Legal Fiction

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Via Armando, I saw this quote from John Hinderaker which could have just as easily been found in one of Mao's red books during the Cultural Revolution:

It must be very strange to be President Bush. A man of extraordinary vision and brilliance approaching to genius, he can't get anyone to notice. He is like a great painter or musician who is ahead of his time, and who unveils one masterpiece after another to a reception that, when not bored, is hostile.

I propose a contest. I want to find one example - just one - of John Hinderaker criticizing Bush about anything. So I'm asking you - the Internets masses - to help me. When I unleash the first line of Legal Fiction merchandise and evening attire, I'll send a free T-shirt to the first person who can come up with any post where Hindrocket criticizes Bush. (And it can't be something like "Bush should have said the Democrats were even stupider than he said they were.") A transcript from a TV interview will get you a Legal Fiction coffee mug (when I unleash the line, of course).

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I finally got around to reading Will Marshall’s “new patriotism” article in the DLC magazine that has been, how should I put it, coolly received by a lot of big-time bloggers. There’s actually a lot to say about the article, but I was particularly struck by this passage in which Marshall argues that liberals need to get over Vietnam:

The left's unease with patriotism is rooted in a 1960s narrative of American arrogance and abuse of power. For many liberals who came of age during the protests against the Vietnam War, writes leftish commentator Todd Gitlin, "the most powerful public emotion of our lives was rejecting patriotism." As he and other honest liberals have acknowledged, the excesses of protest politics still haunt liberalism today and complicate Democratic efforts to develop a coherent stance toward American power and the use of force.

The phrase “excesses of protest politics” kept ringing in my ears. It’s one of the great puzzles of contemporary American history – why are the people who were right about Vietnam shunned by so many (including the political majorities of their day)? Why aren’t they celebrated the same way the abolitionists are celebrated? After all, they were right - demonstrably so. And as for “excesses,” the protestors weren’t “excessive” enough if you ask me, and I suspect that a few ghosts whose names are etched on a black marble wall on the National Mall would agree.

But anyway, my larger point is that America is still suffering from a “Vietnam syndrome,” but not the one you’re thinking of. The original “Vietnam syndrome” referred to the reluctance of Americans to send troops to war after the fall of Saigon. The critique that many conservatives and hawkish liberals made was that this reluctance morphed into irrational knee-jerk hostility to the use of any and all military force. What I call the “other Vietnam syndrome” is precisely the opposite. It refers to the mindset of those who are so anxious to distance themselves from the anti-war movement of the 60s that they have developed an irrational and knee-jerk acceptance of any and all exercises of military force.

It’s a psychosis, I think, and one that reared its ugly head again in response to Iraq. Obviously, history will have the last word on Iraq and it will, as it always does, eventually sort the winners from the losers. But based on the plummeting public support, the escalating violence, the botched occupation, the lack of WMDs and terrorist ties, the strain on our military, and the real chance of a nasty civil war in the heart of Oil Country, it looks like Iraq was a colossal tragic blunder on an epic scale.

But strangely enough, no matter how bad Iraq gets, and no matter how convinced Americans are that it was a mistake, I’m certain that no anti-Iraq candidate has a prayer in 2008. To be “credible” on the national level, you had to have supported the invasion. As I noted yesterday, one of the things Hillary has going for her is that she voted pro-war across the board. That's insane - pure psychosis. But true nonetheless.

And this psychosis extends to the press too. The punditocracy treats pro-war liberals as more credible or moderate even though they – above all others – might have been the most misguided in their hope for a Western secular democracy on the ruins of an artificial country drawn up on a table in 1919 run by a tyrant and consisting of three ethnic groups that hate each other.

Tim Noah wrote about this many months ago, and he penned one of my very favorite passages of all time (and you should read the whole article):

Not long ago, I spoke with a Democratic moderate about the war in Iraq. He said he considered support for the Iraq war to be a necessary prerequisite to assuming any powerful role in the party. It showed that the person in question was willing to project U.S. force abroad. But wait, I asked. Do you still think the Iraq war was a good idea? After some hemming and hawing, he admitted that he'd rather we hadn't gone in. Then why make support for a mistaken policy a litmus test? Because, he repeated, it shows that the person in question is willing to project U.S. force abroad. I should emphasize that we weren't talking about whether troops should be withdrawn from Iraq, which is an entirely separate and vexing question that speaks to our responsibility in a country whose previous government we destroyed. What this man was saying was that it was better to have been wrong about Iraq than to have been right. That's the prevailing (though not always conscious) consensus in Washington, and it's completely insane.

“Completely insane” is exactly right. Frankly, I don’t understand it. It must have psychological roots. I don’t understand why a willingness to send other people’s kids to die in a war widely deemed to be a mistake is a proxy for moderation and political credibility.

In Europe, by contrast, the old “Vietnam syndrome” is still in effect, though it’s not because of Vietnam. A couple of world wars and a Holocaust ravaging your continent will do wonders for your irrational war fever. But not so in America. We like war. As George Carlin said after the first Gulf War:

[W]e like war. We're a warlike people. We can't stand not to be
fucking with someone. We couldn't wait for the Cold War to end so we could
climb into the big Arab sandbox and play with our nice new toys. We enjoy
war.

And one reason we enjoy it is that we're good at it. You know why we're good
at it? Because we get a lot of practice. This country is only 200 years old,
and already we've had ten major wars. We average a major war every twenty
years, So we're good at it!

Joking aside, it is a serious point. I don’t dislike the DLC nearly as much as many other bloggers do. But it is a bit comical – in a black comic sense – that we’re supposed to be ashamed of opposing a war that Americans view as a mistake, or that we're supposed to turn away from the “excesses” of protest politics. What we need to turn away from are the “excesses” of war politics, which includes treating fellow human beings like chess pieces in an abstract game of Hegelian Risk. Maybe what we need is a little more protest, not less.

Of course, some of you might object that I’m being inconsistent. After all, I argued last month that a large anti-war movement would be counterproductive politically (well, Harold Meyerson did, but I approvingly linked which is pretty much the same as thinking it up on my own). You should try to keep in mind that sometimes I write about my personal preferences, and other times I write about politically optimal strategies. Sometimes they coincide, often they don’t. In the land of “is,” I recognize that an anti-war movement would probably help Bush, just like it helped Nixon – despite the insanity of that causal relationship. But in the land of “ought,” I think there ought to be a larger backlash and protest movement against this war. And given the chaos and absolute mess we’ve made in Iraq, and the fact that our VP is actively lobbying to stop anti-torture legislation, I hope Will Marshall will forgive me if his “new patriotism” message doesn’t really resonate with me right now.

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I for one really enjoyed the Daily Show last night. I even think the Stewart-Santorum dialogue took on artistic or dramatic dimensions. In case you didn't see it, Santorum was on the Daily Show last night and they reserved a big chunk of time for him. Although Stewart asked some tough pointed questions, it was a respectful exchange and it's the sort of thing that people on both sides of the culture wars need to see more often. It's always important to humanize the "Other" - and conversations like this (it was more of a conversation than an interview) help both sides do that.

But I was also deeply disturbed by the exchange because I suddenly realized (with a chill running down my spine) that Ricky is going to be tough to beat. Far tougher than I had realized (and had hoped).

Don't get me wrong - I find Santorum loathsome, and not just because of his rigid anti-homosexuality. According to his colleagues, he is a nasty unfriendly "harsh" man in private. But none of that really matters, politically speaking, because the man is outstanding on TV. If you knew nothing about him when you watched last night, you would have found him friendly, concerned with families (and more critically, the supposed threats to families that so many parents feel), telegenic, and even witty. I was frankly amazed by his ability to parry with Jon Stewart so well.

I don't know much about Casey other than he that he was born well. He's done nothing to break into the national news - only the polls have. But I hope Mr. Casey doesn't get complacent - because Santorum strikes me as a very gifted politician in the TV age. And though Casey is running strong right now, I predict this is ultimately going to be an extremely tight race.

Besides being telegenic and media-savvy, Santorum inspires the true believers and they'll come out in hordes for him. Casey - the anti-abortion candidate in a blue state - is not likely to fire up the base. And Santorum's book tour with its stress on the family will likely play very well in Pennsylvania.

I hope I'm wrong, but I'm afraid the worst Senator in the Senate is far from dead yet.

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In spite of my earlier post, I’m starting to catch Hillary fever. Strangely enough, both Washington Monthly articles (even Amy Sullivan's anti-Hillary piece) made me more convinced that she would be the strongest nominee. Don’t get me wrong. I still have major doubts about whether she could win. I especially wonder what state she could win that Kerry couldn’t. So I’m not committing myself to support her or anything - yet. I’m just going to lay out the argument for why she is showing the most promise right now. And if people disagree, I’d very much like to be persuaded why this argument is wrong.

First, and most importantly, she’s doing everything exactly right – damn near perfect, frankly. Before I explain why, I should say that the central assumption of this entire post – and indeed my post November ‘04 political thinking – is that Adrian Wooldridge was right when he argued that America is an age of conservative hegemony. For better or worse, the country is simply more conservative than I am. Therefore, to win a national election, candidates have to become more “selectively” conservative. While the Kos/Sirota political strategy is appealing, it’s just wrong. Presidential candidates that move left will lose, and lose badly, in modern America (especially in light of the malapportionment of the Electoral College).

If my assumption is correct, then Hillary is doing everything she can possibly do to position herself for success in 2008. The recent leak to Drudge of her support for Roberts is just the most recent example of her increasingly successful move to the center.

But to say that she’s moving to the center misses the savvy of her strategy. It’s not just that she’s becoming centrist, it’s that she’s becoming “selectively” centrist. She’s picking a handful of particularly salient issues that maximize the political benefits of her efforts.

Look at the issues she’s chosen. She gave a speech urging pro-life and pro-choice voters to find “common ground” on one of the most politically charged topics in America. I actually think “common ground” or “return to unity” would be a refreshing message for the scorched post-Rove political landscape. She also introduced legislation to expand the military, and voted pro-war across the board. (For what it’s worth, I agree with Timothy Noah that it’s "completely insane" that people who were dead wrong about the war are more politically respected than those who were right, but we’re in the land of “is,” not “ought.”)

She’s also recently come out against the content of video games. It’s of course an empty symbolic gesture, but that’s the whole point of the culture wars. It’s not that you necessarily need to get anything accomplished, you just need to convince people – on an emotional level – that you share their concern that the culture is in decline and that you want to do something about it, even though you don’t and never will (see, e.g., flag-burning). Strategic pandering, if you will.

Finally, and this may ultimately be the granddaddy wedge of them all, Hillary is staking out a position to the right of the GOP on illegal immigration. Immigration is the ticking time-bomb that could completely rip the GOP apart in 2006 and 2008. Because the chattering classes tend to be less xenophobic and more country-club conservative (with the notable exception of Little Green Fascists), a lot of liberals fail to realize just how explosive the immigration issue could be. In fact, the GOP may have a George Wallace “Spirit of ‘72" problem with Tom Tancredo if he decides to barnstorm the primary states on an anti-immigrant platform. (You may remember Tancredo from such statements as “bomb Mecca.”). Just like Wallace ripped the Democratic Party in two using angry white man rhetoric (and would likely have won the nomination if he hadn’t been shot), Tancredo could really tug at an already shaky fault line. If I could make one prediction, I think Hillary will become much more aggressive about illegal immigration as 2008 approaches. It’s going to be her Sister Souljah issue.

Again, she’s not just generally moving to the center (for instance, I suspect she’ll lay low on trade). She’s moving to the center on national security and cultural issues, which is precisely what she needs to be doing. There’s no need to move right on trade, environmentalism, taxes, or government services. She’s picking the right issues because she and her team are really fucking savvy – which is a refreshing break from Gore and Kerry.

And because Hillary has so much liberal street cred (deserved or not), she can pretty much run as far to the right as she wants. And that’s why people like Warner and Vilsack are going to suffocate in the primary – they won’t be able to flank her from the right or the left. The only way Hillary goes down in 2008 is if the anti-DLC forces unite around a single progressive alternative. And that’s why if I were Kerry or Edwards or whoever, I would immediately start staking out my ground on Hillary’s left – and do it hard and early.

Another virtue of a Hillary candidacy is that I know – indeed, it’s already obvious – that she won’t flounder around without a theme or message discipline. She won’t make mistakes, and she’ll settle on two or three pithy phrases and themes that resonate with the public on both an emotional and intellectual level – much like “compassionate conservatism,” “prosperity with a purpose,” or the “ownership society.” For instance, I noticed in passing that she used the phrase “opportunity society.” I hope to hear more of that because I think it would be a fantastic theme – just like “common ground.” And I think she’ll also fire back hard when necessary and in the right spots. Her speech railing against the “abuse of power” struck all the right chords, and frankly, it should be the theme of the 2006 elections. It’s the chink in the armor, or the rotten dripping pus-filled wound if you prefer, that’s eventually going to cost the GOP control of Congress.

I also think she would benefit from being the first woman with a real shot at the presidency. The prospect of a female president will resonate with women more than people think - even in unlikely places.

Finally, from a strictly operational point of view, I know that Hillary will raise boatloads of money and will have a professional, hardened, for-real campaign team that won’t make mistakes. There’s also something to be said about settling on a consensus candidate early and devoting all the party's scarce resources to him or her. It’s not exactly a democratic ideal, but this is the age of Rove and Fox News. Political campaigns are 90% money, and it’s really tough to beat a rich Republican candidacy if the Democrats – as a party – squander a lot of resources in the primary.

Hillary would not only bring a lot of money with her, she would also bring almost universal name recognition (something that Warner wouldn’t get until late fall 2008). That’s key, and I think a lot of people are wrong when they say that Americans like dynasties. I think they’re just lazy and tend to vote for people they’ve already heard of. It’s not so much awe at these families, it’s more like supporting a trademark or brand that they readily recognize.

Of course, the problem with all of these argument is that, at the end of the day, it’s Hillary. And a lot of people really hate her. Maybe these efforts to move to the center on cultural and national security issues will cool their ire, but I don’t really see her being competitive in a single Southern state. Hillary faces the same problem that Kerry did in that she will be ceding a lot of states before she even gets started.

But anyway, that’s the argument for Hillary. Now someone show me why I’m wrong. Please.

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I'm no expert on the history or past practice of disclosing a nominee's government writings, but I do know that the assertion of attorney-client privilege as a basis of withholding them is ridiculous. The attorney-client privilege is a privilege that belongs to the client, not the attorney. Once the client waives it, it no longer exists. In Roberts' case, the "client" is the United States. And there is simply no justification for refusing to waive it when the issue is whether to approve a man who could be on the Court for thirty years or longer.

In addition to Fred Thompson who actually invoked the privilege, Gonzales added that disclosing these materials would "chill communications" among government attorneys. Maybe, maybe not - but even if it did, it's irrelevant. All lawyers write with the understanding that their client may waive the privilege one day. It happens all the time in DOJ investigations - the government (through a mixture of carrots and sticks) "persuades" the investigatee to waive privilege.

For those of us who did not have a knee-jerk reaction against Roberts, I think it's more than reasonable to ask to see the written documents of a man who could be a Justice for decades.

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I just rolled back into the D dot C from a wedding, so I'm too tired to post anything tonight. But tomorrow I'm going to explain why I'm coming around on Hillary.

Also, is anyone coming to the ACS convention this weekend? I'm not a member and I don't really keep up with it, but since it's in DC, I thought it might be worth seeing a panel or two.

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Like the state of Arkansas in the 1950s, the administration is now defying a direct order from a federal court. Via Andrew Sullivan, the NYT writes:

Lawyers for the Defense Department are refusing to cooperate with a federal judge's order to release secret photographs and videotapes related to the Abu Ghraib prison abuse scandal.

This would seem to be a fairly clear example of violating the rule of law, a principle that judicial conservatives claim to hold dear. After all, constraining executive power has been one of the central justifications for rule of law since the Magna Carta. I'm interested to see how conservatives respond.

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In reading some of the back-and-forth on Roberts, I was struck by this statement by Dahlia Lithwick:

But the feeling in the air—at least among liberals—is that he's not an in-your-face ideologue, not the kind of guy who would have been an insult to Democrats in the Senate the way that some of Bush's lower-court appointments have been. Maybe we're just so pathetically grateful to Bush for not tapping a Roy Moore, or someone of his ilk, that anyone looks reasonable. Let's confess: We wouldn't have been at all surprised if Bush had picked someone far less qualified and vastly more ideologically aggressive.

That seems right to me - especially the "pathetically grateful" part. In a weird way, I think Bush strengthened his hand by nominating extreme ideologues like Owen and Brown for the lower courts. As Kevin Drum noted last month, unlike the issues of Iraq and Social Security, Bush's poll numbers on federal judges are relatively stronger - even though he's nominated some real doozies. Liberals don't seem to be winning this public opinion battle (I suspect because of the religious dimensions - despite my earlier writings, I'm coming around to the view that liberals' views of religious matters have far less public support than I realized.)

Given public opinion, I think there was a real possibility that anyone Bush nominated - no matter how extreme - would get approved by the current Senate. After all, we know the "moderate" Republicans would do nothing when push came to shove. And it wouldn't be too hard for Bush to put enormous pressure on five red state Democratic Senators to approve these nominations.

In a sense, because Bush had the power to nominate a real fire-breather, and because there was a good chance that such a nomination would be approved, the public perceives Bush's nomination of Roberts to be a welcome olive branch offered in the spirit of compromise. Perception is of course more important than reality in politics. And even though Roberts may be a staunch conservative (and I'm really worried to hear that his wife is a "true believer"), he is perceived to be a more moderate choice. Bush has essentially used the specter of Janice Rogers Brown as a bargaining chip.

And this is consistent with the White House's past negotiating tactics. Take the $350 billion tax cut. To get to that number, the White House shrewdly proposed a $700 billion tax cut (which was outrageous given the deficit and that we were at war, but that's a different post). Even though the final number was - in reality - huge, it was perceived as a compromise.

Same deal with the filibuster. To get extremists like Brown approved, the Republicans made a credible threat of violating Senate rules. When they backed off, it appeared like they were compromising, and the Gang of 14 complied by allowing some truly terrible judges through for life. The GOP, like the mafia, successfully used a threat to act illegally as a bargaining chip to get what they wanted.

This is just another example of why it's so important to define the terms and baselines of any given debate. It's all about managing perceptions.

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Ken Mehlman, Meet the Press:

Every Democrat voted for that to happen on the basis of prejudging a case when the information actually exonerates and vindicates. It doesn't implicate. It's wrong, it's outrageous, and folks involved in this, frankly, owe Karl Rove an apology.

Bloomberg, "Rove, Libby Accounts on Plame Differ With Reporters'":

Two top White House aides have given accounts to a special prosecutor about how reporters first told them the identity of a CIA agent that are at odds with what the reporters have said, according to people familiar with the case.

Ken Mehlman:

The information exonerates and vindicates, it does not implicate[.]

Bloomberg:

White House Deputy Chief of Staff Karl Rove told Fitzgerald that he first learned the identity of the CIA agent from syndicated columnist Robert Novak, according to a person familiar with the matter. Novak, who was first to report Plame's name and connection to Wilson, has given a somewhat different version to the special prosecutor, the person said.

Ken Mehlman:

Democrat partisans on the Hill have engaged in a smear campaign where they have attacked Karl Rove on the basis of information which actually vindicates and exonerates him, not implicates him.

That information says Karl Rove was not Bob Novak's source, that Novak told Rove, not the other way around.

Bloomberg:

There also is a discrepancy between accounts given by Rove and Time magazine reporter Matt Cooper. The White House aide mentioned Wilson's wife -- though not by name -- in a July 11, 2003, conversation with Cooper, the reporter said. Rove, 55, says that Cooper called him to talk about welfare reform and the Wilson connection was mentioned later, in passing.

Cooper wrote in Time magazine last week that he told the grand jury he never discussed welfare reform with Rove in that call.

Mr. Tierney, methinks you'll eventually wish you never wrote that column.

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Whenever Bush speaks, I think that he has it in his head that he must project Clinton/Reagan warmth. He's sees that as one of his strengths, I suppose. I know the White House won't take my PR advice, but I'll provide some anyway - showing warmth does not necessarily mean wearing a silly grin at all times regardless of the content of the lines being delivered.

Has anyone else noticed this? Lately, the smile has become utterly detached from the content of the words coming out his mouth. It's almost like watching a badly dubbed movie - the smile often doesn't fit and it kind of jars you. I noticed this when Bush gave his Fort Bragg speech. He just didn't seem to understand that some lines are not intended to be served with a smile. Same deal last night. He finishes a sentence and then something suddenly snaps in his head - be folksy! Be warm! Smile, damn you! It's like there's a ongoing Herman's Head-like battle going on in Bush's head at all times when he speaks.

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Mark Schmitt, as usual, makes a good point:

Why does everyone seem to think that they have to decide tonight, whether John Roberts is an outrageous ideologue, or a pretty mainstream, incrementalist conservative of the type that you have the right to expect when you have a conservative Republican President and Senate?

. . .

In Supreme Court nominations, it's almost always the hearings that define the nominee, and the effort to get ahead of the hearings can be futile or counterproductive. Senator Kennedy's out-of-the-box attack on Judge Bork ("In Robert Bork's America, back-alley abortions..."), while now clearly accurate, was at the time widely seen as a damaging exaggeration, until the hearings showed that Bork's views were, as Alabama Senator Howell Heflin said, "unusual, unconventional, and strange."

Similarly, the outrageousness of Clarence Thomas's appointment became clear only in the hearings, just as did the fundamental soundness of Breyer and Ginsburg's nominations.

So maybe we should just chill 'til the next episode (or at least for a few days until we learn more).

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I’m basically in a holding pattern on Roberts. I want to know more and I expect him to answer questions. But as I said earlier, I haven’t seen nearly enough to make me think this is worth fighting about. As I think Josh Marshall noted (couldn't find the link), this battle was lost in November. In light of this reality, Bush could have done much, much worse. With that disclaimer, I have a few thoughts on Roberts and judges more generally.

First, I think it’s a shrewd move by Bush. Roberts is not the Dobson wing’s ideal candidate, but he won’t piss them off either. And Roberts is certainly not the Democrats’ ideal candidate, but he’s not acerbic and he’s offered very little ammo for groups that oppose him.

For instance, I’ve been hearing about the line in the Solicitor’s General brief about Roe. First of all, you need to understand that he was (essentially) representing the Bush I administration and that there were many names on the brief, not just his. Maybe he hates Roe, but that brief alone isn’t enough to prove it. As best I can tell, his views are unknown, though the American people are entitled to know what he thinks.

Also, you need to understand how to read a list of names on a brief. If a brief lists five authors, the person on the top (in this case, Ken "Death" Starr) takes the most responsibility for the contents, but has the least to do with writing it. The person on the bottom takes the least responsibility, but usually writes and researches the damn thing. Roberts was #3, which means he probably wrote nothing, and had relatively little responsibility for its contents.

I’ve also been hearing about the Washington Metro “french fry” case. I need to read up on that, but I think the DC Circuit was simply following a recent (but stupid) Supreme Court precedent called Atwater. I’ll follow up on this case though (and hat tip to the once-and-future Plainsman for the heads up). Again, the big point is that there’s just not much there for liberal opposition groups to gain political traction from. Sometimes it's best to save your bullets for things you can kill.

Second, I am a bit disturbed by his youth. In fact, I don’t like the recent trend to nominate young people to the bench. For one, younger people lack experience. For another, I don’t think the country is well-served by Justices who serve three decades or longer. The Court needs new blood - especially when its Chief is almost a walking corpse (I'm sorry, but if your body is that frail, your mind can't be great either). That’s why I’m leaning more and more toward supporting term limits on federal judges. A term of, say, twelve or fifteen years would remove the incentive to nominate young judges. Right now, the incentives are overwhelmingly in favor of nominating someone as young as possible. There’s more to say on this and I hope to do so one day.

Third, I put a lot of value on Roberts’ lack of acerbic, polarizing speeches and writings. Maybe I’m old-fashioned, but I think sarcasm and fire-breathing have no place on the bench. I’ve always thought Scalia – an equally brilliant man – is at his best when he’s not fired up. A Scalia opinion on statutory interpretation of some boring statute can be a thing of beauty. But his opinions that get the most attention are the ones where he is bitter and acerbic. And frankly, those are his worst. I find it unprofessional and certainly unbecoming of a Justice to rail against the “homosexual agenda” in a published decision of the United States Supreme Court. That’s going to rank right below Judge Taney’s enlightened view of African-Americans in a hundred years. And that’s why I would oppose any attempt to make him Chief Justice – he blew it.

Fourth, on the issue of Roe, I think the proper question is not what a nominee thinks of Roe itself. The proper question is whether a nominee believes the Constitution includes a right to privacy. As I explained here, if you believe a right of privacy exists, then Roe is an easy case (and a correct one). If, however, there is no right of privacy, then overturning Roe means overturning an entire line of logically related cases (involving sterilization of criminals; right to attend private school; right to birth control; zoning restrictions targeting non-traditional family structures; and right to avoid criminal punishment for consensual sex). Of all these decisions, Roe is not even close to the most controversial assuming a right to privacy exists.

Finally, as for the knocking-Rove-out-of-the-headlines point, I think a more controversial nomination would have served that particular goal better. My hunch is that Roberts will be so non-controversial that he’ll drop out of the news cycles in a week. Then he’ll get confirmed quietly and that will be that. If Bush had nominated a fire-breather, a battle would have erupted for many months. That said, I certainly believe the nomination was sped up to get Rove out of the headlines. But don’t worry, he’ll be back.

Sweet dreams, Karl - I hope you're sleeping well. And that goes for you too "Scooter."

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Well, to be perfectly frank, I don't know much about the guy. My initial reaction is that it could have been a lot worse. It's a case of preferring the "known unknown" to the known fire-breather. I have friends on the DC Circuit and they say he's sick brilliant and no-nonsense. And his legal credentials are impeccable. And most importantly, he doesn't seem to be a fire-breather or "true-believer" ideologue on either the religious or the "lost Constitution" front.

My take - (1) not that bad; (2) coulda been worse (a lot); (3) no justification for a filibuster. This is all subject to me learning more, but I think Bush did OK.

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Putting Nadagate aside for now, I wanted to say a few kind words about Ken Mehlman’s recent speech to the NAACP. I thought twice about it after his Meet the Press performance, but I’ll have to give credit where credit’s due:

By the 70s and into the 80s and 90s, the Democratic Party solidified its gains in the African American community, and we Republicans did not effectively reach out.

Some Republicans gave up on winning the African American vote, looking the other way or trying to benefit politically from racial polarization. I am here today as the Republican Chairman to tell you we were wrong.

. . .

African-American voters should have the benefit of a two-party system. In recent years, the Democratic Party, in my judgment, has come to take many African American voters for granted.

Just as the Democrats came to this community in 1964 with something real to offer, today we Republicans have something that should cause you to take another look at the party of Lincoln.

This is good stuff – politically self-interested, but morally correct nonetheless. I don’t praise Bush much, but one thing that I do respect him for is that there hasn’t been a hint of race-baiting in his administration. Quite the contrary, he’s made strong efforts to reach out and I’ve found that rather refreshing. After all, he’s the first post-Goldwater Republican President to remove racial polarization from his political strategy. [Of course, some future RNC Chair will be giving a similar speech to the gay community in 2040, but that’s another post.]

But I think Mehlman’s NAACP speech illustrates a much larger lesson about why Rove’s GOP has been so successful lately. It’s well-known that Rove’s machine likes to stay on the offensive under the (correct) theory that you’re always better off if your opponents are defending themselves. Bush stayed on the offensive in 2000 and 2004 – and won. And when people like Clarke and Wilson come along, you don’t merely defend yourself, you go on offense. That’s why Mehlman went on the Meet the Press and demanded an apology from Democrats to Rove. It’s offense, offense, offense with these people.

But the GOP’s “offense” strategy isn’t confined to the individual level. They also have gone on the offense demographically and on a much larger political scale. And Mehlman’s NAACP speech is a part of that.

As you know, modern political parties are essentially coalitions. The modern GOP is a coalition of business interests, social conservatives, nativist Buchananites, and white middle class families (to name a few). The modern Democratic Party is a coalition of urban professionals, unions, and minorities (to name a few).

What Rove is doing is keeping the Democrats on defense. Democrats have been defending what they “earned” from past victories. Republicans, by contrast, are attacking and seeking to expand by chipping away at the Democrats’ coalition. In doing so, they’re keeping the ball on the Democrats’ side of the field at all times.

Mehlman’s NAACP speech is a perfect example. Bush’s GOP has been making a strong push for African-American votes by stressing social conservatism, self-reliance, and attacking a Democratic Party that risks little capital these days to help black voters. He doesn’t have to win a majority – and he won’t so long as the deep South’s GOP machines keep pushing the Confederate flag and are wistful for a Thurmond presidency. But all Bush has to do is move the dial a few percentage points his way and it makes things very tough for Democrats in a 50/50 nation.

Same deal with Rove’s guest worker plan. Rove plays close attention to demographics, and the Latino vote is growing rapidly and, for now, voting Democratic. But a guest worker program here and a Spanish ad there, and the dial starts moving the other way. Of course, the big fear here is that the xenophobic Tancredo/Sailer wing of the GOP will squeal, causing Latinos nationally to go the way of California Latinos post-Pete Wilson.

But this idea of the “demographic offensive” isn’t limited to minority coalitions. The steel tariffs were a way to chip away at union support in key states. The Medicare Rx bill was a way to chip away at elderly Democratic voters. Social Security “reform” was an attempt to chip away at the Democrats’ superiority with the young. Obviously, some of these efforts are in tension with one another, but you get the idea. The Democrats are defending past gains (African-American vote; New Deal) and the Republicans are attacking the coalition fiercely from all sides.

Make this “Tip to Democrats Number 1,203,321,” but I think Democrats should go on offense on a similarly broad coalition-level, um, level. They need to chip away at the coalitions and make the GOP defend its own side of the field for a change.

For instance, as much crap as I give them sometimes (and I probably do get too snarky), I would like to see Democrats make more of a concerted push for social conservatives. There are some big disagreements that can’t be papered over, but Hillary’s “common ground” message is a promising start. The message would be that we’re all uncomfortable with abortion and that we all want to make it safe and rare. And even if we disagree on the legality, we can all agree on taking steps to reduce the numbers of abortions such as increased funding for adoption programs and child care.

On another front, if I were a paid consultant, I would urge a Democratic candidate to work hand-in-hand with religious leaders in calling attention to issues like Darfur, the environment, and the sex trade. There’s no reason that Mehlman’s “you’re being taken for granted” approach wouldn’t work with social conservatives too. As a candidate, showing a steady willingness to reach out openly to social conservatives would both reduce their ire toward you personally and move the dial a few points your way. Once you’ve gained a little of their trust, you can then push them to do more for poverty and child health care. After all, political loyalty is merely the net aggregation of bunch of smaller policy positions that you tend to agree with. If you keep working with people again and again on the smaller issues, you can eventually start moving the dial your way without abandoning your principles. In short, you become a "reality-maker" and create new coalitions.

But this strategy is not limited to the religious vote. As I noted here, an aggressive Appalachian renewal policy would not only be the right thing to do, but it would put a lot of Electoral College pressure on the GOP. Take a look and you'll see what I mean:


This is an issue near-and-dear to my heart as I would love nothing more than to see some federal dollars roll into the poverty-stricken areas of eastern Kentucky where a lot of smart kids simply never have a chance to shine. [And if there’s one thing I’m a frickin' Communist about, it’s that grammar is a product of class, not a product of how smart you are.]

And on a similar note, Democrats should put pressure on the GOP's hold over non-to-some-college white middle-class families by pushing strong pro-labor policies. Idealism aside, a lot of politics is about "buying" votes. People will vote for you if they think it's in their financial self-interest. That's why tax cuts is such a great political tactic. But if the Dems could improve lives by strengthening unions (or "21st-century unions" they could call them), they would get their support.

Finally, and this is important, Democrats need to start making a bigger push for corporate money and support. I’m not saying Dems should sell out. But just like with the social conservatives, they need to pick a few high-profile issues and really market them to corporate America in the hopes of picking off money and support (again, even a little will make it hard on the GOP).

For example, a business-friendly health care plan that promises to relieve corporate America of its escalating health care costs would really strike at one of the GOP’s main arteries. Similarly, instead of pushing for more regulations, Democrats might push for “smarter regulations,” or some other Luntz/Clinton-friendly label. The idea is not to abandon regulations, but to get rid of the stupid, burdensome ones that don’t accomplish anything.

Even if my examples don’t really work, you get the point. Democrats need to go on the offense not just against Bush, but against Bush’s coalitions. And the one person who seems to grasp this on the Democratic side is Howard Dean.

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Andrew Sullivan beat me to the punch, but this is really quite a post from Ramesh Ponnuru parsing words to defend the administration's new standard for ethical fitness. It's a bit depressing because Ponnuru is probably my favorite Cornerite. But anyway, here ya go:

Here's how Maguire reads it: Bush originally said he would fire anyone who committed a crime in leaking Plame's identity. Bush was then asked a question with a false premise: that he had said he would fire anyone who had leaked Plame's name. He said that he stood by his earlier pledge, but unwittingly seemed to accept the reporter's unwitting modification of it. He is now restating the original pledge.

It seems to me that the original comment was ambiguous: If you read "leak classified information" to include non-criminal leaking of classified information, and read "take the appropriate action" as a euphemism for firing, you can say that Bush was pledging to fire the leaker even if no crime occurred. The June 2004 question could then have been a question designed to reduce the ambiguity in the original statement.

So my tentative conclusion is that the press's version of the president's words and Maguire's version are both a bit too definite. But the ambiguity is tougher for the press's version, since it tries to portray the president as breaking a pledge.

Got all that?

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Our straight-shooting Commander-in-Chief, today:

If someone committed a crime, they will no longer work in my administration.

The NYT:

Mr. Bush himself embraced a broader position on June 10, 2004, when he was asked whether he would fire anyone who had anything to do with leaking Mrs. Wilson's name. "Yes," Mr. Bush replied, and his spokesmen have reiterated that stance repeatedly in the months since then.

Animal Farm, George Orwell:

All animals are equal, but some animals are more equal than others.

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It seems like Michael Isikoff is the guy to keep your eye on as Nadagate unfolds – he’s consistently had new, non-Luskin-based information. And as Billmon pointed out, Isikoff is probably responsible for two new juicy bits in the Newsweek article by him and Fineman. (Laura Rozen has thoughts on it too.)

The first is that after Wilson went public, Condi was ordered out to defend the administration on the Sunday talk shows (she was in Africa with Bush). Apparently, she was “prepped” with a binder marked “Top Secret” that included classified information and “perhaps” (Newsweek’s term) the State Department memo with the goods on Plame.

The second is that Bartlett and Fleischer were, according to the article, trying to get reporters to investigate the origins of the trip (I first saw this via Digby). Here’s the Newsweek excerpt:

Then, on a long Bush trip to Africa, Fleischer and Bartlett prompted clusters of reporters to look into the bureaucratic origins of the Wilson trip. How did the spin doctors know to cast that lure? One possible explanation: some aides may have read the State Department intel memo, which Powell had brought with him aboard Air Force One.

That makes this little exchange between Rice, Fleischer, and the press look more interesting (via Atrios). This was the July 11 gaggle from Uganda (Novak published on July 14, eight days after the Wilson op-ed):

Q Dr. Rice, when did you all find out that the documents were forged?

DR. RICE: Sometime in March, I believe. Is that right?

MR. FLEISCHER: The IAEA reported it.

DR. RICE: The IAEA reported it I believe in March. But I will tell you that, for instance, on Ambassador Wilson's going out to Niger, I learned of that when I was sitting on whatever TV show it was, because that mission was not known to anybody in the White House. And you should ask the Agency at what level it was known in the Agency.

Q When was that TV show, when you learned about it?

DR. RICE: A month ago, about a month ago.

Q Can I ask you about something else?

DR. RICE: Yes. Are you sure you're through with this?

And here’s Condi with Wolf Blitzer on Sunday, July 13:

BLITZER: But 11 months earlier, you, the Bush administration, had sent Joe Wilson, a former U.S. ambassador to Niger, to find out whether it was true. He came back, reported to the CIA, reported to the State Department, it wasn't true, it was bogus. The whole issue was bogus. And supposedly, you never got word of his report.

RICE: Well, first of all, I didn't know Joe Wilson was going to Niger. And if you look at Director Tenet's statement, it says that counterproliferation experts on their own initiative sent Joe Wilson, so I don't know...

BLITZER: Who sent him?

RICE: Well, it was certainly not a level that had anything to do with the White House, and I do not believe at a level that had anything to do with the leadership of the CIA.

Tenet’s July 11 statement reads:

There was fragmentary intelligence gathered in late 2001 and early 2002 on the allegations of Saddam's efforts to obtain additional raw uranium from Africa, beyond the 550 metric tons already in Iraq. In an effort to inquire about certain reports involving Niger, CIA's counter-proliferation experts, on their own initiative, asked an individual with ties to the region to make a visit to see what he could learn.

Maybe I’m wearing my tin-foiled hat a little too tightly (or a lot), but it’s looks like the party-line on this was that the Wilson trip was not authorized from on high, but from within the bowels of the “counterproliferation” department – which of course leads to Plame (especially if you’re following up with off-the-record comments directing reporters to her). Again, I fully admit that this is all premature and based on a few sketchy data points. But if these coordinated words represented “on the record” code for what administration officials were saying “off the record,” then it looks like (so far) the following people were all involved – Libby, Rove, Rice, Fleischer, Bartlett, and Tenet. If (and this is an important “if”) all these people were involved (as the excerpts above suggest), then the Plame attack was pretty clearly coordinated from on high. I mean, these are the big guns. And if these people knew, then Cheney knew - and Bush too.

My guess is that they all knew they were doing something nasty and unethical. But the wider it gets, I think it actually becomes less likely that the people involved thought they were breaking any law. I mean, if they knew they were breaking laws, I don’t think you would see this type of widespread coordination.

But the other side of the coin is that the wider it initially spread between July 6 and July 14, and the more ignorant they were about the relevant law, the more likely a few of the people involved might have been caught in a lie after the fact. Maybe a few of them freaked out when they found out it was a crime and started calling each other to get their stories straight. It’s an understandable reaction, though illegal nonetheless. And it only takes one weak link to allow the prosecutor to unravel the whole thing.

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Number of days gay marriage legalized in Spain, Canada - 19

Number of days marriage not destroyed - 19

Number of days Earth not destroyed - 19

James Dobson - "It will destroy marriage. It will destroy the Earth."

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Ok - the week from hell is over. I should be able to post regularly again starting today. I’m still catching up on the news, but I wanted to share some thoughts on Rove and the investigation more generally.

First, I think people like John Tierney are taking an awfully big gamble by calling the investigation “Nadagate.” I mean, maybe he’ll ultimately be proven right, and Rove will once again have the last laugh. But there are so few data points here that it’s impossible to know what Fitzgerald has up his sleeve. But I've got to think he wouldn't be going to all this trouble only to say "nevermind" at the end.

What we now know, though, especially in light of Cooper’s article, is hardly cause for the Rove camp to celebrate. First, we know that Rove was a source for both Cooper and Novak – and was the original source for the former. Second, we know that he’s been hauled before federal prosecutors several times. Third, Cooper himself offered us some interesting tidbits. For one, Cooper related that Rove said that certain “material” was going to be “declassified” in the coming days (which goes toward “knowingly”). Here's the quote from Time:

The notes, and my subsequent e-mails, go on to indicate that Rove told me material was going to be declassified in the coming days that would cast doubt on Wilson's mission and his findings.

For another, Rove's plagiarism of REM ("Oh now I've said too much") sure doesn't sound good. On top of that, Cooper said the prosecutors were very interested in whether he had actually called Rove about welfare reform, which Rove apparently had told them (which goes toward perjury). Finally, it seems that Rove can’t remember who his original media source was. In the words of Luskin, he lacks a "clear recollection." Please. If it really was someone in the media, one hundred bucks says she’s sitting in jail right now. But again, we have nothing definitive here – only scattered data points. Just as it's too early to convict Rove, it’s certainly too early to clear him – especially when the administration has been lying straight-faced to the public about his role for two years now.

But Rove is not really the issue here. The issue here is much larger. On one level, it’s about who leaked classified information to the press. Even if Rove didn’t, someone did. And that’s why calling it “Nadagate” is even more foolishly premature. Something bad happened whether or not Rove himself was involved.

But on another level, it’s about the dishonesty surrounding Iraq’s nuclear program – which probably sealed the deal for the American people’s decision to support invading Iraq. I’m obviously not saying anything new (see Frank Rich for instance). But it is important to keep in mind that Rove is only one small part here of what could be a wildfire spreading through the backchannels of the Washington political-media establishment.

And what I find the most interesting – and what the administration likely finds the most terrifying – is that the leak has drawn the eyes of a tenacious prosecutor and the press toward an area that the Bush administration would most desperately like to keep hidden. And that area is the shadowy underworld of WMD-hyping and African uranium that ties together sordid characters doing sordid things at State (e.g., Bolton, Grossman), DOD (e.g., Feith, Rumsfeld, Office of Special Plans), Cheney’s office (e.g., Libby), and the White House itself. To borrow from Scooby Doo, this is one place where the administration does not want a bunch of “meddling kids” snooping around.

As for what actually happened, the possibilities are endless. I toyed around with attempting to list all the possibilities in light of what we’ve learned about the State Department memo, but there are just too few data points connecting too many potential players. (Personally, I would love to know the history of the genesis of the memo – that alone would probably provide a lot of answers). But anyway, there are just too many possibilities. Take Judy Miller for instance – is she protecting a source? Or was she the guilty party herself? Or both? Did she get a call from her Chalabi-aluminum-tube buddies and start spreading it? Who knows. I don’t know. And neither does Nadagate Tierney.

But word to the wise – by jumping to stick your neck out for Rove on the NYT op-ed page without knowing anything about the inner deliberations of Fitzgerald’s team (note the difference with Starr), you’re setting yourself up for future ridicule.

[UPDATE: John Podhoretz:

The Karl Rove portion of the story is over. The Judy Miller portion continues. And here the question is: Who's in real trouble -- somebody in the administration or somebody in the media? Or maybe somebody in the Wilson family? Or, as is most likely, nobody?

Bold words. But who knows, maybe I'll be eating crow in the end.

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I’m a big believer in “moments of clarity” – isolated points in time in which life slows down and a brief window opens temporarily that reveals some broader truth. For instance, a random fight between spouses about dirty dishes might reveal some greater truth that all is not well in the marriage. A jammed printer might suddenly reveal how much you hate your job. The late-night combination of music, alcohol and infatuation might lead you to a fleeting recognition that you are in the midst a moment of pure hedonistic pleasure.

Anyway, before I drift off into late-night college dorm land (mmm...), I wanted to say that the Rove controversy – or more precisely, the pro-Rove Republican counter-offensive – has given me a different sort of moment of clarity. This single story reveals a much broader truth about the modern Republican Party. It also reaffirms why I think the party has become so fundamentally flawed – and why I choose not to be a part of it. I mean, I offer reasons all the time about why I think the Republicans are wrong. But the pro-Rove counter-offensive reveals a far deeper truth about the depths of the intellectual decline of the modern Republican Party. Of course, the Rove story doesn’t necessarily show that liberals or progressives or Democrats are right about everything (or anything), but it does show how the once-intellectually-proud and independent-minded conservative movement has descended into mindless lockstep loyalty on any issue regardless of the merits. In a way, it’s sad. And in another way, it’s profoundly disturbing.

First things first. What Rove did was indefensible – and that’s not even a controversial point. It was a political attack that harmed national security, and was deeply unethical, if not illegal or even traitorous (our 41st President’s words, not mine). (And where's Glenn Reynolds - we might have a traitor here!)

But even putting that aside, the subsequent statements during the investigation – from the White House podium no less – were equally indefensible. It’s as obvious as could be. Rove and others did a very bad thing and then lied about it. I get tired of the whole “If this had been a [member of opposite party], there would be hell to pay.” But that’s clearly true here. If Sid Blumenthal had outed a WMD CIA operative in wartime and Joe Lockhart got up and lied straight-faced to the American public about it, there would have been hell to pay - and rightly so.

But the reaction on the Republican side is not contrition or introspection, it’s willful denial of the obvious. There are no Holy Joes condemning Clinton – there are no retreats from Durbin statements. There is blind, lockstep loyalty about an indefensible act. And the kicker – ok, one of the many kickers – is that not only does everyone know the act was indefensible, they also know that the counteroffensive talking points are out-and-out lies. As Billmon said, this is Richard Clarke all over again, except that it’s one thousand times less defensible.

The disturbing part of all this is that the conservative army so willingly falls in line behind the directives coming from on high – as if the entire GOP/talk radio/Drudge-o-sphere were actually the Borg. If you’ll recall, when the Rove thing first broke, there was a sort of eerie silence as the wheels ground to a halt. K-Lo, my favorite blogger on the Corner and the blogosphere more generally, apparently received enough email complaining about the initial silence that she posted one of them on the Corner.

The problem is that no one knew what to say. Everyone was waiting to be told what to say about it – and to a lesser extent, what to think. I say “to a lesser extent” because I don’t believe the White House actually controls thought – but it does control action. It controls how conservatives talk about issues. And once Mehlman released the talking-points hounds, the floodgates opened. And the flood was this eerie, collective chorus all repeating the same points. It’s the willingness to fall in line no matter how indefensible the policy or action may be that is so saddening and so disturbing.

It’s one thing to support tax cuts, or think that gay marriage is bad, or that the Department of Education sucks. I might not agree, but I’m assuming a lot of our disputes will come down to certain subjective political and values judgments. That’s fine. But the lockstep loyalty is something completely different – especially when it’s loyalty to what Rove did.

You would think that during wartime we could get one – just one – Republican Senator to criticize the action. Maybe one of the much ballyhooed moderates who like the talk, but aren’t big on the walk.

I don’t know - I just don’t understand it. Democrats don’t this. Liberals don’t do it either. They fall over themselves to be disloyal to fellow Democrats, especially when you turn up the heat. Republicans seem to do the opposite - the hotter things get, the more fiercely they fall in line behind the talking point no matter how obviously ridiculous they may be. I mean, for God’s sake, Karl Rove should be celebrated as a whistle-blower? Is this self-aware? (Not to our intrepid K-Lo of course.)

But like I said, the pro-Rove counter-offensive tells you everything you need to know about the modern Republican Party. Consider it your moment of Zen.

[On a last note, one overlooked point is how money plays into all this. The GOP as a party institution is much more of a top-down system that controls the wallet from on high. So maybe this is fundamentally a campaign finance problem. This last point is a post in itself and I’ll try to return to it.]

[And speaking of moments of Zen, does anyone else think the Daily Show's new set design sucks?]

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I'm not going to add anything new here, but I thought I'd offer a few quick thoughts (since I'm up and dying to write about it):

1 - The really interesting question to me is not so much who Rove told, but who told Rove. [For the record, I do not recognize "whom" - same deal for split infinitives.] Maybe I'm wrong, but I bet even Turd Blossom isn't privy to all classified information (or at least he wasn't at the time). That means someone high up with access must have coordinated with Rove. And as Michael Isikoff tantalizingly noted, there just happened to be a classified State Department report on Air Force One with President "Searching for the Real Leaker" Bush when he was touring Africa just after the Kristof op-ed was published. And we also know that Fitzgerald has subpoenaed phone records from Air Force One. So the next question is - who was on the plane? (Do we know that?)

2 - The simplest answer is almost always the right one. My father was a prosecutor for decades, and he always told me that the simplest answer is usually the right one (Law and Order notwithstanding). You put all the facts above together and a fairly straightforward narrative emerges. The Bush administration was outraged about Wilson (the uranium flap was the first time the media drew blood post-9/11 so it was new to them). Someone on Air Force One with access relayed the Wilson information to Turd Blossom. Turd Blossom began a coordinated attack on Wilson's wife (remember that Novak had two sources), probably completely unaware of the little-known criminal statute making it illegal to out a covert operative.

3 - Cheney will be found to be involved before it's all said and done. He's been at the heart of every other scandal - I'm just playing the odds.

4 - Given that Rove and some other "senior" administration official were contacting a half dozen journalists, it's basically impossible that Bush was ignorant. This was a coordinated attack from the very top. And if Rove and others are as hip-deep in slop as they appear to be, Bush knew - just like he knew about the Swift Boats. As Billmon astutely noted, the administration was loud and proud about their efforts to "search for the real killer" until Ashcroft recused himself. But now, in the words of Axl Rose, they don't talk so loud, and they don't walk so proud anymore (and what forrrrrr...).

5 - One of the dangers here is that this thing could really spread. Someone had to tell Rove in the first place, and someone else apparently joined Turd Blossom on his little phone calls. And then there's the attempted cover-up, aided and abetted by Scotty McClellan - who may well have a new appreciation for Dee Dee Myers this morning. (Scotty is either hip-deep in slop himself, or they lied to his face.)

6 - But the real danger for the administration is that journalists are now shining lights around an area that I've always felt was the one issue that could really bring this administration crashing down - the forged Niger memos and the African uranium story. There's a story there that we don't know about - but when we do find out, it's going to be a good one. And something tells me it's going to involve more than some angry Italian intelligence officials who were so desperate to see America invade Iraq that they forged memos of their own volition.

If the memo story broke, Fitzgerald would seem like a pleasant dream to the administration. Outing spies is one thing, but forging memos to trick a nation to go to war is quite another. We don't know who was responsible, but you can bet that person isn't sleeping well knowing that so much media attention is returning to Niger.

And if the memo story ever does break, it will more than fitting that petty political retribution against Joe Wilson's wife was the proximate cause.

7 - Finally, I think catching the administration in such a clear lie is going to be cathartic for a press long abused and intimidated by this White House. I think they can smell the vulnerability and feel like it's payback time.

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I've never done heroin (though I have seen Trainspotting), but I have to say that the sheer visceral pleasure of watching the noose tightening around Karl Rove's neck probably rivals a heroin high. I'm giddy.

There are few people I truly despise on this earth and Karl Rove is one of them. The thought of him going to jail fills my head with sweet visions of sugarplums and chocolate drops. I see myself dancing in a field with fellow Rove-haters like the girl in the Blind Melon video. I would be at peace with the universe.

I really really wish I had time to say more about this. I feel like Bart Simpson watching "Snow Day" from his window.

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I want to apologize for the sporadic posting. Unfortunately, it's probably going to continue for the next week (give or take a couple of days). I'm as busy as I've ever been at work, and I just don't have time to write decent posts. I will write when I can this week - and hopefully everything will be back to normal by early next week. So please bear with me for the next week - thanks.

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I'm on the road for work today (it's been a long week), so I won't be able to say all that I want to say about the London bombing yet.

But I think this might help put in perspective some of what the Iraqi people have been enduring lately. Yesterday, around forty British were killed and several hundred wounded. And the world has been rightly outraged.

In terms of population, Britain is over twice as large as Iraq. Yet, bombings of this magnitude in Iraq are common and barely make the front-pages anymore. I'm not saying this to score any political points. It's just worth noting to help put the scale of the violence in perspective. Regardless of who is at fault, the Iraqi people - especially in the Sunni triangle - have been through a lot. It's easy to lose sight of that sometimes when we either ignore the cold reality of violence on the ground, or conceptualize it on an abstract level divorced from the blood and deaths that occur on the microlevel.

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I agree completely with Kevin Drum. Let's have one day - just one day - of quiet, non-partisan respect and reflection. We can fight another day.

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The serpent tempts Kos:

True, we could go ballistic if Gonzales is the nominee, especially given his love of torture, but he's about as close a shot to another Souter that we'll get under this administration. Precisely the reason the Far Right hates him is the reason I'd be willing to give him a pass.

I had similar thoughts initially, but I would strongly urge liberals to resist the temptation. I mean, just look at the passage above - it pretty much speaks for itself. If you're serious about torture, you have to oppose Gonzales. It's as simple as that.

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Putting aside the legality of Roe, my biggest concern about overturning it is that Congress would enact a national ban on abortion just like it passed (overwhelmingly) a national partial-birth abortion ban. Ezra Klein says that ain’t so - or at least “spectacularly unlikely” – largely because the American people support leaving choice to individuals. He says:

There's a solid majority for some form of choice in this country. We're talking 75% of the country lining up behind "always legal" or "sometimes legal", with only 20% turning towards "always illegal". To put another way, more folks believe abortion should be "always legal" than "always illegal". You really think Congress is going to violently enrage 75% of the country?

I’m not so sure. I think Ezra is overlooking the “single-issue voter” problem and how intensity of preferences affects the abortion debate.

I wrote about this way way back in my first month of blogging in the context of the Federal Marriage Amendment – which I think might well pass if it ever gets out of Congress for similar reasons. Since I doubt many of you were reading back then, I’ll just borrow heavily from my old post for a couple of paragraphs.

Here's how single-issue voting works: Normally, a question is presented to the electorate and if 51% favor it, it should pass (assuming rational legislators - a dubious assumption in these dark days). If 51% oppose it, it should not pass. This ideal model, however, doesn't take intensity of preferences into account. For example, let's say 20% of voters really really want an environmental regulation eliminated. The other 80% would prefer to keep it, if you asked them, but they don't really care that much. Other issues are more important. If you're a legislator, you know that by opposing the elimination the regulation, you'll lose 20% of the electorate immediately and gain nothing. If you favor eliminating it, you gain 20% of the electorate, and lose nothing. Not a tough choice, is it? It's not a tough choice even though 80% of the population supports the regulation.

This is exactly how Prohibition got passed (which was the product of the James Dobsons of the day and very much a modern-style culture war with a healthy dose of xenophobia). There never was a majority of people who favored it. But, there was a highly motivated, highly organized group of single-issue voters committed to enacting Prohibition. Even though majorities opposed it, they didn't care enough to base their entire vote on it. Politicians who opposed Prohibition knew they would lose a solid bloc of single-issue voters. And that's why there was a conscious decision to pass the 21st Amendment (repealing Prohibition) in state conventions (thus bypassing state legislatures - the only one to have been ratified in this way). The supporters wanted to avoid the single-issue voter problem. This is sort of how interest groups work - they depend on the ignorance and apathy of those who would otherwise oppose their actions.

So even though Ezra is right that a majority of Americans support keeping abortion legal, that isn’t necessarily reassuring. We need to know how intense these preferences are and how many single-issue voters exist on the other side of the equation. If there is an equal and opposite single-issue voting bloc on the other side, the two would cancel each other out and a politician would – assuming she was rational – vote with the majority preference, which would be against the abortion ban. But if the single-issue pro-criminalization voters outweigh the single-issue anti-criminalization voters, and if the people in the “middle” are indifferent, then a politician would vote for the ban (assuming he was a rational actor).

The reason I am pessimistic about beating a national ban is because the “single-issue voter” problem is most acute in Republican primaries (and Republicans control Congress and everything else). The GOP primary closely resembles the example I offered above. One the one hand, there is clearly an enormous bloc of highly-motivated, single-issue anti-abortion voters in the Republican primary. Perhaps there are single-issue pro-choice Republicans in some zoo or nature preserve somewhere, but I doubt they play a major role in the primaries. If they have Dobson fever (I got Dobson feva, she's got Dobson feva . . . ) with respect to abortion, I would say they are generally indifferent. In other words, I think it’s rare that any GOP politician would be punished in the primary for being too anti-abortion. If you really care that much about choice, my guess is that you have long since abandoned the GOP.

Republican politicians, therefore, face the textbook single-issue voter problem in the primaries. If they support a national abortion ban, they gain all the single-issue voters and lose nothing, or perhaps a statistically insignificant number of primary voters. If, however, they oppose it, they lose ALL of the single-issue voters and gain nothing.

Of course, the tricky calculation is determining whether the actions necessary to win the primary will cost you the general election. And this calculation depends on what numbers you plug in to the multiple variables (existing level of political support, number of single-issue voters, intensity of preferences, etc.). It’s not an easy thing to do. So I won’t try.

My point is just to explain why majority support is not always what it’s cut out to be. When the battle eventually comes (and it will if the GOP wins in 2008 – maybe earlier if Justice Stevens isn't eating his broccoli), maybe people’s preference for choice is intense enough to overcome the intense preferences of the evangelicals. I don’t know – I guess we’ll find out.

__________

Work has me pretty busy again, so I couldn't completely finish my post tonight.

I did, however, have time to add Obsidian Wings to the links roll, which is a long overdue addition.

Also, I feel like I read the same blogs over and over again (as you can probably tell from my linking patterns). I need fresh blood. Does anyone have any suggestions of lesser-known blogs that they really enjoy? I'm looking for something that I don't already have on the sidebar.

[UPDATE: Thanks everyone!]

__________

The Washington Post editorial board – “because centrism means taking the middle position in all arguments despite the merits” – shows off its “conspicuous centrism” once again in a tear-jerking plea to spare the Republic the horrors of injecting politics into the Supreme Court nomination battle:

In the long run, the war over the courts -- which teaches both judges and the public at large to view the courts simply as political institutions -- threatens judicial independence and the integrity of American justice.

Well, I’ve got a news flash for the ed board – there is no law. There is only politics. Law is politics, especially constitutional “law” – which is not “law” at all but a jumbled, incoherent collection of political victories attained by different political coalitions at different points in our history. Because law cannot be separated from politics, and because constitutional “law” is generally the imposition of political preferences on vague indeterminate text, we should abandon the Kabuki dance nomination process and talk more openly about politics.

Ok – that’s probably a bit strong, but I wanted to get your attention. Let me back up and explain what I mean when I say “law is politics.” First, I should make it clear that I don’t adopt the extreme realist/Marxist position that law is nothing more than politics or the entrenched ideological preferences of the coalition that happens to be in power (but see Bush v. Gore). The Gitmo cases, for instance, suggest that law – the idea of rule of law – has some real power and that it’s not merely a tool of the powerful. In general, I think that most legal decisions fall along a spectrum between the poles of pure politics and pure, abstract legal reason independent of politics.

But that said, I think that constitutional law falls much, much closer to the “pure politics” end of the spectrum than other types of legal decisions. By “constitutional law,” I mean interpreting and applying (or claiming to) vague indeterminate legal text. This is a wholly different exercise from statutory interpretation – which I think courts do quite well, largely because interpretation relies upon a set of neutral, non-political principles that judges generally agree upon. In other words, statutory interpretation works because – like baseball – judges usually agree on the rules that govern.

In constitutional law, by contrast, the judges are not just arguing about the proper result, but about the very rules that should apply in the first place. And in my opinion, history has shown us that these disputes are essentially political battles.

There are at least two reasons why I think most “constitutional law” disputes are essentially political disputes in high-falootin’, fancy-pants legalese. The first reason is because, as Edmund Burke wisely noted, men are bad. Humans are self-interested creatures that can and should be expected to act in their self-interest to the detriment of others. It’s the whole “if men were angels” rationale that rests at the heart of our constitutional design.

Being human, judges can and should be expected to act in their own political self-interest. That’s why Judge Taney used his tricksie ouija board to unearth a constitutional provision that said blacks couldn’t be citizens. That’s why Republican-appointed judges in the early 20th century found that the Constitution barred some of those pesky legislatively-enacted labor regulations. That’s why the New Deal Court adopted a jurisprudence that miraculously allowed all of FDR’s legislation to pass. That’s also why the famous footnote 4 in Carolene Products helped minorities – who happened to be a key bloc of the New Deal coalition. That’s why the liberal Warren Court looked at vague text and – surprise, surprise – found liberal interpretations. That’s why the more conservative Rehnquist Court got it out its own tricksie ouija board to find (and say it with reverb and echo) “state sovereign immunity” – a neat little doctrine found nowhere in the text that allows the Court to strike down things it believes interprets as intruding on the states. [In other words, it’s a way to attack the New Deal.] And that’s why equal-protection-hating, states-rights Justices suddenly invented a brand new equal protection right and overruled a state court’s interpretation of a state law to elect the president they preferred (in Andrew Jackson’s day, they would have been hung for Bush v. Gore).

But the second reason that constitutional law is political is more innocent. After all, some judges really do try hard to rise above politics (remember the spectrum). The problem is not just that judges are political creatures, the problem is that political preferences are inextricably bound – in an epistemological sense – to the act of judging, or coming to know that which is “correct.”

Once again, this stems from the indeterminacy of the text. Let’s take the word “commerce.” In all of these commerce clause cases, we can admit that there’s no objectively right answer. There is a range of possible answers. In approaching these difficult questions, judges bring their political preferences with them – and more importantly, interpret the world around them through these mental constructs or tinted lenses or whatever analogy you prefer.

I don’t know a lot about Kant, but I think Kant argued that we all view the outside world (phenomena) through pre-existing mental constructs. In other words, humans perceive space and time not necessarily because space and time exist “out there” but because something in our mind creates space and time. It’s not quite the same thing as projecting space and time on to the world. It’s that the outside world comes in and we then arrange it in our own mind into ordered space and time. Everything we perceive comes through these mental filters and the human mind is literally incapable of not conceptualizing the world in terms of space and time.

Maybe it’s a poor analogy, but my point is that judicial political preferences are similar to Kant’s “constructive filters.” When judges consider questions that have a range of plausible answers, they are basically choosing which answer they themselves prefer. (After all, there are no objectively correct answers.) And what they prefer – that which they consider “correct” or “good” – is necessarily determined by the pre-existing “political filters” through which the judges interpret data from the outside world.

This same process also influences the selection of the theory that judges apply. Very often, selecting a theory of interpretation is rooted in political preferences as well. That’s why you don’t see any liberal originalists.

Anyway, my point is that constitutional law is essentially a battle of politics. That’s why I prefer to reallocate as much authority as possible to the legislature. Unless the text clearly gives the courts the power to wade in, the courts should butt out and leave it to the branch with the most legitimacy – and that goes for state sovereign immunity or overthrowing the administrative state or banning sodomy laws. These actions – regardless of their merits – are simply the imposition of judicial political preferences on the Constitution without textual license to do so.

If I’m right when I say that constitutional law is essentially politics by other means, then we shouldn’t try to avoid “injecting” politics into nomination battles, we should do just the opposite. Inject it, I say. It would be refreshing. We could actually have a democratic debate about it. If a nominee doesn’t like the New Deal, let her say so. If a nominee wants to overturn Roe, let him say so. If you prefer a nominee that will read the First Amendment out of the Constitution with respect to religious matters, say it. Let’s just have it out, by God. That would be a lot better than the Kabuki dance of pretending politics doesn’t matter – or that our esteemed medicine men Justices are above politics.

I don’t give the evangelicals credit for much, but they seem to get the inherent bullshitness of constitutional “law.” They want someone who will enact their political preferences, period. They don’t give a damn about the niceties of theory, they want restraint when restraint helps and full-blown judicial tyrannous activism when it helps. They don’t care about the law, they care about the person’s politics and religious beliefs. They see the whole thing for what it is – a bare-knuckled, bloody political fight.

And if liberals don’t see it for what it is – and if they rely on, as Digby beautifully put it, “the dipshit gang of 14" – and if they worry about what David Broder and the Washington Post ed board thinks of them – they’re going to get their asses handed to them once again.

With all respect to the Post, this is a campaign. And it should be.

Jasper Johns, Flag on Orange Field, 1957

[Now stop reading and go outside.]

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Loosely adapted from Richard III, V.iii.:

Rove Sleeps

Enter the Ghost of Mark Kennedy, Alabama family-court judge

[To KARL ROVE]
Let me sit heavy on thy soul to-morrow!
Think, how thou stab'dst me in my election
In Alabama. Think, how thou called me,
Me who spent my life helping children,
A pedophile: despair, therefore, and die!

Ghost vanishes.

Enter the Ghost of Ann Richards

[To KARL ROVE]
When I was Governor,
By thee was I called a lesbian
Think on your lies and me: despair, and die!

Ghost vanishes.

Enter the Ghost of John McCain

[To KARL ROVE]
Let me sit heavy on thy soul to-morrow!
I, who endured torture for my country,
Was called unstable by your whispering,
You attacked my daughter in South Carolina,
To-morrow in the courtroom think on me,
And fall thy chickenhawk sword: despair, and die!--

Ghost vanishes.

Enter the Ghost of a young John Kerry in uniform

[To KARL ROVE]
Let me sit heavy on thy soul to-morrow,
Dream on thy slanders of my military service,
You – you who were too cowardly to serve,
Let fall thy lance: despair, and die!

Ghost vanishes

Enter the Ghost of Valerie Plame

[TO KARL ROVE]
The one you sought to punish
Now fills thy sleep with perturbations,
To-morrow in the battle think on me,
And fall thy edgeless sword: despair, and die!

The Ghosts vanish

KARL ROVE starts out of his dream

Give me another horse: bind up my wounds.
Have mercy, Jesu!--Soft! I did but dream.
O coward conscience, how dost thou afflict me!
The lights burn blue. It is now dead midnight.
Cold fearful drops stand on my trembling flesh.
What do I fear? myself? there's none else by:
Karl Rove loves Karl Rove; that is, I am I.
Is there a criminal here? No. Yes, I am:
Then fly. What, from myself? Great reason why:
Lest I revenge. What, myself upon myself?
Alack. I love myself. Wherefore? for any good
That I myself have done unto myself?
O, no! alas, I rather hate myself
For hateful deeds committed by myself!
I am a villain: yet I lie. I am not.
Fool, of thyself speak well: fool, do not flatter.
My conscience hath a thousand several tongues,
And every tongue brings in a several tale,
And every tale condemns me for a villain.
Perjury, perjury, in the high'st degree
Murder, stem murder, in the direst degree;
All several sins, all used in each degree,
Throng to the bar, crying all, Guilty! guilty!
I shall despair. There is no creature loves me;
And if I die, no soul shall pity me:
Nay, wherefore should they, since that I myself
Find in myself no pity to myself?
Methought the souls of all that I had murder'd
Came to my tent; and every one did threat
To-morrow's vengeance on the head of Karl Rove.

__________

Oh please let this be true. Here's Lawrence O'Donnell (via Kevin Drum):

I revealed in yesterday's taping of the McLaughlin Group that Time magazine's emails will reveal that Karl Rove was Matt Cooper's source. I have known this for months but didn't want to say it at a time that would risk me getting dragged into the grand jury.

McLaughlin is seen in some markets on Friday night, so some websites have picked it up, including Drudge, but I don't expect it to have much impact because McLaughlin is not considered a news show and it will be pre-empted in the big markets on Sunday because of tennis.

Since I revealed the big scoop, I have had it reconfirmed by yet another highly authoritative source. Too many people know this. It should break wide open this week. I know Newsweek is working on an 'It's Rove!' story and will probably break it tomorrow.

Please please please let this be true. Seeing Karl Rove indicted would almost make up for the whole election. This would be the best thing EVER.

___________

Sandy's out. Balancing tests everywhere will be threatened with a loss of habitat.

Let the shit be hurled at fans throughout the fruited plains.

This is big. Rehnquist is not a net loss - he's a reliable old Nixon hack after all. O'Connor is different. She's a swing vote. Her replacement could really change a lot of outcomes. If Bush nominates a Bolton-type nominee (which he probably will), it's going to get ugly.

My preferred pick would be McConnell. The guy is at least a well-respected academic who seems to accept the Enlightenment.

As crazy as it sounds, I think I wouldn't be that upset with Gonzales - purely as a matter of strategery. I'm thinking back to Hugo Black. There was some controversy about appointing him (Southern senator) because he was a former member of the Klan (you had to be to get elected for anything back then). But when he became a Justice, he became one of the greatest champions for racial equality in the history of the Court. I suspect that part of it was an attempt to overcome or make up for his roots.

I wonder if Gonzales might do the same on the issue of civil liberties. He doesn't strike me as a true believer, but as a party hack. Sometimes when hacks no longer have to worry about pleasing their bosses, they become less hackish. He shot down Owens in the Texas Supreme Court, so he's got that going for him.

The torture thing is still a tough pill to swallow. But I think Gonzales would be infinitely better than one of God's Dobson's chosen or some radical Bork Federalist Society ideologue.

Oh well - let the fun begin.

[UPDATE: And it has. Feddie says I'm being hypocritical in re: torture. The more I think about it, he's probably right. But to be fair, I don't "support" Gonzales in the way that I would "support" Akhil Amar or even McConnell. The fact is that Bush is going to select a Justice, and that Justice is going to be someone I have major problems with. Of all the possible worlds, I was merely saying that Gonzales would probably be more palatable than others even in spite of the torture.

The sad truth is that the Justice will get to make decisions for at least a couple of decades - cases that are very important. The question you have to ask yourself is that, assuming Gonzales is less ideological at heart, is the torture issue so abhorrent that it's not worth gaining the benefits of two decades of "better" opinions.

That's a really tough question. Torture is abhorrent. And the man absolutely should not be AG or a Justice. He should be in the Hague. But the alternative may be two decades of votes from a Dobson disciple or Janice Rogers Brown. And so you have to ask yourself - among the universe of people who should not be Justice, who would be least bad. Maybe the torture approval overrides everything else. That's a perfectly valid position, and to be honest, it probably the right call.

But in the world of pure political reality, in which people we don't like become Justices, I suspect Gonzales would lead to comparatively better results. This was intended to be an observation, not advocacy.

But I freely concede that Feddie made a good point and that I might thinking of things too opportunistically. I'll think about this more. Thoughts? Am I morally bankrupt?]

[UPDATE 2: The more I think about it, the more I lean toward Feddie's view. I think supporting Gonzales - or resigning yourself to him - contradicts every moral objection to Bush's torture and rendition policy. It also makes it seem like you don't really care about torture that much. Because I do, I've "changed up my mind." Gonzales needs to be on the bottom of the "acceptable" list despite the potential benefits. I still think that liberals would ultimately be happier with him than others (which is what I was trying to say - poorly - in the first post), but that really shouldn't matter if you're serious about the immorality of our detention policies.

So Feddie 1, me 0.]