Wednesday, July 27, 2005

Courting John Roberts

I have hitherto been silent on the matter of John Roberts, mostly a function of having been STUPID busy, but also because I wanted to be fully informed before taking a position. I have read several of his opinions. Read countless articles about him, and read the opinions of several attorneys who have practiced in front of him.

The more I learn about John Roberts, the less worried I become.

While much has been made of the positions he advocated while in practice, I tend not to consider that too much. When you're an attorney, you advocate the client's position, not your own. It just happened that his client was the President of the United States, and his client took some neanderthal positions. I should hope that if I am ever deemed fit to take the robe, the Senate doesn't run all my transcripts ("Well, you see, Judge... he didn't know that the crack was in his pocket... ummm, no I haven't figured that part out yet...").

I've read a few of his opinions, and yes, they tend to fall on the conservative side of the line. He doesn't appear to be a flaming ideolouge, and for what it's worth, I agreed with a good bit of his reasoning. I don't see him finding new rights, but I don't see him undoing much of the last 50 year's worth of civil liberties either. I think privacy is safe, although he might not expand it much. Roe will probably also survive, if limited somewhat (I don't think that these partial birth laws will get overturned, but then again that may not be so bad- politically, the costs of defending partial birth abortion might outweigh the benefits).

Roberts is such an enigma and so apparently blandly affable that he will be confirmed by a very wide margin. The White House screwed this up, though- they should have named a flaming wingnut to force a filibuster. This would have made Frist exercise the nuclear option, and the WH would have had substantial cover ("See- they wouldn't even give one nominee a fair up or down vote!"). Instead, the Dems will cast confirm Roberts, giving them the cover to filibuster the next guy ("See- when you named a reasonable Judge, we approved him quickly!")

Oh- I have to go. My dig just piddled on the carpet. More on this tomorrow.

Thursday, July 14, 2005

Calling bullshit on Karl Rove

Despite the WH's reluctance to comment on an ongoing investigation, Karl Rove's attorney (beholden to noone but Turdblossom himself), has been going full bore. The latest meme- Matt Cooper "burned" Karl Rove. Bob Luskin told the National Review, "If you read what Karl said to him and read how Cooper characterizes it in the article, he really spins it in a pretty ugly fashion to make it seem like people in the White House were affirmatively reaching out to reporters to try to get them to them to report negative information about Plame."

Of course, this is BS, and today in Salon they call it out as such. "Luskin's beef: The language Cooper used in a July 17, 2003, story about Joseph Wilson was misleading. (The article appeared just days after Robert Novak outed Wilson's wife in his column, which sparked the federal grand jury whodunit.) Luskin, citing the narrow scope of the conversation Rove and Cooper had, denies the White House ever declared a "war on Wilson," as Cooper's article suggested."

Salon actually compares what Cooper wrote in the smoking gun email to what appeared in print, and finds that Luskin is speaking out of his ass. Which, to be fair, is what we attorneys do sometimes- I just don't do it to a national magazine. In any event, what Matt Cooper wrote in print is consistent with what was described in the email- without attribution beyond merely describing "government officials," Cooper wrote that the Niger trip was not authorized by the VP, but by the CIA. True, no? Yes. Moreover, he in no way described a WH plot to destroy Joe Wilson or Valerie Plame.

I have a feeling that what we know is merely the tip of the iceberg. This things goes deep. Stay tuned.

Wednesday, July 13, 2005

The best defense, apparently, is a good offense

The RNC has come up with a plan to defend Karl Rove- blame the Dems for playing dirty politics, and wait for the Supreme Court nomination to bury the story. The RNC has distributed some talking points on The Plame Affair that basically follow three memes- 1) Joe Wilson's a liar; 2) Joe Wilson's incompetent; and 3) the WH is the epitome of all that is righteous and holy. The right wing press has obligingly toed the line, with the WSJ going so far as to call for Rove to get a medal.

They must be terrified.

At this point, they have shut down all official comment on the matter. The one email we know of doesn't reveal anything that amounts to a crime, and as I pointed out yesterday, if the entire scandal amounted to this one missive then the WH would have proudly answered everything to show that there is no there there. That they didn't leads me to believe that they couldn't.

So, what does any protege of Turdblossom do? Exactly what the master taught- smear, smear, smear. Attack the critic and the criticism won't matter. The talking points amount to little more than a pathetic attempt to discredit a loyal and honorable public servant who called "bullshit" on the Administration's fraud with a body count. And they don't really do anything to clear up the real issue- did Rove intentionally blow a covert op's cover?

Of course, the legitimate press will have to pull a Bill O'Reilly with the GOP hacks- if they won't answer the question asked, but instead stick to their talking points, you have to kick them off the show. O'Reilly has done that numerous times to Dems. Gander, this is goose.

This administration is a criminal enterprise- they lie, they cheat, they steal (elections). They have sent American youth off to war on a fraud, where their above the law attitude trickled down into the barracks at Abu Ghraib and Gitmo. Electrodes to the scrotum, hoods over their heads- look good for the camera, Lynndie.

Some Spanish judge should hand down an indictment for war crimes. Hey, Karl- I hear Slobodan Milosovich is looking for a new celly...

Tuesday, July 12, 2005

So, Scott McLellan was in a bad spot...

The papers are all over it today- when asked (repeatedly) about Karl Rove's involvement in the Plame Affair, the White House refused to answer. (Quaint, huh, how I still call them "papers.") Even though there were two years worth of previous denials. Even though the President had promised to fire the leaker, whomever it was. Even though...

The single email that we know of is not enough to constitute a crime. It's too vague- Valerie Plame is not named for one thing. If this was all there was to it, the White House would have come clean yesterday. "See, there's no there there." They didn't, which leads me to believe that they couldn't- not without either 1) admitting that Rove had, in fact, committed a crime; or 2) lying. The Adminstration can't really do either, for obvious reasons.

So, they fell back on that old chestnut, "No Comment."

The calls for Rove's resignation/termination are starting to come in. Dubya will not fire him, nor will Rove resign. Their egos are too big for that. More than anything, Dubya rewards loyalty. Alberto and Condi got promotions, Rummy kept his job, Paul O'Neill got the shaft. Rove has stuck with the President through hell and highwater. Dubya will stick by him.

2006 can't come soon enough.

Thursday, July 07, 2005

Judy Miller goes to jail...

As has been covered to death, New York Times reporter Judith Miller was sent to jail after refusing (again) to name her source in the Plame affair. On the other hand, Time reporter Matthew Cooper avoided the same fate after his source released him from his promise of anonymity. I have always fancied myself a First Amendment activist- it was the reason I went to law school in the first place. But I have to wonder if their fealty to the freedom of the press is misguided in this case.

Their source(s)- it's not entirely clear if they have the same source- work inside the White House. The only obvious benefit in outing a deep cover operative was to embarass a high ranking American diplomat who criticized the Bush Administration. The source is a deep insider who apparently used the press to advance the faulty (fraudulent?) justification for war in Iraq. In fact, Lawrence O'Donnell announced last week that the source is Karl Rove (how he knows that is an open question). Rove, of course, is Dubya's brain- a Machivellian political strategist who would smear his own mother to gain a couple of percentage points- if it is Rove, it might as well have been the President himself.

Obviously, the press relies on whistleblowers and anonymous sources. The people in power have the power, after all. When the upper echelons of government cut corners (or worse), it is dangerous for some insiders to go on record and tattle. Recent events should bear this out. This case is different from Watergate, however, and maintaining anonymity only protects the wrongdoer.

Mark Felt, perhaps selfishly, used his promise of anonymity to bring down a crooked President. He pointed Woodward and Bernstein in the right direction, and they connected the dots. In this case, the promise of anonymity advances the cause of prevarication and deception. Someone criticized the President by name, so someone in White House hides behind the journalistic shield to bring down the critic. I don't know if it is Rove, but it is his style- after Bob Novak ran the column outing Valerie Plame, Rove called Chris Matthews and told him that she was "fair game." Attack the critic, and the criticism doesn't matter.

I applaud the journalists for standing tough in the face of incarceration. It takes guts and integrity to stick to your guns in those circumstances. This case is not the reason for the principle, however, and I wonder if it would have been gutsier to name names.

Wednesday, July 06, 2005

Bush to focus on "character" of SCOTUS possibilities- All together now, "Oh, shit."

Dubya announced today that there would be no litmus test for Supreme Court nominees, which I suppose is a good thing. I don't believe it, of course, but it's nice to hear nevertheless. What really scares me, though, is that he will focus on the character of the candidates- not their legal rulings.

"I will let my legal experts deal with the ramifications of legal opinions," Bush said. "I will try to assess their character, their interests." While Bush initially considered announcing his pick next week, aides said there's talk of delaying the decision to protect the nominee from prolonged attacks from the left or right. Either way, Bush wants the new justice approved and on the bench in early October.

Bush said the criteria for the job is simple -- "I'll pick people who, one, can do the job, people who are honest, people who are bright and people who will strictly interpret the Constitution and not use the bench to legislate from." Bush was mum on who meets such criteria.
So he seems to equate good character with a particular theory of constitutional construction. I'm always amazed at the ineffable stupidity of strict constructionists. It means what it says, they argue. Take the commerce clause, the source of much judicial explication since the earliest days of the Republic. "The Congress shall have power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Seems simple enough right? Except that the words "commerce" and "regulate" are not really defined. Moreover, there are many instances in which intrastate activity affects interstate commerce.

A strict constructionist would have no problem with these issues- interstate commerce means exactly the same thing today that it did in 1789- what the Framers knew of commerce is what controls. This, of course, is hogwash. The Constitution was written in a world lit by candlelight and coal fire, where merchandise rarely left the city it was made in, let alone the State. The people made goods in their houses and sold them to their neighbors. It was a world which had neither transportation nor communication. It was a world in which almost everyone was self-employed.

This is not the world we live in today. Wal-Mart decides in its Arkansas home office to set up shop in Middle of Nowhere, Indiana to peddle goods that were made in China and India, imported at Los Angeles, and trucked through 25 states on its way to the new store. The new stores displaces the local merchants, who also sold goods made elsewhere. Wal-Mart deposits their money in a local bank, which deposits its money in another bank, which in turn deposits its money in a Federal Reserve Bank. Everything is fluid, everything is moving.

The Framers may have a vote on the issue, but a veto? C'mon! Anyone with half a brain can plainly see that this is exactly the situation in which there needs to be Federal control. Fifty states with fifty different sets of laws makes absolutely no sense.

Of course, I shouldn't worry. He'll name someone of good character.

Monday, July 04, 2005

Advice and Consent

So if you thought that the fight over Janice Rogers Brown was a barnburner, you ain't seen nothin' yet. As many of you know, Sandra Day O'Connor has announced her retirement- meaning that the biggest fight over judicial nominees is about to begin. The sides are drawn- conservatives arguing for a true believer, liberals vowing to block the true believers. It's going to be a big time fight.

However, I wonder if this is the best way to choose our jurists. The Framers of the Constitution envisioned an appointment process that was closer to a dialogue between the President and the Senate- a process of advice and consent. Instead, we have a process in which the President names his choice, and the Senate approves or denies. This is not at all what they had in mind.

It's also obvious that the Framers didn't trust the people with a say in the matter. Under the original text of the Constitution, the Senate was chosen by staste legislatures- their constituency was the state as such. It was not until the 17th Amendment that the Senate was directly elected by the people. The House of Representatives didn't have a vote, because of the fear that the people would be fickle and passionate. The House, directly accountable to the people, could elevate a popular demogogue, a pop star or a ballplayer (Johnny Damon, perhaps?) to the highest court in the land (or the Cabinet, also nominated a similar way).

I live in a state where the judges are elected. Although judicial terms are 10 years, judges are nevertheless aware that unpopular, though legally correct decisions may come back to haunt them. As a result, we have an appellate judiciary that is mildly regarded in other states. New Jersey selects their judges like the Federal system, but that after seven years the Senate gets to reconfirm (or not). California appellate judges are nominated by the Governor and confirmed by a commission, but at the next election, the voters have an opportunity to vote the judge out.

Both Jersey and California are considered excellent judiciaries, and other states look to them for guidance. Elected judges are less well regarded. But the fact of the matter remains that United States judiciary is considered to be the most independent and influential in the world. Judges will sometimes make unpopular decisions. It simply goes with the turf. Life tenure empowers judges to rule without fear of reprisal. The appointment process also helps to keep unqualified single issue candidates from the High Court (Roy Moore, perhaps?). Federal judges are far more qualified to the bench than most state court judges.

I think the answer is to amend the Constitution. Create a judicial nominating commission. The commission would consist of officials from all three branches of government. The commission would have a free hand to name a candidate. Their candidate would be submitted to Congress where both houses would get a vote, and the President could veto, just like a bill. There's the carrot, here's the stick- if the political branches have taken no action on the nomination within a set time- say 180 days- then the nominee is automatically confirmed to the bench.

The benefits of this idea should be obvious- nomination by committee will discourage lightning rod nominees. The candidate will have to be very well qualified and a consensus builder to survive two houses of Congress and a Presidential veto- think O'Connor, Breyer, Lewis Powell, and Charles Evans Hughes. Don't think Scalia, Brennan, or Rehnquist.

It probably wouldn't depoliticize the process entirely, but it would make a difference- and it would fill up long term vacancies on the district courts, where there is more work to do- pleas to take, settlements to approve, etc. As it stands now, the process is broken.