Scalito

Judge Samuel Alito may not be a full-fledged “going to the matresses” choice by President Bush, but it’s pretty darn close. The good thing about the nomination is that President Bush chose a clear conservative who is undeniably well-qualified. Liberals will not get any easy shots on him. Even the Nation’s David Corn acknowledges:

There is no question that Alito is qualified, in that he has been an assistant solicitor general, a deputy assistant US attorney general, a US attorney and an appeals court judge. He is reputedly intelligent and scholarly. There will be no major disagreement over document releases; there are fifteen years of appeals court decisions for his friends and foes to scrutinize. That leaves the Democrats one avenue of attack: Alito would be bad for America.

Not surprisingly, Democrats and liberal groups have already taken this route, attempting to portray Alito as a radical. As for me, I think that presidents should be allowed to appoint judges as long as they are qualified enough to serve. As Sen McCain put it:

“I’ve always been favorably disposed towards a president’s nominee,” McCain told radio host Don Imus. “I voted for Justice Ginsburg and Justice Breyer because I think elections have consequences. I didn’t share their judicial philosophy.”

Much of the news coverage on Alito’s nomination has centered on abortion, specifically his dissent in the Planned Parenthood v. Casey spousal notification case that eventually led to the U.S. Supreme Court partially reaffirming Roe v. Wade. In the coming weeks, I’ll be interested in reading more about his past decisions on other issues. What I’ve read so far is encouraging. Here is a list of some of the business- friendly decisions he has made. It is also encouraging that he wrote a dissent arguing that Congress did not have the power under the Commerce Clause to regulate the possession or sale of machine guns. I hope that Alito will be as consistent in his limited view of the commerce clause as Justice Clarence Thomas. When it comes to social issues, Antonin Scalia, to whom Alito owes his moniker, is often willing to allow for a much more expansive view of the constitution, as evidenced by this summer’s Raich medical marijuana decision.

An old profile of Alito by The Legal Intelligencer, which compares and contrasts him with Scalia, is available here. One big difference they cite is temperment, describing Alito as “mild-mannered” and “polite.” If this holds true during the hearings it will make it more difficult for Democrats to portray him as a radical.

Will Bush go to the mattresses?

In an earlier post, I pondered whether Republicans would have a voter turnout problem in 2006, given that the conservative base is so demoralized. President Bush could fix this with one swift move were he to go to the mattresses with his Supreme Court nomination, now that Miers has withdrawn. By going to the mattresses I mean appointing a clearly conservative judge who would trigger the all out brawl over judicial philosophy that the conservative legal community has been fantasizing about for decades. As I have said before, having appointed and then withdrawn Miers makes it more difficult for Bush to nominate a true conservative than if he had appointed one in the first place. Now, Democrats have more ammunition to smear any Bush nominee they don’t like by saying Bush caved in to the far right. Senate Minority Leader Harry Reid has already taken this line. “The radical right wing of the Republican Party killed the Harriet Miers nomination,” he said in a prepared statement. “Apparently, Ms. Miers did not satisfy those who want to pack the Supreme Court with rigid ideologues.”

Nothing would put conservatives in battle mode more than scenes of liberal senators “borking” an intelligent, well-qualified, conservative judge.

Andrew Sullivan takes a different view:

Bush may believe he needs to polarize the country to win back his base, especially if he’s reeling from indictments and a major staff turn-over. He has done it before; and he may do it again. For my part, I think the Rovians are misguided in this prescription. A socially conservative fire-breather is not what the country needs right now – and, although it may shore up the base, it will further rattle the middle. What we need is someone of Roberts’ ilk: impeccably qualified, intellectually serious, and concerned more with

judicial process than results. The fundamental concern the public now has about this administration is its competence. The Roberts and Bernanke picks are reassuring. The Miers pick, er, wasn’t. Excellence and judicial restraint should be the criteria: not ideology. They are the criteria upon which the right and center can converge. Here’s hoping.

I have a few responses to Sullivan. Firstly, I think that Roberts had a unique blend of conservative credentials, stellar qualifications, and a thin paper trail. It may be difficult to find somebody else with that rare combination of traits.

Then there’s Sullivan’s main point that a “socially conservative fire-breather” would “rattle the middle.” Sure, if President Bush nominates a clear conservative to the Supreme Court, moderates may be annoyed, but it won’t make or break their support for Bush. They will judge him on other issues. However, for many in the conservative base, the matter of judicial appointments is the issue that counts, and this issue will be the basis of how they view the president. If he appoints a true judicial conservative, they will defend Bush to the death, and should that nominee get confirmed, Bush would be their hero. He would be applauded by conservatives for “getting the big things right.” This would give Bush great leeway to appease moderates on other issues.

Turnout and 2006

It’s one of the oldest clichÃ? ?Ã? ©s in politics. When pundits say it, it reminds me of when baseball announcers say things such as, “This team is going to have to start scoring some runs to win the ballgame.” But there are reasons why things become clichÃ? ?Ã? ©. Such is the case with the statement that turnout is the key to winning elections. I think this is especially true for Republicans in 2006.

Quite frankly, it’s hard for me to see why any Republican would be motivated to vote next year. Republicans in Congress have been a tremendous disappointment to their supporters across the board. Libertarian Republicans are disappointed because Republicans in Congress wimped out on Social Security reform, even though Bush made it his top domestic priority this year. And, along with fiscal conservatives, they are disappointed by spending that continues to skyrocket. There hasn’t been a whisper about the federal marriage amendment or any issues that are important to social conservatives. I can go on and on. It’s just really difficult to think of one group of Republicans that Congress hasn’t let down.

Following the 2004 Presidential election, much was made of how the Republican “get out the vote” effort was comprised of grass roots volunteers, as opposed to the Democratic effort, which was outsourced to professionals. Are Republicans going to volunteer in large numbers with such enthusiasm in 2006?

In 2004, even reluctant Republicans were driven by national security concerns and many conservatives campaigned hard for President Bush because of expected Supreme Court appointments. But national security is rarely, if ever, an issue in congressional races and the Miers nomination has demoralized conservatives. True, conservatives aren’t likely to vote Democrat. But what is going to prevent them from staying home?

Pottersville

My friend Alfonso Mangione’s long-awaited novel Pottersville has been published, and is available for purchase here. This is the description:

Imagine waking up on an ordinary morning, the front end of a day of dead-end office work. At first, everything’s routine–you shower, shave, pour a bowl of Cap’n Crunch, and turn on the radio. But today, the local shock jock has ditched his normal parade of WWF wrestlers and porn stars for one distraught caller. “Caller, tell us again. Why do you want to kill yourself today?” the host asks, prompting a litany of reasons: broken relationships, lost jobs, alcoholism. It sounds like a bad country song or an idiotic radio stunt until something freezes you in place, spoon halfway to your mouth, milk dripping into the cereal bowl and splattering the coffee table. You recognize the voice: the caller is your best friend. He’s been lying to you for months about everything substantial in his life, and he’s going to kill himself, and you don’t know if you can stop it.

Mao’s Legacy

I’m looking forward to reading Jung Chang’s new book on Mao. “Based on a decade of meticulous interviews and archival research, this magnificent biography methodically demolishes every pillar of Mao’s claim to sympathy or legitamacy,” Nicholas Kristoff wrote in his NY Times review of the book. He also says “Mao emerges from these pages as another Hitler or Stalin.” It’s nice to see Mao relegated to his proper place as one of the worst mass murderers in history. Not surprisingly, the book is banned in China, along with issues of magazines that contain reviews of the book. And China accuses Japan of trying to whitewash its history.

Capote

I saw the film last night. The movie itself was solid, but Philip Seymour Hoffman’s performance was incredible. Beyond just mimicking Capote’s mannerisms and voice, he did a great job of portraying Capote’s dually sympathetic/parasitic relationship with the killers who are the subject of his book. On the one hand, he seems to generally care about their fate, but on the other hand he wants them to be hanged so he can finally finish In Cold Blood. He befriends them, but also lies, manipulates and uses them. Throughout the film, I kept thinking about this passage from Janet Malcolm’s book, The Journalist and the Murderer:

Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse. Like the credulous widow who wakes up one day to find the charming young man and all her savings gone, so the consenting subject of a piece of nonfiction writing learns–when the article or book appears–his hard lesson. Journalists justify their treachery in various ways, according to their temperaments. The more pompous talk about freedom of speech and “the public’s right to know”; the least talented talk about Art; the seemliest murmur about earning a living.

The catastrophe suffered by the subject is no simple matter of an unflattering likeness or a misrepresentation of his views; what pains him, what rankles and sometimes drives him to extremes of vengefulness, is the deception that has been practiced on him. On reading the article or book in question, he has to face the fact that the journalist–who seemed so friendly and sympathetic, so keen to understand him fully, so remarkably attuned to his vision of things–never had the slightest intention of collaborating with him on his story but always intended to write a story of his own. The disparity between what seems to be the intention of an interview as it is taking place and what it actually turns out to have been in aid of always comes as a shock to the subject.

Is Gore the Next Nixon?

Ryan Lizza makes the case for Al Gore in 2008, saying that he is the only Democrat that could beat Hillary. He writes:

His early, vocal, and unwavering opposition to the war in Iraq has made him a hero to many Democrats. The Hollywood liberals over at Huffington Post as well as the university-town activists at Daily Kos and Moveon.org love Gore. If he ran, he would instantly become the favored candidate of the “netroots,” the antiwar, anti-Bush crowd that championed Howard Dean and that will be a significant source of money and buzz in the run-up to 2008. The activists in the liberal blogosphere, more than any other opinion-making constituency in Democratic politics, revere Gore…

And Gore might be the only Democrat who can solve a vexing issue facing the party: How does a candidate establish a reputation for toughness on national security while simultaneously criticizing the war? Gore supported the Gulf War and, in most Clinton administration battles over the use of force, he took the more hawkish position. He is the party’s only credible antiwar hawk.

I can think of another former senator and former vice president with a likability deficit who lost one of the closest presidential elections in U.S. history, only to win the presidency eight years later.

Can you be anti-abortion but vote pro-Roe?

James Taranto is missing a key point in his analysis of whether a pro-lifer could conceivably support Roe v. Wade. The impetus for Taranto’s analysis is the revelation that Harriet Miers expressed support for a human life amendment to the Constitution in 1989. The amendment would have prohibited abortion except in cases where the mother’s life is in danger. In response to questions, the White House said that this did not suggest how Miers would rule on abortion law if confirmed to the Supreme Court.

Taranto argues:

It is true that many people are pro-abortion but anti-Roe–that is, they oppose both the criminalization of abortion and the creation of an imaginary constitutional right to abortion. The opposite position, however, seems far less tenable. Most people who support Roe do so on policy grounds; that is, they like the outcome and are indifferent to the Constitution. The only way we can see to reconcile support for Roe with support for the Human Life Amendment is if one has a highly expansive view of the Supreme Court’s role–believing that it has near-dictatorial power over social policy, capable of being overridden only by the very difficult process of amending the Constitution.

Clearly, someone who is pro-life is likely to be against Roe, and, for the sake of argument, let us say that this is an iron-clad rule. Still, Taranto should not ingnore the possibility that a judge who personally thinks Roe was wrongly decided in 1973 may still vote to uphold it now. A judge who thinks Roe was initially wrongly decided could still be sympathetic to the argument that younger American women have grown up in a world in which abortion is a constitutional right and therefore determine that it would be wrong to suddenly overturn Roe. In other words, a personally pro-life judge could agree that Roe is a “super duper precedent,” to borrow Sen. Arlen Specter’s corny phrase. I’m not saying I necessarily hold this view myself, but it is a position I can see a judge taking, if nothing else but out of fear of rocking the boat.

With that said, it is absurd for the White House to tell the public at large that it is unclear how Miers would rule on issues such as abortion, while touting her religious beliefs in a bid to reassure conservatives that she’d rule with their side on such issues. This is the game that gets played when you’re dealing with a so-called “stealth” nominee, whose judicial views are unknown. The strategy worked with Roberts because conservative opposition to him was tepid. But with many prominent conservatives publicly criticizing the Miers nomination, the White House has been forced to send much more overt signals to the conservative base. This has made the balancing act a lot more difficult.

Legalize Drugs, Says Former Seattle Police Chief

Norm Stamper, the former chief of the Seattle Police Department, argues that we should leagalize all drugs. For those who are familiar with the debate over legalizing drugs, there’s nothing majorly new with his argument. It’s just interesting coming from somebody who spent 34 years in law enforcement. While I agree with him that all drugs should be legalized, I think he goes overboard when he writes, “It’s not a stretch to conclude that our draconian approach to drug use is the most injurious domestic policy since slavery.”

Judith Miller and Valerie ‘Flame’

I just finished reading the New York Times article on the Judith Miller affair, as well as Miller’s own account and reactions at several blogs (eg. here, here and here).

There are a few things that are on my mind.

In Miller’s account, at first, she clearly states that she went to jail to protect the confidentiality of Dick Cheney’s chief of staff, I. Lewis Libby. She writes:

Having been summoned to testify before the grand jury, I went to jail instead, to protect my source – Mr. Libby – because he had not communicated to me his personal and voluntary permission to speak.

But just a few paragraphs down, she seems to contradict herself:

Equally central to my decision was Mr. Fitzgerald, the prosecutor. He had declined to confine his questioning to the subject of Mr. Libby. This meant I would have been unable to protect other confidential sources who had provided information – unrelated to Mr. Wilson or his wife – for articles published in The Times. Last month, Mr. Fitzgerald agreed to limit his questioning.

In other words, if prosecutor Patrick Fitzgerald had originally agreed to limit his questioning to Libby, she may have testified about Libby. The preceding paragraph makes it sound as if she went to jail to protect sources other than Libby.

This issue becomes more intriguing when you consider that Miller says she cannot recall who leaked the name Valerie Plame to her, but that she doesn’t think it was Libby. The name “Valerie Flame” appears in the same notebook that she used when she interviewed Libby, but Miller says it was written in a different part of the notebook than her Libby interview notes.

This raises the possibility that Miller has been protecting sources other than Libby all along. But by convincing the prosecutor that Libby was the person Miller was really protecting, her lawyers were finally able to secure a guarantee that she would only be questioned about Libby. The end result is that she’s out of jail, Fitzgerald is off her back, but she has still protected the confidentiality her ultimate source/s.

Another part of Miller’s account that damages her credibility is this:

Mr. Fitzgerald asked about a notation I made on the first page of my notes about this July 8 meeting, “Former Hill staffer.”

My recollection, I told him, was that Mr. Libby wanted to modify our prior understanding that I would attribute information from him to a “senior administration official.” When the subject turned to Mr. Wilson, Mr. Libby requested that he be identified only as a “former Hill staffer.” I agreed to the new ground rules because I knew that Mr. Libby had once worked on Capitol Hill.

Did Mr. Libby explain this request? Mr. Fitzgerald asked. No, I don’t recall, I replied. But I said I assumed Mr. Libby did not want the White House to be seen as attacking Mr. Wilson.

This is an incredibly dishonest way to identify an anonymous source. You are allowing the chief aide to the vice-president to criticize someone while making it appear as though the criticism did not come from anyone in the Bush Administration, but in fact, a more detached “former hill staffer.” If not lying, it is certainly an example of misleading your readers. Imagine identifying Dick Cheney anonymously as “a former congressman.” To be clear, Miller never did write a story on Wilson. But even agreeing to such terms with an anonymous source is troubling.