"There is always a philosophy for lack of courage."—Albert Camus

Monday, October 17, 2005

The Truth Be Hanged

I blame Dick Wolf. Mebbe Jacques Derrida, too.

Derrida you can look up for yourself, but Wolf is of course the mastermind of the 68 versions of Law & Order, an episode of which is airing right now somewhere on cable regardless of when you're reading this.

In this course of my work, I lunched today with a grizzled litigator, a "trial dog," who in his younger days prosecuted and convicted Sam the Plumber DeCavalcante, a pretty big fish in the New Jersey Mafia.

His take on trial technique is that you find a hole in the other side's story, and you win. What if you're prosecuting, I asked. Same deal, he replied. Even when you have the burden of proof, you bullseye the other guy.

Ah, it occurred to me. That's what's happened to social intercourse. We're all lawyers now. We no longer hold joint inquiries looking for truth, like the old days of Socrates, symposia or the original Reform Club, whose members included polar opposites GK Chesterton and GB Shaw.

We look to prove the other guy wrong. That a flawed argument can contain more truth than the polished but limited one is an alien concept. A man's reach must equal his grasp, and may not exceed it, or else he is an idiot or a liar. We don't search for truth together anymore---truth is a solitary pursuit, and everybody else is our adversary.

To me that's a shame, because the Symposium, the original Reform Club, and the Algonquin Roundtable were parties, not an excuse to inflict one's misery upon others. Knock back a few, dress in women's clothing (in drag, I look a little like Susan Estrich), make a few bad puns, consider the universe, and mebbe walk away with something of lasting value or in the least, a good buzz.

I suppose there was a good time to be had at a public execution back in the day, although why escapes me. We put the truth on trial at all times these days, and it is always guilty. It's not surprising nobody says nothing anymore, because the hangman always wins. Everybody gets what they came for.

With Friends Like These . . .

Harriet Miers would do well to ask her defenders to take a breather.

Hugh Hewitt has advanced the "powerful" argument that "constitutional law" just isn't that hard, so we shouldn't worry about whether Miers is a brainiac. The inferences aren't good for Miers and are worse for Bush's governing philosophy.

Is this really how we want to make our appointments? "Well, being head of FEMA isn't rocket science, so let's not trouble ourselves overmuch about getting the top, top candidate." Besides, constitutional law is harder than it looks and being a Supreme Court judge involves the rest of federal law, which is deep, complex, and confounding.

If I were Harriet, I'd have Hugh back off 'cuz he ain't helping.

Go For The Guffaw

Lately I have not written that many columns in which I aimed to achieve laugh-out-loud funny.

Today I took a shot.

Sunday, October 16, 2005

Bush League Diplomacy

Our friend Mr. Elliott will be happy to note that this column is not one that I considered to be a suitable venue for my trademark wordplay.

Regrettably I was impelled to spank the President. In private conversation, he uses a sort of prophetic language that has a legitimate context in human affairs. Yet he is careful not to use it on the national stage. Nobody could imagine him standing up and saying at a press conference or a stump speech (even in a church) that God told him to go into Afghanistan or Iraq - even if he believes in his heart that this is the case.

Then how is it smart or appropriate to tell it to the Palestinian "leaders"?

Saturday, October 15, 2005

Movement Economics

Our new, courteous, welcome, and breath-of-fresh-air correspondent Connie Deady writes:

Perhaps maybe the face of small business is changing. I'm a small consulting business (me and hubby). But where I live, lots of small retail businesses have had to close because they can't financially compete with large chains. Maybe it's not bad, but it is changing from ownership to worker.

Personally, I'd love to see more Republican support for small businesses.

Well, I think the GOP support for business in general obscures its support for small business, which employs about half of Americans, if I recall. Big business is actually closer to Hobbes' Leviathan, and elicits support from both parties alike as an easy mark to tap for political cash. (Republicans like it because it's business, Democrats like it because it's big and therefore more easily centralized and controlled. But it's mostly about the cash, and its contributions are self-interestedly fair and balanced.)

If I may imprudently help the other side, a Democrat push for "Buy American" (the current [or any] administration could hardly start an ideological trade war with China) would have great resonance in this here USA. Breaking our addiction to cheap but largely crap consumer goods from foreign shores would make economic sense as well as support our fellow Americans of the working class.

Not much downside, except for screwing with Wal-Mart, where America tends to go on Sundays after church, if not instead of...

A Critique of Pure Reason

Our resident anonymous liberal, Liberal Anonymous (which sounds like a good name for a self-help group), writes to my colleague:

Actions speak louder than words, Hunter, and Scalia has shown himself to be a rank hypocrite whenever he disagrees with the outcome of the law.

Aye, that's our real world, LA. We are all human, and thus vulnerable to rationalizations and therefore hypocrisy---although I personally think Scalia's batting average for fidelity to his judicial philosophy might make him the court's ranking non-hypocrite. To wit: Justice Ginsburg fully allows that Roe is bad law, but won't lift a finger to overturn it, or even tame it.

Do you favor turning your back on essential questions of right and wrong when the law dictates the contrary of your moral sense? I mean, surely a person of your obvious cosmic rectitude would have dissented in the Dred Scott decision.

Or as our current President Bush (two down, one to go) so eloquently put it:

"Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all—--you know, it doesn't say that..."

Precisely. Ah, the inarticulate speech of the heart: he is the master.

Trusty Slate lefty Tim Noah associates
, and not unfairly, Roe with Scott, and why Bush says he wouldn't appoint someone so reasonable as to agree with the Constitution (at that time) on the latter.

I ask you this not to put you on the spot, LA, but to open the gates of heaven and hell to all on this Miers thing. I mean, it's far easier and quicker to learn someone else's mind than their heart, which is why I think Bush went this way. Peter Singer or FDR? Sensibility or sense? Nietzsche or Jesus? Justice or mercy? Winston Churchill or Viggo Mortensen?

"Be kind. It’s worthwhile to make an effort to learn about other people and figure out what you might have in common with them. If you allow yourself to be somewhat curious — and if you get into the habit of doing that—it’s the first step to being open minded… and realizing that your points of view aren’t totally opposite. I don’t think anyone’s are, in the end. It’s just a question of finding out by spending time with them or giving their ideas a chance to be considered."
---Viggo Mortensen, Artist, Actor, Activist

(Very interested as to what Brother Viggo has found in common with al-Qaeda and the janjaweed, and to hear his plan for Congo, but that should not diminish the universialityness of his sentiment. I'd think we could count him as firmly in Ms. Miers' court. What a nice man. If he had spent 10 years at Harriet Miers' side, spending time with her and giving her ideas a chance to be considered, I'm sure he would have nominated her himself.)

Friday, October 14, 2005

From Blog King to Waterboy

Oh, Hugh, now you're just getting a little too sensitive:

On Miers' side to date: Ken Starr, Lino Gralia, Thomas Sowell, James Dobson, Jay Sekulow, Marvin Olasky, Chuck Colson, Michael Medved, William Rusher, R. Emmett Tyrrell and of course Fred Barnes. Against her: The Corner, Tucker Carlson, Bill Kristol, Robert Bork, Mark Levin, George Will, Ann Coulter, Laura Ingraham, Michael Savage, and Charles Krauthhammer. I like those odds.

Oh, yes. President Bush thinks she'll make a fine Associate Justice. A strong case allows the weak case as much time as it wants. A weak case shouts down its opposite, and refuses to engage.

Hauling water for Bush on Miers has made Hugh Hewitt weary. First, he puts R. Emmett Tyrrell in the Miers camp when Tyrrell scarcely declared a side. Instead, he noted the ugliness and uselessness of fighting over something that is going to happen. He also said conservatives have every right to be disappointed with the choice. Hey, if that's what counts as support, then the thinness of the fabric is starting to show.

Second, Hewitt declares the anti-Miers crowd has a weak case and is shouting down the "stronger" case for Miers. We've heard the case for Miers, haven't we? Trust the president. Trust the president. And oh, by the way, trust the president. On the other hand, the critics of the nomination have examined her record, her writings, and her resume' and have concluded there are many better options. That doesn't exactly qualify as shouting down a stronger case.Give it up, Hugh. You've gone from "clutch" to just plain "clutching."

Dim Bulbs, Big City

(If you can't tell that the following piece is in tribute to Bright Lights, Big City by Jay McInerny, you probably would have more fun reading the obituaries.)

You open your eyes on a world shooting piercing rays of angry light through the gray. You turn over and fall off the bed into a damp pool of unidentifiable detritus from last night's romp. You stagger upright and your knee goes from twinge to jolt in a second flat.

You stare into the bathroom mirror and see a perfect zit on your nose, too small to squeeze but too big to ignore. You shave like a John Deere contraption hacking through the underbrush and when the simian quality is cleared, a pair of scowling jowls are revealed.

You kick the dog on the way to the kitchen and all you hear behind you is a whimper and then a wheeze. You press a mess of buttons on the percolator for some exotic Italian coffee but all you get is some Spanish plain - after the rain fell mainly on it and turned it into mud. You crack an egg for scrambling but it explodes out of the shell onto the counter and then slithers - phloop! - onto the floor.

You sit down at the blasted table to read the bloody morning paper. You're tired of your own problems and very receptive to learning the misery of others. You turn to the society page and you see that Jay McInerney has just begun his third marriage - to heiress Ann Hearst.

You take your Ray-Ban sunglasses and stomp up and down on them until no sliver exceeds the size of a mustard seed. You grab some fresh-baked bread and squeeze it into Silly Putty, then fling projectiles at the door of the microwave. Life goes on.

Thursday, October 13, 2005

Send Andy and Karen on a Junket. Bring in Peggy

Peggy Noonan knows just how the President can get out of this mess.

Let's hope he'll listen, because the dynamic has become unwinnable. Every reassurance to the right bounces off like teflon because the Pres. ripped his pants insincerely calling them sexist and elitist and besides they've been Soutered, Stevensed, Warrened, Brennaned, etc. ad infinitum. At the same time those reassurances alienate the left.

There are no good moves remaining. The nomination is sunk unless pushed through via unseen coercion and sheer cussedness, which will please exactly no one and create a bunker mentality in the White House that will last a very long three years.

The Difference between Borking and Getting Miered

The gang at NRO's The Corner has come up with the multiple meanings of "Getting Miered":

1. Good --

To put your own allies in the most untenable position possible based upon exceptionally bad decsion making.

2. Better --

While steadlily going in reverse in the driveway of your own home, intentionally abruptly pressing gas pedal as to crash into garage door for no apparent reason.

3. Best --

Getting used to everyone hating you except your core supporters and thinking what the hell, it'd be cool to see what it's like to have everyone hate you at same time.

More Mendacious Lefty BullSputum

The same kind of lame crap we've been getting in Democrat rhetoric for decades is served up fresh by John Kerry:

“I can’t find anything in any religion anywhere, I certainly cannot find anything in the three-year ministry of Jesus Christ, that says you ought to take health care away from poor children or money away from the poorest people in the country to give it to the wealthiest people in the nation.”

Kerry made the statement to a Democrat women's group in Iowa.

What I would love is for any of the lefty-lurkers at Reform Club (well-loved, of course) to defend Kerry's statement. Exactly how does this transfer take place? What program takes health care and money from the poor and shovels it into the accounts of the wealthy? I haven't heard of it or seen it debated on Capitol Hill. It must have been covered extensively. I mean, it sounds so terrible.

Is this just willful mendacity?

This May Be the Final Stroke . . .

Given that we host some pretty serious writers on this blog our internal dissent over Harriet Miers may come to an end as you read this Southern Appeal post by Francis Beckwith quoting David Brooks quoting Harriet Miers (hot damn, that's writing!).

I reproduce the post below:

This is painful to read - Harriet Miers in her own words, as documented by David Brooks.

The following appeared in David Brooks' column in this morning's New York Times:

....In the early 90's, while [Miers] was president of the Texas bar association, Miers wrote a column called ''President's Opinion'' for The Texas Bar Journal. It is the largest body of public writing we have from her, and sad to say, the quality of thought and writing doesn't even rise to the level of pedestrian.

Of course, we have to make allowances for the fact that the first job of any association president is to not offend her members. Still, nothing excuses sentences like this:

''More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.''

Or this: ''We must end collective acceptance of inappropriate conduct and increase education in professionalism.''

Or this: ''When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved.''

Or passages like this:

''An organization must also implement programs to fulfill strategies established through its goals and mission. Methods for evaluation of these strategies are a necessity. With the framework of mission, goals, strategies, programs, and methods for evaluation in place, a meaningful budgeting process can begin.''

Or, finally, this: ''We have to understand and appreciate that achieving justice for all is in jeopardy before a call to arms to assist in obtaining support for the justice system will be effective. Achieving the necessary understanding and appreciation of why the challenge is so important, we can then turn to the task of providing the much needed support.''

I don't know if by mere quotation I can fully convey the relentless march of vapid abstractions that mark Miers's prose. Nearly every idea is vague and depersonalized. Nearly every debatable point is elided. It's not that Miers didn't attempt to tackle interesting subjects. She wrote about unequal access to the justice system, about the underrepresentation of minorities in the law and about whether pro bono work should be mandatory. But she presents no arguments or ideas, except the repetition of the bromide that bad things can be eliminated if people of good will come together to eliminate bad things.

Or as she puts it, ''There is always a necessity to tend to a myriad of responsibilities on a number of cases as well as matters not directly related to the practice of law.''

And yet, ''Disciplining ourselves to provide the opportunity for thought and analysis has to rise again to a high priority.''

Throw aside ideology. Surely the threshold skill required of a Supreme Court justice is the ability to write clearly and argue incisively. Miers's columns provide no evidence of that.


The Babe Theory Part III

Sorry, couldn't resist.

(Credit: Map Books 4 U)

What, Me Worry?

The intensely negative reaction of some of my Reform Club colleagues in response to the Harriet Miers nomination certainly gives me cause to pause and think. My position, as our readers are well aware, has been one of rather blithe unconcern. Hunter Baker, Esq., describes it correctly as follows:

We've had S.T. play the "she'll vote fine" card and Tom urge tolerance in light of core values the president may be observing and those are good things to say. I count them better men than I for holding their water with so much less volatility.

I suppose that I should make it clear that I do not for a moment imagine that Ms. Miers is the "most qualified" person possible to name to the Court. (I also must admit that I could not begin to guess who is the person most qualified to do so.) I think it a misstep on President Bush's part to expect his fellow Republicans to "take it on faith" that Miers would suit their purposes if she takes a seat on the Court. When I heard the news of Bush's nomination, I said, "Who?" exactly like just about everybody else.

Yet, as mentioned earlier, I have found it very difficult to see precisely what there is to worry about here. If, as seems perfectly evident, Miers will provide a solid strict-constructionist vote on the Court, she should be exactly what Republicans have been calling for over the past couple of decades.

Perhaps this is a matter of personal temperament. To me, outcomes are everything, and any way of getting there is fine with me. It's just the way I'm wired. And as Hunter suggests, I haven't yet seen a problem with the ultimate outcome here, and hence don't see any need to get upset about the situation—yet.

But the world also needs people who are concerned about processes, and that is why I cannot and do not fault President Bush's Republican opponents on this matter for feeling uneasy. They are worried about the message this nomination sends (or fails to send) about the role of judicial philosophy in American governance, and although I think their worries are misplaced in the present case, I recognize the value of such concerns and the importance of the debate.

I think that Fred Barnes's article today on the Weekly Standard website hits just the right tone and reflects the same considerations I have been writing about. Barnes concedes that those on the Right who are angry with Bush for this nomination have valid concerns. Nonetheless, Barnes says, Miers has yet to testify before the Senate, and that is the point at which we will see what she is made of. Until then, some grumbling and suspicion are understandable, but the sense of betrayal and horror many on the Right have displayed is difficult for us goal-oriented types to fathom. Hence, at the risk of further angering some of his friends, Barnes concludes that a bit of forbearance would have worked better for those on the Right who are concerned about the role of the judiciary in American life:

My conclusion is: Bush supporters who were angry over Miers should have waited. That's the bottom line. Rather than bellow that Miers isn't qualified and won't turn the Court to the right, they should have

given her a chance to prove her conservatism at the hearings. They owed Bush at least that much. Of course it's not too late for Miers, in her testimony, to change their minds. But my fear is that the rift the Miers nomination opened between Bush and his (mostly conservative) followers will be slow to heal. It shouldn't have been this way.

Barnes is correct: it shouldn't have been this way. Yes, President Bush made it possible by nominating Harriet Miers, which now appears to have been a stupid move from a political standpoint—but his critics on the right share at least equal resposibility for this disagreement. The President's critics on the right complain that Bush has been wrong to expect them to "take it on faith" that Miers will serve the purposes they wish to see achieved on the Court. Yet could not the President equally complain that his critics on the Right have broken faith with him by suddenly asserting the importance of process over results?

Sometimes we all have to stand back, take a deep breath, and remind ourselves of what the real goal is.

Evangelicals Aren't Identity Voters

I have no idea why Hugh Hewitt has attached his significant credibility to defending the Miers nomination no matter how weak the arguments he has to serve.

First of all, Mark Levin, who was once chief of staff to the Attorney General, challenged Hugh on the exalted significance he attaches to the White House counsel office, where Hugh once worked and which Miers currently heads. Specifically Levin said, "Sorry, Hugh. They're not considered the Constitutional engine that runs the government."

Second, Hewitt continues his absurd notion that the resistance to Miers will somehow do massive damage to evangelical support of the conservative movement. After Howard Fineman suggested (as have several of us at SA) that a GOP primary candidate would be well-advised to vote against a Miers confirmation, Hewitt said,

"That is simply wrong. To vote against Miers because the Bos-Wash Axis of Elitism is against her is not the way to gain Evangelical favor. The opposite, in fact."

Evangelicals are not identity-voters. If they were, Ronald Reagan would never have beaten Jimmy Carter, an established evangelical Christian at the time. Evangelicals vote issues. When it comes to the court, the issue is whether it will be empowered to settle all disputes over sex, marriage, and reproduction. They have been sorely disappointed with several nominees and are quite unlikely to lash out at those who complain Harriet Miers' judicial philosophy is unknown and untested.Contra Hewitt, conservative evangelicals are going to act a lot more like Missourians than bloc identity voters. Show us, baby. We ain't budgin' till you do.

Wednesday, October 12, 2005

The Art (If Any) of Popular Music

In the current issue of the Weekly Standard, Sean Curnyn provides a very interesting review of rock music critic Greil Marcus's new book on Bob Dylan, Like a Rolling Stone: Bob Dylan at the Crossroads. Judging by Curnyn's review, Marcus's book looks about as silly as his previous writings, which would make it very risible indeed. The reason for the absurdity of Marcus's work is its relentless fulfillment of a classic characteristic of comedy: exaggeration. In Marcus's case, he exaggerates the literary importance of the works he considers (while usually showing little real knowledge of music). This is true of all too many rock critics, especially those associated with Rolling Stone magazine over the years.

I see two reasons for this great distance between reach and grasp. One is the fact that rock critics are so intent on creating intellectual respectability for this popular art form that they love (and they see intellectual respectability as residing largely in the words of the songs). They love Elvis, the Beatles, Dylan, Elvis Costello, U2, Public Enemy, Nirvana, Alicia Keys, and whatever, and they want people to understand that this is not mind-rotting, time-wasting nonsense but is in fact really good stuff—art even. This desire is nothing of which to be ashamed: critics throughout the ages have done exactly that, from Aristotle's attempt to show the value of stage tragedies, in the Poetics, to the efforts of eighteenth- and nineteenth-century English novelists and critics to afford some respectability to that brash, popular, low-class substitute for poetry and stage drama, the novel.

Rock music critics, however, are hampered by an additional problem: a lack of a real definition for the art form they are writing about. Rock music is an olio, an amalgam of several different forms of music, and popular music has never really been defined as an art form and analyzed as something discrete from other music. It has never had its Poetics or The Art of Fiction.

Hence, critics tend to praise in their favorite music the things that they like the most in life itself and that they think will bring the most respectability among the music's audience. For most rock critics this involves notions such as passion, authenticity, intensity, surface originality (but absolute, fundamental orthodoxy to a particular mindset perhaps best described as hedonistic materialism), occasional surprises (but not much musical complexity), personal drama, contemporary relevance, emotional expressiveness, and the like. (Yes, these critics are products of the last half of the twentieth century and hence a bit kooky and unmoored.) Musical works that express these characteristics are seen as good, and those that do not do so sufficiently are seen as bad.

You see the problem, of course. Passion, authenticity, intensity, surface originality, contemporary relevance, emotional expressiveness, and the like are very good things in their place, but they do not compose a coherent structure or model by which things may be tested and compared to one another. They are all too easily turned into subjective matters with no real standards of achievement that can apply to the entire body of works to be considered. In addition, they entirely lack intellectual content and hence cannot convey respectability in that realm.

I'll write more on this subject in the coming weeks, but to get the ball rolling, I will hazard a definition of popular music, one that includes all that is pop music and excludes what is not it. Here it is:

Pop music takes the form of dramatic poetry set to music.

A few notes:

One, I do not intend this definition to suggest that pop music lyrics are poetry. It takes the form of dramatic poetry, which is something a bit different from actually being dramatic poetry. Let's be realistic: pop music lyrics simply are not poetry. Some song lyrics can be quite poetic, but they are almost never true poetry, by any classically defensible definition. Read the song lyrics of the greatest lyricists, whomever you would choose, and then compare them to even middle-level poetry, and you will see this truth starkly revealed. (Note that this definition does not apply to opera librettos. The latter are poetic dramas, as opposed to dramatic poety, and can be classified as either drama or poetry or both. Operas are basically narrative in form, whereas pop music concentrates on presentation of character, particularly in moments of crisis.)

Two, pop music lyrics are dramatic, in that they typically present the thoughts and feelings of a character playing out over the course of the song. That is, they are strongly allied to performance. Even those songs that seem to take the form of a personal essay, like so many of Bob Dylan's songs, are actually brief dramas.

Third, pop music is usually much briefer than poetic drama, in deference to the form's emphasis on moments of crisis.

Fourth, the music in pop music likewise tends to serve the creation of drama.

Fifth, pop music can convey thoughts, but that is not what it does best. It is most effective at conveying motives and drama—the manifestations of human character.

Sixth, the creation of drama and expression of human character in both lyrics and music has a logic to it that can be identified and codified into principles that allow comparison and reasonably objective analysis of pop music to the extent that such things are possible with any art form.

As noted earlier, I'll write more about this in future, but I offer this definition as a way to begin the process of establishing some standards by which to analyze and judge popular music in a rather more objective way.

Miered in the Slough of Despond

Hunter is sounding like a man who can't take much more of this. He's obviously not looking at the nomination through the lens of self-interest. This Miers kerfuffle is the biggest gift to hit the right-wing blogosphere since Rathergate. It's such a complete and utter disaster, there's really nothing to do but try to get some laughs and traffic out of it.

Miers is a homonym of mires.
Mire is a synonym of swamp.
Other synonyms of swamp are:
(my favorite)
The Miers nomination is a dismal morass. QED.

If you were looking for something that was actually clever and funny, you should visit Dylan over at Still Angry, where George and Harriet are given the Mark Antony treatment and a chorus of bloggers including Bainbridge, Patterico, and Feddie from Southern Appeal play supporting roles. It is the funniest thing I've read in days, and when Dylan declaims

I come not, friends, to steal away your hearts: I am no orator, as Bush is.

my coffee went four different directions. Dylan tops himself in his own comments box, however, when he explains

I'm a Texas A&M grad with a University of Houston J.D., so I know an underqualified Texas legal hack when I see one.


Language, Mr. Baker, Language

I need this Harriet Miers thing to go away.

My reflections on Bush have nearly reached the pitch blackness of the worst moments of the Clinton era when he pled for an end to the Monica story because he needed to be about the business of the American people, as though there was a room somewhere that required his steady hand on the controls.

At least Bush can claim he's been distracted by the extraordinary challenge of Iraq.

But it's not good enough, not nearly. I'd love to hear from the other RC'ers on this question, but I do believe the Miers nomination is the biggest political <expletives deleted> screw-up (the replacement term) I have ever seen in my lengthening life.

We've had S.T. play the "she'll vote fine" card and Tom urge tolerance in light of core values the president may be observing and those are good things to say. I count them better men than I for holding their water with so much less volatility.

But all of this ignores the fact that there has been a conservative legal movement going strong for about twenty years now. It has certain identifiable members. Resume's from that group look a certain way. They are a lot like Bork except more diplomatic and more careful. Bush was very definitely understood to be referring to this group of people when he said he wanted originalists like Scalia and Thomas.

Many members of this group are quite well-accomplished as academics, jurists, or both. The expectation has been building for this entire period, really longer than twenty years, that when we had both the White House and the Senate, we would nominate these people and WIN.

For the President to choose any other course of action is almost willfully dense or offensive. To compound the offense by claiming he selected the most-qualified person available is insulting. To the extent men I admire, like James Dobson and Chuck Colson, seconded Bush in this choice I can only imagine that they found it difficult to oppose a personal request from the President when he offered his word of honor.

For the White House to expect the controversy would blow over in 48 hours displays the same kind of tone-deafness that utterly failed to prepare the American people for the size and duration of the action in Iraq.

There is no other way out than to start over. The President is picking Hugo Black over Learned Hand and that is just not the way to do things (forgive me for an illustration that may not resonate with non-legal types). It isn't fair to the people who have prepared for these opportunities. It isn't fair to Harriet Miers. It boggles my mind that she didn't refuse him if he brought up the idea.

What's going on is more of the old LBJ, Bull----, down-home politics and that just isn't the way you handle the court. If Bill Clinton can nominate and confirm a former ACLU bigwig like Ruth Bader Ginsburg, then I dare say we need not do less when our opportunities arise.

Call time out, Mr. President. Step back from the plate. Clear your head. Find an honorable way to start over. Then, swing away.

Conspiracy Theory

Although I don't buy conspiracy theories most of the time, that doesn't mean I don't think of them. Here's the latest:

1. Peggy Noonan and others have complained the Bushes and Clintons are unhealthily chummy.

2. Some have even gone so far as to suggest that the Bushes have a deal with the Clintons to put Hillary in the White House in 2008.

3. At the very moment Clinton FBI Head Louis Freeh releases his book blasting the Clintons for their terrible management of law enforcement/terrorism, President Bush nominates Harriet Miers.

4. The Miers controversy sucks all the air out of the press and the Freeh book gets about 10% of the publicity it might ordinarily have gotten.

5. BUSHCLINTON triumphs again!!!!

Bwwwuh-HAHA! Bwwwuh-HAHA!!!!

Oh, Jay Is Guilty Again

So you have built up an appetite (you remember the Seinfeld dialogue... Jerry: George, do you ever yearn?; George: I crave, I crave incessantly, but I don't yearn...) for an article by Jay Homnick, and who can blame you?

It's not my way to deny my devotees their wishes. Here it is.

What is it about? About 800 words. On what subject? Harriet Miers - what else is there?

Tuesday, October 11, 2005

Desperate Assertions by Team Bush

I've just read a transcript of the Today show interview between Matt Lauer and President Bush and wife (forgive me for not linking).

What has left me more appalled than ever are the terrible arguments made in favor of Ms. Miers by those who love her most for the position of Supreme Court Justice. Here are the key assertions made by the Bushes this morning:

1. "Harriet Miers is the single most qualified candidate for the nomination."

Ulp, urrrk . . . I think I just threw up in my mouth a little bit. I mean, did anybody notify the the Guinness Book people? I think Bush just broke the record for least plausible political statement set by Bill Clinton with his thing about abortion being "safe, legal, and RARE."

2. "The conservative opposition to Ms. Miers is likely sexist in nature."

Is there any way to respond to this with a straight face? Does anybody believe that a Priscilla Owen or Edith Jones nomination would have aroused the atomic opposition of legal conservatives? Noooooooooooooooooo.

Meanwhile, the normally very astute Hugh Hewitt keeps saying, "Trust the President. He has his reasons. He knows her. Trust him." In Hewitt's view, that wascally Bush is going to outfox the Dems again.

I'm looking at things a bit differently. Remember Bush 41? He made a deal with the Democrats on tax increases and destroyed his presidency politically. That brings us to the third assertion in the interview:

3. "I listened to people who said it's time to bring in someone from outside the judiciary."

Who might have been saying that? I'm guessing Dems and maybe RINO's. The Harry Reid "delighted" response was a bit of a dead give-away. Thus, instead of doing the Reagan thing, Bush is doing just like dear-old Dad and is making unhelpful deals with the other team that will destroy him.

What I'm saying is that Harriet Miers is "No New Taxes" all over again. (If Bush has learned anything, it seems to be "wait until the second term to piss off the base.")

This little bit of compromise is particularly damaging because Bush's bond with the conservative movement has involved a huge helping of "Trust me."

Given the uncertain status of the war in Iraq and a bloated federal government, I'm fresh out of trust. What I needed was a slam-dunk, not another relationship test.

Monday, October 10, 2005

TRC Hall of Famer: Buckley

Everyone has their heroes. One of mine, since the tender age of about 18, has been William F. Buckley. I'm thinking about him because of this lovely profile in the NYT. Without Buckley, I seriously doubt there would ever have been a Goldwater presidential run or a Reagan presidency. It is a cliche', a true one, but still a cliche', to say that Buckley gave the conservative movement style and wit. Some claim him as the founding modern conservative intellectual, but one would need to make a bit of room for Russell Kirk (who showed us the historical pedigree of conservatism) and Whitaker Chambers (who never accepted the conservative label), too.

In an article about the Rush Limbaugh/ESPN/Donovan McNabb fiasco, I wrote the following about Buckley:

While a graduate student at the University of Georgia in the early nineties, I had the privilege of attending a speech given by William F. Buckley. The elder statesman of the movement amazed the large crowd with both his wit and his wardrobe. To this day, I remember his navy sportcoat, yellow shirt, khaki pants, and RED belt. You’ve got to be good to pull that look off, but Buckley was equal to the task.

At the end of his presentation, he allowed questions. The first supplicant approached the microphone and hopefully inquired, "Mr. Buckley, what do you think about Rush Limbaugh?" This was during the time when Rush was still something of a rising star. His rhetoric was bombastic, hard-edged, and wickedly funny. Members of the audience shifted forward in their seats expectantly as Buckley answered by telling the following story.

There were two Spaniards sitting in a bar. One asked the other, "What do you think about General Franco?" Instead of answering, the man gestured for his friend to follow him outside. Once on the sidewalk, he motioned for the friend to follow him to his car. They got in the car and drove to a forest. Deep in the woods, he parked the car and beckoned the friend to hike with him down to a lake. At the edge of the lake, he pointed to a boat which they boarded. He grabbed the oars and rowed to the center of the lake. Finally, he sat still, looked his friend in the eyes and paused for a moment. "I like him." Buckley told the story so brilliantly and created so much suspense, the denouement brought the house down amid gales of laughter and happy applause.

Not as many will take notice when Buckley finishes his time among us as did when Ronald Reagan passed on, but I'm quite sure there will be some of us who may feel the loss even more deeply when it comes.

Buckley was/is incomparable. The NYT story carries the suggestion that Buckley became so much larger than life because he stood alone without much competition. I think he'd shine in any crowd.

Experts Say Hurricanes-Global Warming Connection Is False

A forthcoming article from the November issue of Environment and Climate News (which this author serves as senior editor), published by the Heartland Institute, quotes the past president of the American Association of State Climatologists as debunking the notion that hurricanes are increasing in intensity because of global warming. Pat Michales points out that the circumstances that cause the fiercest hurricanes have not changed at all in recent years:

“It is a contravention of science to attempt to link Katrina’s intensity to global warming,” said Pat Michaels, past president of the American Association of State Climatologists and senior fellow at the Cato Institute.

“Since 1982 we have had weekly records of sea surface temperature,” Michaels noted. “During this time period we can examine on a fine scale the relationship between hurricanes and sea-surface temperature. The threshold water temperature for category 3 hurricanes is 28 degrees C. Interestingly, for category 4 or 5 hurricanes, there is no statistical relationship with the amount of elevation beyond 28C. The Gulf of Mexico reaches 28 C every year, whether or not the planet has warmed or is cold.”

“The most intense tropical cyclone to ever strike the United States was hurricane Camille in 1969,” observed Michaels. “Camille landed very, very close to where Katrina landed. Significantly, Camille occurred when the temperature of the northern hemisphere was at its low point for its last 80 years. Camille simply needed an ocean temperature of 28 C. Clearly, it is irresponsible to link severe Gulf of Mexico hurricanes to global warming.”

The article goes on to quote Competitive Enterprise Institute senior fellow and statistician Iain Murray confirming that the sea surface temperatures in the Gulf of Mexico reaching 28 C is nothing new:

“For hurricanes in the Gulf of Mexico, sea surface temperatures need only get above 28 degrees C for them to help make the hurricane Category 4 or 5,” Murray said. “Sea surface temperatures there regularly go above that level, and have done so for as long as we can remember.”

Of course, we need only await the next incidence of severe weather somewhere in the world if we wish to hear the next crackpot theory about how human-caused global warming is causing previously unimaginable catastrophes. The scenario Michael Crichton outlined in his excellent novel State of Fear is still being played out in the U.S. and European media.

Demographics 1 for Journalists

I have noted in the past that modern-day journalists---predominantly English or Political Science majors who failed to get into law school---are ignorant, stupid, lazy, dishonest, biased, and arrogant.

I was too kind. Take a look at today's LA Times, which "reports" that drug overdoses increasingly are concentrated among people in their 40s; in 1985, the dominant age was 32. And so the geniuses at the LAT seem to conclude that drug use increasingly will be a phenomenon of the middle-aged, and that new programs are needed to deal with this new trend.

Oh, dear. Has it occurred to our crack reporters that there is a cohort---the ineffable boomers---that for whatever reason is more prone to drug use, and that drug use becomes increasingly concentrated in that aging cohort as time moves on? Or does the Times actually believe that this "trend" indicates that those now in their twenties increasingly will turn to drug use over the next two decades?

It's really quite unbelievable. Is so elementary an analytic dimension of basic demographics beyond the understanding of our modern journalists? Or are they the ones on drugs?

Sunday, October 09, 2005

TRC Film Review: A History of Violence

By virtue of his work in the LOTR trilogy, Viggo Mortensen has clearly made his way into the top tier of Hollywood leading men. The fact that he got the juicy role of Tom Stall in A History of Violence proves it.

HOV is a superb film. I haven't seen anything in the theatre that has caught my interest in the way this movie did in a long time. It is violent, graphically violent in a smoothly choreographed fashion, but this isn't action movie violence. It isn't glorified. At every point you see the dualistic nature of violence, justified or not, and the way even the justified violence leaves you feeling a little sick.

The basic story is about a simple, small-town man who kills men about to commit rape, robbery, and murder in his cafe'. He is so successful in thwarting the attack of these bad men, he attracts attention from the media who view him as a hero and from less savory characters who think he is one of their number from the past. These big-city mob types want to kill Tom Stall as revenge for something they believe he did years ago. They think his name is Joey and that he maimed a made man.

Whether he is the man they are looking for or not, I leave for you to find out.

In any case, the film is very successful in riveting the viewer's interest and stimulating thought. You care about the characters and become invested in the outcome.

Finally, William Hurt had a small, but very important part in the film. He may be on screen for ten minutes, but they all count. He's magnificent in his role. If they give an Oscar for a brief, but powerful appearance, it's his.

Side note: There are two sex scenes in the film between Viggo Mortensen and Maria Bello. The scenes are semi-gratuitous. I say semi because they do contribute to the development of the story, but the same could have been done with less graphic scenes. I wouldn't mention it except that the scenes are far from cookie-cutter, so you end up reflecting on them.

Side note 2: Despite the fact that I clearly asked for a ticket to A History of Violence, the cashier gave me a ticket to The 40 Year Old Virgin. Since it was a weeknight and it didn't matter, I didn't ask for a new ticket. After the film, however, I wondered whether the mistake could have been intentional. Think of it, my money went to a film I didn't see. Unethical individuals could arrange something like that with bribes or favors to cashiers. I could be on an imagination trip, but it seems possible.

Friday, October 07, 2005


Movement conservatives have their panties in a bunch over Harriet Miers. So be it--she is apparently not herself a movement conservative. News flash--neither is George W. Bush.

Dubya is of the Christian evangelical strain of the Republican coalition, one that has common cause with the "movement" almost across the board--a regard for the societal norms that by hook or crook raised us from the Hobbesian ooze, a belief in a higher moral order, and an economic liberalism that's really an opposition to statism, especially the post-modern kind which holds man is no more than the sum of his atoms, and his society no more than a set of conventions to be manipulated for maximum utilitarian efficiency.

I may be stretching here to point out that the conservative movement has attracted many Catholics and Jews, whose heroes number Catholics Thomas Aquinas and William F. Buckley, and on the neo-con side the putatatively Jewish (but likely atheist) Leo Strauss. Logicians all of the first order, from religious cultures that highly value such things.

However, to the Luther-inspired evangelical system of values, faith alone saves. The best person for the job is not the one with the best mind, but with the best philosophy, and Jesus is the best philosopher. Therefore, character, that which leads one to his values and then binds him to those values when the going gets tough, is the true measure of a man.

Or woman, in this case. And having worked side-by-side, day-to-day with Harriet Miers for over ten years, this is one decision for Dubya that isn't as hard as it looks. (I never believed he was taken in by Vladimir Putin, just trying to inspire the man's better angels.)

I understand the desire of Ann Coulter, et al., for a brainiac over a "good person," but be careful what you wish for. Intellect and logic are mighty but also give us Friedrich Nietzsche and Peter Singer.

It is character that abides. And if you poke through the accounts of Ms. Miers' life, a rare combinition of humility and assertiveness, there is little doubt that Dubya is convinced she's one of the best persons he's ever known, and his worldview is that the best person for the job is always the best person. (Based on my familiarity with the law industry as a headhunter, I find her qualifications adequate, if not bootstrap-admirable.)

I often have to use the completion-backwards principle to divine the workings of Bush's brain, as I've attempted here, but add in the politics of the matter, that Harry Reid suggested that Miers wouldn't get much of a fight, that the GOP half of the Gang of 14 is wobbly, and that this has not been the best of years to throw around the weight of his slim electoral majority, and the pick makes sense to me, at least from Bush's point of view.

Movement conservatives may rightfully say they didn't vote for Bush to get half-a-loaf Supreme Court candidates. However, many other folks who voted for him too may be getting just what they want, including the President himself.

Now, I've Really Had It

Per the Washington Post, let's review the following from Harriet Miers:

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.

Oh . . . My . . . Goodness . . . This . . . is . . . terrible . . . Blacking . . . out . . . Choking . . . on . . . own . . . tongue . . .

There is no good way to read this.

A. She isn't sure about the difference between Warren Burger and Earl Warren.
B. She chose either Burger or Warren as her favorite, neither of which would augur particularly well for her judicial philosophy.
C. When trying to say Warren Burger was her favorite, she could only think to refer to him by his first name.
D. She really meant Earl Warren, which would be an utter and complete meltdown. She could have said him simply because he is the most famous modern Justice.
D. Other unflattering possibilities.

I am famous for getting angry about elitism or about labeling ideological enemies as stupid, but listen up, there is qualified and there is not qualified. I don't think Harriet Miers is qualified. She is surely a top litigator, trial advocate, and legal manager. She is not surely anybody's constitutional scholar, Supreme Court advocate, or judge. (HT: Southern Appeal)

Update: Kathryn Lopez at National Review says she has heard another version of this story in which Miers was interrupted while attempting to say Warren . . . Burger for his administrative skills as an answer to which justices she admired. That would be a very strange answer, too, but it's the blogosphere so you can have the two stories so far in front of you. This is hearsay, which may be better or worse than the Washington Post account claiming several sources.

Thursday, October 06, 2005

Receivable In Voices

Anyone who has read my work knows that I believe in God and that I think that a great deal of intellectual and moral information resides in religious texts; nor do I belittle the inspiration that can be derived from religious experiences.

On the other hand, Presidents who go around telling heads of state (or wannabe quasi-heads of faux states) that God is sending them messages (other than the sense that God inspires the operation of their intellect and discretion) how to govern get me nervous. Here, read this and tell me what you think.

Mr. Karnick, Your Answer in Part . . .

Is right here:

New Chief Justice John G. Roberts Jr. yesterday sharply questioned a lawyer arguing for preservation of Oregon's physician-assisted suicide law, noting the federal government's tough regulation of addictive drugs.

At the outset, Chief Justice Roberts directed a barrage of questions at Oregon Senior Assistant Attorney General Robert Atkinson before the state official could finish his first sentence.

"Doesn't that undermine and make enforcement impossible?" he asked Mr. Atkinson.

At one point, a flustered Mr. Atkinson said: "I'm starting to be backed into a corner."

It makes a difference what kind of intellect and experience you put on the court.

My Mom

Well, I've missed a lot around here lately. I was back in Philadelphia, where my mother, Marie, passed away peacefully last week at age 71.

She was too weak to undergo a second operation, but strong enough to stay with us a few weeks longer so we could all say goodbye, and slowly get used to the thought of living on without her. That's the way she was, giving much more than she took.

It was difficult, of course, but thoroughly proper in that old-fashioned way before this age of pulling tubes and plugs, gathered about her bedside singing songs, retelling our family stories, catching up for the last time, and sharing lots of smiles and laughs and kisses.

She said that it sounded strange, but she had some very, very happy times in those last few weeks. I know what she meant. There are a few selfish tears of loss, but mostly the ones that come in the face of those rare moments of crystal clear yet incomprehensible beauty.

Please let me thank you all for the warm thoughts sent our way through this, and close off the comments for this post. A quick prayer would be appreciated. Sleep in peace, Mom, until I come to thee.

"When you find a moment of happiness, bask yourself in it. Roll around in it and enjoy it. Promise me you will.

And when the bad times come—and everyone has their time on the fence—you take it one day at a time. That's all there is for it."
Marie O. Dyke

Sen. Kennedy's Colossal Nerve

A message making the rounds of the internet reports and comments briefly on an interesting statement recently made by Sen. Edward M. Kennedy (D-MA), which I confirmed by finding the relevant quote in the Washington Post here. The Kennedy statement was in regard to the federal government's response to Katrina, and the internet message is as follows:

"What the American people have seen is this incredible disparity in which those people who had cars and money got out and those people who were impoverished died," Sen. Edward M. Kennedy (D-Mass.) said.

Mary Jo Kopechne could not be reached for comment.

The Spin Zone

Cato Institute received a call this morning inviting me to appear on Fox TV’s O’Reilly Factor. For a moment, that seemed odd. In my experience, the only way you get invited on that show is if you agree beforehand to (1) keep repeating “you’re absolutely right” to O’Reilly or to (2) take some absurdly extreme position that will be easy for him to shoot down. This unique exception to those two rules was because my new column, “The Foolish Factor,” got someone’s attention.

I couldn’t possibly appear on TV tonight. There is a not-to-be-missed black tie event tonight celebrating National Review’s 50th Anniversary. Bill Buckley and the late James Burnham discovered me back in 1971, recruiting me to be NR’s economics editor for several years.

To avoid being exposed to a familiar O’Reilly stunt – namely, “we invited him to appear” (but he was too chicken) – I agreed to do a radio interview instead. But the President said something and that got me bumped. For the record, I’m not intimidated by O’Reilly’s inclination to call his critics pinheads, even though he is a foot taller than I am.

What is being tested here is the thickness of his skin. In his September 9 show, “Feeling Sorry for O’Reilly,” he said, “After I criticized the price gouging by the oil companies, ‘Bill O'Reilly is an Economic Fool,’ headlined one blog. Well, take out the word "economic" and you'd be more accurate.” That showed his sense of humor, which is fine, but the truth is that leaving in the word “economic” would be more accurate. O’Reilly is wise and clever about many issues, but not economics. He has degrees in history, journalism and public administration, but must have slept through basic economics.

He concluded that show saying, “Feeling sorry for me yet? Look, all this dishonest nonsense is ideologically driven. And it appears all day every day in this country, there are no standards anymore in the media. But the good news is that folks are seeing through the propaganda and coming into venues that tell the truth and deliver opinion backed up by fact.” My "ideologically driven" (?) column claims Bill O’Reilly has not been telling the truth about price gouging by the oil companies and he has not been backing up his arrogantly ignorant opinions with any facts.

Don’t feel too sorry for O’Reilly. He has his own column with the same syndicate that carries mine, and his own newsletter, so he is welcome to try answering me in print if he likes. Or, he could simply confess that he has no idea how gasoline prices are set or by whom. The rest of us print corrections when we make mistakes. There's no dishonor in that.

Miers v. Ingraham

Richard Miniter has a devastating piece comparing Harriet Miers to talk show host Laura Ingraham for the Supreme Court spot at National Review. Consider this:

Miers's undergraduate education was completed at Southern Methodist University in Dallas in 1967. Ingraham graduated from Dartmouth College, in Hanover, New Hampshire. That's not to say an Ivy League education is a prerequisite for Supreme Court service. It's not. But as one of many details in one's background, a highly selective admissions process is not nothing.

Campus conservative? No, Miers was essentially apolitical in the 1970s and gave money to various national Democratic politicians in the Reagan years. By contrast, Ingraham was a regular contributor to the conservative Dartmouth Review and worked in the Reagan White House.

Miers attended law school at Southern Methodist University, not one of the nation's top 20 law schools at the time. Even today it is ranked 52nd best in the nation by U.S. News and World Report. Ingraham studied at the University of Virginia Law School, currently ranked eighth in the nation.

Federalist Society membership? It does not appear that Miers bothered to join. Of course, it was founded years after she passed the bar, but many conservative lawyers do join after law school. "But she supports the society," says White House press person Dana M. Perino, and Miers has spoken at a number of Federalist Society events. Ingraham of course was a member.

Clerked for federal judge? Yes, Miers clerked for a U.S. District court judge Joe E. Estes in Dallas. Ingraham clerked for judge Ralph K. Winter on the second circuit of the U.S. Court of Appeals.

Clerked for U.S. Supreme Court? Miers did not, while Ingraham researched for Justice Clarence Thomas.

Age does not seem to favor Miers either. She’s 60; two decades younger, Ingraham would have more natural staying power.

Attorney at a top-20 national law firm? While a lot has been said about Miers's accomplishments, her old firm is simply not a major player on the national stage. Even after a merger with another firm, the new outfit, known as Locke, Liddell & Sapp, was ranked no. 94 by The National Law Journal in 2003. That same year, Ingraham's firm — Skadden, Arps, Meagher & Flom — was ranked no. 3 by The National Law Journal. So, at best, Miers was a big fish in a smallish pond.

Both Miers and Ingraham have White House experience. Ingraham was a speechwriter for President Reagan in his last two years, helping craft the president's message on many of the vital issues of the day. Interestingly, despite what Bush describes as Miers's "stellar record of accomplishment in the law," he did not name her White House counsel in his first term. Instead, she was appointed staff secretary, a manager of presidential paperwork. While many distinguished people have served as staff secretary, including Brett Kavanaugh, it may say something about Bush's view of Miers's capacities that he first put her in such a detail-oriented staff job, rather than one grappling with major legal and policy issues. Miers only became counsel to the president, the top legal job in the White House, in February 2005. Seven months later, she was nominated for a Supreme Court seat.

Of course, Miers has other government experience. She cleaned up the mess at the Texas Lottery Commission. No doubt a vital public service. But Governor Bush did not urge her to join the state supreme court. Meanwhile, Ingraham served in policy positions at the U.S. Department of Transportation and Department of Education. This seems like a draw.

Miers does not have much a paper trail, or at least one that the public will be able to see. By contrast, Ingraham has written two books, including one bestseller, as well as many bylined articles in national newspapers and magazines.

The president told a reporter Ms Miers is the most qualified female lawyer in the nation. Think he'd like to reconsider? And Ms. Ingraham isn't even the best credentialed female out there.

It's Not Just About Pro-life

We keep hearing assurances that Harriet Miers is pro-life.

That is not, strictly speaking, what I'm interested in. It is true that I am ardently pro-life and that I am on record in the Regent University Law Review arguing that changes in our medical knowledge now fully vindicate treating unborn humans as persons under the 14th Amendment. However, what I am interested in is getting a judge who will not twist the Constitution into a vessel for imposing one's preferences on the American people as was so clearly done in Roe. Roe was wrong on history, wrong in what it said it didn't need to know, and wrong in its constitutional interpretation. Those penumbras and emanations resonating off various parts of the Constitution were ridiculous and we all know it. If they weren't, then we should have "discovered" massive protection from economic regulation in the contracts clause.

Miers' friend Judge Hecht has said that one could be pro-life and still believe the constitution requires upholding Roe. I don't think so, not because of any special quality of being pro-life, but simply because no intellectually honest person can or should believe the constitution requires upholding Roe.

At a minimum, Justice Scalia is right and the abortion decision should revert back to the states. His position is not related to his pro-life viewpoint. His position depends entirely on his theory of constitutional interpretation, which is the only theory that keeps us out of the situation of having five of nine justices essentially rule as philosopher-kings.

So, what we are interested in is Ms. Miers' understanding of constitutional interpretation, not her political position re: abortion. I would rather have a jurist with a correct understanding of the constitution than I would one who believes the right thing policy-wise about abortion.

Wednesday, October 05, 2005

. . . Still Not Bothered

I find the anger of the Republican rank and file toward President Bush for the Miers nomination quite interesting, and I greatly respect the opinions of my fellow members of the Reform Club. I have been quite critical of President Bush on this site, from the right of course, especially as regards his economic policies. I think that I have been the most critical of the Reform Clubbers by far, toward this president. Perhaps this is why I have not reacted with such horror at the Miers nomination: My expectations of this president have evidently been not nearly as high, and hence my disappointment is minimal. To me, the nomination remains a practical question: Will Miers make a strict-constructionist majority on the Court? And to me the answer is yes.

Ross Douthat Suggests the Path for Winning the GOP Primary in 2008

Ross Douthat is one of my favorite commentators and he shows why in this post:

Idle Speculation:

In spite of the fact that only Hugh Hewitt seems willing to step up and defend the "deplorable" Miers appointment, I think the odds are about 1000-1 that she'll sail through her confirmation hearings. That said, it seems like there's a political opportunity here for a right-wing Republican Senator looking to become high-profile in a hurry. Somebody in the Senate is going to be the first to point out, loudly, that the Harriet Miers pick is an utterly ridiculous case of Dubyan cronyism. And if that somebody is also a conservative Republican who's willing to point out how unfavorably she compares to Scalia and Thomas (and Roberts) - well, they'd earn the eternal enmity of the Bush clan, but they'd also probably manage the difficult twofer of getting favorable coverage in the mainstream press (for being independent, anti-cronyist, etc.) and earning some serious chits with the GOP's base, to be cashed in during the '08 race or beyond.

Does that sound politically risky? Sure. But this is a moment when the end of the Bush era is suddenly and strikingly visible, and what happens during the Miers hearings might make a big difference in where various figures stand once Bush has gone back to Crawford for good.Perhaps just this thought has occurred to Jon Thune . . .

PS - Or Rick Santorum . . .

Calling Hugh Hewitt for a Justification

Hugh Hewitt is one of the most ardent defenders of the Miers nomination, referring to it as "a B+ pick." I defer somewhat to Hugh in the normal course of events because he is often right, but this time he is a Bush homer to the limit.

The following line demonstrates the degree to which he is deceiving himself:

Yes, I wanted Judge Luttig or Judge McConnell, but the president wanted Miers, and I don't for a minute believe it is because of friendship, but because of W's understanding of the importance of the Court.

I'd like to know how you could possibly bring Luttig and McConnell into the conversation and then suggest the Miers pick was because of the importance of the court. I'd love to see Hugh defend his statement by explaining in what way Miers excels Luttig, McConnell, or any of the excellent female appellate judges who have been mentioned. He can't defend his statement in that way. That leaves us with friendship and personal comfort level, which are clearly the wrong criteria for the selection.

My own take is that Hewitt has generally been virtually uncritical in his support for Bush and that he reflexively supports Miers because he was also part of the White House Counsel's office. It's personal and organizational loyalty all the way. When it comes to the law, that attitude won't cut it.

David Frum Joins In . . .

This may be the line I was looking for in responding to our Captain S.T. It comes from David Frum:

He should have chosen a justice who could lead by power of intellect, and not because she possesses 1/9 of the votes on the supreme judicial body.

This is so right on it hurts. I have been one of the President's biggest supporters, but this choice represents such offensively poor decision-making, I just can't stay on the boat any longer. If Bush were allowed to run for a third term, I'd support somebody else in a primary run.

The President's petulance in the press conference shows that he knows there is a lot of resistance on the right and he doesn't care. I mean, the guy is just aggressively anti-intellectual and this is one place where intellectuals really count. We've heard from the defenders who try to make it seem that this is about her law school or the fact that various conservatives wanted nominees they knew personally, but that's not it at all. The weeping and gnashing of teeth is over just what Kathy says it is: there are too many who have paid their dues and demonstrated exactly the abilities needed for the court.

The White House thinks that this mess will blow over in 48 hours. Not bloody likely. These disappointments are deep and abiding. If I were polled on the president's job approval number today, he'd be heading into the 30's or worse. When the Pres. has lost me, he's really lost.

Kathy Piles On

Sorry, Sam, but I must stand with Ben and Hunter on this one. This nomination is one of the worst moves Bush has made so far, and I'm not a Republican cheerleader who has overlooked and excused his previous miscues.

I realize that people are reaching back into history to find nominations similar to Miers's, and to reassure themselves that some of those (Rehnquist, for example) turned out not so badly. I think this is misguided, for the simple reason that the Court today represents a power that it has never represented in the past, and thus demands a type of legal mind -- one that is philosophically committed to undoing its usurpation of that power -- that was never a requirement in the past.

I am not in any way reassured by these reverse arguments from silence. Elite lawyers, like any other professionals, make decisions about what is important to them and these are reflected in the kind of law they practice. Sunny smilers like Hugh Hewitt seem to think that it's just happenstance that Harriet Miers has never spent much time visibly engaged with constitutional law. Horsefeathers. She hasn't spent time becoming a constitutional scholar because it wasn't important to her, in the way it was important to fifty other conservative legal minds I could name off the top of my head, including a dozen women.

I am also not being won over by Bush's increasingly petulant manner when defending his nominee. It suggests to me that he did not anticipate the level of conservative disappointment he was courting, which suggests that he's not the brightest bulb on the Christmas tree, which suggests that the argument that we should trust him is somewhat misplaced.

Beyond Mere Voting . . .

S.T., I can't agree. There is a lot more to a Justice than how he/she votes. As one who has been through the law school process, I can tell you that what a judge writes matters greatly. We carefully examine the opinions, all of them (majority, concurring, dissenting), in order to get the full picture on religious liberty, free speech, interstate commerce, etc.

The great Princeton philosopher Robert George always urges his students to engage in the strongest possible lines of argument. In order to do that, you need the strongest possible arguers. We should pick our best and brightest, not our most comfortable, on the conservative side.

There is also the little matter that she is 60 years old and we give up a good decade of influence on the court, unnecessarily.

Tuesday, October 04, 2005

. . . and One Who Is Just Not Convinced There's a Problem

Hunter Baker, Esq., and Dr. Ben Zycher have laid out some very well-considered arguments for their opposition to the Miers nomination.

Yet I remain unworried. Both writers are concerned that Miers might not be as steadfast as Justices Thomas and Scalia. That is a valid concern. However, certainty is something that we are seldom afforded in the case of a Supreme Court nominee. Sure, Miers could turn out to be another Souter, but it is important to remember that the Souter mistake happened because the president who nominated him was insufficiently aware of the possibility that he would prove to be so different from what was expected, and hence failed to investigate him sufficiently. Yet who could be more aware of such a possibility than the current president, son of the man who nominated Souter to his great regret? And whose judicial philosophy could Bush the Younger possibly know better than that of Miers, who has been a close associate for years? The situation is not at all analogous to the Souter nomination.

I still have been given no evidence that should cause us to believe that Miers will not be in agreement with the strict constructionists, and the notion that even if she is currently on the reservation she will quickly be worn down by blandishments of wily leftist status-givers strikes me as rather speculative at the least. In addition, the idea that a Supreme Court Justice's effectiveness is based on his or her ability to persuade other Justices to accept his or her opinions does not take into account the way the Court really works. The Justices know what they think, and they do not change their minds based on arguments made in camera with one another. On the contrary, they volunteer to write opinions and then write them, and concur with one side or the other according to their vote on the matter. This is my understanding based on what I have heard directly from Justices themselves, and I find it a highly plausible picture. After all, Clarence Thomas and Antonin Scalia could not persuade Souter or Kennedy to join their side, much less move Ginsburg, Breyer, or Stevens even an inch. Finallly, the notion that the other Justices would look at Miers as a lightweight strikes me as extremely unlikely and of no moment. She would have a vote just like theirs, and that would be that.

As to the value of a public fight over judicial philosophy, wouldn't the point of such a fight be to establish a strict-constructionist judiciary? And wouldn't the creation of a strict-construction judiciary be achieved by the establishment of a strict constructionist majority on the U.S. Supreme Court? And isn't that exactly what Bush's nomination of Miers is intended to achieve? Why fight a war when we can just take the objective without a battle?

Ultimately, what counts is how a judge votes, and nothing else. I see no reason to believe that Miers will be anything other than the kind of Justice that the Republicans have been asking for, and that she will create a majority of such Justices on the Court.

Make That Two on the Reform Club Editorial Board Against Miers

I am completely unified with the good Doc Zycher both in his opposition to the Miers nomination and in his distaste for W's leadership at this point in the presidency.

I was extremely underwhelmed by his choice of Dick Cheney for Vice-President back in '00. Do I lack appreciation for the magnficent Mr. Cheney? No, he's a stud, but I knew the election would be hard fought and it didn't make sense to add a fellow to the ticket who tipped the scales not at all on any state that mattered. How did he pick Dick? Well, Mr. Cheney was charged with finding the right veep candidate, just like Harriet Miers was supposed to find the right court nominees. Twice on crucial personnel decisions, Bush has taken the (personally) easy way out and offered the job to a friend of the family.

I want to be clear about something. I expect Harriet Miers is superbly talented and has done her job well, but we are trying to have a debate both on the court and in the public about judicial philosophy. John Roberts, who was arguably the top Supreme Court advocate in the nation prior to his appeals court appointment, comes ultra-well equipped to join Thomas and Scalia in writing provocative opinions and perhaps even moving the court's decisions through sheer force of argument. Harriet Miers has nothing in her record to indicate she has that type of temperament or ability. She will also carry the disadvantage of joining the court without the kind of resume' that will command respect among the other members. If Bush had picked Michael McConnell for instance, he would have come on board as an elite legal scholar and an appellate judge. Instant respect. Instant ability to move the direction of the court. Instant vindication of GOP principles because we are supposed to believe in meritocracy. And of course, there have been female judges who have made names for themselves, as well, and who were far more deserving than Ms. Miers.

I believe the president should be able to appoint people he trusts to his cabinet and White House positions, but that is emphatically NOT the key point to be observed in nominations to the court.

What's the Problem?

My esteemed colleague Sam Karnick observes in the context of Harriet Miers' nomination to the Supreme Court that El Presidente W says that she has the right philosophy, an interesting observation from a man (W, not Sam) not known for philosophical musings, whatever his other virtues. And there purportedly is no reason to believe that she is less likely to retain her current philosophy than John Roberts. And she almost certain to be confirmed. And so, asks Sam: "What's the problem?"

Oh, dear; where to begin? In a White House that values "loyalty" above all, in a world in which the line between loyalty and sycophancy is less than sharp, Ms. Miers' "philosophy" remains entirely obscure, above all to President W regardless of the self-deception into which he has allowed himself to descend. That she implemented W's preferences in the numerous judicial searches conducted by this White House is far less revealing than Sam seems to believe: In a While House populated with sycophantic careerists desperately seeking each day opportunities to plant wet kisses on W's shoes (or somewhere), Miers is reported reliably to have displayed the greatest zeal of all, announcing to all within earshot that W is "the smartest man she ever met." Well: That says something interesting either about Miers or about W or about all the other men she has ever met, however few that may be. But we cannot know which. The central fact is that no one---probably including Ms. Miers---knows her legal philosophy, in that there is no evidence that she has ever devoted the time and effort necessary to develop one that can be called coherent. Perhaps she has. But what is the evidence for that other than a testimonial from W, who---ironically like Saddam---hears largely what his staff believes that he wants to hear? More generally, there is good reason to distrust---profoundly---anyone who has succeeded fabulously in an environment in which objectivity does not appear on the list of attributes yielding upward mobility. That environment is the current White House, and that success is the shining achievement of Miers.

And so the assertion that she will prove as steadfast as Roberts over the long run rests on a series of assumptions far less than awe-inspiring. It is at least equally plausible that, just as she has bent to the prevailing winds in the White House, she will over time "grow" as the Washington Post likes to put it, that is, move to the left. Perhaps that is wrong. But the point is that there is no way to know from her record; and unlike Roberts, who implicitly would have to repudiate a career-long record of writings and other output, Miers would face no such constraint in terms of a shift toward the Breyer/Ginsburg/Souter axis. And so: There is good reason to believe her more likely than Roberts to move to the left, particularly given the Beltway blandishments available to those who do so. The Harvard lectureships. The conference panels in Europe. Ad nauseam. Does Clarence Thomas---by far the best of the current Justices--- receive many such invitations? The question answers itself. Perhaps Miers indeed will prove steadfast. But what is the rationale for accepting this risk?

That she is likely to be confirmed is irrelevant to the issue of Constitutional philosophy, both in its own terms and in the larger context of depoliticizing the confirmation process. Here was a chance for W to nominate an intellectual giant. Here was a chance to force the leftists to oppose a stellar nominee, in a world in which such a stance would be far more difficult politically than in 1987. Here was a chance, with a nomination of, say, Janice Brown, to expose the utter hypocrisy and nihilism of the Senate blue staters. Here was a chance, in short, to drive several nails into the coffin of Borking. Here was a chance to excite the Republican base in advance of the 2006 elections. Here was a chance to entice the leftists into a filibuster and thus to shove the nuclear option down their throats. (Do not let anyone tell you that fifty votes would not be available to do so.) And so what did W do? He looked into Miers' eyes, presumably, and liked whatever it is that he thinks he saw. Not in every dimension, but in most, W is a disaster.

No Fear of Miers

I haven't yet weighed in with my personal assessment of President Bush's appointment of Harriet Miers to the the U.S. Supreme Court. Judging from the reaction here and elsewhere, everyone to the right of Harry Reid is appalled by the choice.

I guess that I must be preternaturally sanguine, then, because I just have not been able to see this appointment as troubling at all. Yes, I have heard that Miers gave money to Al Gore's 1988 presidential campaign (and that since then she has given mostly to Republicans). And I understand that the public knows little about her judicial philosophy. But Bush must most certainly know what she thinks about how justices should assess constitutionality, and he has said that he does know and is extremely confident of her conformity with his views on the matter. Hence it appears to me that she must have precisely the kind of judicial philosophy for which Republicans have been asking. Furthermore, we have been given no evidence for reasons to think her less likely to retain her current philosophy than, say, Chief Justice Roberts is. Plus, she's almost certain to be confirmed by the Senate. If all those things are true, what's the problem?

Monday, October 03, 2005

Krusty the Clown and the Miers Nomination

Rod Dreher hits it out of the park at The Corner:

There is no event that cannot be related to an episode of "The Simpsons." The freak-out among social conservatives about the Miers nomination reminds me of the "Kamp Krusty" episode, truly one of the all-time greats.

You'll recall that Bart and Lisa spend a summer at Kamp Krusty, which is gruesome, ghastly and horrible in about a million different ways.But Bart refuses to believe it, because to have done so would mean having to question his faith in his hero, Krusty the Klown.

But when the camp leaders try to pass Barney the Drunk off as Krusty, Bart cracks. He spouts:

"I've been scorched by Krusty before. I got a rapid heartbeat from his Krusty brand vitamins, my Krusty Kalculator didn't have a seven or an eight, and Krusty's autobiography was self-serving with many glaring omissions. But this time, he's gone too far!"

A Sharp Pain in the Gut

No, this is not about Harriet Miers. I thought we could all use a break from that disaster.

The first Nobel Prize of 2005, for Physiology and Medicine, was announced this morning. It was awarded to Drs. Robin Warren and Barry Marshall, both of Australia, for their discovery in 1982 that peptic ulcers are caused by the previously unidentified bacterium Helicobacter pylori.

Unlike Nobel Prizes in physics or chemistry or, God forbid, the Bank of Sweden Prize for Economics, the winners of the Nobel Prize in Medicine have usually done something that has directly, identifiably, and promptly improved the quality of life of many, many people. This is undeniably true of this year's prizewinners. Before the discovery of this infectious agent, people with ulcerating lesions of the duodenum were told that their malady was the result of stress and a difficult personality, and were told to calm down and eat bland food for the rest of their lives. Their untreated infections caused not only pain, but various cancers of the stomach and esophagus. The modern treatment for peptic ulcer is a round of inexpensive antibiotics, which is effective in virtually 100% of infections.

Drs. Warren and Marshall were treated with extreme skepticism by the medical establishment when their theory was first proposed. Conventional medical wisdom had held, since the dawn of the germ theory of disease, that infectious agents could not survive in the harshly acidic environment of the human stomach. Because there were no suitable animal patients on which to experiment (and even today, no animal other than humans has been shown to harbor H. pylori), Marshall infected himself with a culture-grown colony of Helicobacter, made himself gravely ill, and proved the hypothesis. In the wake of this discovery, the role of infectious agents in a number of other chronic conditions, including heart disease, has been looked at anew.

Science has ever developed thus -- a couple of guys get an idea, everyone else tells them they're insane, they keep working at it, they take some risks, they absorb some insults, and in the end they wipe the eyes of their former detractors. Assumptions are made to be challenged, not blindly accepted, even if they have been held for a hundred years or more.

I'm sure you get my (continental) drift.

Measured Praise for Harriet Miers

While most conservatives, including those on this site, are wringing their hands over President Bush's appointment of Harriet Miers to replace retiring Associate Justice Sandra Day O'Connor on the Supreme Court of the United States, Indiana governor and former director of the federal Office of Management and Budget Mitch Daniels approves of the choice, according to the Indianapolis Star.

Or does he? The Star story quotes Daniels as saying, "She's very good at drawing out arguments on both sides of the question," and calling her a "decent, thoughtful, caring and balanced person." He said he got to know her well during his time in the White House and that her intellect is at least as good as those of the senators who will be questioning her during her nomination. The Star quotes Daniels as saying, "She is so hard working," and, "For all of her gifts, she is a very modest person."

Those are all very nice things, and superb qualifications to run the Red Cross. What is missing here, interestingly, is any mention of her opinions and central beliefs.

W and the Mind of Harriet

Well, I think that this nomination may well be the effective end of the Bush Administration--- which has not been a complete disaster, but largely one---and it almost matters not whether Miers turns out down the road to be a true Constitutionalist. With all of the incredible talent among which W was able to choose, this is the best he could do? "She has been listed as one of the most attorneys in America," or something like that. Maybe he looked into her eyes and determined the deep wellsprings of her philosophical bent. Just like with that libertarian, Vladimir Putin.

Uber-leftist Daily Kos is Right For Once

Sit back and enjoy
Mon Oct 3rd, 2005 at 09:25:16 PDT

Several Democrats, including Reid, have already come out praising Miers, which ultimately will only fuel the right-wing meltdown on the decision.

I reserve the right to change my mind, but Miers' biggest sin, at this early juncture, is her allegiance to Bush. That her appointment is an act of cronyism is without a doubt, but if that's the price of admission to another Souter or moderate justice, I'm willing to pay it.

More immediately, this is the sort of pick that can have real-world repercussions in 2006, with a demoralized Republican Right refusing to do the heavy lifting needed to stem big losses. That Bush went this route rather than throwing his base the red meat they craved is nothing less than a sign of weakness. For whatever reason, Rove and Co. decided they weren't in position to wage a filibuster fight with Democrats on a Supreme Court justice and instead sold out their base.

We'll have several months to pick through Miers' record, as well as highlight her role in any number of Bush scandals (like Georgia10 notes).

But my early sense is that this is already a victory -- both politically and judicially -- for Democrats. In fact, it should be great fun watching conservatives go after Bush. He may actually break that 39-40 floor in the polls, given he's just pissed off the very people who have propped up his failed presidency.

Update: Yup, Democrats are fully aboard. Reid's statement on the flip. Cue in more anguished wails from our esteemed colleagues on the other side of the aisle.

Kos is right about this one. Bush has made a potentially lethal decision for the party. The GOP caucus in the Senate should mark this one rejected and ask for a new submission.

Before 8 AM . . .

Why can't we turn back the clock? The sense of disappointment over this nomination has absolutely sapped me. Legal enthusiasts (like me) look forward to these opportunities that come along only every several years.

Yet, the president shows absolutely no daring, no creativity, no imagination. He selected his Supreme Court nominee the same way he picked his Vice-President, which is to say, he picked the person he charged with helping him find candidates!

Michael McConnell needs to make sure he gets a spot on the selection committee next time around. Then, he'll have a shot.

Force the Argument on Judges

A debate on constitutionalism is the absolute key to objections about the Miers nomination.

Even if she IS a strong conservative, we will not get the national debate over constitutionalist judges that we want.

If this nomination is made in fear of a fight over someone stronger or more obvious, then it has been made wrongly. The desire for constitutionalist judges is greater now than before. There is no reason to shrink or compromise or sneak through a stealth candidate. We should nominate Luttig or McConnell and build a little national interest.

Question: will the GOP run stronger after waging a tough battle to nominate a top-drawer judicial conservative or after sending up someone Dusty Harry likes? I think we all know the answer.

The Republican party cannot hurt itself by pushing judicial conservatives or by forcing Democrats to attack them. If moving the base is the key, Bush and Co. have made a bad, bad move.

National Review Gives up on Bush

Referring to the Meirs nomination as an "unforced error," David Frum, heretofore one of the Bush administration's strongest supporters in the press, writes on National Review Online that George W. Bush's legacy as president will largely be one of missed opportunities, of failure:

Again and again, George Bush has announced bold visionary policies--and again and again he has entrusted the execution of those policies to people who do not believe in them or even understand them. This is most conspicuously true in foreign policy, but it has been true in domestic policy as well. The result: the voice is the voice of Reagan, but too often the hands are the hands of George HW Bush.

Or worse. George H. W. Bush made his bad appointments in the name of replacing Reaganite "ideology" with moderate Republican "competence." He didn't live up to his own billing, but you can understand his intentions. But the younger Bush has based his personnel decisions upon a network of personal connections in which competence does not always play the largest part.

The idea that conservatives now see Bush the Younger as even worse than Bush the Elder is quite stunning.

Harriet Miers for the Court

We have the president's pick for the Supreme Court and it's . . .Harriet Miers.

Could this be a less inspired choice? I mean, c'mon, Michael McConnell and Mike Luttig are still out there! Not to mention Edith Jones, Edith Brown Clement, Janice Rogers Brown, etc.

Something else that troubles me a bit is that the future Justice Harriet contributed money to Al Gore, Lloyd Bentsen, and the DNC. That's two Democratic Senators and the central headquarters of perdition!

In Ms. Miers' defense, I might add that the contributions in question were from the 1980's and that she has been more GOP oriented since that time. The donation schedule looks very Texas lawyer-ish and that's what she is.

We'll just have to wait and see. I'm a little worried we're in GOP/Rockefeller country where the country club conservatives rule over us rank and file heart and soul types while speaking comforting words.