bush's judicial nominees.

However, the members of my party have unanimously decided to give up their opportunity to posture and preen for C-SPAN's cameras in an empty Senate Chamber. We will forego our right to indulge in windy rhetoric that will have no effect on the upcoming votes. We will forego the corresponding opportunity to parade video clips and transcripts of those speeches to the left-leaning special interest groups who support our re-election campaigns.

We therefore cede back to the Senate all of the unused time allocated to members of our party for further floor debate of these nominees, and ask for unanimous consent that the up-or-down votes be taken immediately and without further ado, so we can get on to other pressing matters of national interest.

THE PRESIDENT: Without objection, so ordered.

BeldarBlog: Your new home for outrageous political fantasies beyond the wildest dreams of any patriotic and practical American.

If an overdose of ironic disingenuousness could be fatal ...

... then Senate Assistant Minority Leader Dick Durbin (D-IL) would have fallen dead today on the floor of the United States Senate.

I know this is true because I just heard Sen. Durbin arguing against the confirmation of Eleventh Circuit judicial nominee Bill Pryor in large part on grounds that Judge Pryor (about whom I blogged at length in February 2004) shows insufficient respect for, and can't be trusted to follow, prior precedent of the federal appellate courts. As part of his speech, Sen. Durbin asserted that he and Sen. Kennedy both believe that Judge Pryor's temporary recess appointment was unconstitutional.

And I know this is true because I've also read Evans v. Stephens, 387 F.3d 1220, 1227 (11th Cir. 2004) (en banc), cert. denied, 125 S. Ct. 1640 (2005) [at page 16 of this .pdf file]:

We are not persuaded the President exceeded his constitutional authority in a way that causes Judge Pryor's judicial appointment to be invalid. We conclude that Judge Pryor may sit with this Court lawfully and act with all the powers of a United States Circuit Judge during his term of office.

Accord, United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962).

So who doesn't respect precedent? And who's misrepresenting and distorting federal constitutional law to advance a blatantly partisan agenda?

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UPDATE (Thu Jun 9 @ 12:50pm): And now I'm listening to Sen. Chuck Schumer (D-NY) pillory Judge Pryor for being the lone state attorney general to file an amicus brief challenging the constitutionality of the federal Violence Against Women Act. Oh, horrors! Judge Pryor must be in favor of wife-beating, suggests Sen. Schumer.

Except that the Supreme Court indeed held that act to be unconstitutional. United States v. Morrison, 529 U.S. 598 (2000). Bill Pryor was arguing against federal intrusion into criminal law matters traditionally the province of state governments — in other words, he was doing exactly the job that a state attorney general is ethically and duty-bound to do on behalf of his client (here, the State of Alabama) — and he was correct in his reading of the law, according to the Supreme Court.

So again, I ask: Who's distorting and disrespecting federal precedents to promote a partisan agenda?

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UPDATE (Thu Jun 9 @ 1:30pm): And now Teddy himself — about 90 seconds after insisting that Bill Pryor has no respect for previous federal judicial precedents — says that Dubya's recess appointment of Judge Pryor was "in all likelihood, an unconstitutional use of the recess appointment power." Why am I not surprised?

At 2:00pm: Now — after a half-hour of demagoguery and distortion of Bill Pryor's record — Teddy's blaming Dubya for tying up the Senate with controversial judicial nominees when the Senate should be doing other business. "Take pity on me, Your Honor, I'm an orphan!" cries the parenticidal boy. Oh, what a day for irony.

At: 3:25pm: 53-45 final vote to confirm Judge Pryor. Congratulations, sir!

Kranish and the Boston Globe should post Kerry's records for public review

Today's Boston Globe contains two articles by staff reporter Michael Kranish that discuss Navy records pertaining to Senator (and failed presidential candidate) John F. Kerry.  The articles say that the Globe obtained the records pursuant to a Standard Form 180, signed by Sen. Kerry, which named the Globe as the party to whom the records were to be directly released. In one article, Mr. Kranish asserts:

The lack of any substantive new material about Kerry's military career in the documents raises the question of why Kerry refused for so long to waive privacy restrictions. An earlier release of the full record might have helped his campaign because it contains a number of reports lauding his service. Indeed, one of the first actions of the group that came to be known as Swift Boat Veterans for Truth was to call on Kerry to sign a privacy waiver and release all of his military and medical records.

The second article focuses on Kerry's Yale undergraduate grades and concludes that Kerry was a "lackluster student" whose grade average was "virtually identical" to Dubya's. (Although in fact Kerry's grades appear to be slightly worse, both can fairly be characterized as "lackluster.")

Although both articles make interesting reading, I can't help feeling considerable skepticism about their conclusions.

Mr. Kranish and the Globe have indeed sometimes been critical of Sen. Kerry. But at other times — in particular with their trashy and unethical treatment of Captain George Elliott — they've skewed facts in ways that have been extremely beneficial to Sen. Kerry. And sometimes they've simply made incredible and inexcusable factual bloopers that likewise worked to Sen. Kerry's benefit — as, for example, in their biographical book "John F. Kerry: The Complete Biography by the Boston Globe Reporters Who Know Him Best," in which they described Sen. Kerry as "a man who was severely wounded in combat [and] who watched men under his command die." As I wrote last summer, the first statement is absolutely false. Kerry's wounds were trivial, but this egregious factual mistake about them wasn't. The second statement is unsupported and almost certainly an exaggeration.

Moreover, despite Mr. Kranish's subjective conclusion that the records he's reviewed contain no "substantive new material," his articles utterly fail to address, either in detail or in summary form, some of the most controversial questions about Sen. Kerry's war service — including in particular the questions regarding Sen. Kerry's discharge.

The Boston Globe should immediately post all the records, and the signed Standard Form 180, as .pdf scans on their website. Perhaps they already plan to do so, and simply haven't gotten the scans made yet. But even were there no past examples to create doubts about the Globe's and Mr. Kranish's objectivity and accuracy, those members of the public who are inclined to study the actual source documents — rather than accepting as gospel Mr. Kranish's pre-digested conclusions — should have the chance to do so.

If the Globe and Mr. Kranish feel themselves to be precluded from posting the source documents because of some lack of further authorization from Sen. Kerry or other privacy concerns, they should disclose the facts about that.

The Ra^thergate memos were only debunked when the public was able to examine them. Perhaps Mr. Kranish's and the Globe's analysis of the new records has been fair, balanced, accurate, and complete. But there's no excuse for preventing the public from seeing the source documents.

(Mr. Kranish's email address is [email protected], and the Globe's online feedback form can be accessed through this link. And there are many, many links to blogospheric reactions similar to mine at Michelle Malkin's, Captain Ed's, and Tom Maguire's blogs.)

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Update (Tue Jun 07 @ 7:30pm): Hugh Hewitt and N.Z. Bear also had reactions very similar to mine.

Belated self-congratulations; and an example of how "judicial conservatism" differs from "political conservatism"

In February of 2004, I posted (with my usual windy length) about the Fifth Circuit's then-pending consideration of an appeal brought by Ms. Norma McCorvey — perhaps the most well-known plaintiff in the last half century, albeit under the pseudonym "Jane Roe" in Roe v. Wade. Ms. McCorvey, having had a profound change in her personal convictions about abortion, sought to reopen her original case in hopes of reversing the Supreme Court's ruling. My liberal friends over at Burnt Orange Report were terribly concerned that she might win, based on what I thought was a misreading of the fact that the Fifth Circuit had scheduled oral argument on her appeal from the district court's dismissal of her case. They were particularly concerned — unjustifiably so, I thought — that a politically conservative judge like the Hon. Edith H. Jones of the Fifth Circuit might take this appeal as an opportunity to try to reverse (or at least undercut) the Supreme Court's opinion in Roe and its progeny.

Prof. Eugene Volokh's "Where are they now?" post today — inquiring about the later life of famous plaintiffs in constitutional cases — prompted me to follow up on Ms. McCorvey's appeal. And in doing so, I found that I'd missed it when the Fifth Circuit issued its ruling in August 2004 — there was very, very little coverage of the decision in the mainstream media, and only about 25 total "hits" appear on Lexis/Nexis for the ruling.  And I also missed it in February 2005 when the U.S. Supreme Court denied Ms. McCorvey's petition for a writ of certiorari, thereby leaving the Fifth Circuit's decision in place.  McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, 125 S. Ct. 1387 (2005). But I'll congratulate myself belatedly on having correctly predicted that the Fifth Circuit would (i) affirm the district court's dismissal of Ms. McCorvey's case, (ii) do so without oral argument, and (iii) do so in a unanimous panel opinion written by the very judge about whom my liberal friends were so concerned, Edith Jones.

The panel opinion relied on slightly different (but equally valid) grounds than those cited by the district judge — mootness (based on the challenged Texas statutes having been repealed) rather than simple untimeliness. And in fact, by basing its decision on mootness grounds, the Fifth Circuit panel avoided the arguable need to consider whether Ms. McCorvey's thirty-year delay in bringing her attempt to re-open her case was "unreasonable" given the facts and circumstances of her case, which in turn arguably would have required both the district court and the Fifth Circuit to perform "a substantive critique of Ms. McCorvey's claims." Judge Jones' opinion for the unanimous three-judge panel, then, is a model example of a key tenet of "judicial conservatism" — deciding an appeal on the narrowest possible grounds, and thereby avoiding unnecessary holdings.

As it happens, however, Judge Jones did take the opportunity to write a separate opinion — concurring with the result of her own opinion for the unanimous panel, but speaking only for herself and not for the other two judges (or for the Fifth Circuit as an institution) — which contains a stinging critique of the factual assumptions that the Supreme Court made in its Roe opinion. Judge Jones' name has sometimes been mentioned as a possible Supreme Court nominee (although less so in the recent past than previously). Were that to happen, she'd certainly be grilled by the pro-abortion forces in the Senate on this concurring opinion, just as (hopefully about-to-be-confirmed) Eleventh Circuit nominee Bill Pryor was grilled after labeling Roe "an abomination."

I haven't always been among Judge Jones' biggest fans, and my own views on abortion as a political and ethical matter, and on Roe v. Wade and its progeny as a matter of constitutional law, are fairly muddled and perhaps somewhat inconsistent. (It's not a topic I blog on much for that reason, and I'm not trying to encourage extended debate on the merits of the abortion issue in my comments, either.) But — like Judge Pryor's vigorous enforcement of the Supreme Court's Roe precedent when he was a state attorney general, despite his profound disagreement with that decision on both personal and legal grounds — this particular appeal, and Judge Jones' participation in it, is a fairly striking example of how a judicial conservative ought to behave when sitting on any of the Courts of Appeals, which lack the fundamental power to overrule any Supreme Court precedent. She could have grand-standed; instead, she cancelled oral argument, putting the case into a lower public profile. She voiced — in an appropriate manner — her legal reservations about the Roe precedent, but she did not permit those reservations to skew the results of the appeal.

I don't deny that there are politically conservative judges who may be judicial activists. But I'm an opponent of judicial activism — regardless of the politics that motivate it or the direction it skews. And to those who insist that all politically conservative judges must necessarily become judicial activists for conservative causes, this result is a pretty strong rebuttal. I've observed, and could probably readily also find examples of, judges whom I know to be politically liberal who've nevertheless adhered to their judicial conservativism, and have dutifully reached results thereunder with which they personally disagree. "I might well support the opposite result," judicial conservatives (of either liberal or conservative politics) will say, "were I a member of the state or federal legislatures, debating and making public policy on this issue." But a judicial conservative recognizes that he or she isn't a legislator. And he or she always remains aware of the respective level and functions of the court on which he or she sits: if a United States District Judge, for example, that role does not include overruling (or circumventing) precedent from the Circuit and Supreme Courts, or if a Circuit Judge, precedent from the Supreme Court.

How the Republican MOA signers can defend voting for the nuclear option

In the comments of the two proceeding posts, I've had a lively debate with those who confidently insist that the Memorandum of Agreement permits — nay, guaranteees, as they read it — each Republican signer the right to dishonor his/her (political, moral, nonlegal) commitment to vote against the nuclear option for the balance of the 109th Congress. At least two of the signers, Sens. DeWine and Graham, also make that assertion. And so do political pundits whose opinions and credentials I respect.

Among the last group is Ed Whelan, who writes:

Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that "extraordinary circumstances" exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist" means that a Republican signatory is fully entitled to determine that "extraordinary circumstances" do not exist and that a Democrat signatory's contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory's determination of "extraordinary circumstances."

Like me, Mr. Whelan's a lawyer, and he has fabulous credentials that far exceed my own. But for all the reasons I've run through in my original post and its comments (here, here, and here), I firmly believe that the MOU, fairly construed, on its face absolutely omits the "out" that Mr. Whelan and those arguing his side perceive, and in fact that the MOU's clear, unambiguous language precludes that construction.

But the dogged persistence of obviously intelligent people like Mr. Whelan in sticking to their construction — whether it's right or wrong in some absolute sense — suggests to me that if Sens. Graham or DeWine decide it's in their personal political self-interests to vote in favor of the nuclear option anyway, the resulting fall-out will be less than I originally predicted. Whether Mr. Whelan's argument is right or wrong, I don't doubt its sincerity — and must credit its potential effectiveness as, at a minimum, a smokescreen for Republican signers to retreat under. I, personally, couldn't and wouldn't make that argument with a straight face in either a court of law or the court of public opinion. But the issue is whether the Republican signers can, not whether I can, and it will only be the court of public opinion that counts. A split verdict from the public — confusion — may give them enough cover to backtrack if (I think it's actually when, but I'm a cynic) the signing Dems declare that a nomination presents "extraordinary circumstances" and therefore they're free to filibuster.

Live-blogging the Senate floor debate (ostensibly on Owen)

At 9:00 a.m. (Central): Harry Reid just accidentally told the truth on the floor of the U.S. Senate. After saying that he supports the Memorandum of Agreement (the document supposedly calling the Dems on the carpet for routinely filibustering judicial nominees), he said, "Every filibuster is extraordinary." Yes, read that direct quote to yourself again, then look at the document. The Democratic Leader believes that the Democratic signers of the MOA have grounds to filibuster every previously filibustered nominee (except, presumably, Pryor, Owen, and Brown).

He also said, "The nuclear option is dead for our lifetimes." Thankfully, that cannot be true. First, the document only contains a commitment of no rules changes for the 109th Congress, which will end in January 2007 when the 110th Congress is sworn in. Second, at least some of the signers of the MOA won't be back in January 2007 anyway, by their own choice; and the voters may well have reactions that will change the scorecard lineup as well.

At 9:30am: Bless his boozy, craven, liberal, lawyer-like heart, there's a reason that the senior senator from MA (in contrast to its junior senator) still keeps his law license intact. He just performed the first preemptory cross-examination of any Republican signer of the MOU who might waiver and claim he/she's off the hook if the Dem signers are vaguely naughty. He didn't quite use the word "iron-clad," but that's the concept and that's the language, and yes, Teddy absolutely gets both. The message to Graham and DeWine is clear: "Change your mind about voting for the nuclear option, or even claim that you have the right to, and we'll shove this signature of yours up your wazoo sideways on national TV every day for a month running." (He also understands that the commitment only runs through January 2007, avoiding Reid's overstatement.)

Meantime in the blogosphere, Edward Whelan writes:

Any agreement must be read against background contract principles. One of the most elementary principles of contract law is that a material breach by one part excuses continued performance by the other. So there is, I submit, no question that a Republican signatory is not bound to his promise to oppose cloture reform if the Democrat signatories do not live up to their end of the bargain.

That's absolutely right, and that's where Mr. Whelan stops his analysis. Some staff advisor to the Republican signers could and should have insisted that this proposition be expressly written into the MOA. The Dems couldn't have opposed such a demand with a straight face — "No, we insist that we can breach and you're still bound!" isn't something you can say. But I agree with Mr. Whelan that the common law, and public common sense out of which this common law developed, both give the Republican signers this "right" whether the agreement says so explicitly or not.

But that's not where the analysis or the action will stop when the Dem signers refuse to support cloture. My whole point (which others, e.g., Bradford Berenson and Andy McCarthy are also arguing, more succinctly than I have) is that would-be wafflers on the Republican signers' commitment have to say why the "Democratic signatories [have] not live[d] up to their end of the bargain." Because of the subjective "good faith" standard built into the agreement, no such argument could ever be proved, or even persuasively argued, even in the loosey-goosey court of public opinion.

At 9:45am: Back on the Senate floor, Lindsey Graham is still insisting that he reserves the right to vote for a rule change in the 109th Congress if he thinks the Dems are misbehaving. Well, great, Lindsey — except that's not what the document that you signed says. The document takes that discretion to grade the Dems' sincerity away from you, and expressly gives it to the Dem signers themselves. Plain English, short words, fits on one page. Teddy's gonna eat your lunch on this, Lindsey, and that's awfully pathetic.

At 10:00am: Cornyn invokes Rosanne Rosannadanna's line from the old SNL Weekend Update skits: "Never mind!" (Actually, he meant Emily Litella, another Gilda Radner character whom I've had frequent occasion to quote, proving again that the blogospheric debate rivals that of the World's Greatest Deliberative Body, except with hyperlinks.) I think at first he's going to use that line on behalf of Graham and DeWine, to invite them to begin eating crow for signing something so catastrophically drafted, so they can start "walking things back." (Cornyn's own mouth still has crow feathers hanging from its corners.) [Now it's Beldar's turn to use an old SNL line, this one from Steve Martin:] But nooooooooo! Cornyn means that the Dems are saying "Never mind" now about Owen.

At 10:15am: Leahy is annoyed that Frist is insisting on getting a record vote on cloture, just as Reid was at the beginning of the morning. Not content to reinterpret the AG's insistance that he hasn't trashed Owen, Leahy now insists on reinterpreting John Cornyn's insistance that he hasn't trashed Owen, not ten minutes after Cornyn left the microphone. But Leahy's mostly sticking to his pre-MOA script, which I think is canny on his part.

At 10:40am: Back to Reid: "The nuclear option is off the table, and we should stop talking about it after today." No suggestion that the Dems have to do anything specific to keep the nuclear option "off the table" on the MOA. But then back to his pre-MOA script as well.

I'm thinking Frist is making a mistake by getting a record vote on cloture. It will only create a clean precedent showing that the seven Dems who signed the MOA are "living up to their commitment," setting up their future arguments of "treachery!" and "deal-breaking!" when/if any Republicans try to walk back on their commitment not to support a rules change.

Now Reid says it explicitly, after directly quoting the "his or her own discretion and judgment in determining whether extraordinary circumstances exist" language:  "This [MOA] of course is a subjective test, as it always has been." Is Reid reading BeldarBlog? Naw, Beldar just read the Dems' plan (now becoming more clear, from Reid's and Kennedy's arguments) from the language the Dems suckered the seven Republicans into signing.

Oh my gosh, now he's quoting Caro's Master of the Senate ... maybe he is reading BeldarBlog!

At 10:45am: Specter (hoarse and looking very sick) seizes upon Reid's statement that the filibuster will be "occasional" and "very infrequent." (Yeah, right.) The term "extraordinary circumstances," says Specter, "does not lend itself to easy interpretation," so the "occasional" and "very infrequent" words are comforting to him. (Well, except the MOA expressly says who gets to do the interpreting.) But sheesh, Specter now says the MOA maintains the delicate "constitutional check and balance, the very important constitutional separation of power." The nuclear option, sez Specter, would have "materially affected the delicate separation of powers," giving any President greater power; or if defeated, the Dems would have been "emboldened to go further in the use of the filibuster." (Half right; the attempt to change the traditional checks and balances came from the Dems when they started judicial filibustering as a regular party-led matter in 2001.)

At 11:00am: And now the surreal: After a conventional and rambling defense of Owen, Specter concludes with a bizarre anecdote about former Sen. D'Amato singing on the Senate floor while wearing a pig suit, Specter turns the floor back over to Frist. Frist says it's time (noon Eastern) to vote on cloture, and he's right.

At 11:25am: It's sounding to me like virtually the entire Democratic Party contingent in the Senate has jumped aboard the MOU bandwagon. "Obstructing? Moi?" Only a very few "no" votes (e.g,.Corzine & Boxer).  "Ayes" from <em>lots</em> of hard-left take-no-prisoners Dems if I'm hearing this right, although it sounds like some are switching back to "no" now near the end.

At 11:30am: 81 to 18, announces the presiding officer ... cloture is approved, and the Senate is in recess (as am I).

Seven gutless suckers in the Senate

Sometimes you look at the results of a negotiation — supposedly made by bright, well-informed and -motivated adults on both sides — and you gotta shake your head and point to the folks who were on one side of the deal and say: "Them suckers just got robbed blind."

This is grand larceny masquerading as a "deal." Only a complete idiot would think that this —

Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

— is a fair trade for this —

In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

The seven suckers are Senators John McCain (R-AZ), Mike DeWine (R-OH), Olympia Snowe (R-ME), John Warner (R-VA), Lindsey Graham (R-SC), Susan Collins (R-ME), and Lincoln Chafee (R-RI).

Gutless. That's the least profane and most applicable adjective I can come up with to go along with "sucker." Now, "gutless" is a harsh word to apply to a genuine war hero like John McCain. And I don't question his, or any of the other seven's, patriotism. But we're specifically talking about political principle and courage here, and this is a politically gutless act.

These seven, in the "spirit of compromise," have guaranteed that at least two judicial nominees — William Myers (9th Cir.) and Henry Saad (6th Cir.) — will be successfully filibustered. As a direct and intentional result of their "deal," the United States Senate will deliberately violate its constitutional responsibility to either consent, or to refuse to consent, to at least two of the President's judicial nominees.

I don't claim to have thoroughly researched these two nominees — and their comparative merits, or lack of merits, in an absolute sense or as compared to other nominees is frankly irrelevant. I don't know if these two nominees would have, or should have, been confirmed by a simple majority vote. If these same seven senators had voted against both of these nominees — or for that matter, against all seven of the renominated candidates — I might disagree with them, but I would not ridicule and condemn them.

These nominees, and every other judicial nominee submitted by the President of the United States — whoever he may be, of whatever party, because he is the President of the United States — are entitled to that vote. And these two — at a minimum — won't get it.

And in exchange for giving their promise to violate their constitutional duty — their clear, written, unequivocal promise to guarantee that the Senate as a whole defaults on its constitutional duty — these seven senators got exactly nothing. I defy any of these gutless suckers to lay out a scenario in which the "promise" by the Democrats to only filibuster "under extraordinary circumstances" can be enforced, even in the hypothetical "court of public opinion."

Jonah Goldberg writes, "if the Democrats filibuster in something which Republicans don't consider to be an 'extraordinary circumstance' won't the deal be broken and then the Republicans will be free to change the rules[?]" Umm, no. Whoever drafted this piece of larceny extracted a concession which guarantees that the Republicans can never "cry foul" unless they can plead and prove that the Dems are not acting in "good faith" — and not objective "good faith," as measured by the law's proverbial "reasonable man" standard, but subjective "good faith," as measured by each senator's "own discretion and judgment." No one can ever prove, or even make a compelling argument, that this standard will ever be violated.

Only three are guaranteed not to be filibustered. Two at a minimum will be filibustered. But the important question is: How many more will be filibustered?

Beldar confidently predicts: At least one more judicial nominee will be successfully filibustered in the 109th Congress — specifically, anyone that Dubya nominates to the United States Supreme Court. These seven gutless senators — nominally Republicans — have just handed the Democratic Party an absolute veto over the next Supreme Court nominee, which will likely be for the Chief Justice slot.

At least Jack, of Beanstock fame, could eat the handful of beans if his own fairy tale didn't come true. These seven senators got far less than he did. They got nuthin'.

I'm not surprised. But I'm thoroughly disgusted.

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UPDATE (Mon May 23 @ 9:15pm): Ed Whelan, despite his great credentials as a lawyer, also misses the point of the way the "memorandum of understanding" was drafted:

The Republican signatories' agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories' living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory's determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory's determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute "extraordinary circumstances."

No. That's not a fair reading. If the seven gutless suckers had negotiated harder, they would have either (a) gotten some objective "test" that was not expressly tied to the subjective state of mind of the filibustering Dems, or (b) at a minimum, have deleted the expressly subjective standard (which might have arguably then "implied" that a reasonable-person standard would apply).

Rarely, in drafting a contract, I'll agree to insert a "reasonable person" standard that's intended to be fairly open-ended, even though it's an invitation to litigation over what that hypothetical reasonable person would say. For example, leases often say, "The tenant can't sublet without the landlord's consent; but the landlord shall not unreasonably withhold his consent." Okay, that's something. If the best reason the landlord can come up with is, "That guy has blue eyes, and I just hate blue-eyed people so I won't approve a sublease to him," then the tenant will win his lawsuit, probably, after a bunch of time and expense. But if the lease says, "The tenant can't sublet without the landlord's consent, and the landlord has absolute discretion to make his own subjective judgment as to whether consent is or isn't reasonable," then that blue-eyed guy ain't gonna get the sublease, and the tenant's lawsuit is going to be instantly dismissed.

Under what's in the document, it doesn't matter if the filibustering Dem is wrong, or if he's being objectively reasonable or not, or if 99.99999 percent of the American public would agree that "this nominee isn't an 'extraordinary circumstance.'" Under the express terms of this deal, the only thing that matters is what is inside the head of the filibustering Dem. And the only way anyone knows what's inside his head is ... what he says.

I repeat, to claim that the Dem signers have breached, Republicans have to go on the record, on the floor of the Senate, naming names, and saying, "I'm voting for the nuclear option now because that senator is lying when he says that, in 'good faith,' in the senator's own subjective judgment and discretion, Nominee X is an example of an extraordinary circumstance. That senator's real but secret judgment is that this is an ordinary nominee, and he's just lying about what's inside his head."

That's not ever going to happen. Even if John McCain or John Warner believe that Mark Pryor or Mary Landrieu are lying through their teeth and don't believe the Chuck Schumer/Ted Kennedy Democratic party line about the next Supreme Court nominee, John McCain and John Warner aren't going to say, "The honorable gentlewoman from Louisiana and the honorable gentleman from Arkansas are lying sacks of s**t." That is what we can be sure will never happen — that sort of intense personal confrontation — "I reject your statement as to your subjective belief and your own 'discretion and judgment,' and I say you're acting in bad faith." Never. Just can't, won't, mustn't happen, because Senators can't call each other "lying scumbags" on the floor of the Senate without really destroying the "collegiality of the institution."

Lindsey Graham on MSNBC just now:  "But if there's a filibuster in the future, Lindsey Graham has the right to [vote to] change the rules if he believes that filibuster is bad for the country." No, Senator. Did you read the document before you signed it? It's not your judgment that matters, it's theirs. And you agreed to that. If they're badly, badly wrong, but still acting in subjective "good faith" — which can never be disproved — then your obligation is to vote against any rules change. Who's the public going to think broke his word, the senator who made a fuzzy promise that he says he's still complying with, or the senator who made a very clear promise and can't prove that the fuzzy guy is lying?

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UPDATE (Mon May 23 @ 11:00pm): Andy McCarthy gets it, however. So does Dan Dalthorpe at Confirm Them":

The commitment to oppose rules changes is unconditional. There is no out clause such as, "We commit, so long as Democrats are not abusing their discretion in our eyes." Instead, it says, "We trust that the Democrats won’t filibuster Luttig, McConnell, Estrada, Alito, or whomever is nominated to the Supreme Court unless they, in their own discretion, decide they want to. For our part, we put it in writing that we won’t support any rules change because our trust in those Democrats is absolute. Trust but verify? Nah. That’s mean. We just trust "period."

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UPDATE (Mon May 23 @ 11:40pm):

Ramesh Ponnuru, however, doesn't get it:

I'm going to revise and extend my remarks. The sentence on rules changes runs: "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress. . ." That wording seems to allow for some Republican wiggle room if Democrats act contrary to the deal's "spirit." Republican signatories — especially Graham, DeWine, and Warner — should be asked to clarify their reading of the deal's ambiguities.

Nuh-uh, nope. You can't imply an obligation on the Dem signers' part to act in accordance with the "deal's spirit" when the written agreement expressly and unambiguously says that they are free to act according to their own unfettered, unchallengeable, subjective, private exercise of "discretion" and "judgment." This is another example where the common law of contracts (which says you can't imply a term into a contract that's contrary to an express term that the parties talked about, wrote down, and said they were agreeing to, and you can't vary the written terms with some sort of vague oral "understanding") is going to track the common-sense "court of public opinion":

"Why, what do they mean, accusing us of violating the 'spirit of the deal'? The 'spirit of the deal' was that I get to use my own judgment and discretion! See, it's right here! Just above the promise THEY made, and are now breaking, not to use the nuclear option!"

Wishful thinking, Ramesh. But wrong.

Lemme put this in language that is very crude, but apt: This is a deal where (a) both sides have agreed to "play nice," but (b) the Republicans' hands are tied, while the Dems' hands are (c) completely unfettered and (d) now holding the Republicans' testicles in their right hand and wielding a sledgehammer in their left. Will the Dems play nice? Well, we know they think Myers and Saad nominations are "extraordinary situations," because they're already promised to give the Republican President and his party a good whack in the testicles when those nominations come to the floor. And you think they'll play nice if Dubya nominates a young, strong, outspoken judicial and political conservative to be the next Chief Justice? Ask Robert Bork.

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UPDATE (Tue May 24 @ 12:20am): Sigh. The Pod is also engaged in wishful thinking:

[W]hat happened last night is very important. It breaks the Democratic logjam on circuit-court nominees. It establishes the principle that conservative judges have every right to serve on the higher benches even if Democrats can't stand it. And it means that if Republicans have to break the filibuster to ensure an up-or-down vote on a Supreme Court justice, they will have a very strong argument indeed. The argument will be that they are breaking the filibuster out of respect for the tradition that says the choices for the highest court must be advised and consented to by the full Senate.

The deal "broke the logjam" for exactly three nominees to the circuit courts. It expressly tanked the prospects of two others, and left several others — and all future nominees — subject to filibuster whenever the Dems decide, in their sole and unchallengeable discretion, that a nomination is an "extraordinary circumstance." Will that be forty percent of the time, as the names named in the document would suggest? That's the linear computation (ignoring the nominees not mentioned either way).

The deal establishes no "principles" that can be meaningfully determined or enforced. Nothing in that document says, or even suggests, that "conservative judges have every right to serve on the higher benches even if Democrats can't stand it." To the contrary, the deal creates a clear factual precedent (binding for at least this Congress — and that's damn near the only thing in the deal that's well-drafted, i.e., it doesn't bind the signers beyond 2006) that the Dems can indeed filibuster even circuit court nominees. If they can filibuster circuit court nominees, they certainly think they can filibuster Supreme Court nominees.

And the gutless suckers have already forfeited their right to argue that "tradition that says the choices for the highest court must be advised and consented to by the full Senate." They've signed a document that makes no distinction between nominees to the Supreme Court and any other nominees. Tradition or principle be damned, they've made an explicit promise. All that the Dems have to do to satisfy their part of the bargain, to the extent it can be enforced in the court of public opinion, is not to filibuster Pryor, Brown, and Owen. Heck, they can still try to get those three defeated, so long as they don't filibuster.

Pod's post is entitled "Don't Turn a Victory into a Defeat." I'm trying very hard not to violate Godwin's Law here, so I can't say anything about Munich or Dunkirk. I'll just say that as victories go, this one ranks right up with the Trojans' big win right after some of their guys decided that wooden horsie would look keen inside the city walls. Mmmm, lovely aroma of charred meat, what? Gives one a healthy appetite (if you close your eyes and pretend very hard)!

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UPDATE (Tue May 24 @ 9:00am): Moving what started as an update here to a new post, live-blogging today's Senate floor proceedings.

Justice Owen and the Kirby vacuum cleaner case

To make Texas Supreme Court Associate Justice and Fifth Circuit nominee Priscilla Owen seem like a "judicial activist" who's "out of the mainstream," you have to distort her record badly. The Dems are busy doing that, but the mainstream media are their willing, even eager, accomplices.

The latest example to catch my attention is from the dependable (i.e., dependably wrong) Los Angeles Times, which tells us this today (boldface mine):

There was the case of Dena Read, a woman who was raped in her home by a Kirby vacuum salesman. The company had not checked his background, which included being fired from a previous job for sex offenses. The woman won a $160,000 jury verdict, and the Texas high court upheld the award on a 6-3 vote.

Owen dissented, arguing that the salesman was an independent contractor. For that reason, Kirby should not be held liable, she said.

Poppycock. Here are the undisputed facts, as set forth in the majority opinion in Read v. Scott Fetzer Co., 990 S.W.2d 732, 734 (Tex. 1998):

In 1992, Leonard Sena, a Kirby distributor and owner of Sena Kirby Company of San Antonio (the "Sena Company"), recruited Mickey Carter to be one of his dealers. Carter's relationship with the Sena Company was that of an independent contractor subject to the "Kirby Independent Dealer Agreement," which required him, also, to sell Kirby systems to consumer end-users through in-home demonstrations.

In applying for employment, Carter listed three references and three prior places of employment. Had Sena checked, he would have found that women at Carter's previous places of employment had complained of Carter's sexually inappropriate behavior. Sena also would have found that Carter had been arrested and received deferred adjudication on a charge of indecency with a child, and that one of the previous employer's records indicated that Carter had been fired because of that incident. Further, Sena would have found that these records also contained witness statements, a confession, Carter's guilty plea, and the indictment charging him with the offense. Sena did not check.

Not long after being hired, Carter scheduled an appointment with Kristi Read for a demonstration. Before that scheduled appointment, Carter went to Read's home and met with her for several hours. He also brought doughnuts one morning, and then followed Read to a playground, where he spoke with her some more and played with her daughter. That afternoon, Carter returned to Read's home, where he sexually assaulted her.

The legal issue raised by the case was whether Kirby, the vacuum cleaner manufacturer — which hadn't hired the rapist, and was in fact twice-removed from him — could be held responsible for the rape. A majority of the Texas Supreme Court held that in these particular circumstances — because of the unusual degree of control that the manufacturer had retained and enforced on its distributors like Sena's company — the manufacturer could be held liable even at its remote distance from either the rape or from Sena's investigation and hiring of the rapist.

But the LAT version entirely omits any mention of Sena. It simply tells you that "the company" — that is, the manufacturer, Kirby — "had not checked on [the rapist's] background." Well, yeah, Kirby hadn't checked out Mickey Carter — and neither had Hoover, Oreck, Bissell, Dyson, or any of the other vacuum cleaner manufacturers that had also never hired this rapist.

Associate Justices Hecht, Abbott, and Owen dissented, and the first two each wrote dissenting opinions in which Justice Owen joined. Here's how Justice Hecht began his dissent (boldface mine):

To achieve what it considers to be a just result in this case — that the Kirby Company pay for a sexual assault committed by its independent contractor's independent contractor — the Court faces three obstacles. First, Kirby must somehow be found to have controlled its distributors' operations in a way that led to the assault, even though it contracted with them that it would "exercise no control" over their selection of dealers. Second, it must have been foreseeable to Kirby that a distributor might not check a dealer applicant's background if not required to do so and might mistakenly hire a person with a history of sexual misconduct who might assault a customer.... Third, the result in this case must not seriously affect the wide range of direct sales and service businesses from Tupperware to television cable companies that employ independent contractors, something the Court has absolutely no desire to do.

Justice Hecht thought that the majority was stretching too far (boldface mine):

Today's decision is, I believe, aberrational and therefore not of much concern. The Court tries as much as it can to prevent its decision from impacting the multitude of businesses similar to Kirby's. A decision aimed at a result may not be consequential, but result-directed decision-making is more serious. A Court that departs from settled principles in one case may do so in another. To return to Justice Roberts' analogy, no appellate court decision should turn out to be "a restricted railroad ticket, good for this day and train only"; certainly, no decision should be designed with such restrictions.

Justice Abbott came to the same conclusion from a slightly different angle:

Kirby retained control over where the work was to be performed, not over who was to perform that work. Failure to require background checks of potential dealers relates to who is a dealer, not where the dealer works. As a result, the requisite relation between the control retained and the alleged injury is missing.

Justice Owen didn't even write a separate dissent! But the LAT would have you believe that she's practically out there at those vacuum cleaner home demonstrations, egging the rapists on and spitting in the victims' faces. This is their (and the Democrats') example of Justice Owen being "pro-business" and "anti-consumer."

While I happen to agree with the dissenters about this result, I certainly wouldn't question the integrity of lawyers and judges who'd stretch the law just a little bit to fit these particular facts. This is meat-and-potatoes tort law stuff — the kind of common law decision-writing that state court appellate judges do every day. But as Justice Hecht's dissent persuasively argues, if there was anyone in the Read case who was doing "activist judging," it was the majority engaging in "result-directed decision-making" — i.e., Kirby was the only deep-pocket defendant around to be sued, and the Read family had been terribly injured, so let's let them get their paws into Kirby's deep pockets.

Let's look at an analogy that might strike closer to home (so to speak) for more average citizens. Suppose you hire a general contractor to remodel your house. He in turn hires a painter, who jumps your back fence and rapes your next-door neighbor. Justice Owen would read Texas law to say that the rape was not your fault, and that your neighbor can't successfully sue you (but can sue the rapist and, maybe, your general contractor). But the result and maybe the logic of the majority opinion from which Justice Owen dissented suggest the opposite — you're on the hook, baby, 'cause that rapist couldn't have gotten into your back yard to jump your fence unless you'd hired the guy who hired him, so get out your wallet (or call your homeowners' insurance company and tell it to get out its wallet). Now, Justice Hecht thinks — and he's probably right — that on these slightly different facts (or if it'd been Tupperware instead of Kirby vacuums), the majority would have stuck to old, traditional tort law, and that the majority's departure in the Read case was an aberration. But when we're looking at promoting judges to a life-tenured position, do you want the squishy, sympathetic judge who makes aberrations, or the firm (i.e., old-fashioned), principled judge who sometimes says, even if it's harsh, "You've been hurt, but you still can't sue these particular folks for what happened to you because it wasn't their fault"?

Whether you want your appellate judges to selectively warp the law in order to benefit particularly sympathetic individuals or not, surely we can all agree that newspapers and politicians ought to tell the truth about a judicial nominee's written precedents. Here, the LAT simply didn't tell the truth.

A little history about the filibuster

Rand Simberg at Transterrestrial Musings and Hindrocket over at Power Line justly mock ABC News for publishing this (since stealth-corrected) history blooper (boldface mine):

The filibuster has been used historically by the minority party, which can't win with a vote count. Democrats have opposed the filibuster before — in the 1960s, they accused Republicans of using it to block civil rights legislation.

According to the Senate Historical Office, the record for the longest individual speech is held by the late Sen. Strom Thurmond of South Carolina, who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957. To keep the floor, he read some of his wife's recipes and passages from novels out loud.

It's no particular surprise that ABC News' reporters and editors might not be immediately familiar with all the details of the Civil Rights Act of 1957, which President Eisenhower signed into law on September 9, 1957. Your gray-bearded host of this weblog was still a little over two months shy of emerging from the womb then, and presumably many of ABC News' staff are younger than I am.

But Hindrocket and Rand are right to express surprise and dismay that even those youngsters — or anyone whose only knowledge of the civil rights struggle comes from history books — would presume, incorrectly, that Republicans have historically been anti-civil rights. Do they presume as well that this bias goes back to the first Republican President, Abraham Lincoln? Do they remember him as fighting to destroy the Union and perpetuate slavery? Was ABC News referencing the 1957 record-setting single-senator filibuster by Sen. Strom Thurmond (D-SC) under the (mis)impression that he was one of those "Republicans [using the filibuster] to block civil rights legislation"? Well, duh.

As it happens, because of the ongoing struggle over judicial nominations and the role of the filibuster in it, I've just re-read the best single book about politics that I've ever read: the third volume (2002) in Robert A. Caro's multipart biography "The Years of Lyndon Johnson," this one aptly entitled "Master of the Senate." At 1040 pages (plus footnotes and sources), this book isn't a casual read. But if you want to know about the history and dynamics of the United States Senate — including the filibuster (and related subjects like Rule XXII on cloture) — you probably couldn't find a better or more fascinating basic textbook.

Caro provides this information as part of his fabulous tale of how LBJ came to be the most brutally powerful and effective Senate majority leader by far in American history. LBJ had decided by 1957 that to ever have a chance of securing the Democratic Party's presidential nomination, he had to shed his (until then well-earned) image as an anti-civil rights southerner. And indeed, the Civil Rights Act of 1957 turned out to be entirely toothless.  The 1957 Act — in contrast to, for example, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that LBJ later succeeded in passing as President — is only important in historical context because it marked the first civil rights legislation to be successfully passed into law in 82 years.

The sole reason for that shameful 82-year gap in American civil rights history was the consistently effective use of the filibuster by southern Senate Democrats. Literally for decades, their number one priority had been to block anti-lynching and similar legislation favored by a substantial majority of Americans, and to preserve their unfettered "right" to filibuster in order to maintain that blocking ability.

Caro's book — lively and very readable despite its length — explains how LBJ achieved the seemingly impossible task of preventing a sustained filibuster by racist southern Democrats that would certainly have killed the 1957 Act too. LBJ did so in large part by deliberately gutting every meaningful provision from the version of the 1957 Act that had originally been drafted by the (Republican) Eisenhower Administration and supported on a bipartisan basis by Republicans and non-southern Democrats. This — plus LBJ's canny manipulation of the southern Democrats' fear that they might finally lose a cloture fight if they didn't let some kind of civil rights legislation through, and of their desire to help LBJ burnish his own presidential credentials — is why nobody other than Strom Thurmond tried to filibuster the 1957 Act. And indeed, it required all of LBJ's political genius — cynical and duplicitous and effective as it was — to keep pro-civil rights forces (i.e., Republicans and non-southern Democrats) from themselves blocking the watered-down version of the 1957 Act as being "worse than nothing."

So brilliant was Johnson's political manuevering, in fact, that Thurmond's lonely, long, and ultimately ineffective attempt to mount a solo filibuster against the 1957 Act was scorned by the other southern Democratic senators. As Caro tells the story (at pp. 997-98):

"When, however, Thurmond attempted to persuade the Southern Caucus to filibuster, [LBJ's senate mentor] Dick Russell [D-GA] countered with the same reasoning he had been using all year [as LBJ's ally] to deflect one. The southerners could use that reasoning to deflect the anger of constituents over their failure to filibuster — and they did.... And in the end, all of the southerners but one agreed, as usual, to accept their general's [i.e., Russell's] decision. When the bill returned to the Senate [from a joint Senate-House conference committee], Strom Thurmond held the floor for twenty-four hours and eighteen minutes — the longest one-man filibuster in the Senate's history — drawling out the Declaration of Independence, the Bill of Rights, and George Washington's Farewell Address — but that scene from the Senate's past was a solo performance; none of his fellow southerners would join him, and they were furious at him because they felt he was showing them up for not filibustering themselves .... "Oh, God, the venomous hatred of [Thurmond's] southern colleagues," [LBJ aide] George Reedy was to recall. "I'll never forget Herman Talmadge [D-GA]'s eyes when he walked in on the floor of the Senate that day and saw Strom carrying on that performance." Even Russell, faced with what the Atlanta Constitution called "rumblings of criticism [that] are being heard" in Georgia, felt a need to justify his strategy, telling the Constitution that the South had "nothing to gain and everything to lose" by filibustering, and declaring, "Under the circumstances we faced, if I had undertaken a filibuster for personal aggrandizement, I would have forever have reproached myself for being guilty of a form of treason against the South." ...

If you can listen to the present-day liberal Democrats lauding the filibuster — insisting upon its value to "protect minority interests," and thereby deliberately conflating their own status as the present political minority with the status of racial minorities whom the Democratic Party's southern senators historically used the filibuster to disenfranchise and persecute — without laughing out loud at the incredible irony ...

Well, then, you're probably exactly well-schooled enough in American history to work for ABC News. Congratulations.

Beldar on Berger: If he comes back, blame politicians, not the prosecutors

When I read of Sandy Berger's plea bargain, I wasn't immediately offended.

I started with my usual presumption that our federal prosecutors who negotiated and approved the deal knew well the legal thresholds that they would have had to meet to obtain a conviction for a more severe crime or a higher sentence. I presumed as well that they were intimately familiar — far more than I or the general public could be — with the specific facts disclosed through their investigation. In every criminal prosecution that pleads out (and for that matter, in every civil lawsuit that settles), the advocates are required to make very subjective predictions and judgment calls on the basis of factors largely hidden from public view — how will this witness and that witness hold up on cross? what emotional hooks in my case and my opponent's are likely to grab with the jury?

At the press conference announcing the deal, no one's throwing bricks back and forth, and therefore the prosecution's case as there described usually sounds a lot cleaner and more persuasive than what would actually have emerged from the messy smoke, heat, and occasional light of a trial. But I recognized — as I'm sure the prosecutors did — that Berger would have been certain to have had essentially unlimited resources and legal talent available for his defense, plus a sympathetic MSM and an artful PR campaign waged by (unfortunately) well-practiced spinners and sycophants.

I also was inclined to defer to the prosecutors' judgment about striking an appropriate balance between zeal to enforce our national security laws and realpolitik concerns: On the one hand, Berger was a career public servant of at least some merit, and we're not talking about selling nuclear secrets to Iran. On the other, Berger only had access to the documents that he stole and destroyed because he'd undertaken a public trust; and even if the only consequences of his betrayal were political ones, such betrayals (perhaps especially such betrayals for such venial purposes) ought to be conspicuously punished.

It's a conviction, I thought to myself — albeit only for a misdemeanor, without jail time, and with (in context) a trivial fine — but a final, definitive judgment of conviction that isn't subject to years of appeals. Berger is now an admitted criminal. There's been a symbolic stripping of his security clearance, which heaps justifiable shame on the man. His place in history will ultimately be as a joke punchline, I thought. Onward and upward, I thought, and attaboy to the prosecutors for wrapping this up.  And when I read the first reaction of my blogospheric friend and fellow lawyer John H. Hinderaker (a/k/a Hindrocket) over at Power Line, I thought he was being reflexively overcritical in writing that Berger had "got[ten] away with a criminal cover-up" through the plea.

But today I read the WaPo article on the plea bargain. And then I read Hindrocket's expanded analysis in which he persuasively explains why "[c]asual readers of the news will have no idea what to make of Sandy Berger's guilty plea," and why their impressions are likely to be badly at odds with the actual facts. My blood ran cold when I read these two sentences:

One aspect of Berger's sentence that seems almost humorous is the fact that his security clearance is suspended for three years. He wasn't going to need it during President Bush's second term, in any event, and he'll have it back in time for the new Democratic administration that, he hopes, will begin in 2009.

It's not a felony conviction. The buffoonish schtick — "he stuffed the documents into his pants and his socks, fer pete's sake, har har har!" — is what will stick in the public memory, not the federal criminal conviction for a confessed and indisputable breach of a public trust. And the groundwork has been laid for what suddenly seems to me to be a very likely PR campaign by the once-and-would-be-future Clintonista spinmeisters:

"That crazy Sandy, what a wonk! Yeah, he had that slap on the hand, but hey, he took his medicine like a mensch, Senators — and look at his career in context! Can you let this silly misstep from years ago, during the crazy post-9/11 hysteria, disqualify him from distinguished service in the Hillary Administration? Will you deny the public the benefit of his expertise and his insights for such a trivial matter? Why, that would be crass partisanship, Senators. The President and the public have forgiven him; indeed, the President pardoned him on her first day in office. Onward and upward, Senators!"

I'm still not willing to second-guess the prosecutors for approving the plea bargain. Their concerns ought not to have been, and presumably weren't, absolutely ensuring Berger's everlasting political destruction. And my objection to the result of the plea bargain is chiefly that it may fail to accomplish that destruction. As the WaPo story reports, the prosecutors did their job in requiring that Berger admit on the record to his intent, and in establishing that what Berger destroyed were non-identical copies that might have contained unique "marginalia" embarrassing to the Clinton Administration:

The terms of Berger's agreement required him to acknowledge to the Justice Department the circumstances of the episode. Rather than misplacing or unintentionally throwing away three of the five copies he took from the archives, as the former national security adviser earlier maintained, he shredded them with a pair of scissors late one evening at the downtown offices of his international consulting business.

The document, written by former National Security Council terrorism expert Richard A. Clarke, was an "after-action review" prepared in early 2000 detailing the administration's actions to thwart terrorist attacks during the millennium celebration. It contained considerable discussion about the administration's awareness of the rising threat of attacks on U.S. soil.

Archives officials have said previously that Berger had copies only, and that no original documents were lost. It remains unclear whether Berger knew that, or why he destroyed three versions of a document but left two other versions intact. Officials have said the five versions were largely similar, but contained slight variations as the after-action report moved around different agencies of the executive branch.

So if Sandy Berger indeed still has a future as a political appointee, that will be the fault of the politicians, not the prosecutors. I therefore can't quite join in Hindrocket's conclusion that the plea bargain itself is "a disgrace": Maybe it's light, but maybe it reflects prosecutorial judgments based on facts and subjective evaluations that neither Hindrocket or I have available to us — and it beats the hell out of an acquittal in any event!

But for what it's worth, if my nightmare scenario comes to pass — if the Senate is ever again asked to confirm Sandy Berger for any public post — I believe it would be wrong for the opposition to filibuster his nomination. Oh, no — he'll deserve an up-or-down vote on the merits, with every senator going on record! But as a matter of principle, that vote ought to be, must be, against confirmation. The Constitution requires the Senate either to consent, or to withhold consent. But with respect to Sandy Berger, that future political judgment on the Senate floor ought to be — may not turn out to be, but ought to be, if principle can indeed prevail over spin — preordained by this week's legal judgment in a court of law: GUILTY.

He is guilty. Forever, undeniably — guilty. Pardoned or not, rehabilitated or not, penitent or not, buffoonish or not — self-admittedly guilty of deliberately, intentionally, cynically, cravenly betraying the public trust and the national interest of this country. And then he lied about it to the public, before finally confessing as part of his guilty plea.

Bookmark this post for 2009 — just in case. You might want to email a link to it to your senators then.

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UPDATE (Sat Apr 2 @ 8:45pm): Two more news stories leave me a bit confused. Per the NYT:

Some Republican leaders have speculated that he took the documents because he was trying to conceal material that could be damaging to the Clinton administration. But Noel L. Hillman, who leads the Justice Department's public integrity section, said after the hearing on Friday that the department's investigation had found no evidence that Mr. Berger had intended to hide anything from the Sept. 11 commission. Indeed, the commission had access to all the original reports on the 2000 threat assessment, Mr. Hillman pointed out.

And per a new WaPo article:

The Justice Department said yesterday there was no evidence that former national security adviser Samuel R. "Sandy" Berger was trying to conceal information when he illegally took copies of classified terrorism documents out of the National Archives in 2003....

Noel L. Hillman, chief of the Justice Department's public integrity section, said Berger "did not have an intent to hide any of the content of the documents" or conceal facts from the commission investigating the Sept. 11, 2001, attacks....

This leaves me wondering whether Mr. Hillman's comments may have been literally true but misleadingly spun. If, as the previous WaPo story indicates, what Berger took and destroyed were non-identical copies — themselves photocopies of a memorandum whose pristine version appears several times in the archives, but bearing, on those unique and irreplaceable versions, handwritten comments ("marginalia") that comprised various individuals' comments on and reactions to the text of the original memorandum — then there may literally have been "no evidence" left in existence to prove precisely what Berger destroyed. There would therefore be no "direct evidence" to directly prove what has been lost, shredded by Sandy Scissorshand. And his defense team would be able to argue that the prosecution was simply speculating when arguing that anything significant was on the non-identical copies. And that may have been what Mr. Hillman meant, in context, when he used the words "no evidence." I'd very much like to see his full statement, if anyone can find it online; it's not yet on the DoJ website's press release section.

However, if, as I suspect was true, the Archive's standing policy was to preserve (and to number and log) precisely one version of each "non-identical copy," then there might indeed be a compelling circumstantial inference that there was at least some marginalia on the documents that Berger destroyed. But whether trivial (like a doodle) or significant (like "Holy cow, President Clinton is letting Osama get away!") would still be a matter of speculation without direct evidence (that is, without the destroyed documents themselves).

But not all evidence is direct evidence, and circumstantial evidence can sometimes be incredibly probative. If there were no marginalia at all on what Berger destroyed, or if it was only trivial marginalia, then why did he destroy some but not all of the documents he'd stolen? Berger may be a geek, but he's also a deliberate thief and admitted spoliator of evidence, and whatever he did was not random. It was purposeful. Combine that with the subjective motive that can also be reasonably inferred to be possessed by someone in Sandy Berger's position, and a jury might, repeat might, have drawn an inference that he destroyed what he destroyed precisely because it was damaging (even if we'll never know how precisely how damaging).

I'm still not persuaded that the prosecutors screwed up. The distinctions I'm drawing in this post about non-identical copies, spoliation, direct versus circumstantial evidence, etc., are familiar to good trial lawyers. I have no reason to doubt that the prosecutors grasped those distinctions, and factored them into their judgment call on whether to go to trial or offer the plea bargain. I do wonder, however, whether this "no evidence" bit is being spun — hard and misleadingly — by a sympathetic MSM to make Berger look significantly better than he deserves.

-----------

UPDATE (Mon Apr 4 @ 6:05pm): The official DoJ press release doesn't clear up my confusion. Key paragraphs:

According to the facts admitted during his guilty plea, Berger was reviewing classified documents at the National Archives in July, September and October of 2003 in connection with requests for documents made by the National Commission Investigating Terrorist Attacks Upon the United States (the 9-11 Commission). On September 2, 2003, and again on October 2nd, Berger concealed and removed a total of five copies of classified documents from the Archives. The documents were different versions of a single document. Berger, who possessed a United States government security clearance and was aware of the laws and rules regarding classified documents, knew he was not authorized to remove the classified documents from the Archives.

Berger took the documents to his office in the District of Columbia, where he destroyed three of the copies. Soon after the October visit, the Archives discovered that documents were missing and, two days later, contacted Berger. Initially, Berger did not tell the Archives staff that he had taken the documents but later that night told Archives staff that he had “accidentally misfiled” two of them. The next day, he returned to Archives staff the two remaining copies of the five documents he had taken during the September and October visits. Each of the five copies of the document was produced to the 9-11 Commission in due course.

The only way I can make sense of the last sentence is to presume that the Archives — contrary to Berger's hope and expectation when he destroyed the three nonidentical copies — actually did have additional photocopies of those same versions with the same marginalia. If so, that would undercut my speculation that DoJ's Mr. Hillman was taken out of context on his "no evidence" statements. Perhaps Berger was stupid enough to think that destroying the three nonidentical copies would hide the facts of his crime, if not the details of the marginalia on those specific pages. But if so, then why didn't he destroy all five? Why return two?

My friends from both sides of the criminal defense bar tell me that it's a mistake to presume rational behavior from criminals. And I suppose it's possible that the confusion left about what Berger actually destroyed, and why, is a product of national security concerns; there may have been some deliberate ambiguity on the part of the prosecutors in describing the facts. In any event, the facts that have been described — and conceded by Berger as part of the plea bargain — ought to disqualify him from further public service, as a matter of political good sense if not as a solid and legally enforceable penalty.

Lessons of the Little Red Hen: Noam Scheiber misses the point

The New Republic's Noam Scheiber argues that the Republican Party is less likely to benefit from the wave of "democratization" going on in the Middle East than the Democratic Party:

[I]n the long-term, I think Bush's democratization initiatives clearly benefit Democrats, assuming they don't find a way to screw it up. Here's why: The Republican base consists primarily of Southern and lower-midwestern isolationist/realist types, Western libertarians, conservative evangelicals, and K-Street taxcutters. (As far as I can tell, no one ever lost a Republican primary by failing to win the neocon vote.) None of these groups gets particularly excited about democratizing foreign countries — either because they think it's a utopian project doomed to fail, or because they think it's likely to do more harm than good, or because they think we could put the money and effort we'd spend promoting democracy abroad to better use at home. Except for a small circle of neocons, the only reason most conservatives support Bush's democratization rhetoric is partisanship — because, absent the democratization rhetoric, Bush's entire foreign policy would look like one big disaster, which would be devastating for the party.

The Democratic base, by contrast, consists of a bunch of activist types who love spending time and money on idealistic causes, and who can be convinced to spend it abroad as long as you persuade them the motivation is pure. They believe in things like democracy, human rights, civil society, responsible governance, etc. with every fiber of their being. (If you don't believe me, just ask yourself which party you think, say, most third world debt-relief activists cast their vote for, or members of the free-Tibet movement, or the groups who lobby for equal rights for women in the Muslim world.) Democrats, in other words, have principled reasons for supporting democratization abroad, which, in many cases, even outweigh their intensely partisan dislike for this administration.

Even leaving aside the offensive suggestion that only Democrats can be principled in "every fiber of their being," what an incredibly pre-9/11 mentality this displays! And what an incredibly offensive pigeon-holing of Americans of all political stripes and colors!

Earth to Noam: Every American President for generations, Republican and Democrat alike, has talked the talk about democratization. Jimmy Carter, to take one example, could pontificate and moralize with the best (or worst) of 'em. Grand rhetoric, patient diplomacy, and economic incentives all have a role to play, and frankly, in the big picture, there's not a whole lot to differentiate Carter from Reagan or Dubya on those scores.

So why is Jimmy Carter's foreign policy legacy the Soviet invasion of Afghanistan and the Iranian hostage crisis, while the Gipper's legacy was the end of the Cold War and the opening of Eastern Europe, and Dubya's legacy may be a democratic Afghanistan, Iraq, and [add your favorite despotic regimes' names here]?

The short answer is that Reagan and Dubya understood that the rhetoric of democracy is made real through American military boots on the ground — or at least the credible threat of those boots, as demonstrated by courage and steadfastness of the boot-wearers and their commanders in chief.

I don't mean to suggest that this is something Republicans always get right, or that Democrats can't ever get right. The saddest moment of Reagan's presidency was the retreat from Lebanon, not the Iran-Contra scandal, and likewise the saddest of the Bush-41 presidency was the abandonment of freedom fighters in Iraq after the Gulf War. FDR, HST, and JFK could talk about "fighting for freedom" without provoking giggles, too.

But the changes abroad simply can't be made to happen with words and bucks and parlays alone. The examples for freedom now being set by the brave peoples of Afghanistan and Iraq could not have happened without American military action as a predicate. Encouraging moves toward openness and nonsupport of terrorists in Libya, Lebanon, Egypt, Saudi Arabia, central Asia, and elsewhere would not have happened without the credible possibility of intense American involvement, potentially and eventually up to the point of having American boots on the ground.

When you broaden your political viewpoint beyond "energizing each party's base" and look at the American public more broadly, big chunks of it — regardless of their pigeonholes and past party affiliations — are capable of figuring this out. And they're also willing to accept the premise that the best protection for America — the best way to prevent more 9/11s — is to promote democracy and democratization effectively, which means aggressively. Mr. Scheiber's analysis of various coalitions within the Republican party ignores the fact that aggressive democratization abroad has become a domestic security interest that transcends old coalition and even party labels.

For the Democrats, then, to ever benefit in a material way from the "politics of democratization," they will have to field a candidate whom the American public, and the world, believe to be willing and able to take the risks, fade the heat and verbal brickbats, and put American boots on the ground when necessary.

Could the Dems do that? Sure they could, in theory — if they repudiate their recent history and their far-left wing (a/k/a "their base"). They can't nominate another Jacques Forbes Kerry, though. I'm betting on Hillary the Hawk as the Democratic nominee in 2008 precisely because when it comes time to point to Dubya's successes and say "I coulda done that!" in the caucuses, she's likely to have marginally more credibility than a John Kerry or a Howard Dean. But Condi's still gonna kick her butt, because with Hillary, it's gonna still be an act — posturing, just like her hubby firing off a volley of cruise missiles to wag the dog — and enough people will see through that.

Mr. Scheiber's suggestion — which effectively boils down to "We Dems will get the credit and reap the domestic political rewards from world-wide democratization because, after all, we're the only principled people" — is just silly self-deception. When it comes to making the bread of democracy, and then to enjoying the eating of it, Mr. Scheiber and his fellow Democrats should remember the tale of the Little Red Hen if they don't want to remain like the little yellow goose, peering sadly through the White House windows from outside.

How private accounts will "fix" Social Security's solvency problems

After the last State of the Union address, I wrote that "if there's a compelling reason to believe that personalization/privatization will address and solve the [Social Security] solvency concerns, I haven't heard it explained yet in words that can penetrate my liberal-arts-major consciousness."

But now VodkaPundit a/k/a Will Collier has done the best job I've seen so far of connecting the two issues in a candid and compelling way. Read the whole thing — it's not long, and excerpting only part of it here wouldn't do it justice.

Will's right, of course, that telling the truth will be dangerous, because when the truth is unpleasant — as, I think, the demographic truths of Social Security's future are — it's going to be spun hard by the truth-teller's political enemies.

TANSTAAFL, baby. That's a hard, cold macroeconomic truth: There ain't no such thing as a free lunch. If younger individuals are allowed to opt into a voluntary private accounts program, they will indeed face market risks. Diversification and a long time horizon can mitigate those risks, just as they do with private retirement investments. Perhaps those unwilling to "gamble" on market returns for their private Social Security accounts can instead gamble on future politicians not cutting their benefits/raising everyone's tax rates.

But the demographics are going to require that everyone face either one gamble or the other. Me, I'm more inclined to trust market forces than politicians, and I'm attracted both philosophically and fiscally to the idea of owning (being able to control, pass on) my retirement investment.

Dubya has a gift, in his best moments, for speaking plainly notwithstanding political risks. I hope he'll whap his speechwriters and political consultants upside the head, damn the torpedoes, and start making the case for private accounts in blunt terms like Will has used. Promising all things to all people without cost is pandering. Facing up to hard economic truths and then laying out options for dealing with their consequences is courageous — "hard, hard work," to borrow from Dubya's debate phrasing. But it needs to be done.

There are none so blind

I won't blame the Houston Chronicle's Mike McDaniel for the ridiculous headline on his story today about Dan Rather: "Rather climbing down from the pinnacle." But it's fair to say, I think, that the editor who wrote it and Mr. McDaniel both fall into the category of "those who will not see."

If the "pinnacle" in question were meant to suggest the highest point of arrogance, incompetence, barely-concealed bias, and willful duplicity, I'd agree that Dan Rather once stood at the top of that mountain. But that's clearly not what Mr. McDaniel or the headline writer intended. They used "pinnacle" to mean a lofty, admirable, well-earned and -regarded position in the world of mainstream media journalism. To suggest that Dan Rather "climbed down" from that position presumes that (a) he was ever there to begin with, and (b) he came down of his own accord. Neither of those premises is true, and the second one is laughably false.

Just how clueless is Mr. McDaniel? A quick indicator is when he refers to last fall's controversy as "Memogate." A quick Google search does indeed produce 55,000 hits, but "Rathergate" produces more than five times as many. It's not a trivial distinction: That someone would forge (ineptly) a set of memos to try to blacken a presidential candidate's reputation is neither surprising nor of cosmic significance by itself. That the "face" and principal symbol of a major network TV news organization would actively conspire to spread the fraud, and then to conceal that conspiracy, is of cosmic significance.

Mr. McDaniel buys into Dan Rather's spin bigtime:

Rather initially stood by the report. Twelve days after it ran, he issued an apology. He's been tight-lipped about it since.

Rather's is the most public face of that report, and his many critics think he championed it. An internal investigation came down hard on CBS but spared Rather and CBS News President Andrew Heyward.

"This is my personal view, but there are two things that have not gotten the attention they deserve," Rather says. "One, this panel found that whatever mistakes were made, they were not born out of political bias. No. 2, after spending four months and $5 million trying to establish that the memos were 'forgeries,' as so many have called them, the panel was unable to do that.

"I think it's fair enough to say that the documents weren't conclusively authenticated. I've acknowledged that, said I'm sorry and taken steps to see it doesn't happen again."

Oh, please. Even for a puff-piece, even for an op-ed, this string of distortions would be beyond the pale, but Mr. McDaniel's article is published as "news." Rather's defiant self-defenses outnumber his "apologies" by a huge margin, and he's been anything but "tight-lipped." The panel report inexcusably stopped short of saying that the documents had been conclusively proved fraudulent; Rather turns that on its head to say that they weren't "conclusively authenticated," and Mr. McDaniel signs on to that distortion without comment. The panel likewise refused to draw a conclusion, one way or the other, on whether Rather and his team's motive was self-glory or craven political bias; Rather paints that as exculpation and a ratification, and Mr. McDaniel swallows and then regurgitates that line of crap just as eagerly. Mr. McDaniel writes that CBS "spared" Rather and CBS News president Andrew Heyward, as if they were exonerated when in fact they've hung onto their employment by their fingernails and linger on in disgrace (which, itself, is another disgrace).

That Mr. McDaniel can quote a Rather phrase like "'forgeries,' as so many have called them" without blushing or refutation puts Mr. McDaniel quite near the pinnacle that Rather actually occupied.

If the panel had written, "Dan Rather is unquestionably the worst disgrace to journalism since the invention of the printing press," Rather would have spun it as "The panel compared me favorably to my peers from the classical ages of Greece and Rome!" And flacks like Mr. McDaniel would nod and smile and applaud — as the American public collectively rolls their eyes in disgust, and leaves in droves to look for other sources of news and commentary.

Reading a piece like Mr. McDaniel's, I'm left with equal parts of outrage, revulsion, pity, and regret. What's missing from my reaction is any sense of surprise.

Beldar to FEC: Bring It On!

The blogosphere (e.g., InstaPundit, Power Line, Michelle Malkin, Prof. Bainbridge, Red State, La Shawn Barber, Xrlq, WizBang, PoliPundit, The Democracy Project, and many, many others) is abuzz with worries that the Federal Election Commission, per a decision of a single federal district judge, might begin applying the McCain-Feingold campaign finance laws in a way that will treat blogs who discuss a politician or link to his/her website as having made an "in kind" campaign contribution, thereby subjecting bloggers to regulation, disclosure requirements, and potential civil and criminal penalties.

Thus, for example, Chris Muir's hilarious take in his cartoon strip "Day by Day." And in addition to these eloquent posts directly on the subject, my blogospheric friend Captain Ed of Captain's Quarters has added this disclaimer on an unrelated post in which he discusses Sen. John Cornyn (R-TX)'s smackdown of Sen. Robert Byrd (D-WV) (boldface by Cap'n Ed):

Please note: For FEC purposes, I must ask you not to donate to John Cornyn's campaign fund while visiting his website, nor do I endorse the Senator in any re-election bid. Unless he and his colleagues take some action to reverse McCain-Feingold, I'm afraid I'll be writing this about every politician currently in office.

Which prompted me to leave this comment regarding Cap'n Ed's post that included the disclaimer:

Cap'n Ed, if the disclaimer is intended to draw attention to a ridiculous decision on a ridiculous law, that's fine. I think your actual risk doesn't justify it, however, and I certainly have no intention of publishing that kind of thing on my own blog posts. If they want to make me the test case, they know where to find me. In the meantime, I'm not going to be intimidated by one loopy ruling of one federal district judge far from where I live.

To expand on that somewhat:

I'm emphatically not an expert on campaign finance laws, but I do know my way, in a general sense, around First Amendment precedent. I'm not giving legal advice to fellow bloggers or anyone else here, nor pooh-poohing their concerns. By all means, I encourage fellow bloggers and blog readers to express their concerns on this subject to the F.E.C., their legislators, and the public at large.

But speaking just as one crusty old trial lawyer who also happens to write a blog with his bemused observations and occasional rants about politics, I'm damned sure not going to change my blogging style, nor start running disclaimers every time I blog about a political issue or a politician/candidate. It's business as usual at BeldarBlog.

If the F.E.C. wants to make me their test case — and a test case somewhere outside the Beltway may be appropriate, given the F.E.C.'s decision not to appeal Judge Kollar-Kotelly's district court ruling to the D.C. Circuit — I'll gladly waive personal service and/or arrest. I'll meet 'em at the courthouse steps with my pocket copy of the Constitution in one hand and my keyboard in the other. Here's my wrists, boys — cuff me if you dare.

Maybe I'll beat Judith Miller and Matt Cooper to a jail cell. But I doubt it; and at least I'd have a genuinely principled reason for being there.

Two Yalies pay tribute to Jackie Robinson

On tonight's PBS News Hour, I just watched two Yalies, tall men in good suits, speaking about Jackie Robinson. As described elsewhere:

Bush and Kerry ... shared the same stage at a U.S. Capitol ceremony honoring Robinson, who broke Major League Baseball's color barrier in 1947 by becoming the first black player in baseball's modern era. He was posthumously awarded the Congressional Gold Medal, the highest award Congress can give.

Both men spoke eloquently in the short video clip I saw, but only one man used short sentences and plain, powerful words. One seemed to me to have a special gleam in his eyes that bespoke an involvement with and passion for baseball and its heroes. The other seemed to me to be reading a prepared text in that sonorous, somnorific drone we all came to know so well last year.

As the ceremony ended, the man who sounded less like a stereotypical Yalie was standing by Jackie Robinson's widow, applauding with the crowd. He spotted someone in the audience, made eye contact, nodded toward a back exit, and clearly mouthed the words, "You wanna ride?"

One of these men paid tribute from the heart to an American hero, and his ego and personality are completely compatible with thinking of someone else's convenience (could have been Laura's, could have been some aide's, I dunno) despite his high office, weighty responsibilities, and busy schedule. The other man showed up for a photo op, and will be forever associated with the phrases "Do you know who I am?" and "That son-of-a-bitch ran into me!"

I've been thinking I ought to update my banner image at the top of this page, just because it's been there since before these two men squared off in the November election. But I think I'll leave it there a while longer.

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.

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.

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.

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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.)

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.