October 31, 2005

10/31: Alito? GOP Says, Neato! Dems Cry, We Must Defeato!

While all attention this a.m. is on SCOTUS nominee/3rd circuit court judge Samuel Alito, the weekend spotlight was on Pres. Bush, VP Cheney, special prosecutor Patrick Fitzgerald, ex-Cheney CoS Scooter Libby, and still-WH dep. CoS Karl Rove. It's unclear which way the focus will go once the Alito splash subsides. But chances are the right will leave Plamegate to the left as they get behind Alito; the left will divide their attention among opposing Alito and sustaining criticism of Bush, Cheney and Rove and speculation about Fitzgerald and Libby. Lefty sites including Huffington Post have become known as places for Plamegate discussion, the fledgling Firedoglake seems to have made its name on it, and deep-reading conservative JustOneMinute has been another go-to place for explicating the case. As for the SCOTUS fight, the right has a handful of blogs already focused on fighting that battle. The left certainly trails in this respect. Will CAP bring back its Supreme Court Extra? Will TPM Cafe or Daily Kos pick up the slack? Will another blogger step forward? We're watching.

First up, what the blogs are saying about the pick SCOTUS:

INITIAL REAX: Everything's Back To Normal

AmSpec Blog's Washington Prowler and RedState's Erick Erickson both heard that Alito would be the pick last p.m. Goldstein & Howe's SCOTUSblog stuck with what the MSM had, that it would be Alito or judge Michael Luttig. In the Erickson post, commenter SouthernGent hears that Luttig "has little patience for those who he deems less intellectually rigorous than himself," adding: "I have conflicting reports on his ability to keep it under control ... in his meeting with W."

Conservative Power Line: "Alito is a solid choice. [NY Dem Sen] Chuck Schumer and [Senate Min. Leader] Harry Reid have already come out against him; another good sign. ... We're about to get the fight over Constitutional principles that conservatives have looked forward to for years."

Liberal Chris Bowers: "[F]or the third nominee in a row, Bush has selected someone with ties to a previous" GOP WH admins: "Scalito worked in the SG office during the Reagan administration. This means another argument over documents that should be released. This time, failure to comply should result in Democrats invoking real consequences."

Conservative K.J. Lopez: "I just got the White House talking points on Alito. Nowhere in them does it say that he is one of the best male lawyers in New Jersey."

Duncan "Atrios" Black: "I think it would've been quite nice if Judge Alito had stopped by to pay respects to Rosa Parks... yesterday. The idea that they're going to parade him in front of her casket after his nomination is truly demented" considering some of his rulings.

Over the weekend, Right Wing News posted results of an informal poll of conservative bloggers, asking about their most- and least-desired nominees. Janice Rogers Brown and Michael Luttig tied for "most"; Alberto Gonzales owned the "least" title. Alito finished 4th on the "most" side. In a previous post, RWN's John Hawkins -- who wanted Miers' name withdrawn before most -- had named Alito the judge he most wanted to see named to the SCOTUS.

Think Progress and Daily Kos draw attention to a quote by Georgetown law prof Jonathan Turley, on "Today" this a.m.: "There will be no one to the right of Sam Alito on this Court. This is a pretty hardcore fellow on abortion issues." Daily Kos' Armando: "Senate is gonna have to ask him about 'super stare decisis.'" (See below for more on "super stare decisis.")

Patridiot Watch jokes, "assuming Alito passes the Senate, two out of 9 Supreme Court Justices will be from Trenton, NJ" -- the other being Scalia -- not to mention one in a line of NJ GOPers to be appointed by Bush (including ex-EPA admin. Christie Todd Whitman, DHS Sec. Michael Chertoff and incoming Fed chair Ben Bernanke). "The odds against such an eventuality are so long that it can only be the result of close-to-the-chest, demonic strategery."

Donklephant's Justin Gardner, a centrist who supported Roberts, writes that Planned Parenthood v. Casey "troubles me."

Wikipedia already has a brief entry devoted to the Alito nomination; it's sure to grow longer before the day is out.

THE FIGHT: Apocalypse Now?

Whereas the left didn't quite know what to make of Harriet Miers or John Roberts, this time their reaction is sure and united against him.

Via a Washington Post report, liberal AMERICAblog focuses on a case of conflict of interest involving Alito: "Hundreds of thousands of dollars and it didn't raise ethical concerns for him. So how much did he have to have invested with Vanguard before it became a conflict-of-interest? This should get an enormous amount of scrutiny." In their 1st post on Alito, the headline includes: "It's War." Pandagon: "If there was any doubt, particularly among the moderates in his party, where this President turns to when he's got his tail between his legs, there isn't now." The Carpetbagger Report: "Bush wants -- maybe even needs -- a knock-down, drag-out fight over the Court. Looks like he'll get one."

The most popular set of talking points against Alito are at CAP's Think Progress, which posts oppo under the header "Samuel Alito's America," summarized with headers such as "ALITO WOULD OVERTURN ROE V. WADE," "ALITO WOULD ALLOW RACE-BASED DISCRIMINATION," and "ALITO HOSTILE TOWARD IMMIGRANTS."

A number of liberal bloggers are already citing his Casey dissent as a reason to oppose him -- The People's Republic of Seabrook: "If there had been any doubt about the state of Our Glorious Leader's war on women, rest assured that it appears that the war is alive and well and moving full speed ahead. Time to turn back the clock, y'all..." Tennessee Guerilla Women writes, Alito "thinks women should be forced by law to ask husbands for permission to terminate a pregnancy," before later updating, "okay, okay, it's called 'notification,' rather than 'permission;' yet, clearly, for many women there is no distinction." Liberal Oasis also focuses on Casey, which calls "hostility to equality" Alito's "trademark." So does The Mahablog, which adds: "Other Alito rulings have made it easier for employers to practice race and sex discriminate. What a guy. No wonder the Right loves him."

And indeed, they do seem to. Already Hugh Hewitt is back on the same page as his fellow conservatives: "Judge Alito is a great nominee, and as a result a great political battle lies ahead."

As for the looming battle, Hewitt writes, "the best way to preempt a filibuster" is for the 9 GOPers "thought lukewarm or hostile to the constitutional option to announce" that they will vote for it if Dems "attempt a filibuster based upon ideology." Sen Lindsey Graham (R-SC) has already done so; he posts Senate contact info for the other 8. Blogs for Bush's Matt Margolis, who was lukewarm on Miers, has already put together a banner reading "Confirm Alito Coalition, Est. October 31, 2005."

PoliPundit counts 50-54 votes in favor of confirming Alito. He counts just 1 Dem who will likely vote for -- NE's Ben Nelson, but among GOPers he expects no votes from Lincoln Chafee, Susan Collins and Olympia Snowe, Ted Stevens and John Warner. He also weighs a few close calls, including Senate Jud Cmte chair Arlen Specter. Captain's Quarters predicts a 65-35 win: "I expect that the Democrats will get 30-35 votes in favor of a filibuster once Alito gets out of committee. If they do consider a filibuster, too many of them will realize that Stevens might get replaced during this term," and they "need that potential stop on Senate business to protect a genuinely liberal seat..." RedState's Adam C calls Alito "ordinary in a good way," and argues that his "unanimous confirmation in 1990 shows that he is in the mainstream of legal philosophies." Conservative Yeah, Right, Whatever, on the possibility of "the F-bomb," in this case, the filibuster: "[I]f they threaten it, I want to see Schumer and Kennedy and Reid and Kerry and DiFi and Boxer on the Senate floor at 3am, reading the Complete Works of Shakespeare." Conservative Power Pundit: "Threaten the Democrats will, but it's all talk."

On 10/30, Ideoblog's Larry Ribstein focused on Alito "Scrutiny will no doubt focus on his dissent in Casey. But, by my count ... Alito has also written 243 majority opinions." He briefly considers a dozen of them, noting that Alito shows "sensitivity to the value of free markets and the problems firms face from litigation and regulation." Anticipating Dem criticisms, Patrick "Patterico" Frey defends the Casey dissent. Conservative PoliBlog: "Indeed, after 'Scalito' the word that we will all hear the most of over the next several weeks is 'Casey.'" Center-right Althouse, on the term "Scalito": "'Alito: refer to him as Scalito.' That is an entry that belongs in a modern "Dictionary of Received Ideas." A side benefit of his nomination would be that people might -- eventually -- get over that mental tic."

Left-leaning Taegan Goddard observes, "with the Bush administration operating in crisis mode -- and midterm elections just one year away -- it's not clear Bush has much ability to force fence sitters to vote for Alito."

ROE V. WADE: A Tough Roe To Hoe

Jeffrey Rosen asks in the New York Times, "So, Do You Believe in 'Superprecedent'?"

Lefty Stirling Newberry: "Legal theory is gradually embracing the notion of an unwritten constitution, that some decisions are 'super-precedents.' This has been true in practice for two centuries, where key Marshall decisions were treated as super-precedents, including Marbury v. Madison, McCullough v. Maryland and Barron v. Baltimore."

Univ. of WI-Madison law prof Ann Althouse digs through Lexis-Nexis and finds not one occurrence of the word "superprecedent" in any federal court case, and only just 1 of its alternative name, "super stare decisis." That person was judge Michael Luttig, who had been on the shortlist for the SCOTUS nod. Moreover, she argues: "Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis." Manhattan Institute's Walter Olson agrees. Rosen does discuss the Luttig quote, but Pejman Yousefzadeh says it doesn't mean what Rosen thinks it means.

Liberal Yale prof Jack Balkin calls the term "misleading," and lists 3 criteria for when a precedent "is (or should be) safe from overruling": "(1) the result of a protracted struggle where one side has given up (at least for the time being); (2) essential to preserving a large body of law that is (at least in part) valuable for other reasons; and (3) a widely recognized exemplar of how to do constitutional interpretation correctly." Brown meets all 3 criteria, but Roe does not meet the 3rd.

Liberal Kevin Drum: "I suspect you can't overturn Roe without also substantially overturning Griswold and significantly weakening the modern application of substantive due process at the same time. Rosen mentions this, and it seems like it's really the key issue: not whether Roe is a superprecedent, but whether Griswold's interpretation of substantive due process is a superprecedent."

FAMOUS LAST WORDS: Why Judges? Why Not Cabinet Members?

Just like Harriet Miers's Blog!!!, there is already a blogger purporting to be Alito himself, at The Right Honorable Samuel A. Alito, Jr, and which may or may not have some connection to the pseudonymous GOP-leaning Underneath Their Robes.

BUSH: Plame Duck? Consider It Unrovesolved

Conservative Don Surber headlines a post "They Wanted A Hog, But Got A Scooter," noting MSM columnists comparing Plamegate to Watergate: "Within two years and two months after the Watergate break-in, Nixon had resigned. Within a year of perjuring himself in a deposition, Clinton faced impeachment. This case is not just beginning. It is ending."

Dem strategist Lawrence O'Donnell, at Huffington Post: "'The White House dodged a bullet' is the single stupidest bit of nonstop echo punditry we've heard this weekend. ... What the White House desperately needed on Friday was Rove's resignation. As long as he keeps his White House pass, Rove is a cancer on the presidency."

Jeff Goldstein, on the indictment: "So essentially, the crux of this indictment is that Libby lied about the way he talked to the press ... to cover the original source (which for him seems to be Dick Cheney or another government official). Cheney and Libby did nothing wrong in talking about this, however, so Libby seems to have done lied for political reasons -- most likely to avoid the appearance of impropriety."

The Left Coaster: "The conventional wisdom from Beltway pros like David Gergen is that Bush can save himself by dumping his team and bringing in fresh blood and new ideas, like Reagan allegedly did after Iran-Contra. But such a move would require Bush to do something that he has rarely done: accept responsibility for his mistakes in governance, and admit error in his policies."

Neoliberal Mickey Kaus argues, contra some claims (such as the Wall Street Journal editorial page) that, Fitzgerald needs to use reporters as witnesses against Libby, he does not: "Fitzgerald has a simpler perjury charge that doesn't rely on a he said/she said with any member of the press. ... If Fitzgerald's case boils down to whether Russert told Wilson the information on Wilson's wife ... then it's really as trivial as the WSJ makes it out to be. But it won't boil down to that, from all appearances, because Fitzgerald can also nail Libby on Libby's implausible statement" to Fitzgerald and the grand jury "that he was surprised by Russert's info." At The Plank, Michael Crowley makes the case that Libby's call to Russert was to complain about Chris Matthews' analysis of Libby's actions on the 7/10/03 "Hardball."

Lefty Whiskey Bar's Billmon fears that Rove is in the clear: "I still believe Patrick Fitzgerald is on the straight and narrow, even if the emphasis is on the narrow. There may well be sound reasons behind his prosecutorial decisions. But those decisions could also have big consequences." Mike Isikoff's later report reinforces that interpretation, and lefty Hullabaloo asks: "Can someone tell me why Fitzgerald would go to President Bush's personal lawyer on Friday to tell him that Bush's 'closest aide wouldn't be charged'? Is it in any possible sense ethical for the prosecutor to be telling the president's lawyer information that isn't available to the public about members of the president's staff in the middle of an investigation?" Jane Hamsher doesn't buy it: "I mean, I know Luskin is out there spinning -- that's his job as Rove's attorney -- but the idea that any journalist would unquestioningly accept whatever he says as an objective statement of fact and then print it as such is really quite remarkable..."

On last a.m.'s "This Week," Senate Min. Leader Harry Reid called on Bush to apologize and Rove to resign. Crooks and Liars has video. Conservative John Cole agrees that an apology should be forthcoming "if for no other reasons than purely political," and writes: "I am of mixed minds on a Rove resignation. I don't necessarily agree with the opposition party getting to decide who works for the President. I also don't believe Rove in the White House is a good thing, and I don't know if I want him there anymore. From what I can tell, the WH has been rudderless for a while now, so a shake-up might get rid of some of the rot and provide some new blood and focus. Don't count on it though."

WILSON/PLAME: Got It Covered

At The Corner, righty Cliff May was not pleased with the "60 Minutes" ex-Amb. Joe Wilson interview last p.m.: "It was all from Wilson's perspective: Plame was exposed; it was done to exact revenge on Wilson, an honest whistle-blower; her career is over as a result; serious national security damage has taken place. That's the narrative they are selling. No alternative view was even entertained."

In the 3rd part of a series titled "Was Valerie Plame Covert?" conservative Tom Maguire takes issue with a report that the CIA won't produce a report on damage done by the leak until the trials are over: "Is that how it works when our national security is threatened and lives are on the line -- the CIA waits a few years until the trials are over, then assesses the damage? Come on, we see through this -- if the CIA prepared a formal report, it would be subpoenaed as evidence, and the jury would laugh out loud at the "no damage" assessment. So the CIA filed a criminal referral in 2003, got the White House tied up in a two year investigation, and now they are laughing out loud. Well played, especially if you like a spy service that shrugs off executive oversight by inventing crimes and playing dirty tricks."

CHENEY: Addington Station

On 10/30, National Journal's Waas and Singer did a profile of Cheney counsel David Addington, the "leading candidate" to replace Libby. Right-leaning Andrew Sullivan, on Addington: "Few people were as involved in making the United States a country that legally practises torture against military detainees than Addington." Left-leaning Laura Rozen: "Addington is the lawyer who advised Cheney and Libby to not cooperate with the Senate Select Intelligence committee in turning over documents related to bogus intelligence they tried to get into Powell's speech to the UN." MyDD's Scott Shields: "Addington is a hard core neocon. The White House, and Cheney's office in particular, is digging in for some serious fights over the remainder of the President's term. Let's prepare accordingly. "

GOP and the City quotes Rep. Charlie Rangel (D-NY) saying on NY1: "Suppose I was to challenge the Vice President on your show and say if you're not mentally ill why don't you take a test and show the American people you're up to it...And guess what? He's been out of town ever since we said that." The video is here.

SPENDING: Don't Cross The Streams!

Truth Laid Bear debuts PorkBusters 2.0, with an interactive map. The page is now specifically devoted to supporting Sen. Tom Coburn's (R-OK) "'offset package' aimed at identifying budget cuts to pay for hurricane relief."

N.Z. Bear explains on the site's blog, noting: "Where just a month ago Tom Delay felt perfectly comfortable saying there was no fat left in federal budget after years of Republican rule, now, the political climate has changed, and there actually seems to be a real chance to change the culture of fiscal irresponsibility that has become the norm on Capitol Hill."

Coburn's co-sponsors are listed as supporting: John McCain (R-AZ), Sam Brownback (R-KS), John Ensign (R-NV), John Sununu (R-NH) Lindsey Graham (R-SC) and Jim DeMint (R-SC). As yet, no sens. are listed as opposing.

Instapundit posts the new logo, adding: "Note that the pig is starting to look worried..."

BLOGS VS. THE MSM: Conflict Resolution

Dem strategist Dan Carol at Huffington Post: "Okay, so it's weird enough to see Tim Russert acting as prosecutor and witness-in-waiting in the CIA Leak case, but I think it's time to ask former Bush 41 DOD chief press flack Pete Williams to take a bow out from actively covering the story which involves his old boss Dick Cheney and former DOD colleague Scooter Libby."

At TPM Cafe, Plame friend/ex-CIA officer Larry Johnson cites a couple of Bob Woodward stories he thinks Libby might have been the source for, and writes, "Woodward's vain attempt to downplay" the Plame leak "sure smacks of someone trying to protect his sources." On "This Week," Cokie Roberts said much the same thing. Crooks and Liars sees this as "a vested interest by the MSM to turn the public's attention away from the main allegation."

WMD INTEL: A Series Of Unfortunate Events

At Talking Points Memo, Josh Marshall delves deep into what he calls "The Italian Connection," in the "first of a series of installments" collecting all his info on the Niger forgeries.

VIRGINIA GOVERNOR: Don't Believe Everything You Read In The Newspaper

According to the Washington Post, DavidNYC writes at pro-Dem Swing State Project, sine VA Dems "are saying that Kaine has to be up at least 5 in the polls by election day in order to win. They point out that Mark Warner was up by 10 points in many polls right before he was elected in 2001, but only won by 5. I decided to check this claim out, and it's only sorta true." He produces a table of last-month polling from '01, with Warner up by as little as +3 and as much as +13.

MIDTERMS '06: Will The Son Rise To The Bait?

Conservative Baseball Crank: "If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that [Dem ex-PA Gov.] Bob Casey didn't violate the Constitution" in Planned Parenthood v. Casey, "sooner or later someone is going to ask his son" -- Treas. Bob Casey (D-PA) -- if he agrees." Considering that Casey is now challenging PA Sen. Rick Santorum (R), "that's gonna be a question that will put him in an awfully bad position. And Karl Rove will smile."

THOUGHT OF THE DAY: It Is Halloween, After All ...

La Shawn Barber asks: "This may be a strange question, but have you bloggers made arrangements for your blog when you die? Is there someone you trust with the password to carry out your wishes? For instance, if this site is still in operation at the time of my death, I've made arrangements to have it shut down completely. It will live forever in Google's cache, of course, but [the blog] will cease to be, just like me." One such case is Uppity Negro, maintained by Aaron Hawkins until his suicide in the fall of '04. Blogger Heather Bare, aka Momma Bear/Church Mouse passed away just weeks ago; tributes to her can be found at Laughing Wolf and Gray Monk.

LEST WE FORGET: The Way Things Work

Coffeegrounds has now 2 installments in a "how-to" series of dubious usefulness, titled "How to Run for Public Office." Here's the 1st installment; And the 2nd is "Our Friend the Campaign Brochure."

NOTES AND ERRATA: Rescheduling

On 10/28 we promised this edition would contain a brief meditation on the last week's troubles in OH SEN and VA GOV. Breaking events overtook, and now you'll see it tomorrow.

Posted by at October 31, 2005 12:47 PM