October 11, 2005

10/11: Glass Warfare

One week after Pres. Bush nominated WH counsel Harriet Miers for SCOTUS, her nod has become a half-empty/half-full situation, with her critics calling it "mostly empty," and her supporters "mostly full." Her opponents, generally more strident, don't seem as though they could be persuaded by hearings. Meanwhile, arguments in her favor are generally of the "we-don't-know-yet" variety.

Among conservative bloggers who focus on the political outcome of her opinions, there is more opposition, not less. Among those who focus on her background, there are more questions about her qualifications, not less. Only among those asking what sort of legal mind it takes to be a successful justice is there a noticeable thaw.

Most agree that there is not much known about her current or past views on specific policy issues, let alone constitutional questions. Searching for hints in anecdotal evidence of her background in TX, several conservatives have found cause to question her conservative credentials. Meanwhile, the pro-Miers crowd is unpersuaded by those taking a wait-and-see approach. The anti-Miers contingent also challenges her qualifications, whereas the pro-Miers section charges the former with elitism and fear a "civil war" on the right.

What does the left have to say about this? They too are somewhat divided on Miers, but are not anywhere near as consumed by the debate. More interesting to them: The CIA leak investigation and the recently-surfaced June '03 notes by New York Times' Judy Miller. Nobody knows what's in them, but there are some spy novel-quality theories floating around. Not only that, but also Sen. Joe Lieberman's attendance at last week's National Review party.

THE MIERS NOMINATION: Meltdown Or Thaw?

In a post titled "A Miers Meltdown?" libertarian-conservative Instapundit's Glenn Reynolds assesses the state of the Miers nod: "More and more, I have to wonder what the White House was thinking with this. First of all, when you're already under fire for cronyism, and you nominate someone who's, well, a crony, you ought to be locked-and-loaded in terms of response. They weren't. Second of all, they seem to have managed to convince a lot of people on the social right that she's too liberal, while people on the libertarian-right worry that she's too much a fan of government power. Third, their response to critics and complaints has been slow and weak. I realize that the White House is busy ... with a lot of war and foreign-policy questions. But if so, isn't that more reason to go with a safe pick of the Michael McConnell variety?" Reynolds opens up the post for commenting -- something he does very rarely -- and as of this a.m. there are well over 100 comments.

Last week the anonymous PoliPundit, founder of the popular GOP group blog PoliPundit, supported the Miers nod (see 10/6 Blogometer). But after reconsidering, PoliPundit now oppposes: "On Roe v. Wade, I have no doubt that Miers is a rock-solid pro-lifer. If this were the only issue that mattered, then Miers would have my full support. But there are any number of other issues before the Court, foremost among them the racial discrimination that goes on in the name of affirmative action. ... Miers says she didn't join the FedSoc 'or other 'politically charged' groups because they 'seem to color your view one way or another.'' Doesn't the liberal ABA count? In the White House, Miers argued for every judicial nomination to be vetted by the ABA. Miers just doesn't seem to understand who the friends and enemies of modern conservatism are. Such ignorance is dangerous." JustOneMinute's Tom Maguire is opposed as well: "If Hillary nominated her best friend from college, I would not care what her qualifications were, and I feel the same way about Miers. I don't want a merely a reliable vote - I want a solid conservative judge who can articulate the issues and do us proud." Patterico's Ponitifications points out another reason for conservatives to be skeptical of Miers, in a Dallas Morning News article reporting that, during her time as a Dallas city council member, she supported the "Implementation of Fire Department Affirmative Action Plan," which was specifically intended to help women get promoted within the fire dept. Patterico's dismissive take on this position: "Because we don't mind short, weak, nearsighted firefighters, as long as we get enough women in the process." Protein Wisdom's Jeff Goldstein is also concerned about reports that Miers encouraged Bush to take the pro-affirmative action position in Grutter v. Bollinger: "Sandra Day O'Connor, you'll remember, wrote a stinging dissent in that case. Which means that, if Miers truly does mirror the political philosophy of the President, the new Court might actually be taking a step backwards." James Taranto, who has stepped back from initial support, found Antonin Scalia's non-comment on Miers -- Never having met her, I have no impression of her" itself rather telling: "The gregarious Scalia is a fixture on Washington's social circuit, especially among conservative lawyers. If Miers has never met him, that is an indication of how much of an outsider she is, and it helps explain why [conservatives] are so demoralized and angry at the selection."

Center-right law prof Ann Althouse is warming up to Miers: "If you are going to devote your life to the subject of constitutional law, as an academic subject, you are probably the sort of person who is attracted to abstractions, theories, and larger patterns and aspirations. You are going to tend to approve of jurists who have a similar frame of mind, a large capacity for theory, that makes you and the people you surround yourself with so impressive. Now, who is this Harriet Miers, this practicing lawyer, who presumes to go on the Court and write the opinions we must spend our lives reading and analyzing? ... Thinking about it that way has begun to thaw my opposition to Miers. Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk?" Miers supporter William Dyer of BeldarBlog argues that Miers' critics seem to believe "that you have to keep writing law review articles month after month and year after year in order to have a powerful intellect." Dyer argues the opposite, "that the Court badly needs someone with the perspective of a practicing lawyer with trial-court experience. This is not an argument in favor of mediocrity. This is an argument in favor of adding some different kinds of smarts to the Court." That Dyer post included a list of her credentials, meant to rebut Charles Krauthammer's complaint that nothing distinguishes her from the "1,084,504" other attys in the U.S. But The Politburo Diktat scoffs at his summary, putting the "purely puffery modifiers in bold type," adding: "You know what I want? I want even Chuck Schumer to describe a SCOTUS nominee as 'one of the most brilliant legal minds of the decade.' That's what I want. None of this 'good student' stuff." Hugh Hewitt is one of the few Miers supporters who focuses on the outcome of her decisions: "When Bush said [he would appoint justices] 'like Scalia or Thomas' many people heard many things. I think it is very safe to say that the vast majority of American voters did not hear 'justices committed to a particular theory ... of textualism or originalism.' I think they heard "'justices who aren't making stuff up' ... I think they heard 'results,' and if I am right, Bush has not only not broken his promise, he may be well on his way to fulfilling it twice and hopefully more times over."

On Hewitt's 10/7 radio show, Taranto's Wall Street Journal colleague John Fund said: "[W]e are going to see six or seven surprises come down the road the next few days, about Harriet Miers. Now all of them are sustainable individually. The problem is because the White House was completely unprepared for this, they're doing a disservice to you and her supporters." One such story will be about the TX Lottery Commis., the "various contracts that were allocated, how they were allocated, and Harriet Miers' role in them." A full transcript is available at Radio Blogger. Fund had been initially open to the Miers nod, but as he wrote on 10/10, after looking into her background, "I came away convinced that questions about Ms. Miers should be raised now -- and loudly -- because she has spent her entire life avoiding giving a clear picture of herself." Blogs for Bush's Mark Noonan responds to the Fund column: "I still don't get the opposition to Miers. I understand the burning desire to get to know Miers' views better -- I want to know them as well; but I can't see the knee-jerk opposition we've witnessed before the nominee has had a chance to present herself in committee. Could be that she ends up being a clunker -- but maybe she dazzles. Why don't we wait and see?"

REPUBLICANS: Spare A Moment For The Dog-Faced Boy

On 10/9, conservative Ed Morrissey of Captain's Quarters had an op-ed published in the Washington Post, titled "How Harriet Unleashed a Storm on the Right." In it, he summarizes how the GOP has split, identifying 3 camps: pro-Miers "Loyalist Army," anti-Miers "Rebel Alliance," and the grudgingly supportive "Trench-Dwelling Dogfaces." Centrist Joe Gandelman summarizes: "Morrissey and other Republicans are basically saying they don't want to wink anymore. They'll oppose the selection, or go along with it and be honest about it, but they're NOT going to wink and pretend this nomination is anything but what it is -- the President appointing a close friend and his personal lawyer to a slot that could have been filled with a jurist or lawyer who has a discernible record of deep thought and written decisions. In essence, Republicans are demanding a more above-board form of politics than this White House wants to practice." The Anchoress: "I don't know if I fully fault Bush for 'splitting' [conservatives]. Some of this split has an element of (I am sorry to say it) elitist dismissiveness to it. ... We commoners expect insulting condescension from folks on the left who, in their 'tolerant' sophistication, openly disdain the hicks. It has been an unpleasant surprise to see that same disdain from some on the right."

Right-leaning A.J. Strata, who supports the Miers nod, announces that he has been banned from the GOP community blog RedState: "Key folks at Redstate have been pushing for a civil war in the republican party, and the broader conservative movement, over the Miers nomination. ... I decided to test their mettle. I wanted to know if, beyond their flimsy claims, they had what it took to make this fight real. They don't. I was banned because I called the anti-Miers crowd 'extremists' and 'fanatics'." ... I was testing the envelope (and their buttons - especially Leon H) to see if they could handle the intensity of infighting they were calling for. ... All I can say folks is: do not run to oust Miers if you expect folks like those at Redstate to back you. They had no good responses, and in the end hid behind silencing the voices they could not deal with." One of the key discussion threads in question starts here, in the comments of another post related to Morrissey's op-ed. In it, RedState regulars Leon H and Thomas warn him to cut out the "ad hominems" lest he lose his privileges, which he since has. Thomas also follows up with a RedState diary fisking Strata, i.e. reposting the original message and rebutting it line-by-line in a typically sarcastic manner.

Even the moderates are split amongst themselves: Environmental Republican hosts this week's "Carnival of the RINOs," a self-contributed collection of recent posts by moderate conservatives. He summarizes, the Miers nod has "split the elephants. I tend to take a wait and see approach, but first impressions are not exactly instilling any great feeling toward her." Don Surber argues, this isn't about Miers, it's about Bush: "Conservatives are fed up with him, and their list of particulars is credible, such as signing McCain Feingold, invading Iraq on the premise of WMD "rather than democratizing the place," the budget deficit, and so on. He adds: "Republican congressmen under Bush are in the same spot Democratic congressmen were under Jimmy Carter. Next time I see Robert Byrd, I might ask him the Miltonian question of whether it is better to be minority leader under Reagan than it is to be majority leader under Carter." On the other hand, The Recovering Democrat writes that if Miers indeed supports affirmative action, as it has been suggested, then "I am no longer on the fence with respect to her nomination. I would actively opppose the nomination. ... Diversity is important. However, 'Diversity' is not a compelling interest -- "Equal Opportunity' is the compelling interest."

ROVE-PLAME-MILLER-LIBBY: From Fitzgerald With Love

What does it mean that Judy Miller has turned over further notes to special prosecutor Patrick Fitzgerald's grand jury, which may or may not have been just-discovered? The Next Hurrah's Emptywheel and film producer Jane Hamsher ofFiredoglake put forth a theory that has Fitzgerald setting an ingenious "mousetrap" to catch Miller in a lie and flip her to get testimony against Karl Rove and other WH officials. They suggest that Fitzgerald now thinks the WH's move to discredit ex-Amb. Joe Wilson started prior to his New York Times op-ed, that Scooter Libby had approached Miller about Wilson and his wife, Valerie Plame, that Miller was going to write about it until said op-ed appeared, that Miller had perjured herself by not having told Fitzgerald of her June conversations with Libby, that Miller had held back because her discredited WMD reporting was favorable to the WH and therefore means she is probably a GOP ally in general, and that Fitzgerald found out about those June conversations, and is now calling her back to spill the story, and asking for the notes that would show him to be right, lest she be charged with a series of felonies herself. For a more thorough and easier-to-follow summary, see Mark A. R. Kleiman.

Not everyone buys this theory. At TalkLeft, atty Jeralyn Merritt suspects the notes may not be "suddenly discovered" in any meaningful sense: "Go back to her subpoena. It only asked for notes and documents from July 6 to July 13. It didn't ask for notes from June 2003. ... I don't see anything from which to conclude she hid the notes and is now in trouble or facing a perjury charge. To the contrary, I think Miller is cooperating with Fitzgerald now. She is not going back to jail period." As for the content of those notes, Kausfiles reads the Rorschach blot differently: "Miller's production of the new notes might not be as ominous as it seems. She might want to show the prosecutor the notes in order to prove that she and Libby discussed Wilson but not Wilson's wife. In other words, the notes might exculpate Libby from a charge of maliciously leaking the Wilson-wife-CIA connection. They might also, in some possible, equally speculative scenarios, exculpate Miller from a charge that she hasn't been fully forthcoming with the prosecutor." In an update the post above, Kleiman eventually downplays the development, as does JustOneMinute, which adds: "My tip to Dems -- focus on Libby's problems."

Meanwhile, Classical Values doubts that even the Espionage Act, let alone the IIPA, is applicable to this case. The statute begins: "Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates ..." Asks CV: "Excuse me, but how does White House leaking of the identity of Plame's identity (assuming this happened) evince "intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation"?

WHITE HOUSE '08: One Fein Day

This weekend, MyDD's Chris Bowers held his latest straw poll for WH'08. Like the 9/04 poll, this was done in IRV with the same questions, and so trendlines are now available. Like all previous MyDD straw polls that we've seen, ret. Gen. Wesley Clark cleans up. And for anyone who had expected WI Sen. Russ Feingold's vote to confirm CJ John Roberts would cost him netroots support, it appears to have had no effect whatsoever. Here's the results from the 1st, "First Past the Post" part of the poll:

               10/05   9/05
Clark           31%     34%
Feingold        23      23
Edwards 	12      11
Warner           9       8
Clinton          7       8

And then from the "Instant Run-off, Final Round":

               10/05   9/05
Clark	        57%     52%
Feingold        43      32
Edwards         --      16

BLOGS VS. THE BELTWAY: Grand Old Bloggers?

Conservative Lakeshore Laments comments on Professor Bainbridge's assertion that the RNC sees conservative bloggers as "being somewhere between an irrelevance and a minor nuisance": "From all I've been privy to, the RNC only talks a good game when it comes to blogs and bloggers, any long-term strategy is nearly nonexistent. Talking points are handed out like clockwork, but any real substantial effort to get a 'temperature gauge' on the grassroots doesn't happen. ... One commenter at Bainbridge says that the only reason the Kossacks are listened to is the money they raise for the DNC and other 'progressive' efforts. That maybe true, but I think the idea of keeping the fringe in check so that they don't turn on you applies more to the DNC and the Kos/MyDD crowd." Meanwhile, MyDD founder Jerome Armstrong comments: "I have a hard time seeing how a decentralized interactive community is incorporated into the top-down Amway-like structure of Republican campaigns. Plus, as Chris has noted many times, the conservative bloggers are just not a part of the Republican campaign machine, but their message machine. The Republicans will have to see it work in an individual Republican campaign before it gets adopted by the party. Plus, despite being lapped, they still won."

Relatedly: on 10/10 Patrick Ruffini, the blog guru for BC'04, announced he's stepping away from his blog to become the eCampaign Director for the RNC. Ruffini had shut down his blog when the took that job, but this time he suggests he will likely blog for the RNC's blog. His '08 Wire and SCOTUS Wire will keep running, and Hewitt will take over the monthly straw polls he had been doing.

BLOGGERS VS. SENATORS: Past Tensions

On 10/7, Hotline On Call (with which the Blogometer is affiliated) reported: "Anybody want to venture a guess which Dem Sen. attended last night's Bill Buckley Bash celebrating National Review's 50th birthday? A: Joementum" -- i.e. Sen. Joe Lieberman (D-CT), after a line he used during his WH'04 campaign. A few days later this was picked up by Markos Moulitsas, who wrote: "Remember, Buckley helped fellow neocon Lieberman win his Senate seat by ousting the then-liberal Republican [Lowell] Weicker with a challenge from the right. ... Lieberman didn't just attend, but he sat at the head table with Buckley and Rush Limbaugh. Limbaugh says they had a nice chat." Duncan "Atrios" Black also picked up on it, and along with the On Call link, quoted via Brad DeLong an 8/24/57 National Review editorial in opposition to the Civil Rights Act. At the Bull Moose Blog, DLC's Marshall Wittmann defended Lieberman, citing his civil rights activism during the early '60s, and calling criticism of him "McCarthyite" "slander": "These bloggers ... owe Senator Lieberman an apology! It is one thing to disagree with his politics, but do not slander his character!" Steve Gilliard responded, asking Wittmann: "As a black man, I'm real glad Lieberman fought for civil rights long ago. But what good is that if he dines with racists now?" In follow-ups, Moulitsas and Black both discount Wittmann's criticism. On 10/10, National Review's Jonah Goldberg added at The Corner: "Atrios says Lieberman shouldn't have attended because some forty years ago NR looked negatively on the Civil Rights Act. By this logic, virtually hundreds of liberals are to be similarly condemned for having appeared on WFB's 'Firing Line,' for saying kind things about Buckley and NR ... If this is the sum of the indictment, Why not condemn Mark Shields for being on 'Capital Gang' with Kate O'Beirne? For that matter, why not condemn Bill Clinton for his refusal to condemn his 'mentor' Senator William J. Fulbright, who was a passionate segregationist, opposed Brown v. Board of Ed, blocked civil rights legislation and signed the Southern Manifesto?" On 10/11, liberal Washington Post columnist E.J. Dionne published a column praising Buckley. Wittmann so far is the first and only of those involved to comment: "It is unlikely that the slanderers of Senator Lieberman will go after Mr. Dionne for this heresy. ... As E.J. said of Buckley, 'He knew cranks were bad for the movement.' Where are the Murrows of the blogosphere? Is anyone besides the Moose upset about this unfair slur?"

Las Vegas Review-Journal reports on a quarrel between the websites conservative commentator Michelle Malkin and Senate Min. Leader Harry Reid, who recently launched a website and blog, Give 'Em Hell Harry. Malkin, in the post linked above, sent her readers to comment on a recent news story -- also reported in the Review-Journal -- over the indictment of 2 Las Vegas pastors over misuse of fed'l loans which Reid helped secure. (The situation contains some parallels with the ongoing Air America controversy, which Malkin has reported on; see Blogometer archives, starting 7/27.) Malkin's readers started posting on 9/30, at comment #35, until the comments were cut off at #82.

MIDTERMS '06: Forget It Jake, It's Chinatown Jersey

At Blue Jersey, liberal Scott Shields (also of MyDD) follows up on an The Inside Edge column writing that acting NJ Gov. Richard Codey (D) "would never take" an appointment to the Senate from Dem GOV nominee/Sen. Jon Corzine "if he believed Jon Corzine's ulterior motive would be to get him out of Trenton." And those "who know [Rep.] Bob Menendez say that he would be 'one angry man if Corzine were to pass him over.'" Shields adds to this, South Jersey Dems have not been "have not been overly pleased" with Codey, who has "been known to openly defy" South Jersey Dem "powerbroker" George Norcross. Shields adds, this also may work "in the favor" of Dem Rep. Rush Holt," which although "would certainly grate on some of the Democrats who have been jockeying for the position, there's less chance that it would flat-out offend anyone as well."

FREEH VS. CLINTON: Another Poke In The Eye?

As Washington Post's Howard Kurtz 1st reported, CBS's "60 Minutes" "agreed to read a statement denying" ex-FBI dir. Louis Freeh's charge that then-Pres. Clinton didn't press the Saudis to investigate the Khobar Towers bombings, but at the relevant meeting did ask them for a contribution to his pres. library. The Left Coaster comments: "CBS News was ready to air this story tonight on Freeh's claims, when it turns out that Freeh himself wasn't even at the meeting [in question] ... And worse yet, Mike Wallace was told that there were at least five people who attended the meeting who could dispute Freeh's allegations, and he was also told that Freeh wasn't even at the meeting himself. Yet Wallace, '60 Minutes,' and CBS News were ready to put the smear on Clinton tonight anyway. This is the kind of media treatment the GOP buys for itself by slapping around CBS News over the TANG disaster." According to Kurtz, "The Clinton camp says '60 Minutes' would not accept any surrogate to rebut Freeh on camera once the former president declined to be interviewed." CBS News' Public Eye received a statement from "60 Minutes" exec. prod. Jeff Fager, merely saying: "The president would not sit down for an interview, but our job is to make sure the story is fair to him and we have been in touch with his people to make sure of his positions on some of the points made in the story."

E&P reports, Sen. Dick Lugar (R-IN) and other sens. are leaning against granting bloggers protection under fed'l shield laws. Said Lugar: "Are bloggers journalists or some of the commercial businesses that you here would probably not consider real journalists? Probably not, but how do you determine who will be included in this bill?" Roger L. Simon, one half of the leadership of Pajamas Media, objects: "Which bloggers was he talking about? [PJ Media blogger/U.S. News columnist Michael Barone] who has more professional journalistic credits than almost anyone I have ever met? Or [PJ Media blogger/Nation corr. David Corn] who also happens to be a columnist for one of our major political journals? I mean are they protected by the shield law when they are writing, say, for the Los Angeles Times but not when they blog? Confusing, isn't it?"

THOUGHT OF THE DAY: Generous To Default?

GOP-leaning Decision '08's Mark Coffey asks under the header "Aid Fatique, Resource Shortfall, Or Culture Shock?": "When the tsunami hit, aid both private and public flooded in, pardon the expression, and likewise with Hurricane Katrina. Yet when a disaster hits Pakistan, with casualties estimated in the mid five-figures, I've seen little or no interest. No ubiquitous relief banners, no blogger alliances or initiatives (at least that I've seen). An open question, then, to any who wish to answer it. Why?" He adds, "even though tragedy should trump politics, Pakistan is home to a large Muslim population... a population that is sheltering Osama bin Laden... what better gesture than a large outpouring of humanitarian aid to build a bridge?"

LEST WE FORGET: But Can She Catch Up With Newt?

Satire blog Mr. Sun! finds the "smoking gun" -- fictitious Amazon reviews of "Supreme Court for Dummies" and "U.S. Constitution for Dummies" by one "Harriet Miers." Miers' review: "Disappointing. This covers the basics, but I need details I and I need them now. What is 'activist'? What is 'strict constructionist'? How about throwing me a bone here? I know constructionist is better, I just don't know why. I'll look on the Internet, I guess."

Posted by at October 11, 2005 01:11 PM