Alito and Executive Power

Dahlia Lithwick over at Slate makes the argument about Bush's High Court nominees that I have been making for some time. That the President is trying to stack the Court with judges who defer to executive power. Lithwick takes the argument where I have thus far been unwilling to go. I think its likely that she is right, but the evidence in the case of Alito is scant, which is precisely what is so scary.

My fear is that we are all snoozing through an elaborate plan to pack the court for the Bush administration's war on terror. What if all the obsessive talk about whether candidates are for or against overturning Roe v. Wade is a strategic head feint? What if I am right, and Samuel Alito is confirmed to the Supreme Court without ever substantively answering a question about torture, enemy detentions, the rights of foreigners, or civil liberties during wartime?
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This president—for reasons that hardly warrant repeating here—doesn't really want to be remembered as the guy responsible for the court that overturned Roe. (Although he certainly wants us to think he wants to be remembered as that guy.) No, Roe is not what keeps George W. Bush awake nights. What he wants to be remembered for is winning the war on terror. He wants to be seen as the president who carried the great torch of democracy into the world's darkest corners. And he believes—of this I am certain—that the courts are standing in his way.

I have written before that the arc of his Supreme Court nominations can best be explained by his desire to pack the courts for all of the Hamdan, Hamdi, and Padilla cases to be heard by the courts for years to come. Think about it: Roberts, Miers, and Alito each have a long track record of endorsing executive power. Each seems highly likely to strongly support the president's claims to virtually limitless executive authority in wartime. The Bush administration saw that claim repudiated by a margin of 8-1 in Hamdi. And the president won't let that happen again.

It won't. How do I know? In his 15 years on the federal bench, Judge Samuel Alito has yet to rule on a case substantively involving the war on terror. But Alito's votes in pending and future war on terror cases can be fairly accurately predicted. They lurk in dark alleys, near his decisions about criminal rights, immigration cases, and government power. Alito's record in none of those areas bodes well for people who worry about the Bush administration's push for unchecked war powers.

Robert Gordon has written in Slate, for instance, that in his survey of the criminal and Fourth Amendment cases Alito heard as an appeals court judge, he adopted the position most supportive of the government every time. Justice Antonin Scalia is a conservative who has crafted a healthy jurisprudence of doubt about limitless government powers. Alito, on the other hand, is a former prosecutor who has seemingly never met a search, seizure, warrant, or arrest he couldn't love.

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Which brings us to Alito's record on the rights of immigrants and foreigners. His views on this score were illuminated last week by documents released from his 16-month tenure as a deputy assistant attorney general in the Justice Department's Office of Legal Counsel. In one memo, Alito signed off on an FBI plan to collect fingerprint cards of Iranian and Afghan refugees living in Canada. He suggested that the program was constitutional because these refugees were nonresident immigrants of another country, thus freeing the FBI from abiding by court decisions that barred the agency from spreading "stigmatizing'' information about U.S. citizens. Alito simply feels that nonresident immigrants of other countries have no due process rights under the Constitution. The Washington Post last week quoted Martin Redish, a constitutional law professor at Northwestern University Law School, arguing that Alito's logic would likely support the Bush administration's current policy of CIA interrogations in secret European prisons as well.

Despite the Bush administration's urgings to deny review, the Supreme Court recently agreed to hear the next big war on terror case, Hamdan v. Rumsfeld. Justice Sandra Day O'Connor, author of perhaps the most famous words in the post 9/11 struggle between the courts and the executive—"[a] state of war is not a blank check for the president"—will not be on the court to decide it. Samuel Alito, who has made a judicial career out of writing, signing, and endorsing blank checks—will.

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The courts, and specifically the Supreme Court, have been willing to push back against the executive's relentless power grab, albeit by a sometimes narrow margin. If Judge Alito is unwilling or unable to talk about his positions in this area of law, we should assume, based on his record, that he would rubber-stamp the administration's citizen detention, habeas corpus, and torture policies. If that is the case—and his confirmation becomes a referendum on the acceptability of such policies—he would, and should, fail to be confirmed by a large bipartisan majority.

I was advocating the position Lithwick pushes here adamently prior to the Alito nomination, and I think it is likely still true. But this time Bush has picked someone with no record in that matter. It was obvious with Miers and Roberts, but Alito is a tougher bird to figure out. While I think Lithwick is probably correct, I'm not certain to what degree the evidence she cites for Alito applies. I'm less convinced this one isn't actually about equality or business interests, but the questions of Presidential power should not be dropped. Getting to the bottom of that question is of utmost importance.

Kitzhaber Eying a Run

Todays Oregonian discusses the possibility of a Kitzhaber candidacy for Governor of Oregon.

Former Gov. John Kitzhaber moved one step closer to a comeback bid Friday, saying he is seriously considering a run for an unprecedented third term as Oregon governor.

Kitzhaber said he told current Gov. Ted Kulongoski he may enter the Democratic primary and will make a final decision shortly after the first of the year.
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"The impact Kitzhaber has just talking about running is immense," said James Moore, a political analyst and professor at Pacific University. "It makes it very clear that people are hungry for someone other than Kulongoski to run, but that person has to be a major player."

Moore said no Democrats can really make a move in the primary until the former governor makes up his mind. "It's basically waiting for Kitzhaber."

If you recall, the Oregonian has played with this thought in the past, I blogged about it back in September. But this article seems more like Kitzhaber actually considering a run, and less like the Oregonian having a fun time speculating. MyDD discusses the political implications of a Kitzhaber candidacy.

In recent elections, Oregon's Democrats have had significant momentum, first forcing a 15-15 tie in the state Senate following the 2002 elections and then gaining control of that chamber, as well as narrowing the Republican lead in the state House, following the 2004 elections. But an all out war between Kulongoski and Kitzhaber, which seems likely should the former Governor enter the race, could stall that momentum as limited resources are expended in a drawn out primary and a schism is created between the two camps. All of the sudden, Republicans, who had been ostracized for their radical positions (primarily on social issues), would have a golden opportunity to reclaim power in the state.

Now it is true that a number of pieces would have to fall into place in order for the Republicans to make full use of this moment. These include avoiding the type of divisive primary that could afflict the Democrats. But even by giving the Republicans a glimmer of hope, the Democrats might be handing the GOP the catalyst necessary for them to get their act together. Specifically for this reason, I am becoming increasingly concerned about the Dems' ability to hold onto Oregon's governorship next fall.

Hopefully this doesn't mean that the football game between the Beavers and the Ducks will not be the only Civil War in Oregon. I heard Kitzhaber speak at the University of Idaho a couple of years back, and was very impressed with him. I like Kulongoski as well however, and to lose the Governorship because Democrats decided to self destruct over a viscious battle would be a real shame. I really do not want to feel like I have to add either Kulongoski or Kitzhaber to my candidates list. Given all that, I think I would prefer not to see a Kitzhaber run for the governorship. But if he did, I would most certainly support him.

Holy Cow We've been Hoodwinked Batman

As we all know, Padilla was charged with "provided material support to terrorists" last week. But it turns out, SCOTUSBlog reports, that Padilla is still an emeny combatant. Cute legal trick, charge him so everyone thinks that they've decided to allow him due process. But it turns out that they now claim that they can charge him with a crime, but continue to hold him as an enemy combatant so that it doesn't matter if they win their case against him or not.

For the time being, however, Padilla is both an "enemy combatant" and a criminal case defendant. One of the attorneys handling his Supreme Court appeal, Jonathan M. Freiman of New Haven, Conn., said on Friday: "A senior attorney at the Solicitor General's Office informed me, on the very day the indictment was unsealed [Nov. 22], that it was possible that Padilla would again be detained as an enemy combatant if he was found innocent of the criminal charges against him."

On Nov. 22, the government released a Nov. 20 order by President Bush to the Pentagon to release Padilla from military custody, saying that this would "supersede" his earlier order designating Padilla an "enemy combatant" and ordering his detention by the military. But that new order does not say explicitly that anything is being changed except Padilla's custodian. In fact, another of Padilla's lawyers, Michael P. O'Connell of Charleston, S.C., said in a court filing there Nov. 28 that the new presidential order "does not remove the designation of 'enemy combatant' that the President placed upon Mr. Padilla..." And O'Connell said that "the government continues to assert the authority to return Mr. Padilla to military custody."

O'Connell, who is handling the Padilla case that remains in federal court in Charleston, said in his filing: "Given the fast-moving developments and the current uncertainty that surrounds them, I respectfully request that these proceedings be stayed" until the Supreme Court acts on Padilla's appeal to the Justices.

The legal uncertainty, of course, is pervasive, and remains quite confusing.
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The scary recital matched the picture the government has been publicly displaying of Padilla for the past couple of years. In a celebrated press conference on June 1, 2004, then-Deputy Attorney General James Comey revealed the apartment blowsup plot in telling the public "the sobering story of Jose Padilla." That account, he said, "will allow the American people to understand the threat he posed and also understand that the president's decision [to name him a combatant and detain him]." Besides the plans to blow up apartment buildings, Comey recalled the by-then familiar government asertion that Padilla had planned to release a radioactive bomb in the U.S.

The Comey revelations, of course, made their way into the government's arguments that led the Fourth Circuit to uphold Padilla's designation.

But that picture of Padilla's actions is markedly different from the picture that emerges in the new criminal indictment. The Justice Department laid that indictment before the Fourth Circuit as part of its filings seeking approval of his transfer from military to civilian custody for trial on the indictment. The Circuit Court no doubt saw the differences between the two. And that, apparently, is what led the Fourth Circuit to raise the possibility that it would vacate its ruling in favor of the presidential authority used against Padilla -- a precedent the government very much wants left on the books.

According to the indictment, Padilla played only a decidedly minor role in the activity of a "North American support cell" for terrorism. The indictment charges that he was recruited by that cell to participate in violent acts overseas, "and traveled overseas for that purpose." There are 11 counts in the indictment, which names Padilla along with four others. But Padilla is charged in only three of the counts -- conspiracy to commit murder and other violence "in a foreign country," conspiracy to "provide material support for terrorists," and providing "material support for terrorists." There is no mention of the facts about the apartment blowup or the radioactive bomb (apparently because the government got some of that evidence from interrogating Padilla, and some from Al Qaeda operatives it does not want summoned as witnesses.)

The Fourth Circuit, in its order Nov. 30 calling for new briefs on whether to vacate its Sept. 9 ruling, cited the "different facts that were alleged...and held by this court to justify" his detention, "and the alleged facts on which Padilla has now been indicted."

The final of those newly summoned briefs is due Dec. 16 -- the next key date, too, in the Supreme Court proceedings.

Plainly, the process has much further to go, with the outcome shrouded in more doubt than at any time since Padilla was named an "enemy combatant" on June 9, 2002.

This was always freaky and scary, but this is downright wierd. Charging him here apparently only to cause confusion and delay Court proceedings, this is outrageous. Give the man his due process. It's obvious Bush really was sincere when he referred to the 2004 election as "the accountability moment."

Democratic Plans for Iraq

I know, the RNC talking point is that the Democrats don't have a plan, so these simply must not exist. Of course maybe they literally mean "a plan" singularly, as though any diversity in the Party is some sign of weakness. Just for the record I essentially lifted this from Kos who essentially lifted it from National Journal.

Bayh: find realistic way to define success, then set benchmarks

Edwards: was "wrong". Wants "significant" reduction of troops after elections early next year. He'd tie the proportion of troops withdrawn to benchmarks set for Iraqi soldier performance.

Biden: no withdrawals until political situation improves, but sees 100K troops back home by '07. Does not rule out more troops if necessary. Wants admin to come clean about targets for Iraqi troop training. More civillian staff in Iraq.

Clark: add civillian component; consider adding troops; adjust the mix on the ground; establish clear benchmarks for training

Clinton: No immed. withdrawal, no troop increase, set specific benchmarks for training Iraqi forces and make it clear to Iraq that the US's military committment is limited.

Feingold: 12/31/06 is a "target date" for troops to come home. But he's flexible.

Kerry: begin drawn down of 20K troops after elections in Dec and continue if successful.

Richardson: "It is now time for the military commanders to design a phased, definitive withdrawal plan."

Warner: No immed. withdrawal, no troop increase, set specific benchmarks for Iraqi forces. Eschews "debating the past."

To me, Richardson, Edwards, and Feingold make sense. Kerry almost makes sense but lacks a phase 2 of what's next. Here's my take on why Warner, Clark, Clinton, Biden, and Bayh are wrong.

They seem to assume that the situation is improving, and that we can measure that situation. As I see it we're now stuck in the middle of a civil war watching our troops die in the crossfire between the Jidists and the Islamists.

There is a school of thought relating to the War on Terror and now (after invading) in Iraq as well, that has been completely buried from the discussion. Neither liberals or conservatives seem willing to talk about the situation in this way.

Faisel Devji argues in "Landscapes of Jihad" that the Jihad is noticeably different than the Islamic Fundamentalist movements. And I suspect that what we see right now is those two factions, the fundamentalists, and the jihadists locked in a civil war in Iraq.

The fundamentalists have an agenda, they seek the creation of Islamic Republics arround the globe. They were the force behind the 1979 Iranian Revolution, and are the primary force behind the Shiite parties in Iraq. The jihadists can be thought of has followers of Osama Bin Laden. While both movements are global, they are global in different ways.

The jihad is a globalized force far more than the fundamentalists, as they have a presence in nearly every country of the world.

The Jihad is global not because it controls people places and circumstances over vast differences..., but for precisely the opposite reason: because it is too weak to participate in such politics of control (1).

Thus, Al Qaeda has no ability to create Islamic Republics accross the globe, they have no such capabilities. This lack of power derives from the personal nature of jihad where it lacks any political motive, and is seen as an ethical responsibility.

Unlike fundamentalism, Jihad is not concerned with political parties, revolutions or the founding of ideological states. For someone like Ayman al-Zawahiri, who comes from a fundamentalist background in the Muslim Brotherhood, struggles in particular countries are important for two reasons: because, like the Taliban's Afghanistan, they provide a base for jihad more generally, as well as for rousing Muslims internationally. In other words the particular sites of these struggles are themselves unimportant, their territories being subordinated to a larger and even metaphysical struggle for which they have become merely instrumental. Indeed by moving between Bosnia and Afghanistan, Chechnya and Iraq, the jihad displays its fundamental indifference to these territories rather than consolidating them into a single muslim geography. ...it is not one country or another that is important, but instead Islam itself as a global entity (28).

Now, onward to Jihad's personal nature. The essential idea being that Jihad ignores collective responsibility. It is based arround personal piety; the idea being that Jihad is a personal religious obligation for each individual to partake in.

The Jihad today disputes and even mocks the privlege given to authority in this juridicial tradition. For instance in this passage from Yahyah bin Ali al-Ghamdi's article "The yeears of deception",j from the ninth issue of the Saudi on-line magazine Voice of Jihad that claims to be the mouthpiece of Al-Qaeda in the Arabian Peninsula.

Don’t you know that the clerics thave stated that Jihad becomes a personal duty if the enemy raids the land of the Muslims? According to those who disagree with this, a new formula should be put forth. That Jihad will become a personal duty when the enemy attacks the land of the Muslims-only if the enemy can be repelled and vanquished and only if the Muslim nation is completely prepared, and only if the ruler-and we don’t know who this ruler is-will permit it.

The author’s purpose is clear: to wrest the jihad away from the juridical language of the state and make it a strictly individual duty that is more ethical than polical in nature. […] One implication of treating holy war as an individual ethical obligation, like prayer, is that it becomes spiritualized and finally puts the jihad beyond the pragmatism of political life (34).

Devji goes on to argue that this jihad ends up being primarily carried out against other Muslims. This is what I suspect is going on in Iraq, and we are simply observers stuck in the middle. There is a civil war between the jihadists who seek martyrdom and the fundamentalists who seek an Islamic State. Our dream of a liberal Democracy in Iraq is unreasonable then, the fundamentalists will inevitably gain control of the country, while the jihadists will undoubtedly continue their attacks. Coming back to where I began this, we cannot remain in Iraq “until the job is done” because that job will never be done. There is no support for a liberal democracy in that country. Perhaps stability can be obtained in the form of a fundamentalist government like that of Iran. But any plan must focus on getting troops out as soon as we can. It needs to either accept civil war or work towards some measure of stability as we withdraw. In this regard Bayh and Biden are not looking at the reality in Iraq. Both liberals and conservatives are stuck in this cold war attitude towards the jihad, and nobody seems to even acknowledge Devji’s argument of the apolitical jihadists movement. I don’t know if Devji is right, but it is a perspective that is missing from the current discussion and is to our detriment.

An End to Reasonable Discourse

There is no public discussion in the United States anymore. All debate ultimately results in name calling, we can't have an honest discussion of ideas anymore. I take you back to Jonah Goldberg's collumn in the Los Angeles Times two weeks ago. When it took him all of two sentences to declare that opponents of the war are "moonbats".

STOP ME IF YOU'VE heard this already. But there are people out there — honest, decent, sincere people and deranged moonbats, too — who think that George W. Bush lied about the threat posed by Saddam Hussein. No, seriously, it's true. "Bush lied, people died" is one of their catchier slogans.

Now, I'm not one of these people, but let's assume they're right.

What if Bush did lie, big time? What, exactly, would that mean? If you listen to Bush's critics, serious and moonbat alike, the answer is obvious: He'd be a criminal warmonger, a failed president and — most certainly — impeachment fodder. Even Bush's defenders agree that if Bush lied, it would be a grave sin. For example, the Wall Street Journal recently accused Harry Reid & Co. of becoming "Clare Boothe Luce Democrats" for even suggesting that Bush would deceive the public. Luce, a Republican, had insisted that FDR "lied us into war." And this, the Journal editorialized, was a "slander" many paranoid Republicans took to their graves.

The question must be asked. Why did the LA Times print this without revision? What does the dismissal of opposing viewpoints as those of "deranged moonbats" do to create an honest open discussion of ideas? Obviously this should never have been printed in that form, but it was, and this has been discussed at great lengths by others with far greater readerships than I. I move now to today's Washington Post, which, in a defense of Wal Mart, feels compelled to call John Kerry a traitor.

Wal-Mart's critics allege that the retailer is bad for poor Americans. This claim is backward: As Jason Furman of New York University puts it, Wal-Mart is "a progressive success story." Furman advised John "Benedict Arnold" Kerry in the 2004 campaign and has never received any payment from Wal-Mart; he is no corporate apologist. But he points out that Wal-Mart's discounting on food alone boosts the welfare of American shoppers by at least $50 billion a year. The savings are possibly five times that much if you count all of Wal-Mart's products.

I ask again, why did the Post feel compelled to print this crap? What does the assertion that John Kerry is a traitor have to do with Wal Mart? Would the (bogus) case the article makes have been made any worse by removing the reference to Benedict Arnold? These send the painful signal that the Washington Post and the Los Angeles Times will print anything on the conservative side. Would they print an article calling Republicans "wingnuts"? I hope not, but then again, I would hope that they wouldn't be printing this crap.

Blair May Face Parliamentary Inquiry

The British Parliament may soon committ to an investigation of Blair's use of pre-war intelligence, something our own Congress stubbornly refuses to do. Nice separation of powers here. The major criticism of parliamentary systems is that they don't have a strong separation of powers, the Prime Minister is also a member of parliament and is elected by the majority in parliament, but nonetheless they seem willing to investigate the actions of the executive unlike the partisons controlling Congress here.

This will not be a happy Thanksgiving for President George Bush, but he need just look across the Atlantic to know it could be worse. His only reliable ally, Britain's Tony Blair, now seems to be facing the full-scale parliamentary inquiry into the Iraq war -- its justification, conduct and aftermath -- that Bush has been able to avoid.

Leading opposition figures from the Conservative, Liberal-Democratic, Scottish National and Plaid Cymru (Welsh) parties have banded together to back the cross-party motion titled "Conduct of Government policy in relation to the war against Iraq" to demand that the case for an inquiry be debated in the House of Commons. They seem assured of the 200 signatures required to get such a debate -- and then the loyalty of Blair's dismayed and disillusioned Labor members of Parliament will be sorely tested.

"This apparently modest motion may be the iceberg toward which Blair's Titanic is sailing," said Scottish National Party leader Alex Salmond.

Labor Party rebels have already inflicted one unprecedented defeat on Blair in this parliamentary session, and on the issue of Iraq, he commands little confidence. One leading Labor rebel, Alan Simpson, MP for Nottingham, has already signed on to the motion.

It reads: "This House believes there should be a select committee of seven Members, being Members of Her Majesty's Privy Council, to review the way in which the responsibilities of government were discharged in relation to Iraq and all matters relevant thereto in the period leading up to military action in that country in March, 2003 and in its aftermath."

There's an interesting piece of information in this article that has been completely ignored by the gutless American press. This is certainly the first I've heard of this.

It also comes amid a hoist of other embarrassments for the government, including a bizarrely ham-handed attempt to use the Official Secrets Act to squash press reporting of a leaked five-page memo, stamped Top Secret. It records a conversation last year between Bush and Blair in which the British prime minister supposedly dissuaded the American president from bombing Al Jazeera TV in Qatar. The White House has dismissed the suggestion as "outlandish" after the report first appeared in the Daily Mirror, but the decision to invoke the Official Secrets Act has given the tale new prominence.

If true, this is quite a story, not liking the way Al Jazeera reports is one thing, but the suggestion of bombing them is outlandish. If Bush did indeed suggest this it only shows the extreme lengths Bush will go to silence dissent. If Bush can bomb Al Jazeera, I demand that FOX News be bombed as well, as I understand it the two stations are really nothing more than opposite sides of the same coin.

Duke Cunningham Resigns

One corrupt Republican down!

LOS ANGELES (Reuters) - U.S. Rep. Randy "Duke" Cunningham, a California Republican, resigned on Monday after pleading guilty to taking $2.4 million in bribes in exchange for help in securing Defense Department contracts.

Cunningham, 63, an eight-term congressman and decorated Vietnam War veteran, had been under federal investigation for his ties to Washington-based defense contractor MZM Inc. since the summer.

"I am resigning from the House of Representatives because I've compromised the trust of my constituents," Cunningham said after the court hearing.

He entered guilty pleas in San Diego federal court on Monday to conspiracy to commit mail fraud, wire fraud and tax evasion. The last charge stemmed from the underreporting of his income in 2004.

Padilla Indicted

It only took them three years. Now that's a "speedy trial" if I've ever heard of one. Someone must have finally hit them over the head and made them realize that the Supreme Court was going to overturn the policy. It's worth noting here what they did not charge him with. Conspiring to set off a dirty bomb, they've fallen back on their favorite weak charge "providing material support to terrorists."

Jose Padilla, the alleged "dirty bomber" who has been at the center of fierce legal and political struggles for more than three years, has been indicted on charges that he conspired to murder individuals overseas and provide support for terrorists, according to federal court documents unsealed yesterday.

The indictment abruptly moves Padilla's case out of the shadows of his confinement in a U.S. Navy brig in South Carolina, where the Brooklyn-born former gang member has been held since President Bush declared him an enemy combatant in 2002. The indictment, handed up by a federal grand jury in Miami last week, names four other defendants.

In the House Today

Jean Schmidt (OH-2) had one minute to address the body about the Iraq war today, and how did she choose to use her one minute? To question the patriotism of Rep. Murtha (a decorated marine in Vietnam), for calling for a pullout from Iraq. Yes, that's what patriotism is all about, not questioning the President in war.

Yesterday I stood at Arlington National Cemetery attending the funeral of a young marine in my district. He believed in what we were doing is the right thing and had the courage to lay his life on the line to do it. A few minutes ago I received a call from Colonel Danny Bop, Ohio Representative from the 88th district in the House of Representatives. He asked me to send Congress a message: Stay the course. He also asked me to send Congressman Murtha a message, that cowards cut and run, Marines never do. Danny and the rest of America and the world want the assurance from this body – that we will see this through.

Jean Schmidt sure loves to pull the swift boat stunt on veterans, I seem to recall her pulling similar tactics against Mr. Hackett in August.

The Real Numbers

Ok, I'm supposed to being doing something else, so I'll be brief. Everyone is using the wrong numbers for health care. We all know the number without health insurance in the United States is at 46 million people, but here's what you don't hear. 38 million are on MedicAid, and 41 million are on MediCare. That means that 125 million Americans are either without health insurance or on government assistance for health care. That's over 1/2 of the population folks.

SOURCES (sorry, I used Lexis-Nexis, no links)

The Washington Post

October 10, 2005 Monday
Correction Appended
Final Edition

HEADLINE: Medicare Drug Benefit Outlined in Campaign;
As Enrollment Is Set to Begin, Ads and Other Outreach Seek to Educate Eligible Citizens

BYLINE: Christopher Lee, Washington Post Staff Writer

And

Copyright 2005 Journal Sentinel Inc.
Milwaukee Journal Sentinel (Wisconsin)

August 31, 2005 Wednesday
Final Edition

HEADLINE: 1 in 7 lack health insurance in U.S., census survey finds;
Number rises for 4th year in row

BYLINE: GUY BOULTON, Staff, Milwaukee Journal Sentinel

A Whole New Level

If true, the revelations about Hadley is disturbing on a whole new level. So the job of the National Security Council is now to serve as another political arm of the White House to be used for smearing opponents of the Administration? The National Security Council is supposed to exist for advising the President on foreign policy matters, but it now seems as though its real function is to smear opponents of the Administration. This is very troubling.

This Gets More Interesting All the Time

Steven Hadley was the original leaker? This is obviously far from over as the plot thickens.

Testifying under oath Monday to Special Prosecutor Patrick Fitzgerald, Woodward recounted a casual conversation he had with Hadley, these sources say. Hadley did not return a call seeking comment.

Woodward said he was told that it was “no big deal” that former Ambassador Joseph Wilson was sent to Niger to investigate the veracity of the Bush Administration’s claims that Iraq was seeking uranium from Niger. According to the attorneys, he said Hadley dismissed the trip by saying his wife, a CIA officer who worked on WMD issues, had recommended him.

At the time, Hadley was working under then National Security Adviser Condoleezza Rice.

“We think that Mr. Woodward was going to write a story about it, but discussed it with some other people within the Bush Administration and was told that it wasn’t anything big,” one attorney told RAW STORY.

Woodward did not return a call for this article. He did not identify his source in an article in today’s Washington Post, instead dubbing him a “senior administration official.”

Perhaps it's time to ask the question, "was anyone in this Administration not involved in the leak?

Something is Rotten at CPB

The New York Times today has confirmed what we already knew.

The former chairman, Kenneth Y. Tomlinson, who was ousted from the board two weeks ago when it was presented with the details of the report in a closed session, has said he sought to enforce a provision of the broadcasting act meant to ensure objectivity and balance in programming.

But in the process, the report said, Mr. Tomlinson repeatedly crossed statutory boundaries that had set up the corporation as a "heat shield" to protect public radio and television from political interference.
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The inspector general's report is the first official conclusion that Mr. Tomlinson appears to have violated both the law and the corporation's own rules. It is also the first detailed and official inside look at the dynamics of the corporation as some of its career staff members have struggled with conservative Republican appointees seeking to change its direction.

The report said investigators found evidence that Mr. Tomlinson had violated federal law by being heavily involved in getting more than $4 million for a program featuring writers of the conservative editorial page of The Wall Street Journal.

It said he had imposed a "political test" to recruit a new president of the corporation. And it said his decision to hire Republican consultants to defeat legislation violated contracting rules.
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The investigators found evidence that "political tests" were a major criterion used by Mr. Tomlinson in recruiting the corporation's new president, Patricia Harrison, a former co-chairwoman of the Republican National Committee and a former senior State Department official.

According to the report, Ms. Harrison was given the job after being promoted for it by an unidentified White House official. Investigators said they had found e-mail correspondence between Mr. Tomlinson and the White House that while "cryptic" in nature "gives the appearance that the former chairman was strongly motivated by political considerations in filling the president/C.E.O. position."

A nice blow to Administration efforts to make Public Broadcasting more "objective." Demonstrates quite well what the real goal of the "objectivity" crusade was.

How Libby Matters

I've been tired and the news hasn't been exciting enough to make me write here, but this I found interesting.

Fitzgerald has reinterviewed several witnesses with knowledge of Rove's role in the Plame leak and talked with attorneys of other potential witnesses.

The ongoing investigation means that Rove's legal status is likely to remain up in the air until the final disposition of Libby's case. That could be two years from now, or even longer. Rove's predicament contradicts recent news accounts indicating that Fitzgerald will conclude his probe of Rove in the near future.

While the right spins the Libby indictment as a technicality, it clearly is not. Libby's stonewalling of the investigation has prevented Fitzgerald from being able to make reasonable time in concluding his investigation and he may not have the information he needs until the last days of the Bush Administration or even after they have left office.

On Religion and Politics

MyDD has a particularly good election post-mortem. In particular I would like to focus on the discussion of religion in the Virginia race.

Guest-posting at Political Animal, Amy Sullivan writes that part of Tim Kaine's win in Virginia was that he was able to neutralize what has been a Republican advantage on the faith, values, and character issues related to religion. Kaine didn't pander to the religious right (he is a Catholic, after all), but he did hold up his faith as a defense when Kilgore attacked him for being personally anti-death penalty.

Kaine always made it clear that his religious views don't have an undue influence on his political decisions, though. This indicates to me that voters, even in a red state like Virginia, like politicians with religion, but don't buy into the idea that religion should dictate politics. By knocking the religion advantage out of the Republican playbook, Kaine "got to compete on actual issues--whether immigration or education or sprawl or health care." As she writes, "that's good news for Democrats."

Democrats have been saying for ages on issues such as abortion "I don't have a right to force my religion on everybody else." And Kaine used it here, but it seems the context is different. Kaine derives from his mainstream religious views that the death penalty should be abolished, a clearly unpopular position. Democrats typically have taken the same interpretation of scripture as Republicans and said that the difference between them and the Republican is that they don't feel like they should force their religion upon others. But the initial agreement in religious interpretation may tell voters that Democrats are unwilling to defend their values. Whereas Kaine by taking a position not held by most people on religious grounds that a large portion of people disagree with changed the perspective on the "I can't legislate my religious beliefs for others" argument. People begin to think about the issue as "thank god, I don't want the death penalty abolished" instead of "well, why not? We need to prevent these abortions." So in the Virginia Governor's race Kaine was able to reframe the perspective on legislating religion so that most voters were finally capable of understanding the necessity of that viewpoint.

DeLay Trial Nonsense

I initially dismissed Delay's motions to remove the judge in his case because the judge happened to be a Democrat as DeLay bringing politics into the Courtroom to try to bully the legal system like he bullies legislators. Ronnie Earle, the prosecutor in the case proceeded to ask that the new judge be removed for being a Republican, it seemed as though this would go on forever until they found a judge who was seemingly unconnected with all parties. The initial assessment of the situation still holds true. But I now realize the issue runs deeper than that. At the heart of this political posturing and manipulation of the legal system is a broken legal system in Texas, you see, it turns out Texas elects judges by partison ballot.

The complaints against the Texas judicial system have a long history. In 1987, "60 Minutes," in a program called "Justice for Sale," showed Texas Supreme Court justices taking hundreds of thousands of dollars in campaign donations from lawyers appearing before them. Eleven years later, "60 Minutes" found that little had changed.

In 1998, Texas for Public Justice issued its own report, finding that the seven Texas Supreme Court justices elected since 1994 had raised $9.2 million, of which 40 percent came from interests with cases before the court. A survey taken for the court itself, the group said, found that nearly half of the judges themselves thought that campaign contributions significantly affected their decisions.

Good God! The judges are completely bought and payed for! Doesn't look like a recipe for fair and impartial justice to me. But doesn't nonpartison election of judges have huge problems too? Personally, I don't have a clue what I'm voting for when I vote for a judge. These are clandestine campaigns where the only way to know how a judge thinks is to talk to a friend who has seen that judge in Court or to know someone who is personally friends with the person. So the choice is, either be totally clueless about what a judge stands for, or allow your judges to be completely bought and payed for by whoever happens to be the highest bidder.

It seems to me as though popular election of judges, as nice as it sounds, is nothing more than another broken system that resulted in the populist revolution that moved the Country from not being Democratic enough, to being too Democratic. While this movement lead to great things like popular election of Senators, it also went over the top in other areas such as voter initiative, recall, and popular election of judges. Voters need to accept that who they elect to legislatures will have a huge effect on what types of people serve on the bench, this needs to be an issue to voters who then should put the power of confirming judges in the hands of their representatives, who actually know something about these people.

Krugman on Health Care

Curse the New York Times for their subscription wall on the web, without it I would provide a link. Paul Krugman today provides us a new installment in his excellent series of articles advocating universal health care coverage.

Let's start with the fact that America's health care system spends more, for worse results, than any other advanced country.

In 2002 the United States spent $5,267 per person on health care. Canada spent $2,931; Germany spent only $2,160. Yet the United States has lower life expectancy and higher infant mortality than any of these countries.

But don't people in other countries sometimes find it hard to get medical treatment? Yes, sometimes- but so do Americans. No, Virginia, many Americans can't count on ready access to high-quality medical care.

The journal Health Affairs recently published the results of a survey of the medical experience of "sicker adults" in six countries, including Canada, Britain, Germany, and the United States. The responses don't support claims about superior service from the U.S. system. It's true that Americans generally have shorter waits for elective surgery than Canadians or Britons, although German waits are even shorter. But Americans do worse by some other important measures: we find it harder than citizens of other advanced countries to see a doctor when we need one, and our system is more, not less, rife with medical errors.

Above all, Americans are far more likely than others to forgo treatment because they can't afford it. Forty percent of the Americans surveyed failed to fill a prescription because of cost. A third were deterred by cost from seeing a doctor when sick or from getting recommended tests of follow-up.

...

Taiwan, which moved 10 years ago from a U.S.-style system to a Canadian-style single payer system, offers advantages of universal coverage. In 1995 less than 60 percent of Taiwan's residents had health insurance; by 2001 the number was 97 percent. Yet according to a careful study published in Health Affairs two years ago, this huge expansion in coverage came virtually free: it led to little if any increase in overall health care spending beyond normal growth due to rising population and incomes.

Emphasis mine. Not only would universal coverage by good for the general public at large, but it would be good for business as well. Businesses would no longer feel any obligation to provide health care to their employees if everyone had health care guaranteed as a United States citizen. This would mean that employers would be able to pay more to their employees in wages and other benefits while actually spending less. This is a good deal for everyone except the insurance industry, but unfortunately it is the insurance industry who seems to have a death grip on Congress.

Robbing the Poor to Give to the Rich

After several rounds of tax cuts for the wealthy, and an energy bill that is nothing more than a subsidy for big oil and gas companies among other things. The Senate has decided enough is enough, we can't continue to look out for those of us with the least. We must cut MediCare, MedicAid, student loans, and farm subsidies. That will show them! We'll punish them for being poor! The Republican majority in Congress is like the big kid on the playground who picks out the smallest 2nd grader and steals his lunch money so that he can get more candy bars.

Good Ol' Bill

Bill O'Reilly's historical revisionism strikes again. Media Matters has the scoop.

From the November 1 broadcast of Westwood One's The Radio Factor with Bill O'Reilly:

O'REILLY: By the way, if Alito is confirmed, that will be a good thing for conservatives. That's the bottom line. Because Alito will take a more traditional view than a [Supreme Court justices Stephen G.] Breyer or a [Ruth Bader] Ginsburg. OK? He'll look at things, and he'll say, "You know, the Founding Fathers didn't want partial-birth abortion. The Founding Fathers didn't want all mention of Christmas stricken from the public arena." That's what Alito will do. He's a traditionalist He's going to rule that way.

According to HistoryChannel.com, celebration of Christmas in America prior to the Revolution depended largely on where one lived. In Jamestown, Virginia, one could celebrate the holiday freely. In Boston, celebration of Christmas incurred a fine of five shillings. Following the Revolution, Christmas was eschewed as "English customs fell out of favor." HistoryChannel.com noted that "Congress was in session on December 25, 1789, the first Christmas under America's new Constitution." The holiday remained unpopular for years, and Christmas was not declared a federal holiday until June 26, 1870.

That being said, I actually don't know that this particular ruling by Alito upholding a creche because frosty the snowman and a couple of other secular figures were also on public display is particularly off the mark. My understanding of the case would lead me to say that the town may not have diversified the display enough, but the rationale behind the decision here is valid even if a bit too narrow. Mostly I just enjoy Mr. O'Reilly's outrageous revisions of history. He outlines Ginsberg and Breyer, but certainly in Breyer's case (as evidenced by the recent 10 commandments cases in Texas and Kentucky) his position would only be a matter of degree from Alito's, as Breyer drew the line at precisely the point I draw the line. While I'm at it I may as well point out to Mr. O'Reilly that there is no way the founders could have conceived of abortion in its modern form in any way. This "founders intent" argument is lunacy, you want to argue founders intent? All right, let's argue founders intent.

It was clearly the founders intent that the Constitution would not be some imobile document set in stone, they provided for an amendment process for the changing of the document itself, as well as inserting an odd, little used amendment into the bill of rights. I refer here to the 9th amendment, stating essentially that the people have rights not specifically outlined in the Constitution. The 9th is so vague as to provide no clues as to what should be considered a valid unenumerated right, but it nonetheless proves that the founders actually felt that new situations reaching beyond the scope of their document would arise, and that they put the 9th into the bill of rights in order to ensure that some idiot doesn't come along and say that the only rights that exist are those specifically listed in the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th amendments.

DailyKos Diary

I posted a DailyKos diary today, I normally cross post them, but this one would be redundant here, it's the same argument I've made when you combine 2 or 3 of my recent posts on Alito. But by all means check it out.

Bush: Still Falling

Just when you think it can't get any lower, it does. CBS News poll finds that Bush approval rating is now at a stunning 35%, perhaps its time I lower my view of what his base sits on. Perhaps its closer to 30%.

Gallup Says Americans Want Alito Rejected if he would Vote to Overturn Roe

Gallup has some interesting results about Alito (I would say "Scalito" but apparently that would make me anti-Italian somehow).

* About the same number of Americans rate Alito's selection either excellent or good (43%) as rate it fair or poor (39%). Miers received a similar rating, but Roberts' rating was somewhat more positive: 51% excellent or good, 34% fair or poor.

* More people feel positive rather than negative about Alito personally -- 44% to 19%, respectively -- with another third offering no rating. Again, Miers' rating was similar, but a majority, 54%, gave Roberts a favorable personal rating.

* About half of those interviewed Tuesday night believe Alito's views are mainstream, while a quarter think his views are too extreme, and another quarter have no opinion.

* It doesn't bother most Americans (75%) that Alito is a man nominated to replace the first woman ever appointed to the Supreme Court. About the same percentage were not bothered when Roberts was first nominated to replace O'Connor (after Chief Justice William Rehnquist died, President Bush nominated Roberts to become chief justice).

* The public is evenly divided as to whether Alito probably would or would not vote to overturn Roe v. Wade. Thirty-eight percent believe he would, and an equal percentage think he would not, with the rest offering no opinion.

* If it becomes clear Alito would vote to reverse Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%.

* If most Senate Democrats oppose the nomination and decide to filibuster against Alito, 50% of Americans believe they would be justified, while 40% say they would not.

* If the Republicans then decide to eliminate the filibuster on judicial nominations, to ensure an "up-or-down vote" on the nomination, Americans would be evenly divided as to whether that tactic was justified -- 45% say it would be, 47% say it would not.

Interesting results, the trick here I think is giving Americans something very coherent and easy to grasp about Alito. My perception is that no matter who a nominee is, the public gives them the benefit of the doubt, and if Democrats continue to do what they have begun doing in the last few days, repeating "he's out of the mainstream" or "he's too extreme" there will be no upsurge in public opposition to Alito. What must be done is that something simple and coherent must be established firmly and repeated over and over again. This poll indicates that if we can use opposition to Roe to do that, we can win on that. However, there are other arguments that may prove far more convincing and should create an even greater public support of Democrats blocking him. I am, of course referring to the idea that Alito consistantly comes down in opposition to equality. That I believe is the ticket to defeating this nomination. If we can establish a firm coherent reason be it opposition to Roe or hostility to equality, or anything else that may stick to demonstrate why the public should oppose the Alito nomination we will have a chance to win the filibuster battle that is bound to occur over this nomination.

Reid's Closed Door Session

Harry Reid today forced the Senate into closed session evicting nearly everyone not a Senator, including most staffers, closing the doors, and turning off the TV cameras. The reason? To force the Senate to move the intelligence committee into phase 2 of the investigation of intelligence failures of the Iraq war. Phase 2 being an inquiry into how the Administration used or misused the intelligence that it had. The tactic worked, forcing the creation of a bipartison panel to oversee the actions of the intelligence committee. The panel will consist of three Democrats and three Republicans. Not only did this force the Republican majority to listen to the minority Party, but it sent a warning shot accross the bow of the Senate Republican Caucus that Democrats are willing to no longer abide by the gentlemen's agreement that these tactics will not be used if the minority Party is not listened to. If Republicans succeed with the nuclear option, this is what we can expect from Democrats all the way up to the midterm elections. They will refuse to allow bills to be assigned by committee through unamimous consent and will force the full Senate to consider every single bill. This will demonstrate a lesson in the strongest possible way to Republicans that they must listen to the minority party, and if they don't the minority will force them to listen. Mr. Frist, we're now playing hardball, and the fate of the Senate is in your hands, you can restore the traditions of oversight and bipartison cooperation or you can watch business slow to a near standstill, it's up to you, but I would recommend you start caring a little bit about the opinion of the minority party.

Fighting Alito

Think Progress has a fantastic summary of Alito's previous opinions and what they tell us about his vision of America.

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]

Not a pretty picture at all. LiberalOasis has found the correct frame however. Every Democratic comment about Alito should derive from this one essential point, this one central value. Equality, Alito is hostile to the value of equality.

The opinion that people will focus on the most was his desire
to uphold a spousal notification provision in a PA abortion law that
severely restricted reproductive freedom.

Most will look at his opinion to indicate opposition to Roe, and they should.

But fundamentally, it was an opinion that was dismissive of women's independence.

...

He tried to make it easier for employers accused of sex discrimination to get the cases thrown out, saying that cases don't automatically deserve to go to trial when employers make excuses for discrimination and plaintiffs cast doubt on them.

...

The majority said
Alito's "position would immunize an employer ... if the employer's
belief that it had selected the 'best' candidate, was the result of
conscious racial bias."

He sought to deny our democratically elected Congress the authority to have the Family Medical Leave Act apply to state government employees, arguing that there was no discrimination in employers' sick leave policies.

(That's a view that was overruled by the Supreme Court in an opinion written by Rehnquist. Yes, he's to the Right of Rehnquist.)

Perhaps what's most disturbing is his view that girls sexually abused at school by other students cannot take legal action against the school for failing to protect them.

For Sandra Day O'Connor to be replaced by a man who has been defined as "an activist conservatist judge [who] has looked to be creative in his conservatism" will be a huge step backwards.

For the sake of the American ideal of equal protection under the law, bring out the filibuster.

Don't make this complicated Democrats, come out swinging and constantly be repeating "Samuel Alito is hostile to equality".

Alito

I was really hoping the rumors were wrong, but it's Alito. Jonathan Turley of Georgetown Law School tells Katie Couric:

There will be no one to the right of Sam Alito on this Court

Rumor Mill: Alito or Luttig

Word on the street is that Bush is about to nominate either Alito or Luttig to replace O'Connor in a move that would dramatically shift the Court to the right.

President Bush will announce another Supreme Court nominee within days, and he appears to have narrowed the field to conservative federal appeals court judges Samuel A. Alito Jr. and J. Michael Luttig, sources close to the selection process said late Saturday.

The sources, who spoke on condition of anonymity because of the sensitive nature of the discussions, said several other conservative jurists remained on the president's short list, but that Alito and Luttig had moved to the head of the line. One source said Alito was the top contender and Luttig a close second.

Bush and his aides were huddling this weekend at the Camp David presidential retreat to make a final decision. An announcement was expected as soon as today, although one source said Monday appeared more likely.

White House spokeswoman Maria Tamburri declined to comment on the status of the selection process. "I can't confirm anything," she said. "No announcement has been made."

Although the sources said Alito and Luttig were the clear favorites, Bush has surprised some of his closest allies in the past by allowing word to circulate that he was about to nominate one person, then choosing someone else instead.

I've already talked a lot about Luttig here, so I'll talk a little about Alito before moving on. Alito was involved in a signifigant way in the 1992 case of Planned Parenthood v. Casey, in which he voted in the minority on the lower Court before it reached the SCOTUS.

Judge Alito is a favorite of conservatives and a likely target of liberal attacks because, among other things, he wrote a dissenting opinion to the appeals court decision of Planned Parenthood of Pennsylvania v. Casey, an abortion case. He argued that the state could require married women to notify their husbands before obtaining an abortion, and his dissenting opinion was cited by former Chief Justice William H. Rehnquist in his own dissent when the case reached the Supreme Court.

Whoa, women need their husband's permission to get an abortion? They aren't their own legal guardians? What about unmarried women? Do they have no right to an abortion? This is one of the screwiest ideas I've ever heard, far screwier than the opinion that there is no right to abortion as much as I disagree with that position. They must get their husband's permission!? Is Alito still living in 1900? Because I know most of us have moved on from then.

Moving on now, President Bush is incredibly sexist. Apparently there is not a single conservative woman in the entire country who is more qualified to be a Supreme Court nominee than Harriet Miers. I find that hard to believe.

One lawyer close to the president said that when Mr. Bush chose Ms. Miers he did so after concluding there was not a long roster of female candidates with whom he felt comfortable.

"When he chose her," said the lawyer, "she was one of three finalists and the other two were men."

Ok, let's argue this from President Bush's perspective, since I hate everyone I'm about to mention. Is he seriously arguing that Edith Brown Clement, Edith Jones, or Priscilla Owen among the hoardes of other candidates would not be more qualified for the highest Court in the land than Miss Crony Harriet Miers? Men are just inherently superior jurists to women? Surely there is a well qualified conservative woman out there that Bush could nominate. The choice should not be between an unqualified woman and a qualified man, but a qualified woman and a qualified man. A standard that I'm sure if Mr. Bush looks even a little he can find. I hope he's just covering his ass with that comment, or else it says some very disturbing things about his own process for determining nominees.

Libby Indictment in Perspective

While this has been played as a point of relief for the WH that Rove was not indicted, it is important to look to the indictment itself, to put this into a little bit of perspective. It is obvious from the indictment that Fitzgerald knows who the leaker/leakers are. They are Libby and Official A (probably Rove). What Fitzgerald lacks is the evidence to implicate Libby in the violation of any law in having leaked that information. That does not exonerate the administration or anyone in it of the crime against the American people that has been committed here. Leaking a covert CIA operative's name to the press as an act of political retribution against her husband in an effort to stifle dissent against the war. The Administration knew the Niger information was wrong, and yet insisted on doing everything they could to prevent the public from knowing that. In the process they threatened United States national security interests, the lives of anyone Plame has made contact with in past missions, and rendered obsolete any information she has acquired and made it impossible to gain further information from any of her sources. While Fitzgerald was unable at this time to pin a legal charge directly regarding the leak on anyone, he has put forth very relevent public information that we know who the leakers are, and that it was a purposeful act of political retribution. This is not about legalisms, this is quite simply about the war in Iraq. From the Indictment:

21. On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White House (“Official A”) who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson’s wife was discussed as a CIA employee involved in Wilson’s trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson’s wife.
...
24. On or about July 12, 2003, in the late afternoon, LIBBY spoke by telephone with Judith Miller of the New York Times and discussed Wilson’s wife, and that she worked at the CIA.

Much of the media has been spinning this as a major victory for the Bush Administration that Rove was not indicted. Many conservatives are claiming that this charge against Libby is merely a "technicality". To take either of those views is an amoral position that ignores the essential ideas of what is right and what is wrong for the WH to do. They are doing nothing but spinning, Fitzgerald has found the leakers, and that leak is a crime against the American public, whether it violates any law or not.

Libby on 5 Counts

Talking Points Memo is reporting that Libby has been indicted on 5 counts.

1 count of obstruction of Justice
2 counts of perjury
2 counts of false statement.

I guess we'll see at 11:00 if this is right, and if there's anything else.

Miers withdraws

Harriet Miers has withdrawn her nomination to the Supreme Court. I now have a major problem, I have no one obvious to make fun of. And the hillarious Harriet Miers blog will have to be taken down.

Harriet Miers withdrew this morning as a nominee for the U.S. Supreme Court.

In announcing the decision, Miers and President Bush cited their concern with the requests from members of the Senate Judiciary Committee for documents dealing with her work as White House counsel, papers that the administration has chosen to withhold as privileged.

Nope, can't have that, we can't actually tell the public what we do when we govern them. Good heavens no! So, I stand by my original prediction. Edith Jones nominated to the high Court, which will be greated with a filibuster showdown.

Finally I Can Blog Again!

Whew, instead of having to study for 2 tests and write a paper I now just have to study for 1 test. So, I can make a much needed entry here.

Steve Clemens of The Washington Note reports that there are 1-5 indictments coming in tomorrow of top WH staff.

An uber-insider source has just reported the following to TWN (since confirmed by another independent source):

1. 1-5 indictments are being issued. The source feels that it will be towards the higher end.

2. The targets of indictment have already received their letters.

3. The indictments will be sealed indictments and "filed" tomorrow.

4. A press conference is being scheduled for Thursday.

The shoe is dropping.

More soon.

-- Steve Clemons

I hope the source knows what he's talking about here. Call me a dreamer, but I'm thinking Rove, Libby, and Cheney.

Yeah, Harriet's a Liar...

...not that there was ever any doubt. There was simply no way that she had never indicated a position towards Roe to anyone, it was rediculous for Thomas to say, and it was equally rediculous for Miers to say.

Anyway, moving on, I think that it is not just total lunatics like Sam Brownback who are opposing Miers from the right. I am increasingly convinced that Specter really dislikes Harriet Miers, and is very angry at the White House over this nomination.

Judiciary Committee Chairman Arlen Specter, R-Pennsylvania, and senior Democrat Patrick Leahy of Vermont agreed Wednesday to begin Miers' hearings on Nov. 7, but also jointly sent a letter to the White House counsel asking her to more fully answer a questionnaire she turned in Tuesday.
...
Specter and Leahy said both Republicans and Democrats on the committee felt she did not tell them enough.

"The comments I have heard range from incomplete to insulting," Leahy said.

"Senator Leahy and I took a look at it and agreed that it was insufficient," Specter said.
...
The two committee leaders want the answers from Miers before Wednesday, Oct. 26, another bump in the road for the 60-year-old White House counsel. "I think it's been a chaotic process, very candidly," Specter said.

Further, I stated before that the most important question about this nomination will be its effect on how the Court handles Presidential Power issues, and questioned whether Bush's choice of Miers comes down to just that. I continue to believe that Harriet Miers on the Court would be a direct threat to judicial independence. Sens Specter and Leahy appear to share this exact same concern, asking on the questionaire precisely what I said should be asked of her (are Specter and Leahy reading my blog?).

Specter and Leahy also want her to explain specifically how she would handle cases dealing with the Bush administration, where she now serves in the important legal post of White House counsel. In her questionnaire response, Miers said she would comply with the "spirit and letter of the law ... the Code of Conduct for United States Judges and other applicable requirements."

Specter and Leahy responded: "We are aware of the statutes and codes that generally govern these matters, but recusal decisions of Supreme Court justices are more complicated because they are not subject to further review. The committee would like you to address the issues specific to your situation."

On that note, I stop, and apologize for my inability to address the most important issue of the day, Fitzmas. Unfortunately, as a college student running my blog solo it is very difficult to keep up with these things, and while I would love to join the fray of people beating up on Rove and Libby lately, I simply have neither the time nor manpower to do so on this blog (and Camus is useless, can't even remember his username to post).

Colbert Report Opener

Watched the opening segment of The Colbert Report on Comedy Central tonight. He is blatantly making fun of Fox News, and more specifically Bill O'Reilly. Most clearly when he called out the deceased James Brady to come onto his show. The jabs at Fox News were littered throughout the show. In particular I loved the talk of "elitists".

This is odd

Pew Research Center asks the public's opinion on Republican leaders in Congress and Democratic Leaders in Congress. The crazy thing is, they have nearly identical numbers. Lets review why this is odd.

Republicans
House Majority Leader: Indicted for violation of campaign finance laws (I know, DeLay's technically not the Majority Leader anymore, but come on, we all know where the power lies)
Senate Majority Leader: Under investigation for insider trading.
Other Things to Note: One House member sold his house to a contributor for way below market value, the contributor proceeded to sell it for way over market value.
Many members of the caucus have been linked to Abramoff and his illegal tactics.

Democrats
In Both Houses: Have been a horribly innefective opposition Party and are totally without any power.

Is the public unable to distinguish between the level of the Democrat's crime (being typical Democrats) and the Republican's crimes of corruption? Or do they lump all scandals into one big pile and say "they're all corrupt"? This poll doesn't bode well for the midterm elections, but if Democrats are able to exploit Republican scandals against their own opposition, the public's inability to distinguish may not matter.

Justice Thomas and Harriet Miers

Harriet Miers sounds like Justice Thomas when she says she's never talked to anyone about Roe v. Wade. The claim of never having discussed the case was absurd coming from Clarence Thomas, and is absurd coming from Harriet Miers. How exactly does one go through their life a lawyer or a judge without ever talking about what is arguably the most signifigant case of the last 30 years? If its true that Miers has never discussed Roe with anyone she should be rejected for never having thought about and discussed important cases, if its not true than she should be rejected for being a lier.

Emerging from a closed-door meeting with Miers, Sen. Charles Schumer (news, bio, voting record) of New York told reporters that Miers told him she had not shared her views on the court's landmark 1973
Roe v. Wade decision that legalized abortion.

"She said, 'Nobody knows my views on Roe v. Wade," Schumer said. "She said, 'No one can speak for me on Roe v. Wade."

The Wall Street Journal says she's lying by the way.

Ah Harriet

Tom Toles appears to agree with my "tool for the Bush Administration" thesis.

Regarding Hamdan

The American Prospect online has a good artical about the Hamdan case.

The Hamdan case could not be more important, as it poses fundamental questions along three constitutional fronts: the division of power between the president and Congress; the rights of individuals to have their liberties protected by the courts; and the relationship between international human rights norms such as the Geneva Convention and United States domestic law.

Hamdan, who the government claims was Osama bin Laden’s personal driver and bodyguard, lost on all of these questions before the appeals court, but his arguments remain strong and directly relevant to the most pressing issues of national security and human rights.

...

The appeals court also rested its decision on an alternative theory that the 1949 Geneva Convention is not directly enforceable in U.S. courts. That aspect of the ruling, together with its acceptance of presidential “findings” that the Geneva Conventions do not apply to whole categories of detainees, prompted a friend-of-the-court brief from six retired Generals and Admirals, urging the Supreme Court to accept review. The brief states bluntly that “denying Geneva Convention protections to individuals seized in armed conflicts endangers American soldiers” in current and future armed conflicts.

So why does the Supreme Court keep forestalling a decision on whether to hear the Hamdan case? One disturbing possibility is that the justices have already voted to deny review, and are just giving one or more of their colleagues an opportunity to complete work on a dissent from that decision.

Or perhaps they are trying to figure out a way to resolve the underlying issues with a close to full bench. Chief Justice Roberts will likely recuse himself given his involvement in the case at the appeals court, and while Justice O’Connor can vote on petitions for review, by the time the decision comes down, she will likely have been replaced. It is not clear that the Senate will have confirmed her successor (whether it is Harriet Miers or someone else) in time for the new justice to participate.

Whatever the source of the delay, it would be a great shame for the court to deny review. In their public statements over the last five years, the justices in the majority in Bush v. Gore have dismissed the criticism that they unnecessarily reached out to decide that case. Given the stakes, they say, they could not leave the matter to a state court.

A monumentally bad Roberts decision that the Supreme Court must hear and overturn. Further I feel it is important for me to say the following, "Justice Roberts, your jurisprudence is wacky."

President Bush Applies Religion Test to SCOTUS

A nice catch by diarist Pounder over at DailyKos, pointing out Article VI, Section 3 of the Constitution, but first, why Bush says he chose Miers:

President Bush sought again today to reassure conservatives about his Supreme Court nominee, Harriet E. Miers, and he said that Ms. Miers's religion was pertinent to the overall discussion about her.

"People are interested to know why I picked Harriet Miers," Mr. Bush said. "They want to know Harriet Miers's background. They want to know as much as they possibly can before they form opinions.

"Part of Harriet Miers's life is her religion," Mr. Bush went on, in remarks that may be revived during Ms. Miers's confirmation hearings before the Senate Judiciary Committee several weeks from now. "Part of it has to do with the fact that she was a pioneer woman and a trailblazer in the law in Texas."

The president went on to say, in a brief question-answer session with reporters at the White House, that Ms. Miers was "eminently qualified" to sit on the court, and that she would be a justice who "will not legislate from the bench but strictly interpret the Constitution."

Mr. Bush's allusion to Ms. Miers came shortly after the conservative James Dobson, founder of Focus on the Family, was quoted as saying on a radio program that he had discussed the nominee's religious views with the president's chief political adviser, Karl Rove.

Mr. Dobson said he talked to Mr. Rove on Oct. 1, two days before Mr. Bush announced his choice, and had been told that "Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she has taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."

Mr. Dobson went on to say that he and Mr. Rove had not discussed cases that might come before the court and that "we did not discuss Roe v. Wade in any context." The Supreme Court's 1973 decision in Roe v. Wade established a woman's right to have an abortion.

So there is a religious test in this White House where you must be a Christian to be nominated to the Supreme Court by this President? How interesting, let's now take a look at Article VI Section 3 of the United States Constitution.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Blatant flaunting of the Constitution here? Or are they just oblivious? I'm guessing the latter, which may be even scarier than the former.

See? I'm Not the Only One...

Who thinks Harriet Miers looks/looked like Darth Sidious. From Wonkette:

Harriet has a new look, and it doesn't remind anyone of a Star Wars villan.

TPM On the Bankruptcy Law

The Justice Department has decided not to enforce provisions of the bankruptcy bill, great analysis at Talking Points Memo.

Representative Sensenbrenner may have been feeling some political heat over his flat-out refusal to consider any changes, especially after leading Republicans said that perhaps some changes would be in order. He needed some good press for the bankruptcy bill, something showing how "flexible" it is. In response to his letter, the Justice Department quickly proclaimed itself a vegetarian shark--at least where some Hurricane Katrina victims are concerned. Good move, except that the Justice Department didn't cover all the bad parts of the law nor did the Justice Department bind anyone but themselves.

Is this just a big public relations game designed to reduce the pressure to amend the bankruptcy laws to give people real relief? Heaven forbid that Chairman Sensenbrenner be forced to admit that the bankruptcy laws written by the credit card industry are a bit harsh for people who are in trouble through no fault of their own.

Defending Family Values

The Christian Coalition of Oregon defends good old fashion family values like child molestation.

NEW YORK After news broke that local law enforcement officials were investigating complaints that Louis Beres, longtime chairman of the Christian Coalition of Oregon, had molested three female family members when they were pre-teens, The Oregonian in Portland went out and interviewed Beres' family members.

Two told reporters that Beres, indeed, had molested them. All three said they have been interviewed for several hours by detectives.

"I was molested," said one of the women, now in her early 50s. "I was victimized, and I've suffered all my life for it. I'm still afraid to be in the same room with [Beres]."

The coalition led by Beres, 70, champions socially conservative candidates and causes. Its Web site describes the group as "Oregon's leading grassroots organization defending our Godly heritage." The group opposes abortion, gay rights, and stem cell research. It is affiliated with the national Christian Coalition, which was founded in 1989 by television evangelist Pat Robertson.

UPDATE: 11:11
They don't pay their bills either.

Miers is in Deep Trouble

The Miers confirmation seems under threat from more than just the right wing of the Republican Party, as I said before in this space, the cronyism that lies behind this choice is very disturbing, and that cronyism could pose a great threat to judicial indipendence. As Luckovich puts it so excellently:



But on a more serious note, the problem with this nomination seem to grow every minute. Bush's only problem is not just criticism from Senators like Roberts and Allen who think she's not conservative enough, but now Arlen Specter says she doesn't understand the Constitution.

Senator Arlen Specter, the chairman of the Senate Judiciary Committee, who presides over confirmation hearings, offered a blunt assessment that was yet another sign that the nominee faced an uphill battle on Capitol Hill. Though Mr. Specter called Ms. Miers "intellectually able," he said she had a "fair-sized job to do" to become fluent in the language of constitutional law, which will be essential for senators who want to examine her judicial philosophy in deciding whether to confirm her.

"She needs more than murder boards," Mr. Specter, Republican of Pennsylvania, said in an interview, referring to the mock question-and-answer sessions most nominees use to prepare for their confirmation hearings. "She needs a crash course in constitutional law."

So, Mr. Specter essentially come out and says that Bush nominated someone who doesn't know enough about the Constitution to be a Supreme Court Justice. If the President knows what's best for him he'll withdraw her nomination and he'll look weak, but not as weak as if the Senate were to reject Miers.

I have mixed emotions about the nomination. Miers is a crony, Specter doesn't think she knows the Constitution, and she threatens the indipendence of the federal judiciary. However, Bush is likely to draw a clear lesson from a rejection here, that he needs to nominate someone more like Rehnquist, Scalia, or Thomas. He'll draw the lesson that he cannot nominate someone who might be percieved (rightly or wrongly) as a moderate. So, what would I prefer to see on the Court? Someone who will is likely to increase executive power, is not sufficiently indipendent from the President, and seems to not know anything about the Constitution? Or someone who is indipendent, knows the Constitution, and rejects every Constitutional principle I beleive in? It is a definate pickle, and I am not sure how this should come out, nor am I convinced of any action that Democrats should take. She may be the lesser of two evils, but is there any real justification to vote for someone who is unqualified for the job?

On the Plame Affair

Hunter at DailyKos has an excellent post about the most recent events in the Valerie Plame investigation.

McCain Amendment Passes Senate

The McCain Amendment to the Defense Authorization Bill to impose restrictions on the treatment of prisoners by US troops has overwhelmingly passed the Senate in a 90-9 vote. The President has threatened to veto the bill if the amendment was added to it.

The White House has said Bush advisers would recommend the president veto the entire bill over the legislation. But a veto is considered highly unlikely given that Bush has never used that power.

He won't veto the bill, and it will present the incredible weakness of this Administration right now. Even if it were vetoed I would wager that we see a Congressional Override making him look still weaker. Add his early struggles on the Miers confirmation and this Administration looks incapable of accomplishing much of anything right now, they're just lucky to have a 10 vote margin in the Senate. So, now it is time to ask the question. Who are the pro torture Senators? Looks like:

Allard (CO)
Stevens (AK)
Bond (MO)
Coburn (OK)
Cochrane (MS)
Cornyn (TX)
Inhoffe (OK)
Roberts (KS)
Sessions (AL)

A Puzzling Choice

Why did the President choose someone who seems horribly under qualified and has really bothered his base supporters to be on the Supreme Court. Ken Mehlman may have the answer.

Ken Mehlman, chairman of the Republican National Committee, yesterday held a conference call with conservative leaders to address their concerns about Miers. He stressed Bush's close relationship with Miers and the need to confirm a justice who will not interfere with the administration's management of the war on terrorism, according to a person who attended the teleconference.

National Journal outlines this week's RNC Talking Points.

Working With Her Staff Of 13 Lawyers, And In Cooperation With The Justice Department, Miers' Office Provides Guidance On Issues From The Legal Parameters For The War On Terrorism To Presidential Speeches.

It doesn't matter what the hearings reveal about her judicial philosophy, it seems to me as though her nomination is an affront to judicial independence. Hugh Hewitt predicts that if Bush gets a 3rd SCOTUS nomination it will be Alberto Gonzalez. Bush is not trying to pack the Court with right wing ideologues who will overturn Roe and the New Deal, though I'm sure he considers them to be a nice bonus. Bush wants a Court that will allow him to exercise previously unheard of power as the executive. Even looking down the list, who seems to be at the top of the list for who Bush has been considering outside of the White House? Seems to be Michael Luttig who recently ruled that an American citizen has no due process rights if he's detained as a "enemy combatant." I think Bush saw that the Rehnquist Court would not allow him to exercise the kinds of authority he wants texerciseze, thus his choices for the Supreme Court have been very short sighted. It's all about Presidential Power people.

I have one question for Ms. Miers, if nothing else is asked of her in the judiciary committee I want an answer to this one. "Ms. Miers, when a case involving the Bush Administration comes before the Court will you recuse yourself?"

Cross posted @ Kos

This is Getting Interesting

Lol, this is hilarious, I hope they do this. It would be simply lovely.

Just spoke with a staffer for a conservative member of the Judiciary Committee whose boss is extremely unhappy about the nomination of Harriet Miers.

"We heard her name. We made it clear that she was unacceptable as a nominee on the basis of qualifications and her views, which we simply don't know anything about," says the staffer. "We worked with her on policy issues, though, before she was elevated to White House counsel and let's just say we were underwhelmed."

There is now talk of among some conservatives about a filibuster of the Miers nomination. Never mind the Al Gore donations or the money that was floated to the DNC when Miers was a managing partner in a law firm, those can be explained away as "good for the business of the firm."

Unfortunately, given the level of support Miers appears to be generating among Democrats, such a move appears impossible, though admirable.

An explanation

Atrios has a good explanation for why the right wingnuts are so angry about the Miers nomination.

Wingnuttia is rather angry at the choice. I don't think this is because they're really concerned that she's not conservative enough for their tastes, although that's part of it. They're angry because this was supposed to be their nomination. This is was their moment. They didn't just want a stealth victory, they wanted parades and fireworks. They wanted Bush to find the wingnuttiest wingnut on the planet, fully clothed and accessorized in all the latest wingnut fashions, not just to give them their desired Court rulings, but also to publicly validate their influence and power. They didn't just want substantive results, what they wanted even more were symbolic ones. They wanted Bush to extend a giant middle finger to everyone to the left of John Ashcroft. They wanted to watch Democrats howl and scream and then ultimately lose a nasty confirmation battle. They wanted this to be their "WE RUN THE COUNTRY AND THERE'S NOTHING YOU CAN DO ABOUT IT" moment.

Whatever kind of judge she would be, she doesn't provide them with that.

lol, it's Sidious

Bush nominates Harriet Miers to the Supreme Court. When I posted my last entry I had no idea whatsoever that Bush would nominate her, so my apologies, but she does kind of look like Darth Sidious. So, a bit of cronyism here, but such a limited nonexistant record here that there may be no predicting what kind of a Justice she will be. The nomination seems to be tearing apart the Republican base see here and here. Nice to see the Republican base split themselves apart for once. Meanwhile, praise from Harry Reid.

“I like Harriet Miers. As White House Counsel, she has worked with me in a courteous and professional manner. I am also impressed with the fact that she was a trailblazer for women as managing partner of a major Dallas law firm and as the first woman president of the Texas Bar Association. “In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court. “I look forward to the Judiciary Committee process which will help the American people learn more about Harriet Miers, and help the Senate determine whether she deserves a lifetime seat on the Supreme Court.”

Even this early, this one is looking very interesting, should be fun to watch it play out. So interesting in fact, that SCOTUSBlog predicts that she will be rejected by the Senate.

the President's nomination creates a very interesting political dynamic - one that places the nomination in peril. The nomination obviously will be vigorously supported by groups created for the purpose of pressing the President's nominees, and vigorously opposed by groups on the other side. But within the conservative wing of the Republican party, there is thus far (very early in the process) only great disappointment, not enthusiasm. They would prefer Miers to be rejected in the hope - misguided, I think - that the President would then nominate, for example, Janice Rogers Brown. Moderate Republicans have no substantial incentive to support Miers, and the President seems to have somewhat less capital to invest here. On the Democratic side, there will be inevitable - perhaps knee-jerk - opposition. Nor does Miers have a built in "fan base" of people in Washington, in contrast to the people (Democratic and Republican) who knew and respected John Roberts. Even if Democrats aren't truly gravely concerned, they will see this as an opportunity to damage the President. The themes of the opposition will be cronyism and inexperience. Democratic questioning at the hearings will be an onslaught of questions about federal constitutional law that Miers in all likelihood won't want to, or won't be able to (because her jobs haven't called on her to study the issues), answer. I have no view on whether she should be confirmed (it's simply too early to say), but will go out on a limb and predict that she will be rejected by the Senate.