Monday, October 31, 2005

Kudos on Alito

We're back! In one stroke, nominting Judge Alito to the Supreme Court, President Bush has rallied us conservatives back into his camp.

3 things seem clear to me:

1. Alito is excellently qualified for the position. He will turn in a brilliant performance in his Senate Judiciary Committee hearings, frustrating Democrats in the process.

2. Republicans will eagerly jump into the fray, based on his qualifications and originalist philosophy, to support and defend his confirmation.

3. Democrats, despite Alito's evident qualifications, will reflexively oppose Alito with everything they have in a blindly partisan manner that will not resonate with the public.

Game on.

Scooter's no-crime Indictment

My choice for the self-fulfilling prophecy of the week goes to the Mainstream Media (MSM) based on a poll reported on Fox News Sunday by Britt Hume this week. According to the poll, a "majority of Americans believe that the CIA leak investigation has taken a toll of President Bush's popularity".

Well, no kidding. That's a shocker.

After a two year Special Counsel investigation accompanied by a relentless drumbeat of irresponsible accusations from the left and outrageous unsubstantiated speculation from the press itself, would you guess that would take a toll on the President?

The speculation from the press reached a hysterical zenith in the last month. The talking points from the left moved far beyond the basic storyline: that the White House power players, led and coordinated in an abuse of power conspiracy by Karl Rove, intentionally outed covert CIA agent Valerie Plame in an orchestrated effort to discredit her whistle-blower husband Joe Wilson. That, in itself, is quite a story made more devious by constant repetition. In the two weeks before the grand jury hearing the evidence expired the speculation grew wilder, including:

- an indictment of Bush's principal advisor Karl Rove, who would be "frog-marched" in handcuffs out of the White House
- possible indictment of Vice President Dick Cheney himself as one of the sources of "the leak"
- an expansion of the Special Counsel's focus to include impeaching President Bush for lying us into war

All speculation, and all false.

It's important to pause to remember the assignment the Special Prosecutor was given: to investigate whether or not the law protecting covert CIA agents from exposure (which may risk their lives). The law has specific requirements, including one that the agent have been officially overseas undercover within the last five years, and that the "leaker" did so intentionally with the purpose of exposing the agent to risk.

So, did Patrick Fitzgerald find that the law had been violated? No, not based on his indictments. He did not indict anyone for violating that law?

Did he find evidence of a abuse of power conspiracy in the White House to punish Wilson by outing his wife? No, not based on his indictments. He did not indict anyone for a conspiracy. He did not indict more than one person.

So. The original focus of the investigation - did someone "leak" the identity of a covert CIA agent in violation of the law - produced no indictments for that crime.

We can effectively say at this point that Karl Rove did not violate the law, per the indictments. The burden of proof to say otherwise lies with his critics, who have no proof.

The only indictments involve a bit player for indirect crimes - perjury and obstruction. No underlying crime. Only he-said she-said contradictions about who said Valerie Plame's name first. Which leads me to two questions:

1. If Valerie Plame does not fit the definition of a covert CIA agent, and she doesn't having not been in the field for more than 6 years, and if her name is not classified, which it is not, then how can saying her name in any context constitute a "leak"? For that matter, how does it matter who said her name and when? I could say it. You could say it. President Bush could have stood on the White House steps and yelled VALERIE PLAME. It's not illegal. And the lack of indictments for violating that law validates that. So why do we keep talking about a "leak"?

2. Who in the press or on the left is going to apologize to Karl Rove for dragging his name through the mud for the last two years? Not any of the Democratic leaders who, despite the lack of an indictment, are out today on TV calling for Rove's firing still. Howard Dean, Chairman of the Democratic Party, was even on TV tonight still calling for Cheney's indictment. Outrageous.

Harry Reid, Senate Minority Leader, called today for President Bush to apologize for Plamegate. I say Reid and all of the left should apologize for trashing Rove and Cheney for so long. Back off. You lost.

Tuesday, October 25, 2005

Predictions

For what it's worth, I predict:

- Harriet Miers' nomination will be withdrawn before or shortly after the pending committee hearings. She's toast.

- Special Counsel Fitzgerald will not indict anyone for the original crime in Plamegate - violating the law protecting covert CIA agents.

He may indict for perjury or obstruction, which would be unfortunate and a giant waste of time. There's no crime here.

- White Sox in 6 games

Penalty Declined on Miers Post

My friend Julie left a thoughtful comment on my last post, regarding Harriet Miers nomination to the Supreme Court, that I wanted to explore in more depth than a comment. She said, in part:

Whoa, whoa, whao - flag on the play!!! "I am certainly encouraged by the dicussion of her faith life as an evangelical Christian, and what that likely portends for her votes on the court." 'Scuse me, but that sounds an awful lot like what an "activist judge", to use a term that is usually blurted from the mouths of die-hard neo-Cons when faced with the idea of a Liberal justice, might do. Are we using the Constitution as our benchmark, or the Bible? If she uses anything but the Constitution then how can that not be "legislating from the bench".

This is one thing that irks the crap out of me from Conservatives - the idea that "activist judges" are only Liberals. If you put someone on the bench because you hope they will vote one way or another on any issue, then it doesn't matter if you are Conservative or Liberal - you are engaging in the very activity that the other side is frequently blamed for.

A flag on the play? Ouch. 15 yard penalty?

Hold on - after a review of the slow motion tape by the referee in the skybox, the penalty is declined.

I think that the root of our different perceptions lies in our thoughts on what "judicial activism" is. I have 4 quick thoughts on that:

1. Voting my way and activism are not the same thing, to me anyway.

Getting to choose someone who "shares your judicial philosophy", i.e. votes your way, is one of the perks of winning an election. It's the expectation. It's not activism.

2. Umpiring what's Constitutional or not - as conservatives prefer- is not activism. Treating the Constitution as a living document - as liberals prefer - is activism.

Activism usually aims to achieve social change. I would argue that where social change has happened in our society by legislation (Voting Rights Act) or Constitutional amendment (suffrage?) it has been accepted and normalizes out. But when social change happens by activist judicial fiat by less than 9 people (Roe v. Wade) it has been divisive.

3. Evangelical Christians are, in my opinion, less likely to pursue social change by judicial fiat than secularists. We have other outlets for that pursuit. Church. Charities. etc. Liberals, especially secularists, expect government to play this role and are more willing and likely to try to use the courts for these ends.

4. Religious fundamentalists, who are prone to interpreting scripture by the plain written word - as Miss Miers appears to be - are also less likely to be activists who "discover" new rights in an old document. The are more likely to read the plain text of the document and vote.

All of that explains me being "encouraged" by comments about her Evangelical faith.

However, I know think that her nomination will be withdrawn or defeated, so it may be all moot.

Tuesday, October 11, 2005

on Harriett Miers

After a week of study and reflection, here are my thoughts on President Bush's nomination of his personal lawyer, Harriett Miers, to the Supreme Court:


My initial reaction was clear and visceral. The nomination was deeply disappointing and demoralizing on several levels:

- qualifications: There were so many extremely qualified candidates on a national level with constitutional credentials. The best legal minds in the country with the blessing of the best conservative scholars. The only list in the group that Harriett Miers' name was on was the President's. As George Will eloquently argued in his opinion piece on the topic, this was not a serious nomination.

- squandering an opportunity: Conservatives have been toiling for in excess of thirty years just for this day. All of that work to elect a conservative President with a Republican House and a Republican Senate to lay the groundwork for this crucial appointment when Justice O'Connor would retire. Make no mistake, this seat is the swing vote that will change the judicial direction of the court for a long time. Filling this seat cannot be left up to chance, to an unknown. It's not enough for the President to say to his base "Trust me". Not by a long shot.

- diversity politics: President Bush bowed to identity politics that demanded that O'Connors seat be filled by a woman above all else. That's not conjecture, that's reported by the President's people. My objection is not that the seat will be filled by a woman, but that it could only be filled by a woman. There were plenty of conservative women as candidates that would have filled the bill and been considered legitimately as the "best qualified". Harriett Miers, not.

- cronyism: not in the sense of financially rewarding personal associates. In the sense of being so narrow and provencial that in lieu of selecting the best qualified for a position of critical national importance you select the best qualified that you personally know. We can't afford that, judicially speaking. We've had enough of that with failed appointments at federal agencies like FEMA and Immigration. We can't afford that on the Supreme Court.

- ducking a fight: Selecting bona fide conservative jurists with a track record would likely have brought a confirmation fight with the Democrats, which most conservatives would have relished. Pat Buchanan rightly points out that the President missed an opportunity to rally conservatives to his side at a time when he needs them by waging the fight that we wanted for the court. Most importantly, the lesson of the Roberts confirmation was that a brilliant nominee can beat the Judiciary Committee and win confirmation. The President chose not to follow up with such an impeccably credentialed conservative nominee and win the fight. Now he has an unintended fight with the conservatives that he betrayed.

That was my initial reaction - that President Bush made such an ill advised choice that he essentially betrayed the conservative base that worked hard to elect him and to promote and defend his policies. It was an unbelievably ill-advised decision.

I've heard two mitigating arguments in support of the President's decision this week. 1) His father's mistake, Justice Souter who went liberal on the court, was accepting recommendations for a judge he didn't personally know and 2) the Republican Senators who would be the President's army in a nomination fight are too squishy to count on. Given their sellout in the Clinton impeachment, and the deal struck by the Sen. McCain and the Gang of 14 to pre-empt fillibusters, that is a considerable argument. Despite having the majority, too many Republican Senators are squishy and cannot be counted on in a fight.

I'm sure Miss Miers is a fine and capable person. I am certainly encouraged by the discussion of her faith life as an evangelical Christian, and what that likely portends for her votes on the court. She probably will vote the conservative, originalist, position most of the time. But it is not a certainty. And that's the problem.

Do I know for sure that this former city councilwoman would have voted no in the horrible Kelo vs. New London case in the last court, which allows those councils to excercise eminent domain to seize property from private citizens and give it to private businesses on the basis that it will generate more sales tax? No, I don't. O'Connor voted for this abomination that invalidates private property rights in America. Who knows where Miers would have stood.

Do I know that Miss Miers would uphold bans on the abominal partial-birth abortion procedures that will come before the court? No, I don't.

And that's the problem. All of these type decisions end up being decided 5-4, and it can't be unclear with this nomination which side of the 5 that she will be in. That's not what we worked hard to elect a conservative President for. That's not what we worked hard to elect a Republican Senate for. Not for uncertainty.

Since the nomination, the President and his spinners - including Mrs. Bush - have demonstrated their cluelessness on the depth of disappointment that this careless nomination has caused in the base. Clueless. If he wants to come out and attack conservative critics of his unqualified nominee as "sexists" or other such nonsense, he will pay a price in support.

Here's what I think will happen.

Miss Miers will be confirmed to the court. President Bush will not withdraw her. Democrats don't have the votes to stop her. Republicans will suck it up and reluctantly vote for her.

Democrats will look bad in the Judiciary Committee when they start attacking her Christian faith, which they surely will. Most, but not all, will vote no.

Republicans will give her a hard time, and then vote for her. Then they will excercise their ire with President Bush. He has squandered his margin of error. No more automatic support from the conservative base. No more slack for President Bush:

- no more slack on failing to do anything serious on controlling our border after 9/11

- no more slack on reckless spending and failing to veto a single spending bill

- no more slack on crony appointments in federal agencies

- no more slack on dissing issues conservatives care about (i.e. dissing the Minutemen as "vigilantes", the Swift Boat Veterans, etc.)

The President could have shown leadership here. He could have selected one of the top 20 conservative jurists in the country and waged the fight for direction of the most important court in the land. He would have rallied his conservative base and energized his second term.

Instead, in one weak and inconsequential choice, he demonstrated his limitations and disillusioned his champions. A big mistake. Perhaps an unrecoverable mistake.

President Bush's Spinning Plates

The way I see it, President Bush's remaining term and legacy depend on the final outcome of several spinning plates:

- Vote on the Iraqi Constitution on October 15th. The vote is a major milestone in the War in Iraq and the measurement of success there.
- Confirmation of Supreme Court nominee Harriet Miers
- The independent council investigation of "Plamegate"
- Indictment of Congressman Tom Delay
- FEC investigation of Senate Majority Leader Bill Frist
- a possible "Katrina commission"


The best case scenario, which allows Bush to regain some ground in the polls and go on to enact policy with some authority is:

- Iraq has a successful vote and approves a constitution
- Harriett Miers has a positive showing in the confirmation hearings and is confirmed by Thanksgiving
- Prosecutor Fitzgerald ends his investigation with a report that no crime was committed and Rove and company are off the hook
- Tom Delay's indictment is dismissed
- Bill Frist is cleared of wrongdoing
- no Katrina Commission. Instead, Bush takes lead in rebuilding New Orleans

The worst case scenario, which will doom Bush to early lame duck status is:

- Iraq votes down the constitution and descends into Civil War
- Miers nomination is defeated or withdrawn
- Fitzgerald indicts Karl Rove or Scooter Libby in "Plamegate"
- Tom Delay goes to trial. Conviction being worse.
- Bill Frist gets forced into resignation
- a partisan Katrina Commission shoots at the Administration's handling of the emergency for months.

There's a lot at stake for the President in the next few months, and the rest of his term hangs in the balance.

If You're Going to Shoot at the King, Don't Miss

Democrats are beside themselves with glee that Tom "the hammer" Delay, Republican Majority Leader of the House of Representatives had to step down after being indicted on conspiracy / money laundering charges.

Glee, I tell you.

There's just two problems that they are not taking into account yet.

First, it's clear to me after following all of the news about the indictment that it won't hold up. The initial indictment was flawed, due to the minor technicality that the act alleged wasn't illegal at the time alleged, that it was dismissed. The second indictment, money laundering, was elicited from a grand jury that had only been impaneled for five hours. I think Delay will succeed on getting the indictment dismissed on the grounds of prosecutorial misconduct.

Second, the Republican Leadership is not taking getting shot at by partisan enemies lightly. According to a radio interview that I heard with Delay himself last week, the leadership met privately and circled the wagons - agreeing to start agressively pursuing policy matters that have been idle such as spending cuts, energy policy including drilling in Alaska, border control, etc. It's full tilt for straight out conservative Republican policies in the next six weeks. Kind of an unintended consequence of indicting the leader, I would say.