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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Monday, 31 October 2005

Topic: The Law

Changing the Subject: The 'Wise guy' from Trenton - Sam 'Scalito' Gets Nominated

On Sunday, October 30 it was clear the White House really needed to change the subject. As noted in these pages, the two Sunday topics that had people buzzing were the new polling that showed now more than half the country felt all this business about the Bush team restoring "honor and integrity" to the White House was a load of crap, and this was a failed presidency, and a second item on the calls for an apology about what had happened with Libby and for Karl Rove to be fired. The administration was having a bad Sunday.

Add to that, CNN reported, first thing Monday, that the new count of our military losses in Iraq had jumped to 2,023 - "The six deaths [Monday] bring the number of U.S. soldiers to have died in Iraq this month to 90, the highest number of American deaths there since January when 107 Americans were killed." By the end of the day it was seven killed.

This is not good news for the administration - things are not getting better - and Sharon Jumper here, with details of the new and improved "improvised explosive devices," explains how now even our best and most heavily armored vehicles in theater can be easily penetrated. The IED is not just an exploding Coke can any longer. The enemy is adapting quickly to whatever we roll out.

So what to do?

Change the subject.

Bush Nominates Alito for Supreme Court
Ron Fournier, Associated Press, Monday, October 31, 2005
President Bush nominated veteran judge Samuel Alito for the Supreme Court Monday, seeking to shift the judiciary to the right and mollify conservatives who derailed his previous pick. Ready-to-rumble Democrats said Alito may curb abortion rights and be "too radical for the American people."

Drawing an unspoken contrast to failed nominee Harriet Miers, Bush declared that the appeals court judge "has more prior judicial experience than any Supreme Court nominee in more than 70 years."

… So consistently conservative, Alito has been dubbed "Scalito" or "Scalia-lite" by some lawyers because his judicial philosophy invites comparisons to conservative Supreme Court Justice Antonin Scalia. But while Scalia is outspoken and is known to badger lawyers, Alito is polite, reserved and even-tempered.
"Scalito." Well, that will change the subject.

Fournier quotes Senate Judiciary Committee Chairman Arlen Specter, one of those oddball Republicans who actually supports abortion rights, saying this abortion thing "will be among one of the first items Judge Alito and I will discuss."

No kidding.

But AP tracks down Rose Alito, the nominee's ninety-year-old mother. "Of course, he's against abortion." He's a good Catholic boy. From Jersey. Trenton.

Of course this will bring up jokes about The Sopranos and maybe Sinatra and the Mafia and all that.

Well, that is underway, and here's the immediate push back:
Mon Oct 31 2005 15:56:42 ET
National Italian American Foundation (NIAF) Statement:

The NIAF is distressed by the attempts of some senators and the media (CNN, CBS) to marginalize Judge Samuel Alito's outstanding record, by frequent reference to his Italian heritage and by the use of the nickname, "Scalito."

Appropriately, no one mentioned that Justice Breyer was Jewish or suggested that he was lock-step ideologically with the other Jewish Supreme Court Justice, Ruth Bader Ginsburg, it would have been outrageous to do so. We still do not know Justice Robert's ethnicity. ...
Say, wouldn't this make the Supreme Court five Catholics and two Jews - a Catholic majority as noted here? What does that portend? Forget the Mafia. Is this an Opus Dei plot? What is that sneaky new German pope up to?

Insert your own conspiracy theory here:

See also Why Catholics? - The political advantages of Catholic justices by William Saletan in SLATE.COM - Tuesday, November 1, for more thoughts on the matter.

Well, this all should be interesting. The Democrats would have to filibuster to block this confirmation - the Republicans do have those fifty-five seats in the senate, and no one on that side is upset at this nomination. Harriet Miers is now old history. The old "in your face" Bush is back.

The AP also reports that the president called for confirmation of the fellow by year's end, but Senate leaders said the vote may wait until next year.

One suspects it is in the White House's interest that this is dragged out. No need to hurry. Keep the conflict and controversy hot, and extend it as long as possible. This is not governing by division and conflict, really - it's a subset of that. This is laying down a good thick smokescreen. And this is relying on the evidence so far that the general population can only attend to one big news story at a time. There was an earthquake in Pakistan and far more than one hundred thousand died? Really? New Orleans isn't rebuilt yet? You get the idea.

Well, the announcement on television was dull, at least on the replay here in Hollywood. No one seemed excited, or inspired. That was curious, and the Times of London (UK) captured the flavor here -
Having won two presidential elections and fought two unending wars, President Bush has run out of energy. Instead of the bouncing enthusiasm of happier days, his subdued manner indicates a loss of interest in the presidency itself, a desire to go home and rest.
Really? The Times post explains all this in detail, but one doubts their conclusion about the man wanting to go home. How can he go home now? What would that look like?

Judge Samuel Alito

So who is this guy? There's a complete, but negative, biography from the American Constitution Society here. He was born in 1950, did his undergraduate degree at Princeton and his law degree from Yale. Bush's father nominated him to sit on the Third Circuit Court of Appeals in New Jersey. Before that he was clerk to Third Circuit Judge Leonard I. Garth, then Assistant to the Solicitor General as Deputy Assistant Attorney General, and was at one time Attorney for the District of New Jersey, a prosecutor.

In fact, that last part is what troubles defense attorney Jeralyn Merritt here:
Before becoming a judge, after a short stint as a law clerk for a federal judge, Alito's entire career - from 1977 to 1990 - was as a prosecutor or attorney for the Government.

Again, my prediction: A disaster appointment for those who care about the constitutional rights of the accused. I don't want a career prosecutor like Alito on the Supreme Court. I fear he will be a major proponent of the war on drugs, the death penalty and the war against immigrants, while he will rule to restrict habeas rights and Miranda.
Or he won't. Click on the link to see the supporting case evidence.

But this appointment was announced on Halloween, and another lawyer-writer, Dahlia Lithwick, picks up on that in Trick and Treat: Sammy Alito is the whole bag of goodies.

And she opens with the key ruling that seems to bother everyone -
So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades: In Planned Parenthood of Southeastern Pennsylvania v. Casey - which later became the case that reaffirmed Roe, Alito dissented when his 3rd Circuit colleagues struck down Pennsylvania's most restrictive abortion regulations. Alito felt that none of the provisions proved an undue burden, including a requirement that women notify their spouses of their intent to have an abortion, absent narrow exceptions. Alito wrote: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed opposition - that may be obviated by discussion prior to the abortion."

Sandra Day O'Connor rejected that analysis, and Casey reaffirmed the central holding of Roe. Then Chief Justice Rehnquist quoted Alito's dissent in his own.
So Roe stood. He got slapped down. Rehnquist got outvoted.

And there's a lot of talk around this whole issue. Who owns the woman's womb and gets a say in any abortion decision? Is it fifty-fifty once you're married, and before that - if the woman is under eighteen - is the womb the property of the girl's parents and they get to decide? On the other side, if you make the assumption a fetus at any stage of development is really "a child," can a woman unilaterally kill a child without consulting the father? And so on. Alito may be on the side of those who say this should not ever be the woman's decision alone, or he may be just on the side of saying the Pennsylvania law is what it is and there's no issue here - and what's the big deal since there is "no burden" in multiple approvals or vetoes of what the woman decides? We'll see. (For a detailed discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey see Emily Bazelon here.)

Lithwick does point out some other decisions that may be a problematic from some lefty-types - "his vote to limit Congress' power to ban even machine-gun possession, and his ruling that broadened police search powers to include the right to strip-search a drug dealer's wife and 10-year-old daughter - although they were not mentioned in the search warrant."

He upheld a Christmas display against an Establishment Clause challenge. His prior rulings show that he would raise the barriers for victims of sex discrimination to seek redress in the courts. He would change the standard for analyzing race discrimination claims to such an extent that his colleagues on the court of appeals fretted that Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin, would be "eviscerated" under his view of the law. He sought to narrow the Family and Medical Leave Act such that states would be immune from suit - a position the Supreme Court later rejected. In an antitrust case involving the Scotch tape giant 3M, he took a position described by a colleague as likely to weaken a provision of the Sherman Antitrust Act to "the point of impotence."
If you read that all slowly you get the idea. He would not legislate from the bench to change laws to his whims. He'd just rule in ways that would make those laws about how to treat others - on matters of racial discrimination and sex and privacy, and keeping machine guns off the streets - meaningless. And he'd protect giant corporate monopolies. Congress has had too much power in this law-making business, after all.

What? What about all this blather about those evil, activist judges? Bruce Reed explains here -
What happened to Bush's old mantra? First, while we may not know Alito's shoe size, we know that shoe doesn't fit. Nobody who tried to overturn the Family and Medical Leave Act can claim that his philosophy is judge-modestly-and-carry-a-blank-slate.

The other reason Bush threw his judicial activism talking points out the window is that he doesn't need them anymore. On the contrary, he wants the right wing - and the left - to know that this nominee is the conservative judicial activist they've been waiting for all along. Bush's new message: Bring it on.

Forget all that mumbo-jumbo about umpires and judicial restraint, Bush seems to be saying. The fans don't come out to watch everybody sit on the bench - they want to see a brawl that clears it.
And they'll get it, and everyone will forget Joe Wilson and his wife and which White House official goes to jail next.

See John Dickerson here -
Finally, the battle everyone has been waiting for. Since summer, Washington has been preparing for a Supreme Court brawl, a chest-beating showdown filled with sweeping displays of pettiness, small-minded political bickering, and explosive camera-luring rhetoric. John Roberts turned out to be too qualified for that. Harriet Miers wasn't qualified enough. Now, with the nomination of Samuel Alito, both parties can revert to type.

... Conservatives like political expediency when it's their interests that are being tended to. They may be needy these days, but they already seem to have forgiven Bush for wandering into the Miers cul-de-sac. The blast of e-mails supporting Alito as a strict constructionist was filling my inbox before breakfast. When Miers was nominated, approving testimonials started as a trickle and then stopped altogether. This time the e-mails have lots of chewy talking points, such as Alito's unanimous approval for the U.S. Court of Appeals by a Democrat-controlled judiciary committee and Senate in 1990.

The left is jumping on the case just as quickly. People for the American Way is boasting that it "will mobilize its 750,000 members and activists to wage a massive national effort to defeat Alito's nomination." It will "work closely with its coalition partners to educate Americans about the threats posed by this nomination." Those war rooms everybody readied during the summer look like they'll get some use after all.
Markos Moulitsas Zúniga over at The Daily Kos says this about what he's seen:
This is the tip of the iceberg - merely his court rulings. As the usual vetting process gets underway and people research his background, his writings, his speeches, and the testimony of colleagues, we'll get an even more complete picture of the man. But it's already obvious that the nuts got exactly what they wanted - a nut. Scalito is everything they hoped for and more.

But this is the best possible scenario for Democrats as well. We now have a vehicle upon which to showcase the differences between us and Republicans, between liberalism and conservatism. This is a golden opportunity, and one wisely denied by Bush and Rove with the Roberts and Miers nominations.

This is a gift to Democrats. Katrina, massive budget deficits, and continued economic hardship have proven that Republicans can't govern. Iraq, Plame, and Osama Bin Laden have proven that Republicans can't run an effective foreign policy or protect our nation. Now Scalito, along with Bush's social security debacle, will prove to the American people that conservative ideology doesn't have their best interests at heart.

Let the debate begin.
And so it has with this, with links to the case law, over at Think Progress -
ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991]

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias." [Bray v. Marriott Hotels, 1997]

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any?cases would survive summary judgment." [Nathanson v. Medical College of Pennsylvania, 1991]

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. [Chittister v. Department of Community and Economic Development, 2000]

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction." [Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004]
So you could go to this thing and drill down and read the decisions. Be an informed, and strange citizen. Or see this -
The poor man is being cruelly maligned and slandered by his unscrupulous feminist opponents.

Why, just last week Alito issued a decision in which he denied asylum to a Chinese woman who fled China because she had undergone a forced abortion and been ordered to report to a medical clinic for mandatory sterilization. Chen v. Gonzales, Slip Copy 2005 WL 2652051 (3rd Cir., October 18, 2005).

So take that, liberals! He's not anti-abortion at all! He's just against women having the right to choose abortion for themselves.
This will stay hot, for a day or two.

Blog notes, Monday, October 31, compiled by Reuters here:
"Judge Samuel Alito is everything that Harriet Miers is not. He brings extensive judicial experience - the most of any Supreme Court nominee in nearly 70 years - to the table. He has a clearly developed sense and theory of jurisprudence and Constitutional interpretation."
Pejman Yousefzadeh, Red State (

"Let's be clear what has happened here - George W. Bush was simply not allowed by the Extreme Radical Right Wing of his Party to choose the person he wanted for the Supreme Court. It is that simple."
Armando, Daily Kos (

"I'm very pleased. This was a smart pick by Bush. It will take a few weeks for Senate Democrats to get comfortable with Alito, I think; given the "Scalito" nickname often used to describe him, many initially will fear that Bush has nominated some kind of Scalia clone. In time, though, I think we'll see that Alito is more like John Roberts than Antonin Scalia."
Orin Kerr, Volokh Conspiracy (

"Every profile emphasizes his mild manner. So he's got the temperament of Roberts with the judicial philosophy of Scalia. From the point of view of the right: about as good as it gets."
Andrew Sullivan (

"Since Alito ruled against abortion rights in one of the most famous cases of all time, Planned Parenthood v. Casey, he ought to be practically a god to the social conservative right. No stealth candidate this time. The movement conservatives wanted a war, and this time they've probably gotten one. I guess Bush was itching for revenge after Scooter Libby got indicted."
Kevin Drum, Political Animal (

"This is a winning political move. Alito is at least as qualified as Roberts, and his Casey opinion will not sustain a convincing filibuster. The Democrats seem trapped here. Reid has warned the president not to nominate Alito. And despite the narrow and non-substantive character of Alito's dissent in Casey, the Dems will be forced by their groups to make abortion the issue. So if there is no filibuster, this is going to come off as a huge victory for the president."
Stanley Kurtz, The Corner (

"With the nomination of "Scalito", the political forces are arrayed for an Armageddon type court battle. After a brief diversion, the President has returned to the home base. The right is swooning and the left will be in a rage. The end-of-times battle has probably arrived."
"The Moose" (
But there is the real war, and the Fitzgerald investigation still not done, and Tom DeLay is still in court, and Bill Frist is still under investigation by the Securities and Exchange Commission. And Silvio Berlusconi made a Halloween visit to Washington, just after he said on Italian television that people had him all wrong. He only seemed to support the Bush war - actually had secretly and often tried to talk him out of it. No candy corn for Silvio. And the story of those forged Italian documents about Saddam buying uranium in Niger is getting more and more press.

It doesn't seem like there's enough controversy in this nomination - as much as there actually is - to keep the other news suppressed, especially if no hearings will come until late in the year and no vote until early next year. Maybe if the guy from New Jersey torn apart a live puppy on national television?

Well, it did make for a more interesting Halloween.


Footnote to Liberals:

Read this from Robert Gordon: Alito or Scalito? If you're a liberal, you'd prefer Scalia - "In the great Alito-Scalito debate, everyone makes one mistake: They seem to assume that if Samuel Alito is as conservative as Antonin Scalia, that's about as conservative as a judge can be. Not so. In important ways, Samuel Alito could prove more conservative than Antonin Scalia. And the record suggests he will."

Posted by Alan at 17:57 PST | Post Comment | Permalink
Updated: Tuesday, 1 November 2005 16:26 PST home

Sunday, 30 October 2005

Topic: Chasing the Zeitgeist

A Shift in the Wind, Maybe

According to sites that track what is being discussed in the new agora, the net - Technorati and Memeoradum are two of them - the Washington Post was stirring up the most trouble on Sunday, October 30, unless, of course, the algorithms these sites use to crunch raw RSS feed data are wrong. (And what exactly is RSS? See this.)

The two Post items that provided source material for a flood of discussion are these:

White House Ethics, Honesty Questioned
55% in Survey Say Libby Case Signals Broader Problems
Richard Morin and Claudia Deane - Sunday, October 30, 2005; Page A14

Democrats Demand Rove's Firing
Further Details Sought on Cheney's Involvement in Plame Leak
Dana Milbank and Carol D. Leonnig - Monday, October 31, 2005; Page A04 (yes, posted early, in advance of the actual newspaper)

Why these? The first opens with this:
A majority of Americans say the indictment of senior White House aide I. Lewis "Scooter" Libby signals broader ethical problems in the Bush administration, and nearly half say the overall level of honesty and ethics in the federal government has fallen since President Bush took office, according to a new Washington Post-ABC News survey.

The poll, conducted Friday night and yesterday, found that 55 percent of the public believes the Libby case indicates wider problems "with ethical wrongdoing" in the White House, while 41 percent believes it was an "isolated incident." And by a 3 to 1 ratio, 46 percent to 15 percent, Americans say the level of honesty and ethics in the government has declined rather than risen under Bush.
Well, that generated hundreds and hundreds of comments, all pointing out President Bush, when he assumed office back in 2000, promised to restore "honor and integrity" to the White House. He said it a lot. He held up his right hand and everything - it was very impressive, no more sex with chubby twenty-something female interns. He wasn't like that low-life Clinton fellow. And that, among other things, got him almost elected, or close enough so that he could be appointed.

Now the polling shows that most people, not just a cynical few, realize that was all a load of crap. There's not much "honor and integrity" on display in the White House these days. But there's not much sex, of course, unless you believe the rumors about Jeff Gannon.

The irony is obvious. Why add to it? A web search will give you many clever and not so clever comments. They're all variations on the same theme.

But the "national perception" has shifted. That should be noted.

The second item opens with this:
Democrats demanded yesterday that President Bush fire Deputy Chief of Staff Karl Rove and that the White House fully account for Vice President Cheney's role in the unmasking of CIA operative Valerie Plame, as Republicans acted to limit the political damage from Friday's indictment of Cheney's chief of staff.

Using the forum of the Sunday television talk shows, Senate Minority Leader Harry M. Reid (Nev.) and other Democrats sought to portray the indictment of I. Lewis "Scooter" Libby on Friday as part of a broader pattern of unethical - if not illegal - conduct by the administration. Republicans, while not defending Libby, asserted that the lack of other indictments indicated there was no conspiracy in the White House to punish an administration critic by identifying his wife as a CIA operative.

Reid, speaking on ABC's "This Week," called for apologies from Bush and Cheney, and sought Rove's resignation because of Bush's vow to dismiss anybody involved in the leak. Later, on CNN's "Late Edition," Reid repeated his call for Rove's dismissal four times.

"The president said anyone involved would be gone," Reid said. "And we now know that Official A is Karl Rove. He's still around. He should be let go." Reid added that if Bush "is a man of his word, Rove should be history."
And there was lots of comment on that - yes, make him keep his word, make him fire Rove, make him apologize.

Scanning all the reactions supporting this, or on the right, laughing at the idea (Rove has not been charged with anything), the best reaction somewhere was some lefty saying Bush would do this "when monkeys fly out my ass." That was pretty funny in that movie - but, yes, neither is likely. No apologies and firings, and no monkeys.

But Harry Reid, usually mild-manner and moderate - he looks like a worried banker from Akron - gets credit for what Bill Clinton himself suggests -
Democrats can't be afraid to talk about hot-button issues ... and should fight back against personal attacks from conservatives if they want to regain power in Washington, former President Bill Clinton said Saturday.

"You can't say 'Please don't be mean to me. Please let me win sometimes.' Give me a break here," Clinton said. "If you don't want to fight for the future and you can't figure out how to beat these people then find something else to do."
Yep, there's decorum - you don't call names and go after the other guy's family - but then there's the current Democratic ploy, playing the whipped puppy-dog for sympathy, or remaining silent while you hope the other side self-destructs and you don't actually have to do or say anything. (And if the other side doesn't self-destruct and somehow recovers - then what?)

Reid's "attack" crosses no line. Short form? "You said this. Are you going to do what you said?"

That'll do. It's about time.

One assumes the other Democrats don't want to kick the president when he's down. Being nice? Fear of retribution from the Rove smear machine? Who knows?

But this is just "tough love" - something the right understands, and extols. It's how you treat irresponsible children who lie to you.

Curiously, Paul Begala, a former Clinton aide, and a Texan of all things, had some things to say on the 28th about this whole business with Rove and Libby and the whole crew in the White House, saying here this all gives him no schadenfreude - no sensible person likes seeing the presidency "besmirched" - and besides "the ultimate result of the alleged criminal conduct was to march 2,000 young heroes off to die in an unjust, unwise, unprovoked and unwarranted war."

This is no game, and it's no fun.

But he points out some facts it is well to remember. In the seven years of investigations during the Clinton administration, no senior Clinton White House official was ever even charged with wrongdoing. No one. No one was indicted. No was convicted of anything.
In fact, the highest-ranking Clinton official to be convicted of wrongdoing in connection with his public duties was the chief of staff to the Agriculture Secretary. Betcha five bucks you can't even name the Clinton Agriculture Secretary in question, much less his chief of staff. Unlike Nixon (whose Watergate crimes were manifest), unlike Reagan (whose White House was corrupted by the Iran-Contra crimes), unlike Bush 41 (who pardoned White House aides and Cabinet officers before they could testify against him), Bill Clinton presided over the most ethical White House staff in decades.
Well, the staff was clean. Clinton admitted he lied, under oath, about something that wasn't illegal, but rather dumb.

But remember this?
... George W. Bush campaigned on a pledge to "restore honor and decency to the Oval Office." He spoke of moms and dads on the campaign trail who showed him photos of their children and asked him to give them a president their kids could be proud of.

We all knew what he meant. With a wink and a nod he told us he wouldn't cheat on Laura. And after he took office Mr. Bush and his henchmen smeared the Clintonistas, falsely accusing them of vandalism and theft. They told the press that in this Oval Office the gentlemen would wear suits, the ladies, skirts. And no more paper coffee cups. Nothing but the finest bone china. The Bushies even claimed moral superiority because of their punctuality. Everything was designed and marketed to stress the virtue of the Bushies and the vice of the Clintonians. And it worked. In the first year of George W. Bush's presidency, one major media figure told my wife and me to our faces that the difference between the Clinton crowd and the Bush team was that, "They're just better people than you are. They're more loyal to their President, more patriotic, less self-interested and ambitious. They're just better people."
I wonder if Begala made up that last anecdote. It's perhaps too apt to be true - but it sounds true. It captures what seemed to be what the message was. And it wasn't subtle.

Now the VP's main man has been indicted and has resigned. More may or may not come of all this. Begala reminds us of the Clinton investigations - Whitewater, Filegate, Hillary's old Arkansas billing records, Vince Foster's suicide, the cattle futures thing with Hillary, the Buddhist temple thing with Gore, and all the rest.
Just to list the trumped-up Clinton "scandals" is to recall how trivial - and yet how destructive - they were. Innocent people were impoverished, reputations were damaged, careers derailed. But at least history can give the Clinton team a clean bill of ethical health. No White House was more thoroughly investigated - and more thoroughly exonerated.
And these guys get nailed right out of the gate? Most curious.

Okay, no one lied about extramarital sex. They smeared the Wilson family, exposed an undercover agent, and generally conned us all on the evidence Iraq was a threat, and one of them lied about what he was trying to do - connect a war critic who said the evidence of a nuclear threat was crap to the hated CIA - the CIA that was not as good as the special alternative intelligence agency they set up - Douglas Feith's Office of Special Plans, that had all those cool (but forged) documents from Italy that carried so much weight. They perhaps misled themselves, and certainly misled us, into this war. But no one lied about extramarital sex.

Does the poll noted in the Post mean the disposition of the masses has shifted, and the cat is out of the bag, so to speak? Will the majority view, that something is really wrong here, persist?

That's hard to say. With the president's approval rating in the high thirties in all the polling it is wise to consider that more than a third of us see no problem at all. That's pretty formidable.

As for Reid's "tough love" thing - will that have any reverberations across the country? That's also hard to say. But at least Reid actually stood up for something.

It's a start.

Posted by Alan at 19:06 PDT | Post Comment | Permalink
Updated: Sunday, 30 October 2005 19:22 PDT home

Topic: Announcements

Redirection – to the Mother Ship

The new issue of Just Above Sunset, the magazine-style weekly that is parent to this daily web log, went online shortly after midnight. This is Volume 3, Number 44 for the week of Sunday, October 30, 2005, containing extended versions of what first appeared here, with some new commentary, and much that did not, and could not, appear here.

This week the current events commentary covers the huge stories, the indictment of that White House fellow and his resignation, all the rumors swirling around, the debacle with the woman who now will not get a chance to sit on the Supreme Court, and the mess at the most authoritative newspaper in the county, as an internal war breaks out there. Oh yes, some notes on the White House trying to stop a publication from being careless in their parody, and a follow-up on previous items about what really lies under some of the disputes in the news.

So why were there riots last week in both the second largest city in the UK and in Paris. "Our Man in London," Mike McCahill explains the first, and much more that happened there this week. "Our Man in Paris," Ric Erickson, explains, well, not the rioting, but the bird situation, and more of last week there. It seems that the "grippe aviaire" has folks spooked.

Bob Patterson is back with a column on the "cliché fest" in journalism at the moment, and more, and photos, and his book column is on soldiers turned writers.

It is Halloween weekend, and although last week's issue had much on what that's like out here, Don Smith from Paris sends us Halloween gravestones and such from there. Photographers, and photography buffs, will be amazed.

Oh yes, this week's pithy quotes are all about last week's political scandals - conspiracy and lies and all that sort of thing.

Direct links to specific pages -

Current Events ____________________

Broken Scooter: A Liar Indicted, Resigns from the White House, But No Fat Lady Sings
Trouble Brewing: Tuesday Indictment Rumors, For the Record (and "The Italian Job")
Never Mind: Harriet the Church Lady Just Fades Away
Diva Journalism: Getting the Scoop, and Getting It Wrong
Legal Notes: Odd Challenges on the Limits of Free Speech
Digging Deeper: Follow-Up Notes

The International Desk ____________________

Our Man in London: On Mob Rule, Smoking, and George Galloway M.P.
Our Man in Paris: Plague of Pigeons

Bob Patterson ____________________

WLJ Weekly: from the desk of the World's Laziest Journalist - "Week From Hell" Precipitates a Cliché Fest
Book Wrangler: The War with the Blank Page

Guest Photography ____________________

Our Eye on Paris: A Photographer's Halloween

Local Photography ____________________

A Tour of the Sunset Strip (seven nested pages)

Quotes for the week of October 30, 2005 - The Scooter Conspiracy

Halloween tomorrow -

Posted by Alan at 12:10 PDT | Post Comment | Permalink
Updated: Sunday, 30 October 2005 12:10 PDT home

Saturday, 29 October 2005

Topic: Announcements

No posting today…

Today was devoted to assembling the new issue of Just Above Sunset, the weekly magazine-style parent site to this daily web log. Perhaps by the time you read this it will be online. Click on the link and check. It should be "live" sometime after midnight, Pacific Time.

Posted by Alan at 22:46 PDT | Post Comment | Permalink

Friday, 28 October 2005

Topic: The Law

Broken Scooter: A Liar Indicted, Resigns from the White House, But No Fat Lady Sings

All day, Friday, October 28, the headlines were screaming about this (NY Times)
I. Lewis Libby Jr., Vice President Dick Cheney's chief of staff and one of the most powerful figures in the Bush administration, was formally accused today of lying and obstruction of justice in an inquiry into the unmasking of a covert CIA officer.

A federal grand jury indicted Mr. Libby on one count of obstruction, two counts of perjury and two of making false statements in the course of an investigation that raised questions about the administration's rationale for going to war against Iraq, how it treats critics and political opponents and whether high White House officials shaded the truth. The charges are felonies.

Mr. Libby was not charged directly with revealing the identity of a CIA undercover operative, the accusation that brought about the investigation in the first place.
And he resigned.

The second key figure in the two-year-old investigation, Karl Rove, the man some refer to as "Bush's Brain" - his chief advisor and strategist and life-long friend - was not charged with anything at all - but may be in the future. And Libby wasn't indicted specifically for the leak. Just for lying. Patrick Fitzgerald, the prosecutor in the matter, in his long news conference, said he was still working on matters, the facts of what happened.

So this was Scooter Libby's day. No more. No less.

The text of the indictment is here, and the video of the press conference here. The Wall Street Journal has an hour-by-hour timeline of the day's events here.

From here, just above Sunset, all the information and commentary is just overwhelming. Instead of reading everything posted in the media everywhere and writing, your editor, and associate editor, Harriet-the-Cat, watched the news folks on television doing their speculating before the announcement of the indictment, watched the news break, watched Patrick Fitzgerald do the news conference, then, on and off, watched the political commentary on Fox, CNN and MSNBC.

Two points here - 1.) All these people on television are old political hands, in the news business for many years, many of them having been in middle of things politically as members of this administration or that, and some are federal prosecutors or even targets of federal prosecutors, some are historians, and most personally know the key players, so they know far more about how these things work than some fellow in Hollywood, or his surly housecat, and 2.) The whole thing is a bit of a let down. All of the speculation, about this exposing Rove and Libby and maybe even the Vice President in some sort of loose conspiracy to not only break the law by exposing the secret agent to undermine the credibility of a troublesome critic of their effort to "sell" the war, but this even exposing a plot to lie to the American people to start a war, was all for naught.

All that conspiracy stuff may be quite true, and very plausible. But that's not what the issue was on Friday. This federal prosecutor announced he had indicted one key person at the White House for lying, in five felonious ways. He has misled the investigators and lied to the grand jury, and obstructed justice, as they say. This wasn't about the big issues, or even about the crime of exposing a covert agent. It was about a guy who "threw sand in his eyes" and, for now, kept the investigation from getting at what was going on.

Building on what Kevin Drum says here, the two "false statement" charges are that, first, this Libby fellow told the FBI that reporter-commentator Tim Russert told Libby about Valerie Plame - but Russert never told him this, and Libby knew about Plame's status long before that. Secondly, Libby told the FBI that he told Matt Cooper of Time Magazine that reporters had told him about Plame, and Libby said then told Cooper he didn't know if it was even true - but Libby actually confirmed "without qualification" to Cooper that Plame worked for the CIA. The two perjury charges? Libby said the same thing to the grand jury. The obstruction of justice charge is based on the false statement and perjury charges.

Basically, the charges are that Libby consistently tried to mislead both the FBI and the grand jury about how he had learned of Plame's status. On multiple occasions he told investigators that he had learned about it from reporters in July, but the truth was quite different. In reality, Libby actively sought out information about Joe Wilson's trip to Niger starting in late May; learned from both State Department and CIA sources in early June that Wilson's wife worked at the CIA; and received the same information from Dick Cheney shortly after that. Libby subsequently discussed Plame with quite a few people within the White House, at one point admitting to his deputy that "there would be complications at the CIA in disclosing that information publicly," an indication that he knew perfectly well that the CIA didn't want Plame's status disclosed. He later told Ari Fleischer that the fact that Joe Wilson's wife worked at the CIA was "not widely known."

These are serious charges. Apparently Libby figured he'd never be caught out because the reporters would stay mum and go to jail on his behalf. He lost that bet.
Yes he did. But it's not the big story everyone was expecting.

Of course, that the Chief of Staff to the VP, who is also National Security advisor to him and special assistant to the president, had to resign, is big news. He was lying about his efforts in this attempt to spread the word that Wilson's "secret agent wife" set this all up because the two of them hated Bush and wanted to expose the questionable rationale for the war. He got caught in the lying about the effort he was making, and not charged for the illegal effort itself.

It's a mess for the administration, but it could be worse. Think of it as being charged for lying about planning a successful bank robbery, but not being charged for the bank robbery.

And the indictment mentions one "Official A" who actually told Robert Novak about Wilson's "secret agent wife" setting up the trip, so that Novak would publish just that. Patrick Fitzgerald said that wasn't his topic today. One assumes that's Karl Rove. Maybe. The indictment mentions some "Under Secretary of State" who helped Libby track down information about Wilson's trip to Niger. Patrick Fitzgerald said that wasn't his topic today. One assumes that's John Bolton, our current UN ambassador. Vice President Cheney told Libby about Wilson and his wife, which implies he might have set up the whole thing. Patrick Fitzgerald said that wasn't his topic today.

This was a very narrow scandal. Was Libby guilty of any underlying crime in the case? Fitzgerald himself wasn't saying. Kevin Drum suggests Fitzgerald did have the goods on Libby but just decided not to bother trying to prove it in court - the idea there is that "the public interest in punishing the leak is served regardless of what charges are brought, so why waste time trying to prove a complex and precarious case of espionage or mishandling classified data when there's a nice easy perjury case to be made instead? Either way, the bad guy does the time."

No fun, but it worked in the case of Al Capone - they got him for tax evasion. And many say Fitzgerald reminds them of Elliot Ness.

Fitzgerald: "When citizens testify before grand juries they are required to tell the truth. Without the truth, our criminal justice system cannot serve our nation or its citizens. The requirement to tell the truth applies equally to all citizens, including persons who hold high positions in government. In an investigation concerning the compromise of a CIA officer's identity, it is especially important that grand jurors learn what really happened. The indictment returned today alleges that the efforts of the grand jury to investigate such a leak were obstructed when Mr. Libby lied about how and when he learned and subsequently disclosed classified information about Valerie Wilson."

Bad stuff. He lied to the grand jury and disclosed classified information, or so he is charged. He should resign. With such charges, and we'll see how this goes in court, unless he pleads out.

But it's a bit of a letdown. On the right, Glenn Reynolds here: "There's not even a charge of 'outing' a covert agent ... If there's no more, this will probably do Bush little harm." Well, Rove is still at risk, but things seem to be winding down.

So what can be added here? Just some observations.

First, this Patrick Fitzgerald is cool. He takes his job seriously, and, in spite of all the probing in the press conference, he explained, again and again, he would say no more. The principle is that what is presented to the grand jury, and what is investigated, must be secret. He cannot say anything else about anyone else he may or may not be investigating still - if the grand jury doesn't bring charges it's just not right to discuss what was investigated as a possible crime, because there was no crime. If there seems to be one, indictments will be handed up and made public. There will be charges. If there doesn't seem to be sufficient proof a crime may have been committed, you don't blab about what you were doing and mess with people's reputations. Good for him.

Now this may be fully justified -
Senate Minority Leader Harry Reid said the CIA leak case is about how the White House both "manufactured and manipulated intelligence'' to boost its case for the Iraq war.

Reid also said Libby's indictment shows the Bush administration tried to "discredit anyone who dared to challenge the president."

Senator John Kerry, meanwhile, is calling the CIA leak case "evidence of White House corruption at the very highest levels." The former presidential candidate says that's "far from the honor and dignity" Bush pledged to restore when he was elected five years ago.
But that wasn't what Fitzgerald was dealing with. He said it wasn't his business.

And Rove is still at risk. Note this from Jerry Bowles -
Like all fair-minded Americans, I'm disappointed that Karl Rove didn't get his comeuppance today, too. But, let's be honest. Scooter Libby is a much bigger fish than Rove. Libby's been at the epicenter of the whole let's invade Iraq movement since Bush Senior was booted out of office. He's a wall-to-wall neocon with real power to make policy. Karl is a bush (pun intended) league thug who got lucky, a Colonel Parker who found his Elvis and rode him into the big time. His symbolic worth in the eyes of us fair-minded Americans exceeds his true importance. And, cheer up; he may very well provide another occasion for celebration. Watching the prosecutor's news conference just now on CNN, I wouldn't want to be left to twist slowly, slowly in the wind with this guy Fitzgerald holding the rope.
One senses this is far from over.

Posted by Alan at 19:33 PDT | Post Comment | View Comments (1) | Permalink
Updated: Friday, 28 October 2005 19:36 PDT home

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