Stone Court

Mary and I have an ongoing debate about whether Garrison Keillor is entertaining and funny (Mary) or like watching paint dry (Fred).

I hope that his piece today at Salon was just an example of his flat low-key sense of humor, but I doubt it:

[W]hen [Bush] brought forth a summa cum laude Harvard man, the crowd quieted down and the dogs crawled back under the porch. The gentleman, John G. Roberts, has a fine résumé and did well at Harvard. Barring some unsavory revelation about close ties to the Gambino family or membership in a secret militia group, welcome to the Court, sir....

There is of course a good chance that beneath this cool exterior is a cool interior and this thought gives conservatives acid reflux. Maybe Harvard got into the gentleman's head and he does not aspire to be a crusading knight and wreak vengeance on the forces of secularism. He was nominated because he doesn't give off a strong enough scent to get the dogs excited, but maybe he doesn't smell conservative because he is actually a moderate....

So don't get too excited about a Supreme Court appointment. It's just a job. The only people who know what Judge Roberts will amount to will be the historians 50 years from now and even they won't agree about it. I say, if a man can go through Harvard summa cum laude and still be a yahoo, then the country is in worse trouble than we knew. (Emphasis added.)

Perhaps Mr. Keillor should meet Antonin Scalia -- or maybe he's not a moderate because he was only magna cum laude at Harvard Law. Or William Rehnquist, who was first in his class at Stanford Law, which U.S. News ranks right after Harvard. How about Clarence Thomas, who went to perpetually 1st-ranked Yale Law School (Yale Law itself deemphasizes class rank and grades)? Or, while we're discussing current presidential nominees, how about that famous moderate John Bolton, who graduated Yale summa cum laude and went to Yale Law School?

Comedy is hard. Recognizing that John Roberts is no moderate is easy.

"We're helping Iraqis build a free nation that is an ally in the war on terror. We're advancing freedom in the broader Middle East." -- Bush, 6/25/05

Reality: The new Iraqi Constitution makes clear that "freedom" is for religious extremists, at the expense of women and religious minorities:

A chapter of Iraq's draft constitution obtained by The Associated Press gives Islam a major role in Iraqi civil law, raising concerns that women could lose rights in marriage, divorce and inheritance....

Most worrying for women's groups has been the section on civil rights in the draft constitution, which some feel would significantly roll back women's rights under a 1959 civil law enacted by a secular regime....

Also, the draft would prevent tens of thousands of Iraqi Jews who emigrated to
Israel in the 1950s from getting back their Iraqi citizenship. It says only Iraqis who lost their citizenship after Saddam's Baath Party came to power in 1963 "will be allowed to get it back."

Come to think of it, I guess that's not that different from "freedom" here....

While I was right that Edith Brown Clement was not extreme enough to be nominated, I have to say that I expected someone more like Edith Jones than like John Roberts -- i.e., an in-your-face, I'm-the-President-and-your-job-is-to-shut-up extremist in the mold of John Ashcroft or John Bolton.

Roberts is, from Bush's point of view, a very smart pick. His credentials are outstanding, meaning that (barring some revelation of impropriety), the only plausible opposition can be to his ideology. His ideology, meanwhile, is both highly conservative, satisfying the base, and difficult to pin down, frustrating the opposition. He has a thin judicial record, having been on the bench for only two years. (In retrospect, being denied a confirmation vote when nominated for the D.C. Circuit by Bush I in 1992 was the best thing that ever happened to him.) On the critical issue of abortion, he has clear markers of an extremist ideologue -- (a) he called for the overturning of Roe; and (b) his wife was a senior executive for Feminists for Life. (Links via Feministing.) At the same time, he and his proxies will argue that the call to overturn Roe was merely a statement of Bush I Administration policy and that his wife's political activities are not properly the subject of confirmation hearings. Moreover, he is adept at avoiding being pinned down in confirmation hearings.

As I have written before, to sustain a filibuster requires that we convince a fair swath of the American people that the nominee is an extremist. I further wrote that Bush's fundamentalist base would require appointing someone with such an extremist track record that we would be able to do that. My initial take on Roberts is that Bush has found someone who is extreme enough to satisfy the base, but will not necessarily appear as extreme as he is to ordinary Americans.

For the moment, then, I think Amanda has it about right for the Dems' approach to this nomination. We need to focus on what Roberts stands for and what his America would look like -- he doesn't froth at the mouth, but he will invade your liberty as surely as the more colorful alternatives Bush passed over. And yes, this is about contraception as well as abortion. Time will tell whether that vision will be scary enough to support a filibuster, or at least to remind Americans of who created the world they will face in 2008, but we have to make the case.

Speculation this morning is that Bush will nominate Fifth Circuit Judge Edith Clement Brown for the Supreme Court.

My inclination is to doubt that she will really be the nominee because, while clearly a conservative, she does not seem to be the kind of social policy extremist that the religious right is hankering for. Here are a couple of nuggets:

1. AP reports that she has said that the Supreme Court "has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion" and that "the law is settled in that regard." As best I can determine, the source of this is a questionnaire she completed in connection with her 2001 nomination to the Fifth Circuit. It is, therefore, arguably nothing more than a statement of the proper role of a judge on an inferior court and consistent with a desire to overturn Roe if appointed to the Supreme Court.

2. In March, she joined an opinion reversing a lower court's ruling cutting off certain funding to Planned Parenthood. The decision was praised both by Planned Parenthood's litigation director (saying the decision was "pretty much exactly right") and Texas's pro-life Solicitor General, see "Inadmissible", Texas Lawyer, 3/21/05, p. 3, so I wouldn't view it as a pro-choice, but it does suggest a judicial temperment that is less ideological than the religious right would desire.

At the same time, her background and rulings suggest a strong pro-business tilt. Her nomination would thus signal a clear win for the corporatist wing of the Republican party over the religious extremist wing. Barring a public statement that she plans to overturn Roe -- and we know we won't see that -- the religious right will be hard to mollify. I could easily see the James Dobsons of the world trying to "Souterize" her.

So, I think this is a trial balloon that will not turn into the nomination.

UPDATE: Centerfield reprints the full questionnaire responses here. They are really pretty ambiguous, which I suppose could make anyone nervous. Bush is announcing a selection at 9 p.m. EDT. My gut still tells me he'd prefer an Edith Jones to an Edith Clement, but we shall soon see....

Rove is throwing out a lot of potential arguments to avoid liability in the Plame affair. They range from the laughable claim that he identified Plame as Jospeh Wilson's wife but didn't use her name to the potentially exculpatory claim that he originally got the information about Plame's status from a journalist, not a classified source.*

One claim that recurs is that Plame's status as an agent wasn't a well-kept secret and, in fact, was well known in Washington. I argued before that, as a matter of common sense, that argument doesn't really wash. What's worth noting now is that, in fact, that very argument was flatly rejected by Congress in enacting the law that Rove may have violated:

[The] perception among foreign intelligence services that U.S. intelligence agencies are unable to preserve important confidences ... has led and may lead these services to undertake reviews of their liaison relationships, which have resulted in and will result in, reduction of contact and reduced passage of information. In taking these actions in the past, some foreign services have explicitly cited disclosures of intelligence identities. The Committee took note of the fact that the identities of American undercover intelligence personnel are not as well hidden as they might be. Indeed part of the bill is designed to improve cover. But the committee rejected the contention that the identities of imperfectly covered intelligence personnel are thereby part of the public record. They are not. Those seeking to learn them without the use of classified information must frequently engage in physical surveillance, in search of personnel records, in interviews with neighbors and former colleagues. Taken together, all of this amounts to a comprehensive counterintelligence effort. It may be true that one does not have to be or to have been an intelligence officer in order to learn and reveal the identities of American undercover agents. But in that case one must often behave as a counterintelligence officer, using systematic investigative techniques, against the United States. The committee has decided that certain identities should be protected both against betrayal of classified information and against such self-appointed counterspies.

S. Rep. 97-201, 1982 U.S.C.C.A.N. 145, 153-54 (emphasis added).

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*I say "potentially exculpatory" because, if true, that fact would be clearly exculpatory under 50 U.S.C. 421(b), but quite likely not exculpatory under 421(a), and almost certainly not exculpatory under 421(c), assuming the other elements of those statutes are met.

The AP's Darlene Superville needs a vocabulary lesson on the meaning of the word "clue":

WASHINGTON - President Bush gave the nation several clues Saturday about the person he will nominate for a seat on the Supreme Court, except for the most important one — a name. In his weekly radio address, Bush said his eventual nominee will be a "fair-minded individual who represents the mainstream of American law and American values."

His candidate also "will meet the highest standards of intellect, character and ability and will pledge to faithfully interpret the Constitution and laws of our country," the president said.

"Our nation deserves, and I will select, a Supreme Court justice that Americans can be proud of," he said, without revealing the name that many are anxious to hear. (Emphases added.)

Well, that narrows it down. I had expected him to say the nominee would be an extremist bigot hack who would be an embarrassment to the nation.

Clue: something that guides through an intricate procedure or maze of difficulties; specifically : a piece of evidence that leads one toward the solution of a problem

Um, no. How about...

Platitude: a banal, trite, or stale remark

Drop Dead

'fraid the political consequences won't be nearly as dire this time.

Via Sivacracy, the RNC "Talking Points" on the Rove/Plame scandal feature prominently the denial that Dick Cheney knew Joseph Wilson (purported explaining why Rove had to correct the record by identifying Plame as the source of the trip, even though Wilson never claimed to have direct knowledge that the assignment came from Cheney personally and made clear that his supposition that he did was an inference based on public statements):

Wilson Falsely Claimed That It Was Vice President Cheney Who Sent Him To Niger [not true; see above--FV], But The Vice President Has Said He Never Met Him And Didn't Know Who Sent Him....

Vice President Cheney: "I don't know Joe Wilson. I've never met Joe Wilson...." (Emphases in original.)

Remember the last fellow Cheney denied categorically having ever met?

Josh Marshall has been all over Karl Rove's lawyer Robert Luskin of Patton Boggs LLP.

Let us also remember that less than a year ago, Luskin's partner, Benjamin Ginsburg, resigned from his representation of the Swift Boat Veterans, a representation that raised serious questions about whether he was violating federal law prohibiting cordination with the Bush campaign (which he also represented), as well as D.C. attorney ethics rules.

Must be a whole lot of not coordinating going down at Patton Boggs....

Has the New Yorker's Hendrik Hertzberg been reading Stone Court?

Republicans are threatening Major League Baseball if it sells the Washington Nationals to a group that includes George Soros. A Soros critic, John Sweeney (R-N.Y.), asks, "from a fan's perspective, who needs the politics?" Who indeed? Does Mr. Sweeney also object to Bush pioneer William O. DeWitt, Jr., owning the Cardinals? Or Bush pioneer Carl Lindner owning the Cincinnati Reds? Or Bush pioneer Tom Hicks -- who also made W a rich man -- owning the Texas Rangers? (In fact, thirteen current or former owners and their family members are Bush Rangers or Pioneers.) But it gets worse. How about George Steinbrenner III, convicted of making illegal contributions to the Nixon campaign and obstruction of justice, owning the Yankees? How about Fred Malek -- Deputy Director of Richard Nixon's Committee to Re-Elect the President (CREEP) who compiled a list of high-ranking Jews in government for Richard Nixon and senior advisor to George H.W. Bush's presidential campaign -- owning part of the Texas Rangers in the 1990s along with George W. Bush? -- Stone Court, June 27, 2005

Major League Baseball, which has owned the team since 2002, is currently considering bids for it from eight syndicates. One of them includes George Soros, and this has brought certain politicians charging out of the dugout, bats swinging.... (...[O]ur own George Steinbrenner, owner of those damn Yankees, is a felon of impeccably American lineage—convicted for illegal campaign contributions to one Republican President, Richard Nixon, and pardoned by another, Ronald Reagan.)... “From a fan’s perspective, who needs the politics?” Congressman Sweeney wanted to know. Well, in a town that went nine to one for Kerry over Bush, the perspective of fans won’t necessarily count for much. Who needs the politics? One answer may be Frederic V. Malek, a principal in what Roll Call describes as “the ownership group seen by many insiders as the frontrunner to buy the team.” Malek’s C.V. is heavy with Republican credentials, including 1992 campaign manager for President George H. W. Bush and former part owner of the Texas Rangers, in which capacity he helped arrange for Bush’s wayward son to be the front man and reap a fifteen-million-dollar profit on a six-hundred-thousand-dollar investment. Earlier, when young Malek was an aide in the Nixon White House, he was tasked to estimate the membership of what his boss deemed a “Jewish cabal” in the Bureau of Labor Statistics. He complied, no doubt with some misgivings. Still, as an experienced Jew-counter, he can undertake to insure that the Nationals don’t get cluttered up with too many Hank Greenbergs or Sandy Koufaxes. -- New Yorker, July 11, 2005

Maybe it's just parallel evolution, down to the selection of the second half of the Sweeney quote and its repetition as a rhetorical question, but I'm going to keep my illusions and believe that we've made a little ripple.

Mr. Hertzberg, please feel free to continue borrowing, er, liberally....