Stone Court

UPDATE: Raw Story reports that "Official A" is Rove. If true, the below speculation on Cheney is wrong, but Fitzgerald's history of indicting his last Official A is still interesting. And Novak's claim that his source was no "partisan gunslinger" is a %$#&@^* lie.

Lots of speculation of the identity of Patrick Fitzgerald's "Official A". As Jane Hamsher correctly points out, this unique designation might be what you would use if "you were still investigating someone and you did not want to prejudice that investigation".

Here's a hint suggesting "Official A" may be Cheney, though it's obviously only a piece of a mosaic. A Westlaw search of reported decisions (which does not include every indictment) found only one other case where an Indictment used the phrase "Official A". The Prosecutor ... Patrick Fitzgerald. Official A ... Illinois Governor George Ryan, who was indicted about sixteen months after the original indictment referring to him as "Official A":

The [original] indictment alleged that Warner, who operates commercial insurance and real estate businesses, conspired with high-ranking officials of the Illinois Secretary of State's office, including unnamed "Official A," to steer lucrative state contracts in the direction of vendors from whom Warner took bribes....

On December 17, 2003, the grand jury returned a Second Superseding Indictment, restating many of the same charges against Warner and now identifying former Governor George H. Ryan as Official A involved in the alleged wrongdoing.

U.S. v. Warner, 2004 WL 144125 (Jan. 16, 2004) (emphasis added). Notably, the original indictment (para. 6) described "SOS Official A" as "a high ranking [Secretary of State] Office official". This was true but understated, as Ryan was the Secretary of State at the time of the crimes charged and, like Cheney, the direct boss of the named defendant.

Fitzgerald was just as close-lipped about Official A then as now. See, e.g., George Ryan Friend, Two Others Indicted In Bribery Scheme, The Bulletin's Frontrunner, May 22, 2002 (via Lexis) ("The AP also reports that US Attorney Patrick Fitzgerald "refused to identify or give details concerning the unidentified 'Official A' named in the indictment who shared in the money.")

(I'd also add that Cheney fits better than Rove for a variety of reasons, including Novak's infamous claim that his source was no partisan gunslinger -- a description that to those on the left may seem absurd for Cheney but is exactly how someone like Novak might describe him.)

So, while this is the rankest of speculation, when the U.S. v. Libby indictment defines "Official A" as "a senior official in the White House", it is not unreasonable to conclude that this may be understatement and may, indeed, be a Big Time fish.

Beating the annoying Angels and their rally monkeys: Wonderful

Beating the real Evil Empire in Boston: Delicious

Beating the Astros and Poppy and Barbara Bush sit in the front row with full Astros regalia: Priceless

The Times is reporting that Libby first learned of Plame from Cheney and, as the Times rather diplomatically puts it, this "differ[s] from Mr. Libby’s testimony to a federal grand jury that he initially learned about [Plame] from journalists".

Kos thinks that this nails Libby, but doesn't "suggest any wrongdoing by Cheney. There is no law against two top government officials with top security clearances from sharing classified information."

I have to beg to differ. Fitzgerald has to have asked Cheney how he learned about Plame and, almost as certainly, asked him about all of his conversation with Libby about Plame. Cheney has to have lied. Either that, or these guys really are the Keystone Kops -- Libby perjuring himself to protect Cheney when Cheney had already admitted. Hard to believe, that. Lying to prosecutors, as we've seen, is a felony.

I'm still betting against Cheney being indicted, but that's based more on a guess about how Fitzgerald will view prosecutorial discretion that because he has no evidence of wrongdoing.

UPDATE: Jane Hamsher reaches exactly the same conclusion. She notes that the Times reports Cheney spoken under oath, which is in conflict with earlier reports. As I wrote here, it doesn't matter as far as Cheney's criminal liability goes (which is why I chose not to get into it last night and decided to wait for confirmation of the oath part of the story).

Related Post: 1001 Reasons Not To Lie To Prosecutors

Why would Patrick Fitzgerald want Italy's internal report on the fraudulent Niger uranium documents?

We don't know what that report says, but it may well confirm suspicions that the fraud originated with Wolfowitz, Cheney's office, or elsewhere in the neocon "cabal".

If so, it would answer the concern raised by John Dean -- that Fitzgerald may be concerned about prosecuting government officials who, however misguidedly, believed they were acting in the interests of national security:

After all, the Niger uranium claim was part of the basis for the Iraq War, and Joe Wilson's claim that it was bogus, and the President ought to have known as much, is intimately related to the politics of going to war - and also to national security in the sense of responding to genuine, and only genuine, threats to the United States.

If Libby knew that the Niger documents were forgeries, and still went about trying to illegally intimidate and discredit Wilson, it would be hard to view his actions as anything short of treason.

Related Post: Speculating

Tennessee Guerilla Woman points out a WNBC/Marist poll that finds, among other things, that 33% of men and 23% of women would be unlikely to vote for a woman for President regardless of her party affiliation.

The poll is a stark reminder of the tenacity of sexism in our society, but it actually is not that bad news for a female candidate, especially a female Democratic candidate. (And who might that be?)

That's because the poll also finds that 19% of men and 31% of women would be likely to support a woman regardless of party. Add that to the 25% of men and 26% of women who would be likely to support a female candidate only if she were a Democrat, and we have this hypothetical female Democrat scoring 44% of men and 57% of women. Since women outnumber men in the voting population, this female Dem. would expect to get about 51% of the total votes. That actually seems fairly plausible -- Gore plus Nader won 56% of women and 45% of men. Kerry's inability to hold female votes -- he won 51% of women and 44% of men -- cost him dearly, but it seems plausible that, not running against an incumbent, Hillary could duplicate or slightly improve upon Gore's success with women while staying close to Gore and Kerry among men. (I can't find the statistics, but I think even Dukakis wasn't that far off of 44% among men, but he lost women outright.)

There is ample reason to be skeptical of a poll like this. Like any poll that asks generic questions rather than questions about specific candidates, there is doubt as to how answers will translate to a real race. (Imagine, for example, that a poll had asked in 1997 whether people were likely to vote for an inarticulate former alcoholic with only a few years' experience as an elected official.) In reality, I suspect, sexism would have an effect, but it would be much less black-and-white than the poll suggests -- voters predisposed to vote for or against a woman would have a lot more information about the candidates that is not presented by the poll. Nonetheless, I remain convinced that, at least for Hillary, winning remains a strong possibility.

Armando at Kos condemns the Clintons' tepid support for Fernando Ferrer's doomed New York mayoral campaign (Bloomberg leads in the polls 60-32). Tonight, Hillary Clinton is hosting the single biggest fund-raiser of Mr. Ferrer's campaign, but apparently the Clintons are not working as hard as they did four years ago, when Mark Green lost to Bloomber in a nailbiter. Armando views this both as weakness in the face of Bush Republicans and a shameful abandonment of a Latino candidate:

So the Clintons are portrayed as willing to do more for the white candidate than the Latino candidate? Is that the image the Clintons want portrayed of their role in the Ferrer campaign? I think not. Afraid to alienate a Republican mayor? Seriously Senator Clinton, is that for real? Shame on you if so.

I'm afraid I think Armando misreads the mood in New York City. The reason Bloomberg is cleaning Ferrer's clock in an overwhelmingly Democratic city is that he is viewed as a competent mayor and, just as important, as being more liberal than Ferrer. Though Ferrer has moved to the left for this race, he has a history of supporting the death penalty and bans on late-term abortions. And how about this Ferrer gem:

I have problems with unlimited abortions. You know? Every time a mother hiccups, that's no reason to abort a child. (Emphasis added.)

Add to that Ferrer's less than squeaky-clean image (in the words of the Times editorial page, "issues of corruption and the waves of dubious political activity have sometimes washed close") and the inevitability of his defeat and it's no wonder the Clintons prefer not to get too close to Ferrer.

All of that is not to say that there is not force to Ferrer's argument that Bloomberg should not be allowed to skate by on pro-choice and liberal rhetoric while supporting Bush and other Republican candidates. Indeed, if I still lived in New York, I would be among the 30% planning to vote for Ferrer over Bloomberg. But I wouldn't work on his campaign. And I don't expect the Clintons to do so.

Maggie Gallagher is guest posting at Volokh on her favorite subject -- why it is essential to prohibit same-sex marriage.

Today's headline/lede:

THE MARRIAGE DEBATES: WHAT'S THE HARM?

So what worries me about SSM?

881 words later:

But at last I’m launched on the thing so many of you have been asking for: How do I think SSM will hurt marriage. Next post later tonight.

I can hardly wait....

Josh Marshall links to a list of all witnesses who have testified or have been interviewed in connection with the Plame investigation. Bush and Cheney are listed as interviewed but "did not testify under oath".

For the optimists in the audience, I thought it worth mentioning that, as far as their criminal liability for lying to prosecutors (if they did, in fact, lie), whether they were under oath doesn't matter. The penalty for perjury (18 U.S.C. 1621) is five years. But so is the penalty for making false statements to investigators not under oath. Unsworn lies to prosecutors are regularly prosecuted under 18 U.S.C. 1001 and colloquially referred to as "thousand-and-one violations". Here's what it says:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or...

shall be fined under this title or imprisoned not more than 5 years, or both.

I'm not saying a Cheney indictment is likely. I think it's not. But I hope he didn't think that negotiating an agreement to speak to prosecutors without taking an oath gave him a license to lie....

UPDATE: Atrios is thinking along the same lines.

The campaign to confirm Harriet Miers is in full swing, as both left and right are coming around to the conclusion that Harriet Miers is, indeed, likely to vote to overturn Roe v. Wade (as I have argued here, here, here, and here).

The latest play is the leaking of notes of a conference call in which Miers' "longtime companion", the radical Nathan Hecht, assured a group of Christian conservatives that Miers would, indeed, vote to overturn Roe. (Via Bush v. Choice.)

While the press is spinning this leak as a further embarrassment for the Bush team on Miers, with the participants allegedly fearing subpoenas, it actually has all of the hallmarks of an intentional leak -- and a Rovian one at that. According to the Wall Street Journal, Rove was involved in setting up the call to pacify fundamentalist leaders. There were only 13 people on the call, and they comprised a veritable Who's Who of the evangelical, anti-abortion leadership. James Dobson of Focus on the Family, Donald Wildmon of the American Family Association, Gary Bauer of American Values, Tony Perkins of the Family Research Council. Having gotten the assurances that they wanted, which of these men would have wanted to embarrass Bush with an unplanned leak? And the notes were released to a right-wing columnist, John Fund, who doesn't say where he got them (Fund has been skeptical of Miers). At the same time, Miers was telling Chuck Schumer that “No one knows how I would rule on Roe v. Wade.”

And there we have it. The perfect, Rovian, storm. The right gets its assurances, and with it the votes to ram Miers through. And, at the same time, by leaking the information in this way, the Bush administration maintains plausible deniability. Hecht doesn't speak for Miers they will say. She has not stated how she will vote, they will say. It is not appropriate to ask nominees how they will vote, they will say (more on that later). And so, the question will become, in the face of all that, will the Democrats filibuster a nominee that Harry Ried recommended to the President?

This is a crucial moment in the confirmation proceedings. Right now, the Republican support for her is weak, and Democrats have been happy to sit on the sidelines and watch the infighting. But Miers' GOP backing is going to start to coalesce, and soon. We still have a chance, while some conservatives are still bashing her qualifications, to join in and solidify the public's perception of Harriet Miers as an unqualified crony. But, if we wait until the hearings, I suspect we're cooked -- Miers will have a solid Republican majority, and what Miers' boyfriend may have said will just not be enough to sustain a filibuster.

Thank goodness Maureen Dowd has cleared up all the confusion about why, exactly, George Bush chose Harriet Miers for the Supreme Court. It's because of Monica Lewinsky, or because men like doughnuts, or because women will wait 'til a good doughnut comes along, or because ... well, see for yourself:

Lyndon Johnson said the two things that make politicians behave more stupidly than anything else are sex and envy. You might add one more: proximity. I always think men are more prone to get seduced by proximity into making unwise choices. They tend to be a bit lazy. They’ll grab the closest doughnut off the platter. Like Jude Law and the Nanny.

It was Monica Lewinsky’s proximity that caused Bill Clinton to forget the dignity of his office. It was Harriet Miers’s proximity - she has spent more time with W. than any aide except Andy Card - that caused George Bush to forget that flattery and catering to his every need are not qualifications for the Supreme Court.

“We’re innately lazy, like lions,” a male friend said. “We like whoever happens to be around.”

Doesn't the Times ever fire anyone?

Kos "love[s] the politics of the Miers nomination":

Conservatives feel burnt by an administration that continues to hide them in the closet, afraid to trumpet to the country what they really believe. Democrats can oppose her not on ideology, but on cronyism and thin resume (something Republicans are already doing on their own).

If she's confirmed, the wingnuts sit out 2006 in protest and we have a justice who, by all indications, is not a Scalia or Thomas. If she's defeated or pulls out, Bush shows even more weakness (if that can be at all possible). (Emphasis added.)

While I do think there is some short-term benefit to the GOP infighting on Miers and the chance to reemphasize their cronyism problem that is already front-and-center due to Katrina, Kos likely overestimates the benefit for 2006. The reason is that, by then, we will know a lot more about just how "conservative" Miers is. Frankly, it does seem plausible (though hardly certain) to me that Miers might be more reasonable than Scalia and Thomas on some issues.

However, as we all know, Kos's "wingnuts" care centrally about abortion (though gay bashing does seem to be gaining). I've already argued (here, here, and here) that we should expect Miers to be solidly in the anti-abortion wing of the Court.

But by 2006, the "wingnuts" won't have to believe me (or James Dobson or Pat Robertson for that matter). By then, the proof, as they say, will be in the pudding. Just weeks ago, the Bush Administration asked the Court to reconsider the issue of whether a life of the mother exception is constitutionally required in so-called "partial birth abortion" prohibitions. The Court has previously held that it does, voting 5-4, with O'Connor in the majority. Do you really believe that Bush sought reconsideration of this case so his base would know that he'd picked another O'Connor? I didn't think so. And even if the Court chooses not to hear the case, parental notification and clinic access are also on the menu. I think Bush's base will be quite pleased by the time the 2006 elections roll around.

Beyond courting a subpoena for implying that he has secret information about Harriet Miers and attacking Sponge Bob's "pro-homosexual" agenda, Focus on the Family's James Dobson has some other wacky things to say.

I suppose it won't surprise you to know that he buys into essentialist explanations for differences between boys and girls and discounts explanations based on culture. What may surprise you, though, is the evidence he relies upon. From his Bringing Up Boys (at 2-3):

If you host a birthday party for five-year-olds, the boys will probably behave very differently from the girls. One or more of them is likely to throw cake, put his hands in the punch bowl, or mess up the games for the girls. Why are they like this? Some would say their mischievous nature has been learned from the culture. Really? Then why are boys more aggressive in every society around the globe? And why did the Greek philospher Plato write more than 2,300 years ago, "Of all the animals, the boy is the most unmanageable"? (Emphasis added.)

Plato? Did I get that right? James Dobson is citing Plato as evidence of the immutability of the nature of boys, girls, and sex roles? Is that the same Plato whose characters advocate adult men having sex with pubescent boys because of their "more valiant and intelligent nature" ("Those who are inspired by this love turn to the male, and delight in him who is the more valiant and intelligent nature; any one may recognise the pure enthusiasts in the very character of their attachments. For they love not boys, but intelligent beings whose reason is beginning to be developed, much about the time at which their beards begin to grow.") Guess that wasn't "learned from the culture" either....

It breaks your heart. It is designed to break your heart. The game begins in the spring, when everything else begins again, and it blossoms in the summer, filling the afternoons and evenings, and then as soon as the chill rains come, it stops and leaves you to face the fall alone. You count on it, rely on it to buffer the passage of time, to keep the memory of sunshine and high skies alive, and then just when the days are all twilight, when you need it most, it stops. Today, ... it stopped, and summer was gone.

Somehow, the summer seemed to slip by faster this time. Maybe it wasn't this summer, but all the summers that, in this my fortieth summer, slipped by so fast.

A. Bartlett Giamatti

Conservative columnist Charles Krauthammer calls for Bush to withdraw the nomination of Harriet Miers:

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous. (Emphasis added.)

Apparently, unlike his colleague George Will, Krauthammer must not be a baseball fan. The Yankees are notorious for expensive, front line talent and an (also expensive) unproductive, bench. What next? Predictions that Miers will flounder in hearings because, just like the Yankees bullpen, the Senate Judiciary Committee is filled with intimidating lefties?

Remember that story in the New Testament (Luke 2:7), where Mary "laid [Jesus] in a manger; because there was no room for them in the inn"?

I'm no Bible expert, of course, but I think the conventional reading is that this was not nice ... un-Christian even.

But that seems not to be the view of the self-appointed party of Christian values:

At least one hotel chain has asked some Hurricane Katrina evacuees to check out so it can honor the reservations of incoming guests....

They "could be occupying a room that could otherwise be occupied by a higher-paying guest who's spending lots of money on telephone, food and beverage," said ... a hotel industry analyst ....

A Hampton Inn ... asked Barbara Perry ... move out last week. She was living in the hotel with her parents and her three young children ....

"They told me if I didn't pick my clothes up, they were going to call the police," Perry said.

Her mother, who uses a wheelchair, and her father, who is blind, were also told to check out, but they were granted an extension after a Red Cross volunteer intervened ....

Had Perry found shelter in Louisiana, she would have been protected by a Sept. 1 executive order issued by [Democratic] Gov. Kathleen Blanco that bars hotels from displacing a refugee who guarantees payment.

In Mississippi, no such protection exists. Mississippi Attorney General Jim Hood has asked hotel managers to let evacuees stay longer, but they are not required to do so. [Republican] Gov. [and former GOP Chairman] Haley Barbour "has decided to let the private sector handle those issues without government intervention," said his spokesman, Pete Smith. (Emphasis added.)

I guess the King James Version must have left out the part about the private sector handling things....

Via Feministing, Harriet Miers' "longtime companion" Texas Supreme Court Justice Nathan Hecht, is quoted as saying that Miers "is personally opposed to abortion, ... but he added that doesn't mean she will vote to overturn Roe vs. Wade." Hecht is also quoted as saying that Miers "shared his views".

While that is not reassuring on its face, it gets a lot more worrisome when one considers the source. Who is Justice Hecht? Well, do you remember when Priscilla Owen was criticized based on Alberto Gonzales' accusation that, in a parental notification case, she has engaged in "an unconscionable act of judicial activism"? The right's response was, No, Gonzales was referring to Judge Hecht. And, as I discussed here, they had a point.

And when Alberto Gonzales accused Hecht of unconscionable judicial activism -- surely an incendiary charge among conservative Republicans -- he was being restrained. Here's what Justice Craig Enoch wrote about Hecht:

Long ago, I learned that the more my emotions influenced my decisions, the less I acted like a judge. A few years ago, Justice Hecht was so passionate about an issue that he branded his colleagues as dishonest. And it is obvious from his strident dissents in all four Jane Doe cases that Justice Hecht has, once again, succumbed to passion. For he now brands his colleagues as "activists" and pro-abortionists. He does this, not because there is truth to his charge, but simply because his passion overcomes reasoned discussion.

Justice Hecht's attacks, although heated, are shallow. For example, he assails the Court's decisions as "predetermined." Yet it is he who has taken only one position -- always deny. Further, he complains about the Court's workload and rushed decisions, implying that this activity was otherwise unanticipated. Yet it was he who recommended the Court rules, which follow the legislative enactment, that require the lower courts to decide Jane Doe cases within two business days. As well, he knew this Court would similarly expedite these cases, even in the absence of that time stricture. Finally, Justice Hecht also excoriates the Court for its "judicial activism." Apparently, because he mocks his colleagues' expression of their personal feelings about the issues in these cases, he believes that a judge is an activist if he or she refuses to succumb to those personal feelings. Yet it is [Hecht] who, through his dissents, exemplifies the dangers present when a judge acts on passion. I can only question how a judge's commitment to the principle of judicial restraint can mean anything if, whenever he feels strongly about an issue, he also feels free to translate his personal beliefs into a judicial decision. I cannot otherwise explain the foundation on which his opinion rests, for in five dissents, he has failed to cite to any case from any other state interpreting a similar statute, even though several such statutes have been in operation for fifteen years or more.

Because of this Court's continued concern for preserving confidentiality in these matters, I must also challenge Justice Hecht on his routine practice of revealing to the public "in complete detail" the minors' testimony in these cases. The hearings in these cases are to be confidential -- a requirement this Court's rules recognize, which Justice Hecht himself voted for in more dispassionate days. Yet now he violates that rule, for no apparent jurisprudential purpose.... It would appear that Justice Hecht intends nothing more than to punish, as best he personally can, minors for seeking a judicial bypass. Although the law promises them confidentiality, he promises them notoriety....

When influenced by emotions, a judge loses the judicial perspective, often overstating the case, and at times, resorting to writing that is unbecoming. My colleague's writings in these cases have been inappropriate. Deep convictions do not excuse a judge from respecting his colleagues, the litigants, or the law. [Footnotes omitted; emphasis added.]

Not to put too fine a point on it, but Harriet Miers' boyfriend froths at the mouth about abortion. He took positions so extreme that Alberto Gonzales condemned them and even Priscilla Owen wouldn't join them. And Harriet Miers "shares his views".

GET THIS VERY STRAIGHT. HARRIET MIERS IS NOT SANDRA DAY O'CONNOR. HARRIET MIERS IS NOT DAVID SOUTER.

Related Posts: Harriet Miers and Abortion, Part II; Harriet Miers and Abortion

While I share Power Line's less than complimentary view of Judith Miller, I have to wonder about their grasp on cause and effect:

Patrick Fitzgerald is considering whether to indict Karl Rove or Scooter Libby for the "crime" of revealing the deep, dark secret that Valerie Plame worked for the CIA in Virginia. (Never mind that Plame herself posed for a Vanity Fair photo shoot in which she spoofed her role as a "spy." Some covert agent!) In that context, isn't it vital to know who else was telling journalists about Plame's job? Isn't it important to know whether Plame, Wilson or the CIA made any effort to keep her employment secret? Can Fitzgerald possibly contemplate sending an administration official to jail for disclosing a "secret" that was common knowledge in the Washington press corps?

Never mind that Plame herself posed for a Vanity Fair photo shoot in which she spoofed her role as a "spy." Some covert agent!

Ummm, the January 2004 Vanity Fair piece was nearly six months after her cover was blown by the administration. So what was your point exactly?

Isn't it important to know whether Plame, Wilson or the CIA made any effort to keep her employment secret?

Yes, it is. The applicable statute requires it. And it is beyond dispute that such efforts were made.

Can Fitzgerald possibly contemplate sending an administration official to jail for disclosing a "secret" that was common knowledge in the Washington press corps?

Yes, he can. Indeed, as I have noted before, that was the intention of the statute (which was supported by the Reagan Administration and considered patriotic until it became inconvenient for Bush):

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.

OK, here's some more detail on the Harriet Miers abortion story I first mentioned below.

In 1989, the Supreme Court decided Webster v. Reproductive Health Services, which narrowed, but did not overturn, Roe v. Wade.

In response, in 1990, the American Bar Association (the largest lawyer membership organization) took an officially pro-choice position.

In response to that, on February 16, 1990, Miers' predecessor as President of the the Texas Bar Association, Darrell Jordan, wrote "an official letter ... in which he criticized the ABA abortion-rights policy as 'cruelly intolerant' and threatened to keep the Texas Bar's delegates from participating in future ABA programs.¹ Jordan himself has variously claimed to be pro-choice¹ while telling conservative Christians that he believes in the "sanctity of life",² but his campaign against the ABA's pro-choice position was clearly a favorite of the organized right, which condemned the ABA's position and, indeed, was "backed by the Roman Catholic Church".¹ He was condemned by other Texas lawyers for causing "an unnecessary flap" and "jump[ing] up and ... using the State Bar, like we were all behind him, and that wasn't the fact at all".¹ Nonetheless, Jordan succeeded temporarily in getting the ABA to change its policy.

In addition to succeeding Jordan as President of the Texas Bar Association, Miers would later chair Jordan's campaign for mayor of Dallas. In that role, she "praised Mr. Jordan's actions and contended that they showed he would be a good mayor for Dallas. 'He really is the kind of leader who would take an unpopular position because he thought it was right and fought hard to have it sustained,' said Ms. Miers, a co-chairwoman of the Jordan campaign."¹

But Miers did more than praise Jordan. She took up his fight against the ABA's pro-choice position (which was reaffirmed shortly after it had been withdrawn in response to Jordan).³ When the ABA's governing body refused to accept her argument that it should be neutral on abortion, she demanded a vote of all of the members, even though such a vote might cost $100,000 or more:

After an hour of debate Tuesday, the house voted 313-128 to reject the referendum proposal, sponsored by the Texas State Bar and a handful of other bar groups, The measure needed 266 voters to pass.

Opponents -- including incoming president R. William Ide III and past presidents Stanley Chauvin Jr. and William Falsgraff -- argued that a poll of the ABA's 357,000 members would cost upward of $ 100,000, would undercut the house's authority to make policy, and probably would not resolve the matter.

Harriet Miers, immediate past president of the Texas Bar, had said the measure offered a "positive effort to involve our membership on an issue that has caused the leadership to flip-flop." The cost, she said, was a small price to pay.⁴

This was clearly a fight that Miers cared deeply about:

"I remember the Alamo," proponent Texas State Bar past president Harriet Miers said as she withdrew her measure. She said she'd continue the fight today.

"What we have is a playing field coated with butter and I don't think it is tipped in my direction." The referendum is expected to fail in the house. (Emphasis added.)⁵

Now, I expect that -- if this gets discussed at all -- we will hear about how this was a purely lawyerly position, and that her only concern was that the ABA should not take a position on a controversial issue and that she was trying to respect everyone's views by advocating "neutrality". The context is pretty clear, however. Given the ABA's "overwhelming"⁶ support for abortion rights, neutrality was the best abortion opponents could hope for, and that is what Miers chose to fight for.

1 - McGonigle, Jordan role lauded, assailed in '90 dispute on abortion, Dallas Morning News, 3/31/95.

2 - McGonigle, Jordan says abortion isn't issue campaign issue Hopeful denies changing views to appeal to conservative voters, Dallas Morning News, 4/6/95.

3 - Texas Delays Call For Abortion Policy Referendum; Delegates Revise Ethics Rule on Free Services Responsibility, The Legal Intelligencer, 2/24/93.

4 - Bay, ABA Takes a Pass on Abortion Poll, The Recorder, 8/11/93.

5 - Bay, Abortion Measure Goes Up Against Rules, Apathy, The Recorder, 8/10/93.

6 - Samborn, ABA to Revisit Thorny Issues; Abortion and Ancillaries, The National Law Journal, 8/10/92.

I am sure that you will be shocked, shocked to learn that Miers has been actively anti-choice. As head of the Texas Bar Association in 1993, she led efforts by so-called "neutrality advocates" to have the American Bar Association take a neutral stance on abortion, rather than the position in favor of abortion rights that the ABA leadership had taken. See, e.g., Texas Lawyer, 8/15/94 (via Lexis). While "neutrality" seems unobjectionable on its face, if you read the articles about this fight (which was renewed over several years), the context is clear that this was an anti-choice hobby horse. If anyone can locate the text of the ABA resolution that she opposed, it might be quite illuminating.

UPDATE: More here.

AP reports that new Supreme Court nominee Harriet Miers' "lack of a judicial paper trail may also make it more difficult for Democrats to find ground upon which to fight her nomination".

Possibly so. But to start with I'd like to know about her role in the cover up of how Bush got into the National Guard. According to the Washington Post (9/21/99, via Lexis):

The suit involving Barnes was brought by former Texas lottery director Lawrence Littwin, who was fired by the state lottery commission, headed by Bush appointee Harriet Miers, in October 1997 after five months on the job. It contends that Gtech Corp., which runs the state lottery and until February 1997 employed Barnes as a lobbyist for more than $ 3 million a year, was responsible for Littwin's dismissal.

Littwin's lawyers have suggested in court filings that Gtech was allowed to keep the lottery contract, which Littwin wanted to open up to competitive bidding, in return for Barnes's silence about Bush's entry into the Guard.

Barnes and his lawyers have denounced this "favor-repaid" theory in court pleadings as "preposterous . . . fantastic [and] fanciful." Littwin was fired after ordering a review of the campaign finance reports of various Texas politicians for any links to Gtech or other lottery contractors. But Littwin wasn't hired, or fired, until months after Barnes had severed his relationship with Gtech.

The suit was later settled for $300,000, which suggests (though hardly proves) there was some merit to the claim.

Newsweek (7/17/2000) indicates that she was paid $19,000 by the Bush gubernatorial campaign to investigate the Bush National Guard rumors. Curiouser and curioser.

I don't know where all of this leads, but can our Senators please start asking questions and demanding answers before the mainstream media declares her inevitability?