Radio Tonight

I'll be discussing the Alito nomination with Al Rantel on Talk Radio 790 KABC here in L.A. at 6:30 Pacific, and with Victoria Taft on NewsTalk 860 KPAM in Portland, Oregon at 7:15 Pacific.

Senator DeWine's On Board!

Just heard Sen. Mike DeWine (R-OH) -- of the Gang of 14 and the Judiciary Committee -- on the Hugh Hewitt Show, where he enthusiastically endorsed Alito's nomination.

Even more significantly, he stated that he would, indeed, invoke the constitutional option should the Democrats try to filibuster Alito. This is quite a scoop -- read the entire transcript at Radioblogger.

Given that Lindsay Graham -- also of the Gang of 14 and the Judiciary Committee -- has pledged that he, too, would vote for the constitutional option, only one more member of the Gang needs to come forward in order to demonstrate conclusively that Democratic efforts to filibuster this nomination would be futile.

Paging Senator McCain . . .

Multiculturalism: Fatal to Women

Read this and weep.

In Australia, apparently the police are "being advised to treat Muslim domestic violence cases differently out of respect for Islamic traditions and habits."

Wonder what all the politically correct feminist groups have to say about this?

Alito and Casey

The left-wing special interest groups are already trying to make hyperbolic hay of the fact that Judge Alito voted to uphold a spousal notification provision as part of abortion legislation in Planned Parenthood v. Casey.

Here's the point. The relevant question is not whether Judge Alito himself favors spousal notification before a woman can get an abortion. Nobody knows, and frankly, nobody cares. The question he was asked to adjudicate -- and did -- was whether the Pennsylvania legislature could make that policy decision and enshrine it in law without violating the Constitution.

Even from this account of the Supreme Court deliberations in Casey, it's clear that Judge Alito's opinion was hardly bizarre or out of the mainstream. In fact, if Justice Kennedy had stuck by his original vote, Judge Alito's position would have been that of the Supreme Court. Given that fact, it's (predictably) both inaccurate and misleading for the left to act as though Judge Alito's decision was clearly and obviously out of bounds, when in reality, the entire Casey opinion ended up being governed by Justice Kennedy's last minute change of heart.

Of course, it's unrealistic to expect either truth or temperance from the left. But fact are facts -- and it's simply wrong for the left to distort them in order to try to scare its base and score political points.

Just Another Alito Plus

In addition to his brilliance and his credentials, don't forget that Sam Alito is from the Third Circuit / Philadelphia. That may explain Arlen Specter (R-PA)'s cordiality to a nominee who is clearly more conservative than he would have liked to see.

Fabulous qualifications, and good geography, too. He's got it all.

Happy Halloween!

With the nomination of Judge Alito, we've gotten our treat!

Here is my weekly column -- a piece about Halloween titled, "The 'New' Halloween: What Does It Say About America?" Check it out.

It's Alito!

A graduate of Princeton and then Yale Law School, an Assistant U.S. Attorney in the appellate division, Assistant to the Solicitor General, Deputy Assistant Attorney General, unanimously confirmed by the U.S. Senate as U.S. Attorney for New Jersey -- what's not to like? Brilliant, beautifully credentialled, he's simply a wonderful choice.

Judge Alito was unanimously confirmed by voice vote in the U.S. Senate for the Third Circuit seat he currently holds; has argued 12 Supreme Court cases, argued at least two dozen court of appeals cases, and handled at least 50 others.

So he's been confirmed by the Senate twice, has impeccable credentials, and a hsitory as a crime-fighter . . . as U.S. Attorney, he prosecuted white collar and environmental crimes, drug trafficking, organized crime and civil rights violations.

Oh, yes -- and he's a member of the Federalist Society.

Dems -- filibuster this!

Stop Tainting the Jury Pool!

Here, Tim Russert discusses the Libby affair, and foreshadows the testimony he will presumably be called to offer if the case goes to trial.

'Scuse me, but isn't he tainting the jury pool? And wouldn't he be well advised to knock it off?

More Media Spin

Here's another revolting example of MSM fawning over Valerie Plame, this time by the AP. She's repeatedly referred to as a "covert operative" for the CIA -- in total contravention of the findings of Mr. Fitzgerald, apparently, for it's a crime to leak the name of a "covert operative" and no one's been charged with doing so.

Apparently, she and her husband were "stricken" after Bob Novak made reference to her in his column. Well, she must be some CIA agent, if she couldn't foresee some risk of exposure in permitting her husband to lie publicly in the pages of The New York Times about a mission she was instrumental in securing for him.

Sounds to me like there are certain predictive and risk assessment skills missing. If all the CIA agents are like her, no wonder they missed both 9/11 and the fall of the Soviet Union.

One more question: Who, at the CIA, leaked classified information -- namely, the fact that a criminal referral had been sent to the Justice Department in Ms. Plame's own case? And why doesn't anyone want to look into that breach of security?

Tomorrow's the Day?

That's what the Washington Post -- along with everyone else -- seems to believe.

If that's the case, no doubt the President is offering the slot to his nominee this evening. Perhaps it's a good time to say a prayer that the President receive the guidance he needs to make the right pick for the Court, and for the country.

Scuttlebutt over at ConfirmThem suggests that Judge Samuel Alito of the Third Circuit is the guy. If that's the case, count me among the delighted. I like the cut of his jurisprudential jib.

What's With the Dems' "Sorry" Obsession?

Harry Reid has once again materialized to demand that President Bush and Vice-president Cheney apologize for the actions of their aides.

Hmm. Just like President Clinton apologized for the indictments of: Associate Attorney General Web Hubbell, HUD Secretary Henry Cisneros, Agriculature Secretary Mike Espy (later acquitted), or small fry Stephen Smith -- not to mention the grandaddy of them all, Sandy "Docs in Socks" Berger?

Nor has Senator Clinton apologized for the behavior of some of her fundraisers, including David Rosen, James Levin, Raymond Reggie and Aaron Tonken.

And though there weren't any indictments, I can't recall any apologies forthcoming for the behavior of Craig Livingstone and Anthony Marceca, the gruesome twosome who improperly obtained FBI background files on various Clinton adversaries, which comes suspiciously close to violating the Privacy Act of 1974. And there were no apologies -- merely excuses -- for the slander directed at members of The White House Travel Office when they were fired.

When their political adversaries engage in wrongdoing, or are accused of it, Republicans don't fall victim to the fixation on extracting apologies, the way Democrats and the press has when it comes to President Bush. Sometimes I suspect it's because they fear that, despite their best efforts, they won't be able to convince the American public that the President has anything to be sorry for, unless he helps them out by admitting it.

Danforth and the Religious Right

As has been widely reported, former Senator and UN Ambassador John Danforth once again criticized the influence of "the religious right" on the Republican Party, this time during a visit to the Clinton Library.

With all due respect to Senator Danforth, his speech was somewhat reminiscent of the timing of Al Gore's famous global warming address -- given on New York city's coldest day in decades.

If the withdrawal of Harriet Miers was a loss for any faction of the Republican Party, it was the evangelical (or "religious") contingent. The opposition to Miers was composed of largely secular conservative intellectuals -- not the religious conservatives whom, according to Danforth, wield overwhelming (and destructive) influence in the Republican Party.

To me, it's difficult to understand what Senator Danforth, an Episcopal priest himself, finds so undesirable and threatening about people of faith making their home in the Republican Party. As far as I'm concerned, it's a badge of honor. Why should their voices count less than the militant secularists that dominate Democratic ranks?

No More Special Counsels

Two fine lawyers make a compelling case that it's time to stop using independent prosecutors. The fact is, as they point out, that Patrick Fitzgerald probably knew as early as January of 2004 that no underlying crime had been committed in the much-bemoaned "outing" of Valerie Plame. Since then, the investigation has been to punish wrongdoing that began and ended in the course of the investigation itself.

That's not to minimize what Lewis Libby allegedly did. But it does suggest that a good deal of time and energy is being diverted from things that impact the country to a number of things that don't.

As for Joseph Wilson and Valerie Plame themselves, they come off like a perfectly repugnant couple of publicity hounds, completely unworthy of the fawning coverage they're receiving from the Post and elsewhere. It seems clear to me that any husband who believed his wife to be in potentially significant danger from disclosure of her identity would think twice before publishing an op/ed (filled with lies, not incidentally) in The New York Times. If she's being threatened now (as Wilson claims), that's wrong -- but it seems to me that a moment of self-awareness is in order, if he's trying to figure out how that's happened. As for Plame herself, isn't it elementary that any woman who was at all concerned with being identified would be at least somewhat reluctant to strike a pose in Vanity Fair magazine?

Now, of course, the Plame/Wilsons are happy to play the victim. It's good for business -- wanna bet that it won't be long 'til they're both writing a book and hitting the left wing lecture circuit?

If one weren't already convinced that there are some serious problems at the CIA, the fact that Valerie Plame has been an employee there certainly forces that conclusion.

Senatorial Support

Bob Novak reports that support for a new Supreme Court nominee among Republican senators seems to be focused on the Fourth Circuit's Karen Williams and Michigan Supreme Court Justice Maura Corrigan.

If true, it's interesting that they're still fixated on nominating a woman. There are two ways to interpret this fact: Either they're stuck in misguided and increasingly irrelevant "diversity politics" -- or they are correctly identifying and trying to respond to a real political necessity, recognizing that putting two "pale males" on the Supreme Court will result in significant political fallout that next year's Democratic candidates can use to their advantage.

My personal inclination is to choose the best candidate -- male, female, whatever -- and let the rest take care of itself. But without access to polling and other political information, it's hard to know whether that's simply a principled stance for the GOP, or a self-destructive one.

The Smart Money . . .?

Over at Tradesports, the money's on Alito, followed by Luttig, followed by Karen Williams.

Any of the three would be fine with me -- but I do confess a certain preference for the first two. Hopefully, The White House feels that there's no longer any imperative to choose a woman, and we can get a conservative superstar who will make all of us proud.

Fair, But Not Perfect

In this post, Jack Kelly over at Irish Pennants makes an excellent point.

Prosecutor Fitzgerald is, no doubt, a good and honest prosecutor. But it seems to me that by declining to prosecute Libby under the underlying statute (that governs the "outing" of CIA agents), he's lost any reason to be commenting about whether Libby's discussions on the subject of Valerie Plame with the press were right or wrong or inappropriate or not. That's particularly true given that it was reported by Andrea Mitchell on MSNBC today that the CIA did, in fact, do a "damage assessment" on the leak, and found it to be of negligible impact.

If Patrick Fitzgerald continues to harp on about a supposed offense that he couldn't even find the evidence to prosecute, he will be coming suspiciously close to, as Kelly puts it, "criminalizing conservatism."

And how interesting is it that we still haven't learned who first revealed that Valerie Plame was with the CIA? Don't forget this theory -- that it may have been Joe Wilson himself, working through David Corn.

Of Course

The shills at MoveOn respond to the Libby indictment with their customary accuracy and restraint.

Special Prosecutor Patrick Fitzgerald, a Republican appointee, announced that Lewis "Scooter" Libby lied to a grand jury, lied to FBI agents and obstructed an investigation into the White House cover-up of the lies that led our nation to war in Iraq. Libby has now resigned.

Whatever "lies" are being investigated or prosecuted, they are those that took place in the wake of the investigation of a non-event (at least, apparently, from a legal perspective) -- that is, the alleged "outing" of Valerie Plame. So far, there is no evidence whatsoever that the war in Iraq was the result of "lies" of any kind.

For the distinction between mistaken intelligence and lies, here is how I described it here:

But the left has been working overtime to accuse people of "lying" -- completely ignoring the fact that a lie requires (here's that word again) an intent to deceive. When Clinton said, "I did not have sex with that woman," he lied. He knew he had been getting blow jobs in the Oval Office. When Bush told us that Iraq had weapons of mass destruction, he may have been mistaken (as, then, Clinton and other Democrats were, who said the same thing) -- but so far, there's no evidence that he knew there were, in fact, no weapons and deliberately chose to say something different.

It's an important distinction. If you know Bush is President, but you tell everyone that the President is Reagan, you're lying. If you go into a coma in 1984, and you awaken tomorrow -- and then, upon being asked, you tell someone that Ronald Reagan is President -- you're mistaken. Not a liar.

Libby Indictment

The indictment is a solid one. And make no mistake, perjury, obstruction of justice and lying to federal investigators is wrong and it's a serious crime -- no two ways about it. The indictment does seem to make a prima facie case that Mr. Libby was not truthful in some instances with the special prosecutor and the grand jury; bewildering, if true, given that he himself is a lawyer and a very smart man (but then again, so is President Clinton -- and he did the same thing). A sad day for Mr. Libby personally.

But that's the point -- it's sad personally. Here's the thing: The indictment does nothing to suggest that the Bush administration itself has engaged in any kind of wrongdoing. It would have been terrible, ethically and politically, for an indictment to have come down suggesting violation of the Intelligence Identities Protection Act of 1982. Here, the indictment is focused on the personal activities that all occurred after the supposed wrongdoing that triggered the investigation in the first place.

All those who have insisted that Valerie Plame was wrongly "outed" are going to have to go scalp-hunting elsewhere.

Even the NY Times gets it in this headline: "Libby Faces 5 Charges, but Not for Disclosing Classified Data."

Oh -- and one more thing. Neither Libby, Rove nor anyone in The White House "outed" Valerie Plame. Her husband did -- by lying in an op/ed in The New York Times. Anyone who had any real concern about the secrecy of his wife's identity would never have behaved that way. But by the logic of White House critics, Wilson's lies should have been exempt from rebuttal simply because he was married to a CIA agent, and not even (apparently) a covert one, at that.

Par for the Course

According to this piece, "Bodies of people killed by Hurricane Katrina went uncollected for more than a week in the New Orleans area as the federal government waited for Louisiana's governor to decide what to do with them."

Are you surprised? Seems like part of a pattern, to me.

What It Is / What It's Not

No one yet knows completely whether Lewis Libby will be indicted, and if so, for what.

But there is a real distinction over whether he is indicted for violations of Intelligence Identities Protection Act of 1982 (i.e. "outing" Valerie Plame) and lying to the grand jury. Yes, both are serious -- but they are substantively different. An indictment on just the latter will show there was no basis for all the left's caterwauling over the last several years. It will mean only that Lewis Libby either made a mistake before the grand jury in his testimony, or that he attempted to lie. The latter's a bad thing, and objectively unacceptable, but it means only that Libby got ensnared in the process . . . that there was no real underlying reason for him to have been there in the first place. Note also that that the independent counsel has his hands full -- he'll actually have to convince a jury that the alleged "lie" was both intentional and about a material fact. We'll see what happens.

As for Karl Rove -- well, I know that everyone has sung this prosecutor's praises. But the fact is that he's had two years to look into this case, and -- in distinction to the behavior of the Clinton White House -- he's been given full access to and cooperation by everyone. Whatever decision Fitzgerald makes, he needs to make it, bring his investigation to a close, and permit the country to return to dealing with the real and major problems it faces (which doesn't include whether or not Karl Rove is accused of having lied to a gand jury).

Some Worthy Concerns

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.

These are some of the valid concerns raised by Hugh Hewitt in this piece in tomorrow's New York Times -- although he takes care to point out that not all Miers critics employed these tactics.

Here's hoping Hugh isn't right; that being said, judging from some of the dialogue that emanated from Democratic senators today, there's good reason to fear that he is.

A Canard and a Question

First: Dick Durbin has argued today that the withdrawal of Harriet Miers is the result of criticism by "the radical right wing." Well, Senator Durbin, welcome to those ranks. The linked story's title says it all -- "Durbin Criticizes Miers."

The fact is that discontent with Harriet Miers wasn't the exclusive province of any one party -- or any one faction within any one party. I disagreed with those who wanted Miers to withdraw, but they're not "right wing radicals" -- not even close. They are mainstream conservatives . . . and politically, they resemble the great bulk of America much more than Dick Durbin does. The most intemperate, unacceptable and unfair remarks made anywhere by anyone about Harriet Miers pales next to Senator Durbin's own unforgivably intemperate equation of American soldiers with torturers and mass murderers.

Second, Patrick Leahy has just insisted that there are judicial candidates that could win bipartisan acceptance and acclaim -- that have received "strong votes from both Republicans and Democrats." Well, I have a question for Senator Leahy and the other Dems who have so much to say today: Who do you want to see nominated this time? We're "consulting" you -- so don't be coy. Names, please.

Bipartisan Unhappiness

At this point, it's extremely important to point out that the discontent over the Miers nomination was bipartisan, at the very least -- because Barbara Boxer has just been stating (on Fox radio news) that she "had no problem" with Harriet Miers.

Ha. Check out this quote from the San Francisco Chronicle:

Barbara Boxer: "Here's what I know about Harriet Miers," Boxer said. "I know that she's a crony of the president. I know she thinks he's the most brilliant man she's ever met. I know that she was head of the search committee and wound up being the nominee, and I know that she is personally anti-choice. Those are things I know."

And Russ Feingold said (as reported here), "The president has chosen someone here about whom objectivity and independence is a very real question. He's selling this to the American people, saying, 'This is a person I know real well. You should trust me and trust her.' This is one of the president's closest confidantes."

As for Patrick Leahy, check this out: "Leahy Has Concerns About Harriet Miers." In it, he said, "What I do know is that she has a reputation for being loyal to this president, whom she has a long history of serving as a close adviser and in working to advance his objectives." That's not a compliment, coming from him -- and don't forget he was one of the first to note that some had characterized Ms. Miers initial questionnaire as "insulting".

Hillary Clinton's reaction to the Miers nomination was described as "cool."

And this piece notes that Teddy Kennedy may have been working to defeat the nomination behind the scenes.

And, of course, MoveOn.org was digging for dirt.

The long and short of it is that no Democrat had pledged support for Ms. Miers, and Republicans were unhappy. Seems to me that few of them can fault the President for listening to some of his conservative constituents when they themselves were unwilling to press for Ms. Miers to get a hearing.

Let's not permit the liberals to start rewriting history.

A Person Worthy of Respect, and Thanks

Harriet Miers has withdrawn her name as a nominee for the Supreme Court because it presented what she called "a burden for The White House."

This seems to me to be proof positive that she had all the fine qualities that the President ascribed to her. And, rarely for someone in Washington, she had the decency and generosity to put the interests of others before her own.

Perhaps those who denounced her in such unfair and deeply personal terms will find it in their hearts to express some words of value and appreciation for a person who has clearly served the President (and many causes all of us care about) with great loyalty -- and will continue to do so.

Let's all work together to potential political fallout created by what, in my view, was the unfair denial of a hearing and vote to Ms. Miers. And there is work to be done. On CNN, John King has already asked Senator Brownback about Republican senators' document requests that (as King described it) ran counter to the Republicans' previous positions on court nominees.

Minority Leader Harry Reid has asserted that "the radical right wing of the Republican Party drove her right out of town."

Dianne Feinstein is concerned because "the right wing conservative movement believes that it has a say -- a definitive say -- on this nomination . . . I've been dismayed at what the right wing has done to Harriet Miers. I don't think she deserved the treatment she got . . . the right wing moved in and effectively killed this nomination."

And Teddy Kennedy has, predictably, denounced the withdrawal of Ms. Miers due to the behavior of "extreme factions of the President's own party."

Of course, all of this is hyperbole -- but (as I noted here)there's a danger in this meme being picked up and amplified by the press until it hardens into conventional wisdom, as some of the most unfair and damaging lies of Anita Hill were. And it needs to be rebutted quickly, lest Democrats shape the debate and use this accusation to tar the next nominee as a right wing troglodyte chosen only to appease the supposed "radical right wing."

But first, how about a word of praise and thanks to a wonderful, dedicated and trailblazing public servant -- Harriet Miers?

Harriet Miers' 1993 Speech

Here's the link. No -- I'm not impressed, and I'm beginning to doubt all those reports of Ms. Miers' obsessive attention to detail.

But I'm not about to slit my wrists. It seems to me that Harriet Miers is not advocating judicial activism, as much as she's attacking legislative laziness or cowardice that results in the tough political decisions being shunted to the courts.

As to all the "self-determination" stuff contained nearer the speech's end: Who knows? To me, it's hard to imagine that she's arguing against outlawing abortion as a political matter, given that, as this Washington Post piece points out, four years earlier she had "told activists at the Texans for Life Coalition she personally believed that abortion was murder and filled out a questionnaire for an antiabortion group in which she checked a box pledging to 'actively support' a constitutional amendment banning abortions except to save a woman's life."

It's also inconsistent with her 2000 donation to Donald Stenberg, running for the Senate in Nebraska. Yes, that Donald Stenberg . . . the one who defended Nebraska's law banning partial birth abortions in most circumstances in Stenberg v. Carhart.

It doesn't make sense. And that means she needs to be asked about it at the hearing. Roger Clegg wrote here that "I cannot prove that Miers will be a bad justice. But that is not where the burden of proof lies."

Fair enough. But conservatives who are trying to deny Harriet Miers a hearing aren't just quibbling about where the burden of proof in this particular case lies. To take the analogy just one step further, they're trying to deny one party to the dispute access to the courthouse.

Two Brilliant Guys Duke It Out

Verbally, of course. National Review's David Frum appeared in the first hour of Hugh Hewitt's radio show. No doubt transcripts will appear at Radioblogger in due course (update -- it's posted at Hugh's site).

There was one exchange in particular that piqued my interest. David Frum noted that there were many prominent government officials and others who opposed Harriet Miers for a variety of particular reasons (or words to that effect). Hugh objected to the use of anonymous sources, using the phrase "neo-Borking." David then responded, no doubt correctly, that many of the people in question hold high office or hope to hold high office, and that there are others hesitant to speak out because they might have business before the Supreme Court.

Two thoughts: First, I have understood and sympathaized with the objection that it seems unfair, when the time comes for Supreme Court nominations, to pass over those who have stood up and taken arrows for the conservative movement in favor of people who may have been more "discreet," (i.e. a little less outspoken, perhaps more mindful of their own careers and advancement). No doubt at least some of these sources of David's feel the same way. But if that's the case, and this nomination holds the immense importance that all of us seem to believe it does, how do they justify their failure to stand up and be counted, by name, even as they fault Harriet Miers for having failed to do so, over the years?

Second: When David Frum tells us how these people feel, and generally who they are, I believe what he says, because I know he's a person of integrity. But by witholding their identities but nonetheless vouching for their existence and reliability, isn't he doing the same thing for which he's faulted the President -- that is, asking us to trust him?

One More Time for the Record

OK, let's try to get this straight.

IF Karl Rove lied to the grand jury and IF he obstructed justice, that's wrong and he should be punished. No one's arguing about that. But so far, there is no evidence to that effect. When there is, I'll consider it.

But one of the comments below asks, "Since when is criminal activity based on violation of the intent of the law instead of the law itself?" And that represents a basic misunderstanding of the law at issue here.

Sure, there are laws -- like speed limit laws -- that are almost a matter of strict liability; you break 'em, whatever the reason, and you're hosed. That's the first category. But most laws require what they call, in law school lingo, "mens rea" -- that is, a wrongful intent. If you commit a certain act, you may well be guilty of something, but depending on the intent of the perpetrator, the crime's gravity and the intensity of a punishment varies greatly -- it's the difference between, for example, first degree murder and negligent homicide (or manslaughter). That's the second category.

Then there's a third category -- some laws actually require a certain specific intent for the act at issue to be punishable at all. Such is the Intelligence Identities Protection Act of 1982 -- the law that Rove and Libby supposedly broke by allegedly "outing" Valerie Plame.

As noted in a brief filed by a number of media companies arguing that no crime had been committed (a link to it is here), in order for anyone to violate the Act, all these elements must be met:

The United States is taking affirmative measures to conceal a covert intelligence agent's relationship with the United States;

The covert agent whose identity was disclosed is an employee of an intelligence agency;

The covert agent whose identity was disclosed has a relationshiop with such agency that is classified;

At the time of the disclosure, the covert agent whose identity was disclosed was serving outside the Unitd States or had done so within five years of the disclosure;

The person disclosing the identity of that covert agent must be authorized, directly or indirectly, to have access to classified information that identifies the covert agent;

The person disclosing the identity KNOWS that the government is taking affirmative measures to conceal the relationship;

The person disclosing the identity KNOWS that the information so identifies the covert agent;

The disclosure is intentional; and

The identity is disclosed to a person not having authorization to receive such information.

Given these requirements, clearly, two different people could disclose the same name -- and one could be guilty and one innocent, depending on who knew what, when, and about whom.

That's how IDB can correctly, in my judgment, note that this law (which was drafted in the wake of Phillip Agee deliberately disclosing the identities of CIA station chiefs abroad, resulting in their assassinations) was never intended to criminalize the kinds of conversations Rove and Libby conducted with reporters, where "a desk jockey wife of an op/ed writer for The Times was mentioned but not identified." People argue all the time -- often correctly -- that laws drafted for one purpose are being misused when they'r eapplied to another situation. A prime example would be the Reno Justice Department applying RICO, a racketeering act drafted to prevent Mafia activities, to abortion clinic protestors.

And no, even all that won't (and shouldn't) exonerate Rove and Libby if they lied to the grand jury or otherwise conspired to obstruct justice in the aftermath. But the left has been working overtime to accuse people of "lying" -- completely ignoring the fact that a lie requires (here's that word again) an intent to deceive. When Clinton said, "I did not have sex with that woman," he lied. He knew he had been getting blow jobs in the Oval Office. When Bush told us that Iraq had weapons of mass destruction, he may have been mistaken (as, then, Clinton and other Democrats were, who said the same thing) -- but so far, there's no evidence that he knew there were, in fact, no weapons and deliberately chose to say something different.

It's an important distinction. If you know Bush is President, but you tell everyone that the President is Reagan, you're lying. If you go into a coma in 1984, and you awaken tomorrow -- and then, upon being asked, you tell someone that Ronald Reagan is President -- you're mistaken. Not a liar.

It's an important distinction.

Gutless Old Party?

Investors Business Daily tells the Republican Party to stop being so afraid of indictuments in the Plame matter. The distinctions between Karl Rove's behavior and that of Bill Clinton is, in fact, well worth noting:

But Karl Rove did not lie under oath. Karl Rove did not obstruct justice. Karl Rove is guilty of warning a Time magazine reporter that Joseph Wilson — a former Kerry adviser who wanted to keep his wife's job with the CIA so secret he attracted attention to himself by writing an op-ed for The New York Times saying his CIA-arranged trip proved President Bush a liar — was himself a liar.

The law Karl Rove is accused of violating was written to protect CIA station chiefs and their operatives abroad from leftist agitators like Philip Agee who intentionally revealed their names to foreign adversaries.

It was not meant to criminalize private conversations with reporters on "double supersecret background" in which the desk jockey wife of an op-ed writer for the Times was mentioned but not identified.

They've got a point.

Worrisome Words

Fred Barnes reports that, according to pollster Frank Luntz, if there's not some course correction, Republicans could be facing some very ugly electoral prospects next year.

It's time for The White House to move on two big topics that have been either soft-pedaled or sidelined: Reducing the size of government and illegal immigration. Both are good policy; they're also good politics. The former is a way for the President to reach out to disgruntled conservatives within his own party. The latter is a way to assure blue-collar voters that Republicans understand the problems for them that are posed by a "reserve army of the unemployed" continuing to stream over the border (aside from the additional national security risks).

Let's get on it. Does anyone really want to see a "Speaker Pelosi"?

To Be Expected

The New York Times' David Kirkpatrick reports that "Senators in GOP Voice New Doubt on Court Choice."

Is anybody surprised by that? Republican senators haven't gotten to be senators by being politically stupid (despite the occasional dazzling bit of evidence to the contrary). Given that a significant and vocal portion of the Republican base has continued to scream about the nomination like their collective hair's on fire, what kind of politically tone deafidiots would step right up at this point and express renewed and supreme confidence in a nominee that's under such heavy attack by an influential cadre of their own supporters -- before the hearings?

That being said, it doesn't seem as though any senator has offered any new, concrete reasons for his (or her) doubts. The long and short of it appears to be that Republican senators -- like me, and like most of America -- are waiting for the hearings before making a final decision on whether or not to support Harriet Miers. They are keeping their options open, and letting Miers opponents know that their message is coming through loud and clear (a message that it's particularly important to transmit, by the way, if they're going to vote for the nomination in the end). It's the politically intelligent thing to do -- savvy, perhaps, but hardly surprising.

Sauce for the Goose . . .

Is it sauce for the gander? Not so much, if Hillary Clinton's the gander -- at least according to this report from the invaluable Media Research Center.

Breathless news coverage has speculated that Lewis Libby might be indicted, given that his testimony to the grand jury allegeldy may conflict with written documents that show he discussed the Plame matter with Vice president Cheney.

Funny how much less overheated the coverage was, way back when Hillary Clinton was found by Independent Counsel Robert Ray to have given false testimony in answers to the House Government Reform Committee -- a charge that Ray nonetheless declined to prosecute. Hillary had asserted that she had no role in the firing of any member of The White House Travel Office -- before a memo surfaced from the White House administration chief (the helicopter-happy David Watkins) suggesting that, in fact, the employees had been fired at her behest.

Hmmm. Seems when it was just the lives and reputations of the "little people" in the Travel Office at stake -- rather than political soulmates & Vanity Fair-ites Plame & Wilson -- the left wasn't quite as exercised. And how ironic that they're angrier about Rove and Libby telling the truth about the Wilsons (and apparently breaking no laws in doing so) than Hillary Clinton lying about the travel office employees.

Do As We Say, Not As We Did

That's the message from Democrats, who are preemptively warning Republicans not to attempt to minimize any indictments for perjury or obstruction of justice that may be coming down the pike, given their denunciations of President Clinton, who pretty clearly was guilty of both.

Look. Any accusation of perjury or obstruction of justice is serious business -- and no one on the Republican side will deny it. But having objected to the President's having perjured himself doesn't mean that one isn't free to challenge either the facts or the applicability of the law under which any indictments forthcoming from the Fitzgerald investigation may arise. By the Democrats' logic, if one insisted that O.J. Simpson is guilty, that means one couldn't believe in any other murder defendant's innocence. How silly.

In fact, the most marked difference between the Clinton and the "Plamegate" investigations isn't the Republicans' reaction to potential charges. It's the contrast between the respectful treatment of Patrick Fitzgerald by the Republicans and the Democrats' shameless decision to smear, lie about and trash the character of Ken Starr, a man whose reputation was every bit as stellar as Fitzgerald's -- at least until they got done with him.

Seems to me that if there's the stench of hypocrisy in the air, the Dems had better be looking to themselves -- and not across the political aisle.

The Left's Kind of Hero?

Fans of serial prevaricator Joe Wilson seem to think that it's unimportant that he lied about having seen the forged Niger documents. After all, the substance of the documents turned out to be true, didn't it?

Well, as Stephen Hayes points out here, not so fast with the famous CBS "fake but accurate" defense.

Relevant excerpt:

First, it is far from clear that Bush's claim has been invalidated by postwar inspections. Weapons inspections in 2003 and 2004 have little bearing on whether Iraq sought uranium in 1999. And the British review of prewar intelligence (known as the Butler report) concluded that the claim was--and remains--solid. Even Wilson's own reporting about a 1999 meeting between Nigerien government officials and an Iraqi delegation seemed to corroborate earlier reports, dating back to October 2001, that Iraq had sought uranium from Niger.

More problematic: Wilson's "central assertion" was not a soft, subjective claim that Bush's statement was incorrect. His central assertion was that he had seen the documents that proved the Bush administration had lied. Wilson's story was compelling not because he had simply come to a different conclusion than the Bush administration, but because he alone could demonstrate that the administration's claim was built on a lie.

Not only that, but (as Hayes points out), when he was caught in some of his lies, Wilson chose to blame the reporters he had used to gain whatever "fifteen minutes" of fame he's gotten.

What a hero.

What's the "Debate"?

Today, a Washington Post story is headlined: "Wilson's Credibility Debated as Charges In Probe Considered."

Really? What's the debate -- especially in instances like some of those laid out in the story:

Wilson told The Washington Post anonymouslyin June 2003 that he had concluded that the intelligence about the Niger uranium was based on forged documents because "the dates were wrong and the names were wrong." The Senate intelligence committee, which examined pre-Iraq war intelligence, reported that Wilson "had never seen the CIA reports and had no knowledge of what names and dates were in the reports." Wilson had to admit he had misspoken.

That's a delicate way to put it. Where I come from, that's called "lying." Same goes for his assertion that his wife had nothing to do with sending him to Niger.

Any claims made on Wilson or Plame's behalf by the CIA are completely unconvincing. It's long been clear that the agency is nothing more than an anti-Bush outfit, and it's long past time for a little investigating on what seem suspiciously like partisan political activities, agendas, and leaks emanating from the CIA.

More "Tolerance" From Left-Wing Anglicans

In America, left-wing Episcopalians are hard at work planning on how to eject from the Church those who disagree with them.

Sounds like the same sort of people are in charge in Canada. Apparently, religous tolerance doesn't extend to Canadian Anglicans (Episcopalians) who want to discuss important issues from a more orthodox point of view -- and so a left-wing bishop has banned a new Anglican newspaper offering a more conservative view on issues of interest to the Church.

One is forced to wonder if the bishop would behave so intolerantly and disrespectfully toward those advocating, say, a radical form of Islam. And the cynical among us might point out that this left-wing bishop himself declines to be bound in some instances by the dictates of Holy Scripture, yet he expects his parishoners to be bound by his dictates. Anyone detect a whiff of spiritual arrogance there?

Apparently, the more orthodox Anglican newspaper that the bishop has tried to ban is receiving overwhelming support. It expected about 600 subscribers, but has instead gotten 5,000.

Is this what the left-wing bishop finds so threatening?

RIP Rosa Parks

Rosa Parks, the woman who triggered the civil rights movement, is dead. To those of us who were born after passage of the civil rights acts, it's shocking (and shameful) to hear about days when African-Americans could be treated with so little respect for their innate worth as human beings. It must have taken enormous courage for Mrs. Parks to refuse to surrender her seat on a bus to a white man, as custom (and often law) required.

When asked some time ago how she'd like to be remembered, Mrs. Parks said, "I'd like people to say I'm a person who always wanted to be free and wanted it not only for myself; freedom is for all human beings."

Indeed. May she rest in peace.

The incomparable La Shawn Barber -- one of my favorite commentators on racial and religious issues -- eulogizes Mrs. Parks here.

A Difference of Opinion

That's the title of this column by Lorie Byrd, who kindly quotes me. I couldn't agree with Lorie more when she writes:

From the day of the announcement, I have been in what some have called the “wait and see” camp. My initial decision came effortlessly, because for over four years, Republicans have told Democrats that the president is entitled to his choice of judicial nominees and that each of those nominees should be given a fair hearing and an up or down vote.

Right now, of course, we know relatively little about Harriet Miers. What we do know includes this: That she is personally pro-life, that she espoused a political view on homosexual rights substantially to the right of Justice Clarence Thomas, that she has personally exercised her Second Amendment rights, and that the President (who does, of course, have a stake in this battle at least as large as our own) believes both that she has served him well as his personal attorney and in The White House, and also that she shares the judicial philosophy -- his judicial philosophy -- that has led to some extremely capable and principled judges being appointed to the U.S. Courts of Appeals (and to the Supreme Court). Those who know her and her work are willing to go on the record in support; if there are those who know her and her work equally well who oppose her, let's just say that they've been significantly less willing to step forward and be identified.

Was Harriet Miers my first choice? No, for the hundredth time. But I'm still waiting for something besides a lot of leaks, rumors and innuendo about how unhappy senators are, and how poorly she's performing in her "murder boards," and how supposedly lackluster her qualifications are before turning on her and the President. And I continue to be amazed that so many are so willing to go so far before Ms. Miers has even had an opportunity to offer one public word in her own defense.

With All Respect . . .

I'd like to provide a different perspective to two of the comments about the Miers nomination placed on Confirm Them over the past 24 hours, with all respect to fellow bloggers Paul Zummo and Feddie, whose posts are invariably interesting and thought-provoking.

Here, Paul Zummo responds to one of my earlier posts. His answer contains the following sentence: "But [President Bush] is a mere mortal, and he is owed no more deference than any other human being."

Certainly, if Paul means that no human being is entitled to our blind and unquestioning loyalty, I couldn't agree more. But according to Article II, section 2 of the Constitution, the President alone is given the power to nominate Supreme Court justices (the Senate, of course, advises and consents). As the duly elected President, the head of our party and presumably entrusted to run the nation on our behalf, I do challenge the notion that his choice for the Supreme Court is entitled to no more deference than, say, mine, Barbara Boxer's, or even Judge Bork's, for that matter. Haven't Republicans, in fact, been objecting to the Democrats' filibustering of otherwise qualified nominees simply because they insist on ignoring the president's constitutional prerogative to nominate judges of his choosing -- in effect, trying to substitute their judgment for his? (If the nominees are objectively unqualified, that's a different story -- but so far, there is no hard evidence or sourced comments about Harriet Miers to that effect).

And although Paul provides a litany of issues upon which the conservative base is certainly justified in taking issue with the President, those issues do not include taxes, the effort to reform social security, the war on terror, or so far as any of us knows right now, judges. So at least until Harriet Miers has had a chance to rise or fall herself at the hearings, I would, indeed, argue that the President deserves some degree of deference from all of us -- even if the choice of Miers wouldn't have been ours.

In addition, Feddie's provocative statement here seemed to cry out for more discussion, as he writes:

If a Republican wants my support in the ‘06 or ‘08 elections, here’s what you can and must do: Pressure the president to withdraw Miss Miers’s nomination, or vote against her (should it come to that).

Otherwise, I’d just as soon wreck the ship.

The Constitution is more important than the Republican Party.

The latter sentence, of course, goes without saying. But what matters most -- and what's most threatened by a "ship wreck" -- isn't the Republican Party as an organization. What matters instead is the group of principles for which the Republican Party stands, even if imperfectly, much more than its main rival, namely: free enterprise, military strength, limited government and traditional values (not to mention respect for religious faith, pro-life convictions, and all the rest).

Though it may be temporarily satisfying to to want to "wreck the ship" if Republican senators don't oppose Miers, it's worth remembering that if the ship goes down, a lot more than even the Supreme Court will go with it (and be mindful that everyone here will dislike Hillary's Court nominees a lot more than they detest Harriet Miers). Perhaps the most significant casualty, in the case of widespread abandonment or wholesale dstruction of the Republican Party, would be a foreign policy dedicated to fighting and winning the war on Islamofascist terror.

Conservatives on both sides of the Miers issue believe in the sanctity of the Constitution and the importance of installing able justices of originalist bent on the Court, even if there may be legitimate differences of opinion on how we get there, and how to react to potential frustrations and setbacks.

How Ironic

Check out this story, about the sad state of affairs in the Episcopal Church. How ironic that those who would be the first to describe themselves as "tolerant" and "inclusive" have, in fact, been formulating secret plans to eject orthodox Episcopal bishops from their dioceses, install liberal bishops, and litigate over the disposal of church property.

All this is over the liberal faction's decision to ordain an openly homosexual Episcopal priest as a bishop. Mind you, the majority of the Anglican Communion worldwide opposed the move, but the liberals in the Episcopal Church of the USA ignored them -- and now are attempting to impose their own beliefs even on priests who dissent from them based on holy texts and their own religious convictions.

Seems like the "tolerance" and "inclusiveness" go only one way, doesn't it?

Good for Wal-Mart

Wal-Mart is making low cost healthcare available to its associates. Guess that just takes one more talking point away from those who hate the solid values and free enterprise spirit that Wal-Mart embodies.

Careful What You Wish For II

Very little about the Valerie Plame affair has been discussed here, because it has been a crisis almost completely manufactured by those who wish the Bush Administration ill. Interestingly, papers like The New York Times have vacillated between screaming like their collective hair's on fire about the alleged "outing" of a desk employee at CIA and arguing that no crime was committed (that's when their own Judith Miller was headed jailward).

Today, Michael Barone sets forth all the reasons that indictments in the Plame case would be both ridiculous and unjust -- particularly because none of the conduct that gave rise to the investigation was, in itself, illegal (yes, it's always wrong -- and illegal -- to knowingly give false information, whether "relevant" to the case or not. The point here is that, in exercising prosecutorial discretion, one of the relevant considerations is whether the omission was, in fact, "material" and/or deliberate.)

The other consideration, as Barone points out, is that an indictment has the potential to seriously impact the flow of information between the government and the press.

So perhaps all the "journalists" waiting with bated breath and salivating with excitement had better be careful what they wish for. Those who live by leaks had better hope that a certain one isn't prosecuted unjustly.

Careful What You Wish For

Poweline's John Hinderaker points out in the Weekly Standard that voting against Harriet Miers' nomination could well come back to haunt Republican senators. His reasons are similar to those I identified in my weekly column here (and at Human Events last week).

Beware the Litmus Test

In this post over at Confirm Them, my colleague Andrew writes:

if the nominee says that substantive due process (i.e. the vague rationale underlying cases like Roe v. Wade) is illegitimate, then there is no justification for asking specific policy questions. But, if the nominee says that SDP is a legitimate weapon in the judicial arsenal, then that’s tantamount to saying judges can attack whatever legislative policies they find shocking or fundamentally unfair, and so then it is appropriate to ask nominees about specific policies and issues (or better yet it would be appropriate to simply vote against any nominee who supports SDP).

But in an object example of the danger of imposing litmus tests, I would refer everyone to this speech by Judge Janice Rogers Brown. In it, at the bottom of page three, she argues that "[t]here are at least two problems with dismissing the idea of substance in the due process clause."

By the measure set forth above, the Democrats would be entirely entitled to ask Judge Rogers Brown about every political issue in the book, and then vote against her accordingly. And according to Andrew's standard, they would (and should) be joined by the Republicans.

My point here has nothing to due with the merits (or lack thereof) of either Andrew's or Judge Rogers Brown's position on substantive due process. Rather, my point is this: Let's be very careful about the litmus tests we set up in an effort to ensnare a nominee that some don't like -- because they will all have precedential value when a nominee about whom everyone is more enthusiastic comes up for consideration.

"Right" and "Wrong" Legal Outcomes

Thanks to Andrew over at ConfirmThem for this post (referring to this post) -- which, having been out of town since Thursday and therefore only blogging quickly in fits and starts -- I just had an opportunity to see.

Just wanted to clarify that, as Andrew suspected, I am indeed referring to legally "right" outcomes, as opposed to those that are morally "right." However inartfully the passage was phrased, I had in mind the times when Justices Scalia and Thomas have reached the same, legally correct result by different jurisprudential routes (for example, the latter coming at a question from a "natural law" perspective, the former from a "deference to the legislature" approach). In a particular instance, I might find one or the other's legal reasoning more or less persuasive in a given case -- and that was my point. If a Justice Miers is capable of reaching the legally correct result, but does so through reasoning that I find less than persuasive or even downright wacky, that's suboptimal.

But it's better than her being able to demonstrate a real facility for legal "brilliance" like William Brennan's -- where the reasoning was impressive from the perspective of, say, a "legal realism" approach to jurisprudence, but the results (though derived ineluctably from the reasoning) dead wrong from a legal perspective.

Or, take as an example the medical marijuana case from last Term -- where the Court ruled that Congress's authority to regulate the interstate drug market reaches even small, homegrown quantities of doctor-recommended marijuana . As a policy and political and "moral" matter, I largely agree with the outcome. And even George Will would be hard pressed to find fault with the legal reasoning of Justice Scalia's concurrence with the majority comprised of Justices Stevens, Ginsburg, Souter, Kennedy and Breyer. But even so, the dissent penned by Justice O'Connor on behalf of herself, the Chief Justice and Justice Thomas strikes me as more persuasive from a "legal" standpoint. Seems to me this case is another example of how one can find "excellent" reasoning that nonetheless leads to an incorrect result -- and also an example of how one could, as a judge, find onself forced to rule against the outcome one prefers as a "moral" matter (i.e. the majority result in the medical marijuana case), because the Constitution seems to require a contrary conclusion (i.e. the dissenting view in this case).

Obviously, if one were talking about preferring "morally" right outcomes and judges that will use any kind of reasoning to reach the outcomes they prefer, then you're in the world of results-based jurisprudence, precisely the kind of wrongheaded approach to judging that conservatives have rightly criticized Democrats for for years. That was not my intent. And it's an object lesson against trying to blog on the fly.

A Troubling Dichotomy

Michael Barone write about the growing gap between "transnational elites" and the "patriotic public" -- a gap that's growing wider by the day. Perhaps his most important point comes near the end:

"A nation's morale and strength derive from a sense of the past," argues historian Wilfred McClay. Ties to those who came before--whether in the military, in religion, in general patriotism--provide a sense of purpose rooted in history and tested over time. Secular transnational elites are on their own, without a useful tradition, in constructing a morality to help them perform their duties.

The key word there is "secular" -- for the "transational elites" most hostile to America are almost invariably aggressively non- or even anti-religious. But the important point about permitting some recognition of religion in public life is this: Everyone (and every society) has to derive a moral code from something, somewhere. If the moral code isn't derived from a religious tradition, from where is it to come? Is the measuring stick simply to be what "feels right" or what "seems good" to us, today? It seems pretty arrogant to assume that our own individual "moral compasses" can supersede received religious wisdom of the ages. But increasingly, that's what the "transnational elites" seem to be arguing -- to our individual and collective detriment.

Our Choices

As this piece points out, no one is predicting that the President will withdraw Harriet Miers. So our choices are as follows: Continue to complain about the nomination, thereby ensuring that it inflicts the maximum political damage on a President who is also trying to stabilize Iraq and get permanent tax cuts passed, or hold our fire, at least until the hearings. It's up to us.

If someone can explain how continuing (and upping) the drumbeat of discontent and resentment will promote the conservative cause at this point, I'm open to hear about it. But right now it seems to me imprudent and unwise to let any anger at or discontent with President Bush cripple a Republican agenda that's needed for the 2006 elections.

On George Will's Column

Excerpts of George Will's latest column are posted and commented upon here, over at Confirm Them. And to some of these excerpts, I would just add a couple of notes.

Not all Miers supporters -- or anti-anti-Miers people -- have "cynically" called her opponents "sexist." Indeed, some of us have, in fact, defended opponents from that charge, and criticized those who made it.

Second, I agree with Will that constitutional reasoning can often be enormously important -- witness how Chief Justice Rehnquist and William Brennan, when both were in the minority, penned dissents that were enormously influential in drafting later majority opinions. And it is important to replace legislative reasoning with judicial reasoning.

But how is Will so sure that Miers is either unwilling or incapable of doing so? What does he know that he isn't telling us -- because I haven't heard any dispositive evidence, yet, that Miers either can't or won't live up to his standard. In addition, I can't go as far as believing, as some do that it's perhaps always better to have the "wrong" outcome with excellent reasoning than the "right" outcome even with some flawed reasoning. After all, is it really worse to have a "concurrence in the result" even with a little wacky stuff in it than a dissent in cases dealing with affirmative action and the like? (Yes, best to have brilliant reasoning with the "right" outcome, but that's not the hypothetical choice here).

Finally, Will writes this:

The argument is that it is somehow inappropriate for senators to ask a nominee — a nominee for a lifetime position making unappealable decisions of enormous social impact — searching questions about specific Supreme Court decisions and the principles of constitutional law that these decisions have propelled into America’s present and future.

And that's all very well, if we can be sure that this line of questioning can -- and be understood to -- differ from simply asking nominees what their views are on this or that case. Because once nominees can be asked about -- and voted up or down on -- their views on particular cases and their outcomes (including some that may come before them for review and reversal), then the nomination process has become inextricably and eternally intertwined with politics.

"Condescending and Inappropriate"

I have to agree with Senator John Cornyn's thinly-veiled criticism of Arlen Specter's comments to the effect that Harriet Miers needs a "crash course in constitutional law," as reported here by David Kirkpatrick in The New York Times.

Of course, one might expect Specter's behavior to degenerate to the extent that it becomes clear that Ms. Miers may well be a pro-life vote on the Court, given that Specter has defined himself as a pro-choicer. But such a comment is, in fact, condescending and inappropriate -- after all, Specter's never himself been noted for his grasp of constitutional law, Scottish law included.

And however those of us following the nomination may feel about Specter's remark, it's guaranteed only to annoy and alienate people who are following the nomination process only slightly. In fact, it seems to me that Miers critics have strategized badly -- if their goal has, in fact, been to effectuate her withdrawal. Too much of the criticism has been premature, overly personal, or deeply unfair -- and almost guaranteed to get the President's "back" up, rather than convince him that perhaps other choices would be better. Yes, some in the conservative movement have enjoyed a pipe-clearing temper tantrum, but at the end of the day, so far, I don't see much having been accomplished besides some smearing of a woman who, by all accounts, is a fine person (and, at the very least, a trailblazing attorney), a divided (if only temporarily) conservative movement, and a President less likely to listen to conservative voices than ever before.

For years, conservatives have been smeared as being somehow less "academic" than liberals. It's not surprising that Senator Specter would fall into this stereotype, but at least until we've seen Miers' performance in the hearings, Senator Cornyn was quite right to rebuke him. We've got plenty of Democrats willing to portray Republicans and their nominees as dumb -- we don'tneed people on our own side of the aisle doing it, too.

Keeping It Fair

The NY Times reports with glee that the prosecutor may seek indictments against Karl Rove and Lewis Libby based not on any wrongdoing with respect to revealing Valerie Plame's identity, but for failure to be forthcoming with the grand jury.

Doesn't this sound a bit familiar? The only difference between this and the Clinton/Lewinsky matter is the fact that Karl Rove reportedly forgot a phone call with a reporter, and Bill Clinton "forgot" receiving oral sex from an intern in the Oval Office. (Oh, yeah, and the entire Clinton investigation sprang from credible allegations of sexual harassment, illegal activity in and of itself).

I guess that, even if adjudged guilty of wrongdoing, Rove and Libby won't have to do anything but admit wrongdoing and surrender their law licenses . . . like Clinton.

Thank You, US Military!

Victor Davis Hanson offers an important reminder.

So Which Is It?

Is Harriet Miers going to end her visits with senators, or is she going to continue them?

It's hard to remember a Supreme Court nomination that has been attended by so much confusion on the part of The White House, the press, or both.

Indeed, even the brilliant Charles Krauthammer, in the course of setting out an exit strategy for the nomination, states that he'd like to see Ms. Miers do well in the hearings, although he doesn't want to see her confirmed. Seems to me that, absent his strategy (and assuming willingness on all sides to subscribe to it), the two are mutually exclusive.

Cultural Communists

If you can't beat 'em, ban 'em.

That, apparently, is the approach of the UN cultural agency, UNESCO. Siding with France against the United States (another big surprise!), most of UNESCO's 190 member countries will probably vote to codify, on a global level, the longtime French policy of imposing quotas on American films and music.

Wonder how that sits with the left-wing, U.N.-loving "creative community" in Hollywood and New York.

The Best Disinfectant

How about a little sunlight?

This story isn't comforting -- apparently, answers on Ms. Miers' questionnaire apeared to confuse "proportional representation -- which typically deals with ethnic groups having members on elected bodies -- with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations," as the Washington Post puts it.

Here's what I'd like to know: Have similar mistakes ever appeared on questionnaires submitted by other Supreme Court nominees? Here's the thing: It defies credulity to think that a document like the questionnaire is being submitted without having been reviewed (if not drafted) by White House lawyers, some of the biggest "con law jocks" around. So how could such an oversight have slipped by several pairs of eyes? Is the mistake so obscure as to have slipped past some very smart people?

Don't get me wrong: The questionnaire is submitted by Ms. Miers, and credit or blame for it accrues to her. And given what we've been told about her attention to detail, one must assume she read the entire document before turning it in. But it might be worth a peek at some questionnaires of other nominees -- just to see if this kind of mistake is unique to this nomination, and how the supposedly "insulting" answers (according to some senators) compare to those of former nominees. If they are, indeed, deficient, it speaks poorly for the White House handlers as well as for the nominee herself, but such a judgment is best made after review and comparison of other questionnaires submitted at this stage in the process.

That will be helpful in telling us how loudly alarm bells should be ringing.

Entirely Predictable

This op/ed in The New York Times reaches new heights in hypocrisy. Here's how it begins:

When President Bush first nominated Harriet Miers to the Supreme Court, many people who were worried about her positions on hot-button issues cloaked that concern with talk about her credentials. But as time went on, it became increasingly clear that ideology aside, the qualification question looms large.

Notably, The New York Times voiced few concerns about Ms. Miers' qualifications, until it became clear that she is a dedicated pro-lifer. And now, the Times is concerned. So who, exactly, is it that is "worried about her positions on hot-button issues and cloak[ing] that concern with talk about her credentials"?

Political Fallout from Miers Withdrawal

Vulgar self-promotion alert: Here's a piece detailing the political fallout I've written that would ensue from a forced withdrawal of the Harriet Miers nomination.

The Inevitable Conservative Revolt

Fred Barnes writes with great insight about the inevitability of a conservative revolt against President Bush. Sadly, but probably accurately, he opines that the relationship between the President and conservatives will never be the same again.

Getting Miers Strategy Back On Course

This AP story, with a decided flair for the obvious, helpfully points out that the Bush strategy for the Miers nomination has, so far, backfired. (Good thing those journalist are there to feed otherwise indecipherable information to a waiting world, no?).

The fact is that the Bush Administration can't afford to treat this nomination like the Roberts nomination. The pertinent issues aren't the same, the political calculus isn't the same, even the supporters and opponents aren't (at least in some cases) the same.

Clearly, in nominating Miers, the President was hoping for a controversy-free confirmation process. That obviously isn't going to happen, and The White House won't (and can't) get it together until it comes to terms with that fact. Ironically, his efforts to avoid controversy may, in the end, have resulted in generating more of it. But what's done is done. The best thing to do is to get some real information about Harriet Miers views out there, and let the chips fall where they may.

And as for the "views" we're waiting for -- we're not talking here about Ms. Miers' favorite flavor of ice cream, her sports team or even her political views (much less her religious ones). What matters is, first and foremost, her judicial philosophy. What is it, how was it formed? That's what we need to know. That's what will reassure those in the conservative base who are at all open to listening -- and if it's at the price of alienating the liberals, so be it. It's not like it will be the first time.

Revelation: Bush Isn't Stupid

Over at ConfirmThem is this interesting and unintentionally revealing post. It's a pretty telling commentary on the hysteria of the past few weeks that it's a revelation that the President isn't stupid and that he knows what he's doing.

Given the enormous fight within his base that the selection of Harriet Miers has engendered, does anyone think the President would push ahead if there were significant doubts in his mind about her judicial philosophy? He seems able enough to back down on a variety of other subjects -- from spending to social security reform -- when the political climate is inhospitable to them.

Yes, President Bush is sometimes a stubborn man, but he has every bit as much interest in the composition of the Court and his own legacy as any of us does. And if his friendship with Miers is as warm as it's been reported to be, it wouldn't be hard to take a little walk down the hall and ask her to withdraw, if he'd had qualms about her fitness for the Court or her inclinations once she's there.

As a number of Bush/Miers critics have noted, certainly Bush's expectations of jurisprudential excellence (in terms of opinion-writing, etc.) are less lofty (and perhaps his evaluations thereof less trustworthy) than those of some in the conservative intellectual priesthood. But if Miers doesn't have those skills, it isn't because she's fooled the President into thinking she does. It's because he doesn't deem them to be essential. In fact, my bet is that he thinks the Court needs someone who can and will write what the post links above characterizes as "reasonable, easy to understand opinions."

It seems clear that, for the President, the two indispensable criteria are (1) an originalist judicial philosophy; and (2) reliability. Frankly, it's not that hard to figure out the judicial philosophy and character of someone with whom you've worked closely for ten years. And if President Bush were either stupid or easily fooled, would he really be where he is now? Are some conservatives really beginning to buy into the whole "Bush is stupid & the handmaiden of Karl Rove" argument that's been peddled so long by liberals?

Saddam On Trial

It's a big day for the Iraqi people, as Saddam Hussein, the dictator who held them by the throat under the hob-nailed boot of cruelty and blood lust for years, goes to trial today.

Don't expect much coverage of the trial in America -- and what there is will be largely negative. It would be too much to ask the press to take the risk that the trial might prompt positive assessments of President Bush's decision to liberate the Iraqi people. Instead, expect to hear about Saddam's defenses, the problems with the Iraqi administration of justice, and a lot about world wide "human rights" groups complaints regarding the trial (although one can quite properly wonder where the same groups were when Saddam was, say, opening the rape rooms and throwing his adversaries to the tigers).

Maybe mine is an overly pessimistic assessment. But given the incredibly stingy and negative coverage of another milestone event in Iraq, as Kathleen Parker points out here -- the vote on the constitution -- it's probably too much to expect that the press will cover the trial fully and fairly in the United States.

On Madonna

Richard Roeper ruminates on Madonna here, noting in particular the irony that she doesn't allow her own children to read magazines or watch TV.

That's not the part that bothers me, though. Nor is it any element of hypocrisy in her preaching about the right way to live; for my money, I say good for her for getting it together.

No, what bothers me is the fact that Madonna -- who played a major role in the mainstreaming of sleazy behavior and the wearing of lingerie as street attire -- now wants to wrap herself in the mantle of motherhood and purity, with nary an apology to all the young women she misled and all the parents she made miserable. She has changed her ways, and is lucky enough to have the money and the backing to raise her children and put her S&M outfits away without a second thought. Too bad many of the women who followed her lead can't say the same.

It must be pleasant to go through life with either so little accountability or so little understanding.

Miers: Pro-life (Politically speaking)

Correctly (needless to say), Terry Eastland distinguishes between pro-life politics and jurisprudence. Here, he seems convinced that Harriet Miers' pro-life credentials are solid -- although, as he notes, how that plays out for Roe v. Wade may have more to do with Miers' jurisprudential philosophy than her political one.

He concludes that the substance of the questionnaire "heartens" social conservatives.

Juan-a See a Little Hypocrisy?

There's a pretty generous dose of hypocrisy involved in the manufactured kerfuffle surrounding Bill Bennett's remarks on abortion and the crime rate. Read about it here. Fox News Sunday's Juan Williams is one of the most blatant transgressors.

Junk Food Telling Tales?

Quick -- does anyone know if Bill Clinton craves cakes and other carbohydrate-laden foods? According to this piece, he shouldn't.

Then again, almost everyone likes steaks, salty snacks and cookies and cake. Does that mean we're all angry and sexually frustrated?

Miers Questionnaire

The role of the judiciary in our system of government is limited. While its role and independence are essential to the proper functioning of our tripartite system of government, the courts cannot be the solution to society's ills, and the independence of the courts provides no license for them to be free-wheeling. And, of course, parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom of their preferred course.

That's on page 55 of the Harriet Miers questionnaire, found here. And it does seem to indicate a real understanding and active rejection of the kind of "sweet mystery of life" jurisprudence embraced by justices like Anthony Kennedy.

It seems to me that almost every judicial nominee will follow in the footsteps of John Roberts, and play coy with respect to stare decisis, insofar as it's become a "code" discussion of reversing Roe v. Wade. That's how we get the following sentence from the questionnaire: "Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent."

This provides little of real illumination. But it does seem that the first quote, where Ms. Miers condemns courts serving as super-legislatures and policy makers, is strong and thus is somewhat reassuring.

Stalling Potentially Influential Judges

In a study summarized here, John Lott found that the length of time required to confirm a judicial nominee is directly proportional to the length of that nominee's resume. In other words, the more impressive a nominee's credentials, the longer it takes for him/her to be confirmed. As Lott notes, no doubt this is due to fears by those opposing a well-qualified judge of the enormous influence that s/he can wield.

It's worth a read.

Democratic "War Supporters" in Peril?

This piece asserts that Democrats who authorized President Bush to go to war in Iraq may confront trouble in their presidential campaigns because of it, given that the Democratic rank-and-file now strongly opposes the war.

Of the senatorial wannabes, including Hillary Clinton, only Russell Feingold voted against the war. Feingold, while ridiculously liberal (and responsible for unconstitutional campaign "reform" legislation), does at least seem to be a person of integrity -- witness his pro-Roberts vote. The rest of them -- from Clinton to Kerry to Biden to Bayh and the rest -- have a problem.

It's not enough for the base for them to play John Kerry's game; namely, supporting the war while opposing the way it's being executed. And if going to war is wrong now, it had to be wrong when they voted for it. But if it was right to go to war -- well, never mind. The lefties won't even entertain that argument. They'd sooner listen to Rush Limbaugh.

The overarching problem for the Dems is that for any Democrat to win, the country must believe that the candidate will be "forward leaning" (that is, agressive) about protecting the country from terrorists. Opposing the war in Iraq, even given what we now know about the imperfect information, sends the opposite message.

And makes the great mass of sensible, clear thinking Americans extremely nervous.

Threats!!???

Over at Confirm Them, this post references a "former White House official" who allegedly told Time magazine that conservatives would be "crazy" to take on Bush over the Miers nomination.

Please. Let's all take a deep breath here. Who is this "profile in courage" who's supposedly threatening the conservative intellectual priesthood but won't go on the record to do it -- and is he someone who's really speaking for the Bush Administration? Probably not. Because anyone can see that the President will need conservatives to get things done, and the conservative intellectual priesthood will need Bush to get things done.

Is it possible that Time magazine is trying to fan the flames of internecine warfare within the conservative movement and the Republican Party? Nah, they're journalists -- which must mean that they're studiously nonpartisan and are reporting only "the facts." Right.

Let's all of us -- on all sides -- stop being so eager to take offense. We are not enemies, we're allies. Let's not let this 1% area of disagreement overshadow the 99% where we agree. As Rush Limbaugh writes today in The Wall Street Journal, conservatives can be as strong as ever coming out of this nomination.

But we must resist the impulse to do what the Democrats have been unable to do -- that is, divide our movement. Apropos of this topic, my column is posted over at The One Republic. This week's offering? "A House Divided Against Itself . . . What Conservatives Owe Each Other in the Debate Over Miers."

Always Hypocrisy. Always.

Well, well. While prominent Democrats including Howard Dean, Dennis Kucinich and Ralph Nader have been trashing Wal-Mart, their aides have actually been shopping there for office and campaign supplies. Read about it here.

Guess they love those "always" low prices. Always.

Harriet Miers and Religion

The Wall Street Journal is quite correct in this op/ed today when it none-too-gently reminds the Bush White House that discussions about Ms. Miers' faith and her views on abortion aren't (and shouldn't be) relevant to how she'll rule on a variety of hot constitutional issues, including Roe v. Wade.

Yet, in the law, there are types of evidence that are inadmissible for some purposes, but perfectly admissible for others. For example, a witness's prior inconsistent statements aren't admissible to show the truth or falsehood of the statement(s) at issue -- but they can be used for the purpose of impeaching a witness's credibility.

Analogously, in my view, a nominee's religious and political views can't be used to indicate how she will rule in a particular case (or particular types of cases). But they can, quite properly, be used to shed light on her character, which is also an important component of any judicial nomination.

And although strong religious convictions are no guarantees of an originalist judicial philosophy (see, e.g., Justice Anthony Kennedy), to me, knowing that a nominee has them is nonetheless of some comfort. That's because it seems to me that there is less likelihood (not no likelihood, but less likelihood) that those with strong religious views -- who acknowledge the existence and power of a God greater than, say, The New York Times -- will succumb to the kind of "I'm King of the World" hubris that precipitates judicial arrogance and overreaching.

So there's no harm in The White House talking about Ms. Miers' religious convictions. But it should be clear that it's doing so to shed light on her character, not her jurisprudence.

Iraqi Constitution Seems "Assured of Passage"

The AP is reporting that the Iraqi constitution seems assured of passage, given that "no" votes were significantly lower than expected in some of in provinces the Sunnis were counting on.

Seems that two things may have been going on: (1) The MSM has played up -- or overplayed -- the volume and level of Sunni opposition in order to maximize the sense of crisis and difficulty in Iraq. Exhibit A for this theory would be this sub-headline in today's LA Times, written yesterday: "Turnout is reported to be heavy in a Sunni Arab city recovering from fighting last year. Sentiment seems to be against the constitution."

The other theory? (2) Sunnis themselves kept quiet about their support for the constitution, fearing reprisal or other social punishment if their support were too public.

In any case, if the vote holds up, congratulations are due both to the Iraqi people and to President George W. Bush, for having the foresight and persistence to continue to see the process through.

A Cheer for The LA Times

Wonder of wonder, miracle of miracles: The LA Times has endorsed Proposition 75, paycheck protection for union members.

We support this more narrowly tailored initiative primarily as a means of lessening the power of public employee unions in Sacramento, but also as a way of reinforcing the right of union members to insist that their hard-earned income not be diverted to political causes they don't endorse.

A Civil "Civil War"

Perhaps one of the saddest parts of the Miers nomination has been watching the "civil war" within the conservative movement, as people who are allies on almost everything else attack each other. Andy Card has apparently called Miers opponents "cynics" and now, over at Confirm Them, offense has been taken.

As for offensive language and/or namecalling, I fear that some of those on both sides have been guilty of intemperance, due doubtless to the strong emotions that the topic engenders. But let me be clear: I don't think that any of us thrashing out the nomination -- whether pro- or anti-Miers are "cynics". Quite the opposite, in fact. However we disagree on the particulars of the Miers nomination, all of us are united in a very passionate and sincere desire to see conservative principles ascendant and flourishing in America.

For my part, I'm hopeful that we can continue to debate -- and, if we must, disagree -- without attacking each others' motives. I don't believe that those who oppose Miers are doing it for unworthy reasons -- out of sexism or even elitism (although I do believe that some of the arguments that have been posed about Harriet Miers have come across as elitist).

Likewise, I hope that Miers critics will extend the same courtesy to those on the other side, and presume (until the presumption is rebutted) that our arguments are prompted not by any unworthy motivations, but by the same genuine concern they feel for the future of the Court and the country -- even if that concern leads us to different conclusions about the best course to pursue in these particular circumstances.

Assertions that merely attack opponents' integrity, rather than their arguments, are unworthy of conservatives -- and do nothing but signal inferior intellect or temperament on the part of those making them. Let's leave both the ad hominem attacks and offense-taking to the liberals. Most importantly, it's the right thing to do -- and, speaking practically, it would be a real waste to cripple the conservative movement that America needs over a single Supreme Court nomination, however it ultimately turns out.

Eventually, when the nomination has been settled one way or another, it will come time for "reconstruction" -- where all of us will have to work together to pick up the pieces, whatever they are. Our actions now will determine just how ugly or easy that task will be.

"A New Birth"

The polls closed some time ago in Iraq, on a historic day when its men and women were given an opportunity to vote on the principles that would govern them.

Maybe the constitution will pass, maybe it won't. But seeing the clips of voters -- many in their best clothes, carrying young children with them -- coming to cast a ballot, made me proud to be an American. Thanks to the leadership of the President and the sacrifices of our brave military men and women, this moment was possible.

Give Her a Chance

Melanie Kirkpatrick of The Wall Street Journal editorial board says it well:

The president's supporters are under no obligation to support his selection of Ms. Miers for the Supreme Court. But surely conservatives owe him a chance to make the case that his nominee is who he says she is, and to listen to her Senate testimony before making a final decision about whether to oppose her.

Read it all here.

A Different White House Speechwriter Speaks

Whatever [the President's] reasons [for nominating Harriet Miers], what America got is a nominee of enormous legal ability and ferocious integrity, and in the bargain a gracious Christian woman only more qualified for her new role because she would never have sought it for herself.

So writes former White House speechwriter Matthew Scully in a piece in today's New York Times titled "The Harriet Miers I Know."

Please note that Matthew Scully worked in The White House for five years. Before that, he was literary editor at National Review.

More Media Mayhem

This piece details all of the misinformation and outright distortion peddled by the MSM about New Orleans in the wake of the hurricane.

As the author points out, the misreporting was hardly harmless fun. As a result, assets were deployed where they were reportedly (but not truly) needed, diverting them from helping where they were urgently required.

The American people are still waiting for an apology from any of the erstwhile hysterical, "crusading" reporters.

Karl Rove's Take

Over at his blog, Hugh Hewitt characterizes Karl Rove's support for the Miers nomination as not just "enthusiastic," but also "adamant and even vehement." Apparently, Rove and Miers have both been heavily involved in vetting judges together over the past three years, and every judicial nomination has come through a committee on which they have sat together.

Admittedly, learning some positive news about Harriet Miers won't be as much fun for some as simply tearing their hair, rending their garments and howling at the moon over the nomination, but it's good information and well worth a read.

It's also worth remembering when reading of the alleged moans and cavils of Senate and White House staff that many of these talented and ambitious people have their own reputations to uphold in the "conservative intellectual priesthood" that's centered out of D.C. Given the controversy this nomination has generated, I'm willing to bet that there's a lot of CYA going on, with many trying to distance themselves as far as possible from a controversial nomination that's not playing well in the circles where they'd like to be welcomed.