Legal Fiction

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It's really difficult to blog about anything in light of the destruction going on along our Gulf Coast. So I won't. But I will urge everyone to consider giving to the Red Cross to help out.

I'm very anxious to hear about the condition of New Orleans. It is one of the few truly great American cities with its rich cultural history and the morally casual attitude to match. I love it. It's one of the few places one can go these days to have a truly religious experience (in the ancient Greek/Bacchaen sense).

And I hope it pulls through.

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Jack Balkin has an essay up on Slate that is well worth the read. It’s nominally about defending the “living Constitution” narrative, but as Orin Kerr noted, it’s really about attacking originalism. Because I don’t care for the “living Constitution” narrative personally or politically, I’ll just pile on originalism instead.

Originalism reminds me of what Harold Bloom once said about Edgar Allen Poe. If I’m remembering him correctly, he said that he didn’t really respect Poe but conceded that he might be missing something given the respect that Poe gets from scholars whose opinions he truly respects. I feel that way about originalism. I just feel like I’m missing something. It all seems so uncompelling to me. In my opinion, it’s a flawed theory whose only saving grace is that it’s almost never applied in practice. But there are a lot of wicked smart (say in Boston accent) folks out there who do believe in it – and strongly. That’s what I’m trying to understand.

One place where I think these legal conservatives go astray is by conflating the virtues of judicial restraint with the virtues of originalism. When it comes to judicial restraint, I’m a card-carrying member of the Goldwater ‘64 club. I am a strong legislative supremacist – and I would like the progressive movement to return to its early 20th century roots by reforming the legislative process to make it more little-d democratic (gerrymandering, curtailing conference committees, etc.) and promoting judicial restraint. To me, Bush v. Gore ranks below only Dred Scott in terms of sheer arrogance and disregard of the limits of judicial power. It was the second-worst decision in American history and I’ll keep banging that drum until the day they roll my carpel-tunneled bones into a pine box.

Anyway, I think conservatives are right to value restraint. But if restraint is your top priority, then originalism is about the last interpretative theory you should be adopting. If it is nothing else, originalism is the ultimate exercise in judicial arrogance and calls for nothing less than a radical reformation of American law and society. If you take it seriously, it is a breathtaking appropriation of power by the judiciary at the expense of the legislative branches on both the state and federal level. If it ever were implemented, we would have a system not unlike the Iranian cleric-dominated judiciary that strikes down any law that it deems contradictory to Islam. An originalist judiciary could strike down any law or precedent that does not fit within its theory of what men understood vague words to mean in the 18th century.

Getting back to restraint, judges are generally constrained by a number of factors, including text, precedent, and a sense of deference to the democratically elected legislature. Originalism ignores all three. It is highly undeferential to both legislative will and judicial precedent. For instance, Justice Thomas is openly hostile to precedent that is inconsistent with the original understanding of the Constitution. Presumably, he would disregard it all if he could gain a majority for his views. Thomas’s jurisprudence may be worthy of debate, but what is not debatable is that Thomas would be uncontrolled by past decisions – and thus by the collective wisdom of the judiciary and its experiences over generations. He would be a bull in the china shop of precedent, breaking anything that got in the way. Whatever else this is, restrained it is not.

Same deal with legislative text. Originalism, properly understood, would give the judiciary rather than the legislature the final say on essentially everything. (In theory, the judiciary has this power now, but in practice, it gives the legislature the final say on what “commerce” means, which it should.) And the number of laws that would have to be immediately overturned is staggering. Jack Balkin explains:

Many Americans fail to realize how much of our current law and institutions are
inconsistent with the original expectations of the founding generation. A host
of federal laws securing the environment, protecting workers and consumers—even
central aspects of Social Security—go beyond the original understanding of
federal power, not to mention most federal civil rights laws that protect women,
racial and religious minorities, and the disabled from private discrimination.
Independent federal agencies like the Federal Reserve Board, the Federal Trade
Commission, and the Federal Communications Commission would all be
unconstitutional under the original understanding of the Constitution.

And because consequences are 100% irrelevant to originalist jurisprudence, it doesn’t matter that these decisions would cause an economic meltdown. They contradict the original understanding. It also doesn’t matter that environmental laws and civil rights protections were products of the legislature and have broad public support. Only the original understanding matters - and it trumps.

The bigger point here is that by confining terms like “commerce” to its supposed original understanding, the judiciary becomes a vastly more powerful institution. True, it would be more deferential on a few social issues, but it would simultaneously become decidedly less deferential on the more consequential legislation passed under the commerce clause.

Originalism should therefore be understood not as a product of Burkean conservative thought, but as a radical experiment in imposing abstractions on reality. It’s not much different than our democracy-promotion experiment in Iraq. Say what you will about them both, neither is restrained and neither is conservative. Both seek nothing less than reshaping the world in their respective images. That’s why if you are truly interested in conservative restraint, originalism ain’t for you, just like neocon democracy promotion ain’t for you either.

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I would really like nothing more than to spend about a week writing about the latest controversies in my home state. But for personal reasons I can't really disclose (maybe one day), I don't feel comfortable weighing in on it. But if you are interested, the blog BluegressReport.org has all the latest.

There really is nothing quite like local politics in Kentucky.

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I had a disturbing realization last Friday night during the Bill Maher show. The guests were Arkansas Republican governor Mike Huckabee, columnist Dan Savage (who guest-posted for Andrew Sullivan recently), and playwright Eve Ensler (who wrote the Vagina Monologues). It was an interesting trio – a Southern Republican governor, a playwright, and a gay liberal columnist/humorist. The problem was that by the end of the episode, I liked Huckabee much more than I liked either Ensler or Savage. Even though I agreed with both of them substantively, they were bitter, snide, and thoroughly unlikeable. In short, they were – like too many of the Left’s public faces – horrible rhetoricians.

I’ve written about the different types of rhetoric before, so I’ll keep this short. Basically, rhetoric is the art of persuasion. Rhetoric is especially important for lawyers and politicians whose jobs are entirely about persuading others. Rhetoric is also extremely important for a minority party having trouble persuading the public to vote for its candidates and support its policies. Anyway, Aristotle argued that their were three types of rhetoric – logos, pathos, and ethos. Logos refers to persuasion by logic. Ethos refers to persuasion by appealing to the speaker’s character or moral authority. Pathos refers to persuasion by emotion.

Personally, I’ve always ranked pathos above the other two in terms of effectiveness. The most common example of pathos-based arguments is the appeal to raw emotion. Think of the Iraq War or the recent Vioxx verdict – both probably resulted from effective appeals to the audience’s fear and anger.

But pathos is more than merely triggering some raw emotion from the audience. One big part of persuasion-by-pathos is likeability. If your audience doesn’t like you, you won’t persuade it no matter how solid your logic is. If the audience does like you, the chances of persuading it are infinitely higher. It’s the difference between people like George Bush or John Edwards and people like John Kerry. The former understand that you must connect with people on some gut level or else they won’t listen to you or support your arguments.

That doesn’t mean that people are stupid, or that they just blindly follow whoever they happen to like. It’s more complicated than that – and it goes back to my theory of “default settings.” In these polarized times, a lot of people have developed “force fields” around their political beliefs. When Red State people at home watching HBO listen to people like Savage and Ensler, they feel as though they are being personally attacked or that their views and beliefs are being ridiculed as stupid or cruel. The force field then goes up and nothing that Savage or Ensler says will get through. Savage and Ensler can therefore never persuade.

When, by contrast, these same Red State HBO-watchers hear someone who makes an effort to be respectful to religious or conservative people or their beliefs, they let the force field down and are more likely to actually listen to what the person is saying. The goal isn’t to trick them or treat them like idiots, the goal is to find some way (e.g., pathos) that allows your arguments to be heard. If liberals on TV come out shooting from the gate calling the country stupid, the force fields pop up and they might as well not be talking at all. (And the same is true for shrill conservatives.)

Julius Caesar is not a great example, because it seems clear that Shakespeare thought the masses were idiots. But there is a great deal that progressives on TV could learn about rhetoric from Marc Antony. Here’s the opening of his speech:

Friends, Romans, countrymen, lend me your ears;
I come to bury Caesar, not to praise him;
The evil that men do lives after them,
The good is oft interréd with their bones,
So let it be with Caesar

Remember the context. Caesar has just been murdered and Brutus has convinced the crowd that it was the right thing to do. When Antony takes the stage, the people are rabidly anti-Caesar and most likely suspicious of Antony too. As for Antony, he’s probably boiling with righteous rage and would like nothing more than to lash out at the assassins. But instead of charging out of the gate calling them criminals, Antony begins the speech by agreeing with them – by finding common ground with the crowd’s beliefs and emotions. And because of that, they listen to him – they lower their force field and become capable of being persuaded. And once Antony has his foot in the door so to speak, he eventually brings them around to his view.

Again, it’s not a great example because Antony was quite clearly full of shit. I don’t want progressives to approach arguments with deception as the goal. The goal is take the steps necessary – whether through initial deference or respect or politeness – to allow your arguments to be heard. The goal, in other words, is to become a little more likeable on TV in the hopes of persuading.

Take the gay marriage debate as an example. One approach is to accuse opponents of bigotry and try to shame them into coming around to your view. While you may be substantively right, chances are you’re not going to persuade anyone who doesn’t already agree with you. You’ll come out shooting and the audience will ignore your arguments. However, if you start it differently, you might give yourself a chance. For instance, you might say (and this is not bullshitting – I sincerely 100% agree with this) that you respect conservatives’ devotion to protecting the family. You might add that you agree how important families are to society. At this point, you’ve made yourself more likeable by giving some ground – you’ve shown respect for the other side’s views. Then, assuming the force field is lowered a little bit, you say that you feel that gay marriage is a way to further those goals, not undermine them.

Same deal with Iraq. I would love to see more speakers on TV beginning with an emphasis on the shared goals that almost all Americans have about fighting terrorism and keeping America safe and honoring the troops. After they’ve established that common ground, they can proceed to explain how the Iraq War undermined, rather than promoted, these shared goals.

It’s not rocket science. Even if you don’t agree with these particular examples, the point is that arguments don’t work if your audience dislikes you. And it continually amazes me how many liberals go on TV bound and determined to be as unlikeable as possible. On Maher, Huckabee went right on smiling and being respectful while the other two seemed like snots.

Believe me, I do sympathize. And I’m certainly not in a good position to accuse anyone of being too angry given the dark turn my writing has taken post-November ‘04. But I’m not on TV - and I'm not exactly a major voice of the progressive movement. But still, even though my posts have been darker since November, I know deep down that the angrier I get, the less ability I have to persuade those who don’t agree with me initially.

That’s not to say a little shrillness isn’t in order from time to time. Sometimes it’s the only way to deal with an issue appropriately (Intelligent Design, for instance). But the less you use it, the more effective it is. If you’re shrill everyday, it doesn’t work very well.

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Time Magazine, Feb. 1989

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From the Post:

When John G. Roberts Jr. prepared to ghostwrite an article for President Ronald Reagan a little over two decades ago, his pen took a Civil War reenactment detour. . . . A fastidious editor of other people's copy as well as his own, Roberts began with the words "Until about the time of the Civil War." Then, the Indiana native scratched out the words "Civil War" and replaced them with "War Between the States." . . . While it is true that the Civil War is also known as the War Between the States, the Encyclopedia Americana notes that the term is used mainly by southerners. Sam McSeveney, a history professor emeritus at Vanderbilt University who specialized in the Civil War, said that Roberts's choice of words was significant.

"Many people who are sympathetic to the Confederate position are more comfortable with the idea of a 'War Between the States,' " McSeveney explained. "People opposed to the civil rights movement of the 1960s and 1970s would undoubtedly be more comfortable with the words he chose."

Editing an article to change "Civil War" to "War Between the States" (presumably without irony) isn't necessarily damning in and of itself. But when you combine it with the rest of Roberts' record on race, it's further cause for concern. And it further convinces me that Roberts has some major political vulnerability on this issue, assuming anyone in power decides to push him on it.

[UPDATE: Wade Henderson at TPM Cafe provides some more cause for concern:

In one of the 16 cases from Roberts’ time in the Solicitor General’s office that the White House refuses to turn over to the Senate, Roberts, as acting Solicitor General, argued unsuccessfully against the FCC’s affirmative action program, even while the FCC defended it. While it's not unprecedented for the Solicitor General to oppose another federal agency in court, it’s very rare. Metro Broadcasting v. FCC is a case that calls for attention, especially since Roberts argued that the policy in question, affirmative action, wasn't only unconstitutional but “a policy in search of a purpose.”

We don’t know if Roberts holds the same views today, but concerns about Roberts’ views on affirmative action are certainly compounded by the White House’s refusal to respond to senators’ limited request for Solicitor General documents-as well as by the fact that a key file on affirmative action appears to be missing from documents that have been released.

I'd sure like to see that file.

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Although I find Roberts’ entire record on race disturbing, his opposition to the VRA amendment in 1982 bothers me the most. At first glance though, this position seems the easiest to explain. After all, a supporter might say that Roberts was merely opposing electoral quotas and was not motivated by hostility to helping minorities. The New York Times explained:

In the end, after months of fierce struggle, a compromise was brokered by Senator Bob Dole, Republican of Kansas, that required proof of discriminatory results, based on "the totality of circumstances." The compromise stipulated that this did not mean minorities had a right to proportional representation. . . . Mr. Roberts's side had lost, although the Dole compromise did reflect a fallback position he eventually advocated.

I’m sorry, but that doesn’t let him off the hook. For reasons I’ll explain, his opposition was still deeply troubling. Even assuming there was nothing improper about his motivations, his position (and his early days more generally) show a disturbing tendency to elevate abstract ideological systems over the real-world consequences of the policies that follow from those systems. In other words, like Scalia and Lenin and Robespierre and Wolfowitz, the young Roberts lived in a world where abstractions mattered more than people.

The VRA has always had a special place in my heart because I firmly believe it’s the most successful and most consequential civil rights legislation ever passed by Congress. The primary obstacle to ending official discrimination in the South (and elsewhere) was that black people couldn’t vote. One of the cardinal rules of elected legislators is they generally act only in their electoral self-interest. Prior to the VRA, Southern legislators had no electoral (as opposed to moral) incentives to help blacks. It was only when discrimination began to have consequences at the polls that things really began to turn around.

That’s why I have never understood – or trusted – those who passionately opposed the VRA or its renewal. Even though it’s possible to have a good faith dispute about the application of certain provisions, it’s the spirit of the bill that is most important. And what’s always disgusted me about the early Reagan administration is that it was clearly opposed to the animating spirit of the VRA. The great Reagan himself opposed it in 1965. What’s even worse is that he called it “humiliating to the South” in 1980, by which he meant the white South. So let’s be clear – the Reagan administration’s heart was never with the VRA. And his “humiliating” line was merely one part of his larger pattern of race-baiting in the early 80's to win over Wallace Democrats – sometimes known as Reagan Democrats.

Getting back to the story, parts of the VRA were up for renewal in 1982. To understand that contemporary debate, you need to know a little about how the law works. The VRA has different sections, and the two most well-known sections are Section 2 and Section 5. Section 2 prohibits voting practices or procedures that discriminate on the basis of race. It applies nationally and is permanent. Section 5 requires certain states and localities that have a history of discrimination to submit any proposed changes in election law to the Department of Justice for “preclearance.” Section 5 applies only to certain states and is temporary. As Prof. Hasen explained in this article, it is the only existing example of states being required to obtain permission from the federal government to pass a law. [In fact, for reasons that I won’t get into here, it is doubtful that Roberts would find Section 5 constitutional.]

The controversy in 1982 involved both sections. The original Section 5 was set to expire in 1982. So, Congress had to vote on whether to renew it. In addition, history had shown that Section 2 (which applied everywhere) had some major loopholes that allowed white majorities to dilute minority votes. For instance, in 1980, the Supreme Court upheld an at-large voting regime in Alabama in which every city commissioner was voted upon, not by district, but by the entire city -- which was majority-white. The result was that candidates supported by blacks never won because blacks constituted only a third of the electorate. The Court found that this regime was not unconstitutional because the plaintiffs had not shown intent to discriminate.

Because Southern governments had become smart enough to stop admitting what they were doing, it was extremely difficult to establish a valid discrimination claim. With this Supreme Court decision, Southern governments and localities with existing at-large or multi-district election regimes could dilute minority votes. The proposed remedy was to amend Section 2 to allow discrimination claims to be based on the effects of election laws, and not just intent, which became almost impossible to prove.

[Interestingly, Section 5 already had an effects test, but it only applied when a government sought to change its election laws. For those localities (like the one in Alabama) with existing at-large and multi-district elections, minorities could never bring a successful Section 2 challenge.]

The proposed amendment to Section 2, which is the heart of the Roberts controversy, was thus a concrete response to a concrete problem. It was not dreamed up by some Evil Liberal Quota Dragon. It was not an attempt to impose political correctness on election results. It was addressing a well-documented loophole.

The Reagan administration, however, chose to stand its ground and fight the new Section 2, and young Roberts was all too ready to join. Just for perspective, the House had approved the new Section 2, and renewed the other parts of the VRA, by a 389-24 vote in October of 1981. Reagan waited one month before announcing his position. One month. There was uncertainty about whether he would support renewal at all. When he finally did offer his position (caving to political reality most likely), he ultimately supported renewal, but opposed the new Section 2.

Although he also appears to have supported renewal of the VRA, Roberts – like many in the Senate and the administration – claimed that the amended Section 2 would essentially lead to the downfall of man. He called it a “radical experiment” and claimed that evil librul judges would have the guts to impose quotas on the nation’s election results. Eventually, “Democrat Wars” Dole offered a compromise amendment that explicitly stated that Section 2 did not include a requirement of proportional representation. The NYT claimed that this was “a fallback position [Roberts] eventually advocated.”

Taking a step back, I’ll concede that quotas are generally suspect, and that one can have a good faith argument about them. But to be honest, I think the whole “he-was-only-fighting-against-quotas” bit is a bunch of crap. The Reagan administration – and Reagan himself – opposed the Voting Rights Act from its inception and opposed efforts to help minorities more generally. The Section 2 debate was, in my opinion, merely a respectable proxy for the underlying race-based hostility to the VRA itself. Given Roberts’ record on everything else, I just can’t believe that he was so motivated by the remote (if not imaginary) threat of judicially-imposed quotas overriding the electoral will that he penned angry memo after angry memo denouncing the new Section 2. The emotion just doesn't seem proportional to the possible harm. And personally, I think something else was motivating him – but that’s just my speculation.

This idea of a “respectable proxy” applies to the modern gay marriage debate as well. Opponents can’t come right out and say that they despise gay people. Instead, they make it into a debate about states’ rights or judicial power. I’m not denying that people can’t believe in these principles. But my experience has been that those who are motivated to argue passionately about judicial re-definition of marriage just happen to be the same ones who (deep-down) despise homosexuals. Similarly to the civil rights battles, states’ rights and judicial power are the respectable proxies for an underlying hostility that is darker and more fundamentally hateful.

But even assuming Roberts’ passionate opposition to fixing a loophole was not based in hostility to minorities, it demonstrates a disturbing tendency to ignore the real-world consequences of his abstract visions. It’s possible that Roberts was so drunk on the Bork Kool-Aid that his belief in limited federal action had morphed into a quasi-religious conviction in the early 80s. In short, he seemed to be so devoted to his abstract system of jurisprudence that he failed to see that the consequences of inaction were the dilution of minority votes.

This is the same problem that Scalia and Thomas have. If they could, they would destroy the administrative state in the name of their abstract logical systems. And given Roberts’ history, I fear he’s going to join that wing of the Court - and he'll be there for a long time. The early Roberts at least seemed all too willing to elevate abstract models above real life consequences. And that's about the worst characteristic possible for a Justice.

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I know I'm a little late to the game, but I've been busy at work and never had a chance to offer my two cents on Feingold's proposal for a timetable for withdrawal.

I don’t know whether Russ Feingold has a realistic chance at the Democratic nomination, but I think his proposal shows a lot of political savvy. And if he keeps it up, he could ultimately put some pressure on Hillary’s left flank -- the point where I predict she will be most vulnerable in the primary.

First, though, I think Feingold’s proposal is a perfect example of the collective action problem currently facing Senate Dems with presidential aspirations. The word from on high right now seems to be shut up about withdrawing from Iraq and let Bush stew in his own liberty juices. To "cooperate" is to stay mum. To "defect" is to call for a timetable for withdrawal. The problem, though, is that as disillusionment with the war grows -- especially among Democratic primary voters and the so-called netsroots -- the benefits of "defecting" become almost irresistible. And Feingold finally bit -- and consequently, he’s reaping the benefits of fawning coverage in the left bloggysphere.

By being the first major voice in the Senate to wade in, Feingold immediately gained a lot of political points in the eyes of those skeptical of the war. The longer the other major players in the Senate resist this call (and the more people that "defect" before they do), the less benefits they will reap if they ultimately decide it’s the right thing to do.

[I couldn’t find the link, but I seem to remember an Yglesias post noting the potential benefits that a "defector" would reap, though he didn’t use the exact language of the collective action problem.]

And that brings me to Hillary. It may be that her resources and name recognition are so overwhelming that she already has the nomination wrapped up. As I’ve said before, I simply don’t see how the Warners and Bayhs of the world will have a shot. It’s unclear where they’re going to get their votes, especially if the DLC rallies behind Hillary (as appears increasingly likely). Hillary is going to suck up all the oxygen and resources from that wing of the party.

My view is that the only way Hillary could be defeated in the primary is by attacking her from the left. If the netsroots (i.e., the increasingly expanding and powerful "Dean coalition" of activists and urban professionals) unite behind a single candidate, that candidate could go toe-to-toe with her (especially in fundraising). Admittedly, Hillary is raising a crapload of money the old fashioned way, and it’s going to be tough for anyone to match it. But as the Hackett election taught us, a united netsroots focused on a single race can generate a lot of money quickly. That’s why the really interesting race right now is not necessarily for the Democratic nomination as a whole, but the race to be the progressive alternative to Hillary. Edwards -- in a characteristically savvy move -- has been aggressively reaching out to blogs in an attempt to position himself properly. Same deal for Feingold.

What I predict, though, is that the Dean coalition will not unite around a single candidate. Some will break for Clark, some for Feingold, some for Edwards, and so on. If that happens, Hillary will easily win a plurality and the nomination. This is the same reason why McCain or Rudy might actually have a shot at the Republican nomination. If the Dobsonites can’t agree on a chosen one, and if many of them waste their votes on candidates like Brownback, then McCain could ride to the nomination with a plurality vote. That’s why Christ, Inc. really needs to settle on who their boy is going to be before things start heating up.

One last point on Hillary -- far be it from me to doubt the political wisdom of the Clintons. But it’s possible that even Bill and Hillary haven’t fully recognized the potential implications of the Dean and Hackett campaigns. Hillary’s move to the center has been masterful (and "selectively centrist" on all the right issues), but there is a risk that she may be ignoring. I think Hillary feels herself immune from an attack on her left flank. And maybe she is. But there are a lot of pissed-off people along that flank with a lot of money to spend. And Hillary’s move to the center (which I still think is necessary given the American political landscape) threatens to depress excitement about her within the base, and may even generate intense primary opposition from the left.

In the past, this didn’t matter because the lefty urban professional class was unorganized and politically impotent. No more. And I think the Clintons may not be grasping that tens of millions of dollars can now be raised in a matter of mere weeks against Hillary if the netsroots (or the mob if you prefer) rallied around a single alternative.

The other risk is that even if Hillary wins the nomination, her refusal to take a stronger stand on Iraq might depress the base, which might in turn be less willing to donate money and hit the streets for her. It’s an excruciatingly difficult balancing act -- and one of the many reasons why it’s frickin’ hard to get elected President.

If, however, Hillary could make a move on Iraq that would excite the Dean coalition without jeopardizing her new centrist street cred, then she really could ride a tsunami of fundraising and support to the White House. Even if Joe Trippi’s predictions have not materialized yet, the potential is surely there. Two million people giving $100 would revolutionize politics and overwhelm the GOP’s traditional advantage in $1000-a-plate dinners.

If, for instance, Hillary came out for a timetable for withdrawal before anyone else does, she could solidify support on her left and defuse an anti-Hillary insurgency. The risk, of course, is that she’ll lose the "Iraq points" that she’s cultivated so carefully. Whether she would lose these centrist points depends on how much the country sours on Iraq between now and 2008, and how receptive they will be to a timetable for withdrawal. If the anti-war sentiment grows, then obviously the candidate who supports this proposal early on will benefit from it. But Hillary seems disinclined to go that route -- and least for now. And she might grow to regret it.

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I'm on the road for work today, so I doubt I'll post again until Wednesday. Until then, I wanted to address a couple of objections raised in the comments on the post about Roberts. First, it was noted that "burned" probably referred to the political or media consequences of the administration's actions and not necessarily to the passage of the amended Voting Rights Act. That seems like a fair point.

A second objection (and I expect to hear this argument more) was that Roberts' opposition to the amended VRA was merely rooted in his opposition to quotas, and that he eventually supported it when the anti-quota language was added. I can't agree with that one - I don't think it lets him off the hook. I wish I had time tonight to lay out this argument, but I don't. I will address it later this week though.

The big point to keep in mind is that the amended VRA was not passed in a vacuum, and it wasn't dreamt up by Marxist hippies who wanted to impose a requirement that minorities must be elected in equal proportion to their population. It was a response to a concrete problem - Southern localities had found a loophole in the Voting Rights Act (a well-documented one) and were exploiting it. The amendment was intended to address that real problem. For now, I'll point you this post from Prof. Hasen's non-shrill Election Law Blog discussing the history in more detail.

And I will too, hopefully Wednesday if not sooner.

But like I said before, it's the pattern that is most troubling. Roberts was on the same side of every issue that implicated race. And that's what bothers me even more than his position on on any one particular issue.

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Judge Roberts has some splainin’ to do. As more of these old documents come out, it’s getting harder to come up with a satisfactory explanation for his uniform hostility to any and all efforts to protect civil rights, and to help minorities more generally. At best, I’m thinking that the early Roberts was a product of boarding-school privilege who was unaware and isolated from the reality of racial discrimination. At worst, he was someone who didn’t like minorities. This is a serious criticism, and I would be hesitant to raise it if the troubling theme didn’t arise again and again – and on every single position involving issues implicating race. Because this is not a charge to toss out lightly, it’s important to lay out the basis for my criticism. After I do so, I'd welcome people to respond and tell me why I might be wrong.

Before I lay out the laundry list of troubling issues, let me address a couple of objections I expect that supporters will raise. First, a Roberts supporter might say that many of the issues in these memos involved specific constitutional or legal questions, and should not necessarily be seen as evidence of hostility to women and minorities. For instance, answering a question about whether Congress can bar federal courts from ordering busing as a desegregation remedy is not necessarily saying that busing (or even desegregation) is a bad thing. A second objection might be that Roberts was merely skeptical of federal power in general, including its authority to act to protect civil rights and equalize opportunity. In other words, maybe Roberts honestly thought federal power had exceeded its constitutional bounds and was therefore not motivated by racial animus but by fidelity to the principle of limited government.

These are fair arguments, and I think if we were only looking at Roberts’ stance on a couple of issues, they might have some merit. But when you step back and look at his record as a whole, a more disturbing pattern emerges -- and one that suggests more than merely devotion to limited government power. On every single issue that had racial overtones, Roberts consistently sided against minorities – and often did so with passionate scorn. [His record on gender is no better, but I’ll leave that argument to Dahlia Lithwick.]

Now, I suppose it’s possible that one is so wedded to the principle of limited government that it outweighs the benefits of using federal power to address racial discrimination in any and all contexts – even though black people couldn’t vote before federal power was extended, and thus flaws in the legislative process would have prevented any correction. But I doubt it – not in 1982 anyway.

What makes all of this especially troubling is that Roberts came of age in a time when racial wounds were still raw, and avowed segregationists still roamed the halls of Congress. To be that hostile to using federal power to address America’s greatest failing – when that failing was still so fresh and clear in people’s mind – strikes me as disconnected from reality at best, or something more pernicious at worst. And again, it’s not just the principle of limited government. It’s the snark too. It suggests a raw hostility to helping minorities.

Lithwick said it well:

The emerging picture of Roberts is of a man deeply skeptical about federal efforts to equalize opportunity for women or minorities, be it through busing, housing, voting rights, or affirmative-action programs. He was even more skeptical of judicial efforts to engage in the same project. And that's a legitimate, if debatable, political theory. But if, as the memos suggest, Roberts' ideological views are the result of being too smart-alecky or dismissive to accept that these disparities were of serious national concern in the first place, he doesn't just have a gender problem. He has a reality problem.

Now, I don’t think people should be damned for eternity because of what they said or did in their 20s. People change and grow wiser. Time makes you bolder, and chiiiiildren get oooooolder. Take me. I am thoroughly ashamed of some of the views I had and heard about race growing up as a child in the South. I can’t erase that, but I can say that I was wrong. And I can do what I can with the platform I have (however small) to make things better, right those wrongs, and admit that I was wrong. Similarly, Roberts needs to say that he was wrong. He was a young ideologue working in a rabidly ideological – and racist – Reagan Justice Department and he wanted to impress his bosses. He needs to say on the record that he has changed his views and that his across-the-board hostility to efforts to help minorities was wrong. Otherwise, he should not approved.

Anyway, here’s the list of troubling topics I have so far.

Voting Rights Act Amendment in 1982

This is the one that really sticks in my craw. In fact, I’m going to do a longer post on Roberts and the VRA later this week. To be fair, Roberts apparently did not oppose renewal of the VRA itself. But he did oppose an amendment intended to address some of the open and obvious practices that Southern governments were using to evade the spirit of the statute. And he didn’t just write a memo about it, he was passionately involved in the political opposition as well. You should note that the amendment was ultimately approved overwhelmingly and opposed by only eight Senators, including noted racists Jesse Helms, John East, and Harry Byrd. My go-to for VRA/Roberts information has been Prof. Hasen. Here’s his op-ed in the LA Times:

One could perhaps argue that Roberts' writings did not reflect his personal views and were simply the arguments of a zealous advocate for a client. But the papers I have seen suggest otherwise.

During the Senate debates, for instance, Roberts wrote that the attorney general had to "get something out somewhere soon" [original emphasis] explaining the administration's position because the "frequent writings in this area by our adversaries have gone unanswered for too long." He called on the administration to take an "aggressive stance" against the changes to Section 2. When it was over and Section 2 had been amended, Roberts wrote that "we were burned."

Housing Discrimination

The context in which the “burned” quote came up was in Roberts’ opposition to larger federal efforts to combat housing discrimination. Here’s an excerpt from the Post:

With housing discrimination coming up again in early 1983, Roberts wrote a memo to White House Counsel Fred F. Fielding noting that the "fact that we were burned last year because we did not sail in with new voting rights legislation does not mean we will be hurt this year if we go slowly on housing legislation."

"Government intrusion . . . quite literally hits much closer to home in this area than in any other civil rights area," Roberts added. The administration should be prepared for the debate, "but I do not think there is a need to concede all or many of the controversial points [e.g., effects test, national remedy] to preclude political damage."

Tax-Exempt Status for Schools that Discriminate (Bob Jones University)

In 1982, the Reagan administration announced that the IRS would no longer deny tax-exempt status to private schools that practice racial discrimination. (This eventually led to the Bob Jones controversy.) According to this NYT piece, Roberts was asked to review the legality of this proposal. He concluded that there was no clear legal answer, and “therefore I recommend acceding to it.” Remember, this involved taking active steps to change administrative rules to help discriminatory schools keep money.

Busing

Disagreeing with Ted Olson, Roberts wrote a memo adopting the view that Congress could strip jurisdiction from federal courts to prevent them from ordering busing as a desegregation remedy. At the time, there were GOP bills seeking to strip jurisdiction over abortion, busing, and school prayer. When Olson claimed that opposing such bills would be courageous in the eyes of the press, Roberts wrote: “Real courage would be to read the Constitution as it should be read and not kowtow to the Tribes, Lewises and Brinks!” [these were big-shot legal liberals of the day – and today].

Affirmative Action

Here again, Roberts did not merely oppose affirmative action, but showed a visceral dislike for it. Even more troubling, though, is that Roberts apparently denied the existence of the problem that affirmative action was intended to address. Now I’ll be the first to admit that you can have a good faith disagreement about the wisdom of affirmative action - especially in 2005. But I don’t think one can deny in good faith the existence of the problem (especially in 1982). Anyway, here’s the excerpt from the Post:

In 1981, outgoing U.S. Commission on Civil Rights Chairman Arthur Flemming wrote a report lauding the accomplishments of affirmative action. That document landed on Roberts's desk for a critique. He derided what he called the "perfectly circular" arguments in favor of affirmative action, as well as Flemming's contention that any affirmative action failures are caused not by inherent flaws but instead by sabotage.

"There is no recognition of the obvious reason for failure: the affirmative action program required the recruiting of inadequately prepared candidates," Roberts wrote. As a postscript, he added: "I have drafted an innocuous reply to Chairman Flemming. The report is attached, although I do not recommend reading it."

And there’s this:

In August 1981, less than a month after Roberts started working at Justice, he wrote a memo for the attorney general about a meeting that Arthur S. Flemming, chairman of the U.S. Commission on Civil Rights, had requested to discuss what Roberts called "the purported need for race-conscious remedies such as busing and affirmative action.

Funding for King Center

From the Post:

In September 1982, Roberts played the role of diplomatic coach, advising Smith on how to handle an upcoming meeting with Coretta Scott King, the widow of the slain civil rights leader. The Carter administration's Justice Department had supplied a $250,000 grant to the Atlanta-based King Center for Non-violent Social Change, to teach conflict resolution in the hopes of reducing violent crime.

The grant, approved in 1980, had run out and the Reagan administration planned not to renew it. Roberts, in a Sept. 16, 1982, memo, called the program "very poorly run" and said that it had only received funding because of "political ties" between King and Homer Broome Jr., a black Justice Department official. But rather than share those concerns bluntly with King, Roberts advised, Smith should instead tell her "there is simply no money available for additional funding," and "indicate support for the activities of the King Center, and even pleasure that the Justice Department was able to be of assistance in advancing" its goals.

D.C. Home Rule

The issue of home rule for DC has always had – especially in the early 80s – significant racial overtones. To be fair, it’s not 100% clear that Roberts opposed home rule for D.C. in the early 80s, which in one context involving allowing the city to set criminal standards. But I think it’s fair to guess what he thought from these memos. And again, it’s the tone and word choice – rather than the substantive position – that is so troubling. Here’s the excerpt from the Post:

"Stan Harris reacted with understandable horror at the prospect of giving such a free hand to the D.C. Council, particularly in criminal matters," Roberts wrote his boss, White House counsel Fred F. Fielding, in a memo dated Oct. 4, 1983.

In a Nov. 16 follow-up, Roberts wrote that "there is some good and some bad" to D.C. criminal legislation, and that "our U.S. Attorney's Office, however, which deals with these issues on a day-to-day basis, advised us that zany ideas have been blocked only because of the threat of Congressional veto."

Michael Jackson

Roberts also went on a strange and bitter tirade against Michael Jackson and opposed giving him a presidential award. Admittedly, this might be a stretch, but you have to forget the modern child molestation and view Jackson from an early ‘80s perspective. Jackson’s rise to pop stardom was a racially significant event. Like Elvis (sort of ) before him, Jackson was the first black mega-pop star that the great white masses adored. He was also the first black pop star to achieve MTV stardom. In short, like all these other issues, Jackson’s rise of power had racial implications. And Roberts was extremely hostile to him.

Education for Illegal Immigrants

From the Post:

On June 15, 1982, Roberts faulted the Justice Department for the outcome in Plyler v. Doe , in which the Supreme Court overturned a Texas law that had allowed school districts to deny enrollment to children who had entered the country illegally.

Roberts argued that if the solicitor general's office had taken a position in the case supporting the state of Texas "and the values of judicial restraint," it could have "altered the outcome of the case."

"In sum, this is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have," Roberts wrote.

* * *

None of these issues taken in isolation (except VRA amendment and maybe the tax-exempt status rule change) is terribly troubling. But when you put them all together, and note the intensity of Roberts’ opposition, it’s disturbing. Roberts consistently opposed practically every effort to help minorities, and often showed a disturbing hostility to them as well. More significantly (from a legal perspective), Roberts seemed to dismiss the very notion that the effects of discrimination were real. Maybe this was a product of his privileged upbringing in a lily-white bubble, maybe it was something else. And don’t forget that this is limited to his efforts in the early 80s. We don’t know yet what Roberts wrote while in the Solicitor’s General office under Bush I.

And all of these race-related issues are in addition to his equally adamant and hostile opposition to efforts to remedy gender discrimination (Title IX limitations, etc.).

All in all, it’s not good. And if he can’t explain his record or race and explain that his views have changed, he does not deserve to sit on the Supreme Court. I'm not necessarily advocating a filibuster. But until he makes it clear that he was wrong on some of these issues, he should be opposed and Democrats should take a pound of political flesh from the administration for nominating him.

[UPDATE: Newsday has more:

In internal White House memos written in the 1980s, John G. Roberts often showed his conservative edge, offering critical assessments of government programs for women and minorities, making jokes about Hispanics and discussing how to "defund the left."

. . .

In some memos, for example, he made jokes about Hispanics and women. For a 1983 Reagan interview in Spanish Today, he said, "I think this audience would be pleased that we are trying to grant legal status to their illegal amigos."

. . .


In a 1984 memo advising on how to respond to an eccentric letter to his boss, Fred Fielding, asking if all property had been placed in a public trust, Roberts began, "One Ramon L. Rivera of Los Angeles (where else?) ... " [UPDATE 2: To be fair, this could also be read as a joke about LA people being weird.]

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Shorter Shaffer - When I said that I had explicitly identified Atta, what I meant was that I hadn't.

There's a great Seinfeld episode where George is so frustrated with the judgments he makes that he decides he'd be better off doing the opposite of whatever he is initially inclined to do. To be honest, I didn't know the details of Atta and Able Danger when all this got started (and still don't). But I could see the type of people promoting it - people like Malkin, the worst Cornerites, Powerline, Curt Weldon, etc. And I've found that if you believe the opposite of whatever these people say, you'll generally be alright. And that seems to be true here.

And once again, the sometimes-astute Mickey Kaus has decided to link his ever-declining credibility with these sorts of people - like he did with the Swift Boats and like he did with Schiavo.

[UPDATE: The good Doctor has more on Kaus.]

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In my opinion, the most disturbing aspect by far of the recently released Roberts' documents is his hostility to civil rights legislation, and to be more blunt, policies intended to help black people. I've been particularly concerned by his passionate opposition to the Voting Rights Act renewal in 1982. I'm going to lay all this out later, but I wanted to do some research first to make sure I fully understand the contemporary debate.

So, I wondered if anyone had any good resources they could recommend. I'm looking for history books/essays and law review articles (or authors) who provide good histories of the Voting Rights Act, and in particular, the debate surrounding its renewal in the early 80s. What I'm looking for may be more likely to be found in histories of the Reagan administration and not necessarily histories of the VRA.

Thanks so much. Any help will be appreciated - in comments or emails.

[UPDATE: And his record on women's rights ain't that great either (via Kevin Drum). Even aside from the merits of his position, it's the snark that's disturbing.]

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I’ve written very little about Cindy Sheehan so far – in part because I feel she and her dead son have become pawns in a much larger political game that shouldn’t be a game at all. But that said, the story is fascinating – not so much because of Sheehan herself, but because of the underlying tectonic shifts the story is reflecting and unleashing. You really get the sense that Bush is – finally – getting dangerously close to a tipping point on Iraq. Throw in a few high-level indictments and some pictures of young boys getting anally raped on camera at Abu Ghraib, and the bottom might really fall out.

Whether it does depends heavily on whether the administration – and its sympathetic pundits – can maintain the mental constructs through which its supporters conceptualize the war. Before I drift too far into comp lit grad student land, I should explain what I mean.

Way back in early ‘04, I wrote a post on what I called political “default settings.” My point was that too many Americans – all across the spectrum – allow themselves to interpret world events through preexisting default settings (e.g., “liberal,” “religious radical”). They see an event or hear an argument, and a default setting pops up that allows them to deal with the argument quickly, and without much thought or introspection. This is why debates (or shouting matches) between liberals and conservatives rarely persuade anyone. Every argument simply triggers a default setting that channels the argument out of mind and prevents it from truly sinking in.

One particularly effective default setting is the “liberal” setting. Conservatives have done such a good job of creating this straw man liberal that many people have thoroughly internalized it – especially elected Democrats. If, for instance, Bush supporters hear someone arguing against the war, it triggers the default setting – “he’s a liberal.” So long as the speaker can be squeezed into the “liberal” mental box, people don’t have to address the merits of the speaker’s argument. It’s the universal refutation that keeps on giving the whole year round.

Anyway, if you want more detail, you should go read the earlier post. The point for today’s purposes is just that you can’t get through to persuade so long as people are arguing on a default-setting-to-default-setting basis. You have to get through to their first principles. To persuade, you need to get people to look at things with a new eye – and you need to do so without getting squeezed into some preconceived mental construct.

The problem for Bush is that opposition to the war is getting harder and harder to squeeze into that box. People are beginning to see the reality of the situation and the “liberal” default setting is getting slower and slower to pop up. So far, Bush has been able to maintain support for the war because he and his cheerleaders are quite talented at squeezing even the most articulate opposition into some quick, easy-to-understand “box.” But events are making the box-squeezing increasingly difficult.

Cindy Sheehan is – or perhaps was – a perfect example of how this works. Here was a lone mother camping out in the August heat to speak with the President about her lost son while he was on vacation. That’s a powerful story, and it threatened to crystallize opposition to a war that people are increasingly turning on. At first, the right-wing chorus didn’t know how exactly to handle her. She didn’t “fit.” She was a grieving mother, not an unshaved hippy burning a flag. And it’s a bit distasteful to attack the mothers of lost veterans.

But things changed when others started joining her in Crawford, especially the liberal bloggers and media consultants. To the right-wing chorus, the arrival of the Kos brigade has been a godsend. That’s because it allows them to squeeze Sheehan back in the liberal box where she can’t do any harm – or more critically, where she can’t persuade people to look at things differently.

What we have seen over the past ten days from the right-wing chorus is a not unsuccessful attempt to squeeze Cindy Sheehan – Procrustes-like – into the pre-existing mental construct that is the Great American Liberal Dragon. If the chorus can convince people to conceptualize her as a “liberal,” then people can dismiss what she truly represents – which is the Ghost Banquo at the Crawford dinner table rattling her bloody chains. She’s a liberal, therefore she’s wrong. Period.

That’s why I was a little wary of seeing the media consultants roll in. It robbed Sheehan of her power to become a world-historical figure who could transcend existing conceptions of “right” and “left,” or “liberal” and “conservative,” and really get people to see the human side of the war – and to hopefully make them think twice before marching off in a frenzy to kill.

But with the media army now there, Sheehan fits more easily into the box. And loathsomes like Drudge and Malkin are going to pound and pound away until she fits in there completely.

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Despite the wrangling and delays, I predict that the Iraqi drafters will ultimately produce a constitution. The million dollar question is whether it will work. I’m hopeful, but I’m not optimistic (to put it lightly). And the reason is that Iraq has a “vector problem.”

The strongest argument for why the Republic of Iraq (and its national constitution) will never succeed is a familiar one – the country is simply too factionalized and the inherent instability will eventually result in chaos and civil war. Because of the underlying ethnic tensions, some experts have even suggested that partitioning Iraq is the only hope for stability in the region. To these naysayers, I pose a question – doesn’t Madisonian theory (i.e., Madison’s theory of the big republic) predict just the opposite? In other words, doesn’t Madisonian theory suggest that Iraq’s only real chance for success is by combining the factions together within a single republic? For those who aren’t following, I’ll back up.

Back in the day, the prevailing wisdom was that a republic (a government by elected representatives) could only succeed if it were small and homogenous. One big fear was that factions (or interest groups in modern lingo) would sow instability. That’s why republican officials had to be virtuous and selfless – something more likely in smaller, homogenous republics where officials are looking out "for their own."

As most law students learn in con law, Madison flipped that theory on its head. He said the best way to ensure stability and good government was not to reduce the size of the republic, but to expand it. Thus the name “theory of the big republic.” The idea was to multiply the factions. I’ve explained all this before, so I’ll quote myself here (any Kicking and Screaming fans out there?):

Madison's argument was that by increasing the size of the country, you increase the diversity of interests and factions, which in turn makes it much more difficult for any one faction to seize power or act against the public interest. In other words, the bigger your group gets, the harder it becomes for any one faction to control it. . . . What’s really cool is that you can clearly see the influence of Newtonian physics (and Enlightenment rationalism more generally) at play in Federalist #10. The various factions are like vectors that will cancel each other out or push the governmental body towards the common good (or at least away from corruption and tyranny). It’s all very logical.

The vectors are really the key to the theory of the big republic. The idea is that they become so diverse and overlapping in a large republic that they result in fluid coalitions that vary by issue. Because it’s hard for any one faction (or interest group) to hold together on all issues, it’s harder for that faction to maintain the power necessary to undermine the government.

Interestingly, Madison was initially (and probably always) skeptical of the idea that a written Bill of Rights could protect individual liberty. (He later changed his mind – probably for local political reasons, but that’s a different story). Madison initially dismissed the Bill of Rights’ protections as mere “parchment barriers.” The real key to protecting individual freedom was this notion of the vectors – an infinite number of shifting, overlapping coalitions preventing any one faction from obtaining absolute power or imposing tyranny. In short, the reason we have religious freedom in America is because we have a lot of different religions – not because we have the First Amendment. Same deal with free speech. The ink on the parchment is far less important than America’s underlying structural and demographic realities, which are the true source of protection (according to Madison).

At first glance, you would think that the theory of the big republic should give us hope for Iraq’s future. After all, the great fear is that ethnic factionalism will rip the country apart – or that one faction will come to dominate the others. However, by creating a national republic of elected representatives, the factions would be multiplied. For instance, urban Shi’a would have common cause with urban Sunni on certain issues, and so on. The idea would be to drown the ethnic factions within a sea of Newtonian vectors and shifting coalitions.

It sounds nice, but I don’t think it will work in Iraq. And here’s why. I think the ethnic tensions run so deep and are so bitter that they will prevent new vectors from forming. In a sense, the tensions have formed impenetrable floodwalls around each ethnic group that prevent other common interests from “leaking through” to forge the shifting coalitions so essential to Madison's theory. Fellow urban-dwellers from rival ethnic camps who might otherwise have a common interest won't be able to get past the ethnic hatred. This centuries-old hatred will prevent the new urban coalition from forming.

Call it a floodwall, a force-field, a firewall – call it whatever you want. But the new vectors won't punch through.

In America, by contrast, the reason the Constitution worked and was ratified was that the vectors flowed freely across a number of different dimensions. For instance, on some issues, the interests of the small states were in tension with the big states. On other issues, the small slave states shared a number of interests with the large slave states. And on other issues, men of property within the coastal trading economy had interests with other men similarly situated regardless of their state of residence.

The point is that these various coalitions were fluid, overlapping, and constantly shifting from issue to issue. Of course, eventually slavery became such an intense preference (on both sides) that the issue solidified into a “firewall” that blocked other vectors from forming. And that’s when the Constitution stopped working and the debate shifted to the battlefield.

Maybe all of this points to a larger flaw with Madison’s theory. Maybe the theory of the big republic has a lot of built-in assumptions that don’t always apply. For instance, Madison’s theory seems to require an absence of deeply rooted ethnic tensions. Remember that America originally had three major races too, but that the Europeans (the Sunnis of their day) exterminated one and enslaved another. If the European Framers had been negotiating with Africans and Native Americans, things would have been completely different. In these circumstances, it would have been extremely difficult for shifting coalitions to form between ethnic groups. As it was, you had a bunch of propertied white men arguing amongst themselves. And while they certainly had their disagreements, it was relatively easier for the vectors to form among them.

This is why the “one nation” solution to the Israel/Palestine problem may not work. It’s hard for me to see many fluid coalitions forming between these ethnic groups given recent history.

These same problems exist in spades in Iraq. Ethnic tension runs deep and there’s a lot of blood on everyone’s hands (especially the Sunnis’). They’ve all been killing each other so long that I don’t see how coalitions could form – or survive – when push came to shove.

That’s why the best solution may be to simply kick all the hard issues down the road as far as possible. Every year that the three groups can live together even under a nominally national government will help.

That’s essentially what our own federal government did in the beginning. We kicked the hard issues (slavery; determining final arbiter of Constitution) down the road. You can make an argument that the Framers should have dealt with slavery in the beginning, and you’d be right. But you must also understand that the country would never have formed the way that it did – for good or bad, the southern states certainly would not have joined.

But anyway, by kicking the problem down the road, new generations of Americans – especially after the War of 1812 – developed a new nationalism. They increasingly thought of themselves as Americans first, and state citizens second (the order was reversed for people like Robert E. Lee). Without the organic growth of that nationalism, the Civil War would have been lost.

To close, if I could offer some amateur advice to Iraq's drafters, I would urge the Shi’a and Kurds to buy off the Sunnis. Promise – and deliver – substantial oil revenues to the Sunni powers-that-be in exchange for regional autonomy under a nominal federal government and peace. Maybe over time a sense of nation-ness will develop.

But I wouldn’t bet on it.

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Busy again. And there's so much going on to write about - Gaza, the Iraq Constitution, the further proof that the Clintons sold their soul to the devil and cannot be defeated by mortal man (see, e.g., the one-minute silence in her opponent's opening speech).

After tomorrow, I'm hoping things will calm down a little and I can get back to normal posting.

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Dear friends, I have a confession to make. I’ve been holding it in for quite some time now, unsure whether or not I should come forward. But I think it’s important for the American people to know. Important national security issues are at stake – and we could be witnessing the greatest political cover-up of our time. I say this today not because I am proud of what I did, or of what I am doing, but because I owe it to the American people.

So I’m just going to get the point – I was interviewed by staff members of the 9/11 Commissioners prior to the release of their report. And I told them some valuable information that they chose to ignore. I told them that I witnessed a meeting between Mohammed Atta and Snuffy Snuffleupagus in Prague in early 2001.

I was returning home from a hard night of absinth and I sat down to order a coffee when I overheard the two talking. I turned around and there was Snuffy, sitting there with Atta – plotting . . . scheming. I didn’t think much of it until I saw Atta’s face after 9/11. When I heard the 9/11 Commission was investigating, I volunteered my information.

After explaining everything to Ms. Gorelick’s staffer, they asked me questions that clearly revealed their bias against my information. They asked for documentary evidence. I said I had none – that Snuffy never leaves a paper trail. They asked how Atta could be in Prague when he was on video cameras in Florida the day before. I said, “he’s very clever.” I added that he’s been known to appear in Brooklyn years before he entered the United States. They thanked me for my time and I left.

Naturally, when the 9/11 Commission Report came out, I expected my information to be included. I mean, how could the Commission ignore a meeting between Atta and Snuffy so close to 9/11? Why would they do such a thing unless as part of a cover-up? To my great shock and horror, the 9/11 Commission had suppressed it. There was not one mention of even the allegation that Atta met with Snuffy.

Unable to live with the anger any longer, I contacted my congressman Curt Weldon who promptly added Snuffy’s face to a poster of terrorists he’s been carrying around with him for years. Mr. Weldon pointed out that this poster had been given to the 9/11 Commission long before there even was a 9/11, yet they still ignored the Snuffy picture. Mr. Weldon even convinced the New York Times that the 9/11 Commission was suppressing Snuffy information.

“Why else would they doubt the evidence of Snuffy Snuffleupagus,” Weldon thundered on the House floor, “unless they were biased or had something to hide.”

Fortunately, a good number of my fellow blogger patriots understood the importance of the issue. They are part of the vanguard that makes the GOP the party of ideas. To reward their loyalty and insistence on getting all the facts before publishing attacks motivated by political bias (unlike Dan Rather), I want to republish some of their quotes:

Jim Geraghty:

I feel like the revelations about [Snuffy Snuffleupagus] have stirred a certain energy, anger, and analytical adrenalin in the blogosphere that we haven’t seen since the Rather memos. Of course, this is bigger and more serious [and more furry]. . . . No one has concretely tied this new information to the strange, felonious behavior of Sandy Berger, smuggling documents out of the National Archives. But boy, if the document in question related to [Snuffy Snuffleupagus] and the decision to not act upon it, his actions would make a lot more sense, wouldn’t they?

John Podhoretz:

I was very skeptical of this [Snuffy Snuffleupagus] stuff about Atta, thought it was just some way Rep. Curt Weldon was trying to sell a book. No longer. This is clearly becoming the biggest [and most furry] story of the summer[.]

Captain Ed:

The deliberate deceptions of the 9/11 Commission this week has set off alarms about their motives and preconceptions which may have seriously perverted our knowledge of 9/11 and the forces [such as Snuffy Snuffleupagus] which stood behind the attacks[.]

Michelle Malkin, "Able Danger . . . and Danger Enablers":

The 9/11 Commission staff is headed over to the National Archives to "retrieve their notes on a U.S. military unit's information that [Snuffy Snuffleupugus was in Prague] a year before the attacks," according to FOX News.

Like Jim Geraghty says, somebody make sure to check the staffers' coats and socks before they leave.

On a serious note, this panel simply cannot be entrusted to investigate itself. Conflicts of interest are rife. Incompetence is high.

Andrew McCarthy:

Given this turn in [Snuffy Snuffleupugus] events, it is again worth asking: Why has the public not been told at this point what was in the classified documents that Clinton National Security Adviser Sandy Berger illegally pilfered from the archives during preparation for his Commission testimony (as well as President Clinton’s) – some of which he destroyed (although there are said to be other copies)?

"Never Right" Ledeen:

JJA: Sorry, sorry, but this latest business is just too much.

ML: You mean the Curt Weldon story about how some Army intel guys figured out — from open sources — that [Snuffy Snuffleupugus] was part of an al Qaeda cell inside the United States, but then they weren’t permitted to pass it on to the FBI?

JJA: Damn right, but that’s not even the half of it.

Paul at Powerline:

In the speculation category, [Geraghty] wonders whether documents that Sandy Berger feloniously tried to smuggle out the National Archives had anything to do with [Snuffy Snuffleupugus] and the Clinton administration's decision to not act upon it.

Paul (and John) at Powerline:

Podhoretz submits that [Snuffy Snuffleupagus] is becoming the biggest story of the summer, and he may be right.

JOHN adds: Yes, and how long would you have to scrutinize MSM accounts of [Snuffy Snuffleupugus] before you'd find an acknowledgement of the relationship between this failure--not of intelligence, but of communication--and the Patriot Act?

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Noted socialist John Podhoretz explains why Atta-gate was, um, a bunch of crap:

From tomorrow's Time Magazine about Rep. Curt Weldon and his Able Danger claims, which arose out of a soon-to-be-published book: "In a particularly dramatic scene in Weldon’s book, Countdown to Terror, the Pennsylvania Republican described personally handing to then-Deputy National Security Adviser Steve Hadley, just after Sept. 11, an Able Danger chart produced in 1999 identifying Atta. But Weldon told TIME he’s no longer certain Atta’s name was on that original document. The congressman says he handed Hadley his only copy. Still, last week he referred reporters to a recently reconstructed version of the chart in his office where, among dozens of names and photos of terrorists from around the world, there was a color mug shot of Mohammad Atta, circled in black marker."

If Time's account is accurate, Weldon has done something very, very bad with this whole story -- something either knowingly dishonest, unknowingly crazy, or foolishly naive -- and he should be held accountable for it.

"J-Pod" provides only the latest example of why Michael Ledeen has never been right about anything ever (an honor shared by his buddy Doug Feith).

In fact, if your foreign policy consisted only of believing the opposite of what Ledeen and Feith believe, you'd be doing just fine given that they've never once been right about anything - ever.

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Post, Abramoff Indicted in Casino Boat Purchase:

Washington lobbyist Jack Abramoff and a business partner were indicted by a federal grand jury in Fort Lauderdale on Thursday, charged with five counts of wire fraud and one count of conspiracy in their purchase of a fleet of Florida gambling boats from a businessman who was later killed in a gangland-style hit.

Abramoff, 46, was arrested in Los Angeles in the late afternoon and was expected to be taken before a U.S. magistrate there on Friday.

Richard III, I.iv:

Wedges of gold, great anchors, heaps of pearl,
Inestimable stones, unvalued jewels,
All scatt'red in the bottom of the sea:
Some lay in dead men's skulls; and in the holes
Where eyes did once inhabit there were crept,—
As 'twere in scorn of eyes,—reflecting gems,
That woo'd the slimy bottom of the deep,
And mock'd the dead bones that lay scatter'd by.

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I’ve been meaning to comment on this Christopher Hitchens piece from last Monday. It’s getting increasingly difficult to extract coherence or structure from Hitchens’ Slate articles, but the explicit point of the article seems to be that liberal groups should be ashamed for not getting behind the war effort. The implied point seems to be that we’re losing the war because of it. He’s not quite making a stab-in-the-back argument, but it's a little close for comfort.

Anyway, here’s the key passage:

Isn't there a single drop of solidarity and compassion left over for the people of Iraq[?] [M]y provisional conclusion is that the human rights and charitable "communities" have taken a pass on Iraq for political reasons that are not very creditable [i.e., they hate Bush]. And so we watch with detached curiosity, from dry land, to see whether the Iraqis will sink or swim. For shame.

I suspect we’re going to see more of this as time goes on. I predict the power and influence attributed to politically impotent, liberal, anti-war interest groups will increase at the exact same rate that our prospect for success in Iraq decreases. In other words, as the scope of our failure and colossal misjudgment becomes more clear, I expect that bitter pro-war advocates will place an increasing amount of the blame on liberal groups who opposed the war and had nothing to do with its launch or implementation.

The following passage from Hitchens is just a foreshadowing (and a mild one) of what may be looming on the horizon for the anti-war Left:

The United States is awash in human rights groups, feminist organizations, ecological foundations, and committees for the rights of minorities. How come there is not a huge voluntary effort to help and to publicize the efforts to find the hundreds of thousands of "missing" Iraqis, to support Iraqi women's battle against fundamentalists, to assist in the recuperation of the marsh Arab wetlands, and to underwrite the struggle of the Kurds, the largest stateless people in the Middle East? Is Abu Ghraib really the only subject that interests our humanitarians? . . . Why have several large American cities not already announced that they are going to become sister cities with Baghdad and help raise money and awareness to aid [secular reformers like] Dr. Tamimi?

There are several points here. First, if I were to rank the top one-thousand reasons why Iraq has not gone successfully, I think that recuperation of the marshes and the missing sister-city program probably rank as ## 999 and 1000. What people like Hitchens can’t seem to accept – the shrieking ghoul they refuse to confront – is the possibility that the very idea of invading Iraq was inherently flawed. Creating a western secular democracy in a Third World country with three ethnic groups that hate each other in the already unstable Middle East was a pretty dumb idea, I think. That’s why Hitchens and the Weekly Standard crowd should thank their lucky stars for the administration’s post-invasion blunders. Otherwise, they would have to confront the reality that this enterprise never had a chance – and that their spectacularly wrong judgment has unnecessarily destroyed a lot of lives – of both the living and the dead.

But assuming that success was even theoretically possible, any failures belong not to the impotent Left or the wetlands program, but to those leaders who actually planned and executed the war (and its detention policy, etc.).

Of course, causation is an aggregate of smaller causal vectors, and I would concede that not recuperating marshes probably plays some small causal role in our failures, just like your ink pen exerts some infinitesimal gravitational pull upon the earth. But the lack of an effective wetlands program is probably one trillionth as important as other factors such as, say, the failure to plan for the postwar, the failure to rely on anything except best-case scenarios, the failure to give an honest assessment of Iraq’s weapons program, the failure to obtain international legitimacy, firing generals who told you what you didn't want to hear, and the detention policy.

I understand the emotional need to attack those who you don’t care for anyway. But the idea that the anti-war Left and the sister city program have one damned thing to do with our problems in Iraq is nothing short of full-blown delusion (though it is interesting from a psychological perspective). If Hitchens wants to blame someone, he should start with himself. If that won’t do, he might move on to the actual planners of the war. I think they're in Texas right now wondering how the hell they should deal with the sad, angry mother camped outside their ranch - and the fire she threatens to spread.

But Hitchens can’t do that. The Iraq war has apparently fried the part of his brain that governs cause-and-effect. Here’s what I mean:

It never seemed to me that there was any alternative to confronting the reality of Iraq, which was already on the verge of implosion and might, if left to rot and crash, have become to the region what the Congo is to Central Africa: a vortex of chaos and misery that would draw in opportunistic interventions from Turkey, Iran, and Saudi Arabia. Bad as Iraq may look now, it is nothing to what it would have become without the steadying influence of coalition forces.

Look, I’ll be the first to admit that Saddam is a murdering bastard who should be shot in the head tomorrow. But just because Saddam was horrible doesn’t mean that Iraq wasn’t stable. Certainly, Iraq had some underlying ethnic and demographic tensions that would have eventually bubbled up one day, similarly to every other Middle Eastern country including allies like Israel and Turkey. But Iraq was stable. And the description that Hitchens provides – the “vortex of chaos and misery” – is an apt description of what we caused, not Saddam. Iraq was many things, but a swirling fire of regional instability was not one of them. But now it is – because of us. And appealing to some future possible world of even worse instability that can never be disproved may help justify things in Hitchens’ mind, but I doubt it’s much comfort to the residents of Baghdad, or Cindy Sheehan.

Just to be clear, if we are unsuccessful in Iraq, the people to blame are the people who caused the war to happen, not the people who didn’t want it to happen. If we are unsuccessful, the leaders who executed the war are to blame, not the liberal groups who had exactly zero influence in the war planning and execution.

You may hate the Left so bad that you'd like to wring all their necks. But that hatred has exactly zero relevance to the larger truth that you may or may not be willing to confront - if this war is lost, then Bush lost it.

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Reuters, Kansas Moves to Stem Role of Evolution

After months of debate over science and religion, the Kansas Board of Education has tentatively approved new state science standards that weaken the role evolution plays in teaching about the origin of life.

The 10-member board must still take a final vote, expected in either September or October, but a 6-4 vote on Tuesday that approved a draft of the standards essentially cemented a victory for conservative Christian board members who say evolution is largely unproven and can undermine religious teachings about the origins of life on earth.

Reuters, Goat People Push for Goat Theory To Be Taught In Nation’s Schools

Goat-worshippers won a major battle today in a local Kansas school district. After an intensive lobbying effort and media campaign, Kansas school board members agreed to allow Goat Theory to be taught in the district’s biology classes along with evolution and Intelligent Design.

Goat Theory holds that the universe and all life within it are connected to invisible puppet-like strings controlled by divine goats. Goat Institute scientist and former National Review editor Goaty McGoatface explained, “Evolution simply can’t account for everything. Yes, it’s true that it has mountains of empirical evidence supporting it. But it’s also true that not every single debate about every single topic has been agreed upon by all scientists. Therefore, it’s just a theory. And so is Goat Theory. It even says so in the name, unlike 'natural selection'.”

Opponents say Goat Theory cannot properly be classified as a science. A local biology teacher explained, “There’s no way to prove or disprove the final link – that these invisible goat-strings are everywhere and are being manipulated by some divine puppeteer goat. The fact that people argue about the origins of the eye doesn’t necessarily imply that the eye was therefore created by a Goat manipulating goat strings.”

McGoatface, who insisted on being calling “Dr.” McGoatface, disagreed. “Logically speaking, it’s perfectly clear that when one thing is wrong or inconclusive, it necessarily means that something else is right. That’s just logic – don’t blame me. Blame Nerfherder, the Goat-God of Logic for creating the world that way.”

Local residents were worried that the introduction of Goat Theory would leave Kansas students unprepared for college and medical school, and would prevent them from competing for lucrative biological research jobs in hospitals and labs. Others worried that scientists and biology teachers would abandon the state.

McGoatface rejected these concerns. “All we’re saying is teach the controversy. Present different theories to our children and let them decide. That’s the whole point of education. That’s the marketplace of ideas in action. We need to expose our children to different ideas. For too long, atheist goat-denying liberals – who are generally gay and molest children and commit treason and drink vanilla lattes – have had a strangehold over classroom curriculum with their fancy liberal ‘empirical evidence.’”

In other news, a local blogger went insane yesterday. He was last seen pulling out his hair with his bare hands while screaming on the streets about the end of days.

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My ridiculously hectic summer continues. I was too tired to write tonight. But I highly highly recommend this Yglesias article and this Larry Diamond post from TPM Cafe.

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For those who don’t dive into the comment threads, there was a back-and-forth about chickenhawkery yesterday. Although I generally use “chickenhawk” in jest to annoy my conservative friends, there is a certain logic behind the charge of chickenhawkery that I find compelling. The logic is not so much that those who believe in a war should necessarily fight it, but that actions are more reliable indicators of one’s beliefs than words. In this sense, accusations of chickenhawkery are just a new spin on the old adage, “by their fruits ye shall know them.” Or for a more modern version, here’s Sheryl Crow from her vastly underrated Globe Sessions:

You with your silky words
And your eyes of green and blue
You with your steel beliefs
That don't match anything you do

When you’re trying to figure out what someone truly believes, I think that actions are highly reliable epistemological tools that help you answer that question. They’re how you come to know what someone truly believes. For instance, a young lawyer fresh out of school who rails against selling out but chooses to work at a corporate law firm doesn’t really feel that strongly about selling out. Otherwise, he wouldn’t work there. To determine his true beliefs and values, you can believe either his words or his actions. And I prefer actions.

The logic of the chickenhawk accusation is similar. Let’s say that you are someone who claims to believe so strongly in this cause that you are willing to advocate war and punish political opponents who oppose it. Yet, given the severe manpower shortages, you also choose not to go fight it. I think it’s perfectly fair – especially if you’re a College Republican without children – to question just how sincere your beliefs are that this war is worth it. It’s not so much that I think pro-war people are being consciously dishonest. It’s that many of them haven’t examined the true nature of their beliefs. If they or their loved ones were suddenly faced with combat, the abstract pro-war words would peel away leaving only the searing reality of potential death or disfigurement for the cause. And at that moment, and not a second before, we can know what you really believe by what you choose to do.

That said, I'm not sure the chickenhawk argument itself works that well. For instance, a person considering volunteering might believe in the war but value her children more. Therefore, her reluctance to sign up isn't necessarily a sign that she doesn't truly believe in the war. Regardless, my point is not to defend chickenhawk arguments, but to make the more general point that actions speak louder than words, and that actions are better evidence of beliefs than words. In some contexts, the chickenhawk accusation provides support for that argument. In others, it doesn't.

But even putting the whole chickenhawk point aside, you can tell from the actions of both the administration and the nation that people’s hearts are not in this war. Again, not from their words, but from their actions. For example, the draft is not even whispered by an elected official in Washington (well, ok, 99.9% of elected officials). That’s an extremely telling action. If people really – really – believed in this war, they would be willing to accept a draft. But it’s worse than that. The American public won’t accept – indeed, are not asked to accept – even the tiniest sacrifice for the war effort. No new taxes to fund armor. No new taxes on gasoline to limit dependence. The President won’t even press people to sign up for the military (one sentence in passing, last I checked). And we are all familiar with the recruiting shortfalls.

These are all signs that people fundamentally don’t believe in this war. I base that not their on their words, or their responses to polls, but their actions. They are unwilling to sacrifice and elected officials are unwilling to ask them to. And elected officials fail to do so because they know the American people don’t really believe in this war when push comes to shove. The American people are tolerating it because the costs have been externalized to military families and the Iraqi people. Bill Kristol doesn’t have to worry about his house being blown up for freedom. George Bush doesn’t have to worry about his daughters dying. The costs of war are externalized. If the costs were ever internalized in the form of a draft or higher taxes, the American people would literally be up in arms. And that action would be a better indicator of their beliefs than any words they might say.

Bottom line, people don’t believe in this war. Maybe they did at one time, maybe they didn’t. But when your heart is not in a war, you lose it.