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Wednesday, November 30, 2005

Alito OSG Memo

I just got an email with this text in it....It was sent by a Schumer staffer and ultimately forwarded to me by a friend in the MSM....

So -- what happened to the sanctity of Solicitor General memos? The
National Archives just put one of Alito's up on their website for the
world to see -- what happened????

http://www.archives.gov/news/samuel-alito/accession-060-89-216/Thornburgh-v-ACOG-1985-box20-memoFriedtoAlito-June3.pdf

Monday, November 28, 2005

Balkin on Padilla

Yale Law Prof Jack Balkin has a must-read post up (actually, it's almost a week old, but hey---I'm behind) about the case of not-in-any-legally-contestable-way-alleged dirty bomber Jose Padilla. Here are some excerpts:
By indicting Padilla now, The Bush Administration moots Padilla's appeal to the Supreme Court. It also leaves standing the Fourth Circuit's decision in the Padilla case, which broadly upheld the President's power to detain U.S. citizens like Padilla as unlawful combatants. (See Marty Lederman's post here for an analysis).

That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes.....

The Padilla case is a sobering lesson in how much leeway the President has to imprison and detain people for long periods of time in violation of the Constitution. The fact that the government's story about why Padilla was a threat has changed so frequently should give us pause the next time the government asserts that we should trust it when it rounds up U.S. citizens and claims the right to hold them indefinitely for our protection. Padilla may well be a very bad fellow, but we have a method of dealing with such bad fellows. It is called the rule of law, and we should not surrender it so readily merely because the President desires it.
This case should just plain terrify people who think it matters that ours is a government of laws, and not of men.

Ask yourself: if the Administration's conduct in this case is upheld, what is to stop the President or his lieutenants from locking up a political opponent on the simple assertion that said opponent is an "enemy combatant"? A couple years ago, I asked this question of a (quite liberal) friend who works as a career attorney for the DOJ. His answer basically was that the President wouldn't do that. Translation: Nothing would stop the President except for his own conscience.

Which is to say, if the Bush Administration's policy here persists, we have a government of men, and decidedly not one of laws.

On this case, I do find myself wondering: Where are all the people who think guns must be legal to prevent tyranny by the Federal government, when the current Administration so eagerly lays down the preconditions for federal tyranny? Where's Wayne LaPierre when you need him?

Faint Praise: Duke Cunningham Edition

Well, it took him long enough, but Randy Cunningham (Kleptocrat-CA) has finally come clean (via TPM).

I have to say I am impressed with the forthrightness that the Duke expresses in his statement. He actually seems contrite, and he actually seems to understand what a terrible breach of trust and decency his actions constitute.

It's hard not to reflect on the time in which we live: a time when the President of the United States and his chief aides have repeatedly misled the people, distorted facts, and in some cases quite clearly outright lied about the necessity and conduct of a war---and then impugned the honesty and patriotism of those who would dare confront them with their mendacity and mistakes. As despicable as the Duke's actions were, this sort of contrition -- hell, this sort of acknowledgment of reality, however ugly -- is sorely lacking from our so-called leaders.

It feels weird to praise the Duke, however faintly.

But at least he's man enough to admit his transgressions.

McClellan Russian Out The Door?

ThinkProgress points out that Scott McClellan hasn't given an on-the-record briefing in 19 days.

Kind of reminds me of how speculation would rise that a Soviet leader was being deposed because he hadn't been seen in public in a while.

Which is not that Scott McClellan and the Soviet leadership are equivalent. Except maybe when it comes to the truth-value of their pronouncements. (I can hear his response now: "That's just totally ridiculous".)

[Note to the equally absent Peter: SATIRE!]

Tuesday, November 22, 2005

Ice Cold Milk and A Made-Up Story?

This story from the Baltimore City Paper -- about the supposed pelting of Michael Steele with Oreos at a debate three years ago -- is definitely worth a read.

It puts one in mind of another alleged Democratic misbehavior story run round and round by the MSM at the behest of the GOP and then simply dropped when the evidence turns out not to exist -- the WH vandalism smear (I can't find the GSA report online, so you'll have to settle for this TPM link).

Padilla Indicted?

I thought he was an enemy combatant, not a criminal?

I'll have to read more about this one.....

Scalia Sullies Himself Again

By way of Josh Marshall comes this brief in the NYPost:
SCALIA RAPS GORE FOR '00

By FRANKIE EDOZIEN November 22, 2005 -- U.S. Supreme Court Justice Antonin Scalia says the high court did not inject itself into the 2000 presidential election.

Speaking at the Time Warner Center last night, Scalia said: "The election was dragged into the courts by the Gore people. We did not go looking for trouble."

But he said the court had to take the case.

"The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"

The conservative justice, who grew up in Queens, contended there would have been a difficult transition had the court not stepped in.

He also pointed out that studies by news organizations after the election showed Bush still would have won a Florida recount.
Boy, I barely know where to begin here.

First, Gore didn't appeal to the Supreme Court -- Bush did, and twice. In any case, the fact that Gore's people began the litigation is totally beside the point. I assume that the allegedly conservative Scalia does not vote to grant cert for every case appealed to the SCOTUS (sorry -- hard for me to avoid the sarcastic understatement there). Moreover, lower federal courts had no trouble rejecting Bush's appeals.

Second, it's pretty hard for me to understand how Scalia can say the Court didn't go "looking for trouble" when (in Bush v. Gore II) it issued an injunction to stop the recount and then ruled days later that no constitutional recount could be designed in time to meet the deadline -- on the final day allowed by the safe harbor provision. The Court couldn't have looked much harder than it did.

Third, I just marvel at this quote, coming from Scalia:
"The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"
Gosh, I thought the alleged originalist conservatives were committed to the view that original meaning takes precedent when deciding Constitutional issues, and that they frowned on justices who impose their own personal policy preferences when deciding cases.

Actually, I did expect the Court to turn the case down. But not because it was unimportant (gee, I thought Scalia was the sort of hard-headed guy who wouldn't let "importance" get in the way of law -- what's that essay of his? The rule of law as a law of rules).

No, I (really) expected the Court to turn the case down because the issues involved were basically state, not Federal ones. Frankly, anyone who thinks the counting standard ordered by the Florida SC (the "intent of the voter") violates equal protection will have a heck of a time explaining how it is then consistitutional to hold an election in which different voting technologies -- and thus, quite obviously, different standards for assessing voter intent -- are used in different counties of the same state (never mind differences across states, which raises other federalism issues).

More to the point, I expected the Court to turn the case down precisely because of its importance. Oddly, few people seem to recall that the Twelfth Amendement considered quite explicitly the possibility of contested Presidential elections (no surprise, given the Jefferson-Burr election of 1800):
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
The Twentieth Amendment (ratified 129 years after the Twelfth) further modifies the Twelfth, stating that
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
The reason I bring up this text concerns what would have happened if the SCOTUS had not injected itself into the election's resolution. Suppose that Gore would have won the Florida recount. In that event, the Republican-controlled Florida legislature most likely would have sent a competing slate of electors to Congress. Thus there would have been two sets of electors, and there would certainly have been a challenge to the recognition of the Gore slate. Meanwhile, as the VP at the time, Gore would have had the power (positively, if not normatively) to refuse to open the envelope containing the GOP electors. The result would have been that neither candidate would have had a majority of electors, and the election would have been thrown into the House.

Since at the time Republicans controlled more state delegations than Democrats, the House would most certainly have elected Bush the President (further intriguing issues arise concerning the Vice Presidency, since the installment of the new Senate happened before January 20th; since the Dems had 50 seats as well as the Vice Presidency via Gore in that short time, they could conceivably have elected Joe Lieberman--though not Al Gore--VP, though I doubt he'd have wanted that under the circumstances...nor would the Dems have really benefitted given that then-Governor Rowland of Connecticut would have replaced Lieberman with a Republican).

So I'm saying that either way, Bush was going to be President. Then why am I so appalled by the SCOTUS's intervention? Because the Constitution is very clear about what should have happened, and the SCOTUS simply ignored the Constitution. The process here was very, very important. The Constitution places these matters in the Congress for a reason: its members are politically responsible in a way that Justices of the Supreme Court are not (and for good reason). The framers of the 12th and 20th Amendments clearly believed that such matters should be resolved by the (normatively) political branches. Not only that, they SAID SO. The SCOTUS simply ignored these facts.

I would be less disgusted with Scalia and his co-usurpers if they were out there arguing with any real plausibility that the FSC's decisions violated something about the structure of our federalist system or some civil rights not then obviously violated by the entire election held in Florida. But the FSC's decision to use the completely vague "intent of the voter" standard was quite obviously a response to the unanimous (and unsigned) SCOTUS decision in Bush v. Gore I. That decision made clear that since the US Constitution specifically gives state legislatures the right to determine the rules of Presidential (elector) elections, the FSC couldn't appeal to the Florida Constitution, but had to confine itself instead to Florida statutes. Well, "intent of the voter" is what Florida laws said about the standard for counting a vote -- and the relevant sections of the Florida statutes were enacted in 1998. The FSC did what the SCOTUS made it do, and for the SCOTUS to criticize this standard after the decision in Bush v. Gore I meets the definition of chutzpah.

The notion that the Court had to take this case simply ignores the history, meaning and text of the Constitution as amended. Moreover, this notion is quite clearly rooted in a view that courts should get involve to improve things, not just when law (as interpreted by individual judges) mandates getting involved. I'm not sure where I come down on that question in general. But I'm pretty sure that Scalia and his ilk have gone preening across the national stage for some years now insisting that they would never, ever get involved in results-oriented jurisprudence. No, they claim to do only what they must. And they must be kidding.

Fourth, the question of whether Bush would have won even with a recount is quite beside the point. Imagine I fatally shoot a man in the head as he walks down the street, and when I am prosecuted, I say "Well, he may have had a terminal disease that would have killed him in the next instant." To back up my claim, I point to a review of the man's medical records by a group of media representatives, which review shows that there was a high likelihood that he had such a disease and would have died soon after the shooting. Should I be shown leniency? Quite obviously not, since even if it was known that he would die I shouldn't receive leniency. The media recounts (which, by the way, found that Gore would have won under some scenarios -- as memory serves, those in which the most broad set of non-counted votes would have been reviewed) are really quite irrelevant to the question of whether the Court's involvement was legitimate.

If you doubt my claim on this relevance point, ask yourself: would Scalia have advocated retrospectively overruling the decision and replacing Bush with Gore if (he was convinced that) the media recount found Gore would have won under any counting/review scenario? To ask this question is to know the answer.

The US Supreme Court should have stayed out of the election. It involved itself in what was essentially a state matter, and one that was handled with seriousness and fairness by the Florida courts (with the exception of the bizarre performance by N. Sanders Sauls). The FSC considered four separate cases related to the 2000 election and decided in Bush's favor in two of them. In the other two, it provided well-reasoned opinions that took into account the facts of the case and sought to craft reasonable remedies within the legal framework it understood to apply. By contrast, the US Supreme Court jumped into a case having at best limited, technical federal issues at stake. It then blew by those issues to locate rights under the equal protection clause that the Court disingenuously honored only in the breach. In the process, the Court declared that its decision, supposedly based on Constitutional principles, would establish no precedent. Some rule of law.

Scalia's disgrace for his role in these events is only magnified by his insistence on defending it on the very results-based grounds for which he so regularly castigates others.

Update: See this post at Left in the West for the observatin that it's not even true that Gore was first to court (something I'd forgotten).

Friday, November 18, 2005

Church Versus Science: A False Choice?

A friend forwards this AP story:

Vatican Official Refutes Intelligent Design

By NICOLE WINFIELD, Associated Press Writer

The Vatican's chief astronomer said Friday that
"intelligent design" isn't science and doesn't belong
in science classrooms, the latest high-ranking Roman
Catholic official to enter the evolution debate in the
United States.

The Rev. George Coyne, the Jesuit director of the
Vatican Observatory, said placing intelligent design
theory alongside that of evolution in school programs
was "wrong" and was akin to mixing apples with
oranges.

"Intelligent design isn't science even though it
pretends to be," the ANSA news agency quoted Coyne as
saying on the sidelines of a conference in Florence.
"If you want to teach it in schools, intelligent
design should be taught when religion or cultural
history is taught, not science."

His comments were in line with his previous statements
on "intelligent design" -- whose supporters hold that
the universe is so complex that it must have been
created by a higher power.

Proponents of intelligent design are seeking to get
public schools in the United States to teach it as
part of the science curriculum. Critics say
intelligent design is merely creationism -- a literal
reading of the Bible's story of creation -- camouflaged
in scientific language, and they say it does not
belong in science curriculum.

In a June article in the British Catholic magazine The
Tablet, Coyne reaffirmed God's role in creation, but
said science explains the history of the universe.

"If they respect the results of modern science, and
indeed the best of modern biblical research, religious
believers must move away from the notion of a dictator
God or a designer God, a Newtonian God who made the
universe as a watch that ticks along regularly."

Rather, he argued, God should be seen more as an
encouraging parent.

"God in his infinite freedom continuously creates a
world that reflects that freedom at all levels of the
evolutionary process to greater and greater
complexity," he wrote. "He is not continually
intervening, but rather allows, participates, loves."

The Vatican Observatory, which Coyne heads, is one of
the oldest astronomical research institutions in the
world. It is based in the papal summer residence at
Castel Gandolfo south of Rome.

Last week, Pope Benedict XVI waded indirectly into the
evolution debate by saying the universe was made by an
"intelligent project" and criticizing those who in the
name of science say its creation was without direction
or order.

Questions about the Vatican's position on evolution
were raised in July by Austrian Cardinal Christoph
Schoenborn.

In a New York Times column, Schoenborn seemed to back
intelligent design and dismissed a 1996 statement by
Pope John Paul II that evolution was "more than just a
hypothesis." Schoenborn said the late pope's statement
was "rather vague and unimportant."

Tuesday, November 15, 2005

Alito On The Record

I've been very busy lately, which explains the dearth of my posts. But I've also been reserving judgment on Alito. I respect the fact that he's a very accomplished lawyer and judge, and I'm certainly willing to give judicial nominees the benefit of the doubt when it comes to political views. I say this not because I am silly enough to think that Bush picks judges only on the basis of "qualifications" or "credentials", as his the President's sometime-supporters often claim. It would be silly to believe this claim.

In fact, whether a judicial nominee is "qualified" as that term has come to be used by rightwingers strikes me as the barest of necessary conditions for SCOTUS confirmation (or, for that matter, confirmation to any other position on the federal bench, with trial judges being the least worrisome level, since their decisions rarely become de facto precedents). Republicans have pushed the debate in the direction of technocratic qualification -- whether a nominee appears to have broad knowledge of precedents and major ideas in con law -- for the obvious reason that they have been nominating and confirming no shortage of results-oriented conservative activists over the last couple decades.

Whatever the record of Democratic administrations (or, more pertinently, the relatively small number of results-oriented liberal nominees), the fact is that the GOP and its more committed extremist factions did not push Bush to dump Harriet Miers primarily because of her dubious technocratic qualifications (George Will's fetishism of "excellence" notwithstanding). Rather, they were clearly nervous about her commitment to the culture-war-cum-neo-federalist judicial crusade that the right and has foisted on the country with W's loving assistance.

The fact is that the Constitution instills the Senate with the power to withhold consent to SCOTUS nominees. Quite obviously, then, the confirmation process has a political role. Senators have the right to decide whether they approve of the direction in which a nominee will push the Court -- their role is not just to look over the nominee's CV, ask a few perfunctory questions about statutory construction and then place the nominee on the Metro with directions to exit at Judiciary Square. Senators of both parties have exercised their confirmation powers aggressively, and there is nothing per se wrong with that (though the sort of secret, single-Senator holds that were popular under Orrin Hatch's JC chairmanship in the mid-1990s were a stain on the process).

Which brings me to Alito.

If he's a precedent-respecting, methodological, restraintist conservative -- one who sees courts' role as generally limited, regardless of his own policy views on an issue -- then I think the Democrats and moderate Republicans (what few of them exist) should be willing to confirm him.

On the other hand, if he's a fundamentalist originalist (to use Cass Sunnstein's terms from his recent book Radicals in Robes), then they ought to fight him tooth and nail.

So far I've had a hard time telling where Alito fits on the methodological-fundamentalist conservative spectrum. Some of his more high-profile righty-pleasing opinions seem to me consistent with any point on the spectrum. An obvious example is his dissent in Casey, in which he argues that the spousal-notification provision of Pennsylvania's abortion-restricting law did not constitute an "undue burden". While the SCOTUS later upheld the majority's view that this provision did in fact constitute such a burden, the undue burden standard was relatively new at the time, and I don't think that this example should necessarily be regarded as evidence of rightwing activism (in fact, Alito has followed precedents that protect abortion rights in other cases).

However, it goes without saying that the Supreme Court is different: different because a Justice's commitment to respect precedent is entirely voluntarily, since he can always decide that a precedent is so wrong that whatever the value of stare decisis, it's more important to "get the law right" (see "Thomas, Clarence" for a case-study of such an attitude at work on the Court). By contrast, lower-ranking federal judges are bound to respect precedents no matter how fervently they disagree with them.

So it comes as potentially cold comfort to hear that Alito has followed precedent in those cases where its results are clear.

The release yesterday of his letter (see page 15 of this document) requesting a political appointment in President Reagan's DOJ does shed some light. As has been reported widely, Alito declares his devotion to various elements of the conservative cause. Unlike Clarence Thomas, then, he's on record. Unlike John Roberts, then, he's on record explicitly describing his own views. Fine. Senators should question him as to the meaning of statements like "I believe very strongly in ... the legitimacy of a government role in protecting traditional values".

Senators should also ask him whether, when he says he "believe[s] very strongly in ... the supremacy of the elected branches of government", that means he would reject the radical attack by the Court's right on Congress's power to enact statutes on the basis of its own -- rather than the Court's -- standards of "congruence and proporitionality". I'd bet that you can learn a lot about whether Alito's conservatism is methodological or results-oriented by simply asking him if he thinks the word "another" in the 11th Amendment should instead to be read as the word "any". I'd also bet that Senator Specter will grill him on this issue.

I'd also like to hear him reconcile his particular pride in opposing "quotas" with the fact that the same Congress that passed the 14th Amendment also seems to have found affirmative action just fine in at least some cases (see Radicals in Robes for a discussion of this issue). Perhaps he doesn't believe that "original meaning" has a priviliged jurisprudential status. If so, let him say so.

Based on Senator Dianne Feinstein's characterization of her discussion with Alito today, I can't say I am encouraged. Recognizing the fact that this is Feinstein's characterization rather than Alito's directly quoted words, let me quote an article at cnn.com:
"What [Alito] said was, 'It was different then. I was an advocate seeking a job. It was a political job,'" the California Democrat said.

She said Alito said 1985 was a "very different" time, when he was an advocate for the Reagan administration. As a judge for 15 years, he looks at legal matters differently.

"I don't give heed to my personal views. What I do is I interpret the law,'" she said, quoting the 55-year-old judge from New Jersey.
First of all, I would think that being "an advocate seeking a job" -- however political the job -- would not entitle Alito to state views other than his own. Either those were his views or they weren't. He should say which it is.

Secondly, his letter quite clearly characterizes his legal views, not just his personal ones. So not giving heed to his personal views is very much beside the point.

Thirdly, saying that he now jsut "interpret[s] the law" is entirely uninformative. The question is how, and why, he interprets the law the way he does. Does he make choices simply in order to get to policy outcomes he prefers? Probably not. Does he make choices based on a consistent judicial philosophy? Maybe -- but then he should say (i) what that philosophy is, (ii) whether and how his expressed legal views of 20 years were contrary to that philosophy, (iii) if they were contrary to that philosophy, why he expressed them, and (iv) if they were not, why he doesn't just say so.

The one thing that I think would be truly unacceptable would be to let Alito skate through his hearings without going on record on lots of the hot-button things .... on which he is already on record.

Wednesday, November 09, 2005

NYT to Have Less Filling

Judy Miller "retires" from the NYT.

What a shame.

Monday, November 07, 2005

More Perjurious GOP Vote Supression Activities

Via Mark Kleiman comes another example of Republican party members apparently perjuring themselves in an effort to remove likely Democratic voters from the rolls.

For an example from 2004's Ohio campaign, see this link.

Why does this garbage keep happening?

Buckeye Wake-up Call...Is the Fog Lifting?

This in from the DSCC:
This morning, Mike DeWine woke up to find a new statewide poll - with the worrisome headline "Voters appear far from sold on DeWine" - showing him with support from less than one-third of Ohio's voters going into his 2006 re-election bid, a staggering figure for an incumbent. This comes on top of DeWine's quick reaction to the Alito nomination which is drawing criticism.

DeWine Earning Less Than 1/3 of the Vote Against Either Brown or Hackett. A new poll released today by the Columbus Dispatch shows that DeWine is in no place to defeat either of his potential Democratic challengers. If the 2006 election were held today, DeWine would lose 35%-31% to Rep. Sherrod Brown and DeWine is in a statistical dead heat with Paul Hackett. [Columbus Dispatch, 11/7/05]

"Hard to Find a Bright Spot" for DeWine. "[I]t's hard to find a bright spot for an elected official - one who has occupied a statewide office since 1991 (he previously was lieutenant governor) - struggling to get backing from 30 percent of the voters." [Columbus Dispatch, 11/7/05]

More Than 1/3 Of Voters Are Undecided. According to the new survey, more than one-third of Ohio's voters are undecided on the Senate race one year, a very promising number result for the Democratic challenger. [Columbus Dispatch, 11/7/05]

Weekend Editorial Accused DeWine of Rewarding White House for "Kow-Towing" to Conservatives on Alito. After Judge Samuel Alito was nominated to the U.S. Supreme Court last week, DeWine, a member of the "Gang of 14" who was criticized by conservatives for his membership earlier this year,
immediately threatened to support the "nuclear option" if Democrats filibuster Alito. This weekend, the Dayton Daily News Editorial Board wrote, "his immediate threat was a mistake. His position is of interest far beyond Ohio - to announce a conclusion instantaneously was not in keeping with the spirit of the compromise, and it rewarded the White House for kow-towing to the party's hardliners." [Dayton Daily News, editorial, 10/5/05; Congressional Quarterly, 11/1/05]

Even DeWine's GOP Colleagues Acknowledge He's In Trouble. Discussing Mike DeWine's response to the Alito nomination last week, fellow Republican Senator and "Gang of 14" member Sen. John McCain said, "Mike DeWine is in a very tough political situation. We all know that." [Congressional
Quarterly, 11/1/05]

And This Isn't the First Bad Poll for DeWine. In a poll conducted for the DSCC, only 31% of Ohio voters said that Mike DeWine deserved re-election. In addition, as of July, DeWine's favorability ratings had dropped from 56% to 48% in just four short months. [DSCC Polling Memo, 7/25/05
This is big news, because any reasonable scenario in which the Dems take back the Senate has to include a DeWine loss. The other ingredients in the Senate Improvement Plan would be Donkey pick-ups in Maine (Olympia Snowe), Rhode Island (Lincoln Chafee), Missouri (Jim Talent), Pennsylvania (Rick Santorum....we deplore him) and Tennessee (Bill Frist).

By far the least likely pick-up on this list is Snowe. I'd rate Chafee and Santorum as highly likely upgrades for the residents of RI and PA. DeWine and Talent are possible but tough wins for the Dems.

Frist has said he won't run again, but even he seems to be coming around to the realization that he has no constituency in either party as a presidential candidate; if he really doesn't run again, Harold Ford seems like a decent bet (at least for a reddish state), and if Frist does run again, he might well get beaten.

The scenario above would require the Dems to hold all Senate seats they currently do, together with all 6 pick-ups I've just listed. Personally I don't think Maine is blue enough or Snowe red enough for the Donkey to kick the elephant's butt up there. So realistically, the Dems will need at least one darkhorse win somewhere else in the country.

But even the fact that this discussion is non-laughable is a nice development.....

Wednesday, November 02, 2005

What Do Justice Thomas and Roger Maris Have in Common

So says the the Milwaukee Journal Sentinel in an editorial:

In losing a woman, the court with Alito would feature seven white men, one white woman and a black man, who deserves an asterisk because he arguably does not represent the views of mainstream black America.

This is a stunning statement. I guess it's better than the magazine that featured him on its cover dressed as a lawn jockey. But not much.

Wilson and the Conclusion Gap

To address Jonah's post responding to mine:

For some reason, when he comments on my posts, Peter seems to prefer new posts to commenting on the original post.

I have done that in the past when I think the point merits enough attention.

Moreover, my recollection is that the report itself has a number of inaccurate claims in it.

What can I say? I refute an observation you made by citing a report that was signed by every single member of a Senate Committee, both Democrat and Republican, tasked with investigating the claim, and you choose to attack the report with an unsupported “recollection.”

In fact, as I write I believe the Senate is in closed session to debate whether to follow up
that report with a long-promised -- and long-blocked -- report on whether and if so how the Bush administration manipulated pre-war WMD intelligence.

They may revisit the Iraq-Niger intelligence, but who knows? This is mere speculation by Jonah.

So I would hang little on either Schmidt's article or Peter's claims about a highly contested, incomplete-by-design report.


Once again – a unanimous Senate Report attacked by Jonah with no basis provided by him. And to be clear – they were claims in the report, not about the report.

As for the rest of Peter's post, I'll be happy to reply to his "Wilson's claims" stuff once he provides some documentation of these claims. Having just re-read Wilson's original op-ed, I think there is at best limited support for Peter's characterization of these claims.

My couplets came directly from the Senate report, and what he told their investigators versus the committee findings. I never claimed that it was a refutation of the op-ed he wrote for the New York Times. Of course, if Wilson had limited his weighing in on the subject to that one op-ed, neither you nor I would have issue with his being a media hound.

Moreover, consider the statement that Peter describes as "Perhaps most devistating [sic]":

instead of Wilson's report being some kind of bombshell, intelligence community analysts "had a fairly consistent response to the intelligence report based on [Wilson's] trip in that no one believed it added a great deal of new information to the Iraq-Niger uranium story."

Reading this claim, I find myself questioning Peter's commitment either to research or to reporting facts as they are rather than as he might wish them to be.

In describing his report, Wilson writes that "There was nothing secret or earth-shattering in my report, just as there was nothing secret about my trip." Moreover, he writes that "the ambassador told me that she knew about the allegations of uranium sales to Iraq — and that she felt she had already debunked them in her reports to Washington." So Wilson's point never was that he discovered a bombshell, or that no one else had yet come to the same conclusion. Rather it was that his one just piece in an apparently large heap of evidence that the Niger allegations were baseless.


I should have been clearer that I was moving on to a different point. It was not devastating in that Wilson made a claim that his report was a bombshell and it wasn’t. It is devastating because his report was largely irrelevant, and yet he seems to think he is somehow important (going to your media hound observation). Why are we still listening to this man outside the Valerie Plame imbroglio?

But to address Jonah’s point on its own merits. He may claim that in the op-ed that his report was not itself earth-shattering, but he obviously believes it is an important component to his belief that the Administration misled the country in the run-up to war. I think that that statement is a case of false modesty. Of course he thinks that his trip and what he found there puts the lie to the Administration claims. That’s why, for instance, at an Education for Peace in Iraq Center forum on June 14, 2003, he said he was “pissed off” and had “every intention of ensuring that this story has legs.” Why him to take up the charge, except that he can be the standard bearer in the quest for truth? As Stephen Hayes of the Weekly Standard observed, “Wilson’s charge – and one of the reasons it survives today – was not merely that his analysis differed from that of other analysts or even of Bush administration policymakers. His charge is more specific and not coincidentally more damning: The reason he was courted to write an op-ed for the New York Times and appear on Meet the Press was not that his analysis of the Niger intelligence differed from that of the CIA or of Bush administration policymakers. No, Wilson was given those platforms because he was the man with the proof. Joseph Wilson alone, in his telling, could demonstrate that the Bush administration deceived the country to go to war.”

Peter concludes thusly:

Bottom line? What Wilson claims to have found is at variance with what he reported he found, what he reported he found was not at all groundbreaking, and what new information he did report simply bolstered the intelligence community's then-current views. Ouch.

Based on the op-ed, anyway, Peter's wrong on his first claim,

Since I never limited myself to the op-ed, that’s a fatuous observation. Read the report.

and the second claim is precisely what Wilson said in the op-ed.

Again, I had moved on to a different point. The point is, why are we even listening to him? But even taking Jonah’s point at face value, the last person to really believe that Joe Wilson wasn’t adding something to the discussion is Joe Wilson, his one comment in his op-ed notwithstanding.

On the third point: it, too, is consistent with Wilson's op-ed's reference to the Ambassador's views, and nowhere in the op-ed does he describe his findings as somehow challenging to the intelligence community's existing beliefs.

For the reasons set forth immediately below, it is clear that Wilson was challenging the intelligence community’s existing beliefs, unless you are saying that Wilson’s op-ed supports the contention that there may have been an Iraq-Niger uranium connection.

Frankly, I am puzzled that a person as smart as Peter

thank you

could find it devastating that the report of a man who describes a report as containing "nothing secret or earth-shattering" would later be described by intelligence community analysts as not "adding a great deal of new information".

To the extent that Wilson’s report had any impact, it was to buttress the belief that Iraq had sought uranium from Niger. That point bears repeating: The impact of Wilson’s report was to support the original reporting that Iraq had sought uranium from Niger.

Gee, do you think that’s Wilson’s take-away from his trip? That to the extent his trip was of interest at all, it was to bolster the Administration’s claim that there was an Iraq-Niger uranium connection? Would that go to the truth of Wilson’s underlying claims – or more importantly to his underlying conclusions?

On what basis do I make the above contention with regard to the impact of his report? Because Wilson reported that former Nigerian prime minister Ibrahim Mayaki told him that in 1999 an Iraqi delegation had visited Niger in 1999 to explore “expanding commercial relations” between Iraq and Niger, and Mayaki had concluded that their request for enhanced trade meant that they wanted to discuss purchasing uranium. This was viewed by analysts as supporting the claim that Iraq had sough uranium from Niger.

Let’s recall the context of why this all became an issue – those 16 words in Bush’s 2003 State of the Union speech. Bush claimed in his speech that “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

Wilson and others claim that this statement helped mislead the country into war that the intelligence of an Iraq-Niger connection had been refuted, and Bush misleadingly cited the British government in an effort to circumvent the fact that the U.S. government could no longer support the contention through its own intelligence. Correct me if I’m wrong, Jonah, is there any other reason we should care about Wilson’s trip in the larger context?

Why did Bush source the British government? According to Stephen Hayes, it was because the CIA was concerned about potentially compromising sources and methods by disclosing the Iraq-Africa connection that they had developed (and which Wilson’s report buttressed). “To ease the CIA’s anxiety about sources and methods, [Bob] Joseph [of the NSC] passed on a suggestion from the White House communications office: Source the reporting to the British because their government had already made the argument publicly in the white paper it had issued some five months earlier. Importantly, the CIA never objected to including the Iraq-Africa language in the State of the Union on the grounds that the information was not reliable.” (Emphasis added). While the State of the Union was the first time this line was uttered by Bush, the CIA had numerous opportunities in reviewing draft Bush speeches to object to this or similar language, but failed to do so, the reason being that the CIA believed it to be true notwithstanding the conclusions Wilson drew from his trip.

So where does this leave us with Wilson? Leave aside what he told the Senate committee, and instead like Jonah let’s look at his op-ed entitled “What I Didn’t Find in Africa.” Wilson says:

“It did not take long to conclude that it was highly doubtful that [the Iraq-Niger uranium transaction had ever taken place.” Jonah can quibble that, since he was expressing his personal conclusions, his underlying claim was true. My belief is that, since the Intelligence Community from his report concluded the opposite, as confirmed by a unanimous bipartisan Senate committee report, his claims are on the wrong side of the truth.

Wilson admits to only two possibilities: his information was deemed inaccurate, or it was ignored because it did not fit certain preconceptions about Iraq, in which case “a legitimate argument can be made that we went to war under false pretenses.” There seems to be a third possibility – that the information he provided additional evidence of a connection even though Wilson himself didn’t see it that way.

Personally, I think Peter's last post is embarrassing to him both in its failure to provide any sourcing for the claims attributed to Wilson and in its mischaracterization of the basics of Wilson's contentions. Perhaps Wilson has made other claims to the contrary of his written ones, but then Peter ought to present those claims and explain why they are contrary to the plain words of the original op-ed.

To address Jonah’s substantive remark, of course, again, I did source the claims – directly from the Senate report. It seems clear to me that throughout this entire diatribe against my post, Jonah has not even bothered to read the pertinent section of the Senate report. Instead, he breezily dismisses it because of what another blogger has written.

Tuesday, November 01, 2005

I'm Just Wild About Harry

I guess Reid can change the subject, too.

It's about time Democrats stood up and forced Senate Republicans to keep Pat Roberts's word.

Oy Vey

For some reason, when he comments on my posts, Peter seems to prefer new posts to commenting on the original post. So I'll follow his lead regarding his latest comment on my initial thoughts on Fitzgerald's press conference.

Peter writes:
A Washington Post article, discussing a bipartisan Senate intelligence committee report, would tend to refute that assertion.
That particular article was the subject of some rather detailed criticism by Josh Marhsall the day after it hit the news stands. If Marshall is right (and he has been one of the most informed, detail-oriented commentators on the whole Niger issue), it appears its author, Susan Schmidt bought much of the GOP spin regarding the Senate IC's report rather than reading the actual report. Moreover, my recollection is that the report itself has a number of inaccurate claims in it. In fact, as I write I believe the Senate is in closed session to debate whether to follow up that report with a long-promised -- and long-blocked -- report on whether and if so how the Bush administration manipulated pre-war WMD intelligence. So I would hang little on either Schmidt's article or Peter's claims about a highly contested, incomplete-by-design report.

As for the rest of Peter's post, I'll be happy to reply to his "Wilson's claims" stuff once he provides some documentation of these claims. Having just re-read Wilson's original op-ed, I think there is at best limited support for Peter's characterization of these claims.

Moreover, consider the statement that Peter describes as "Perhaps most devistating [sic]":
instead of Wilson's report being some kind of bombshell, intelligence community analysts "had a fairly consistent response to the intelligence report based on [Wilson's] trip in that no one believed it added a great deal of new information to the Iraq-Niger uranium story."
Reading this claim, I find myself questioning Peter's commitment either to research or to reporting facts as they are rather than as he might wish them to be.

In describing his report, Wilson writes that "There was nothing secret or earth-shattering in my report, just as there was nothing secret about my trip." Moreover, he writes that "the ambassador told me that she knew about the allegations of uranium sales to Iraq — and that she felt she had already debunked them in her reports to Washington." So Wilson's point never was that he discovered a bombshell, or that no one else had yet come to the same conclusion. Rather it was that his one just piece in an apparently large heap of evidence that the Niger allegations were baseless.

Peter concludes thusly:
Bottom line? What Wilson claims to have found is at variance with what he reported he found, what he reported he found was not at all groundbreaking, and what new information he did report simply bolstered the intelligence community's then-current views. Ouch.
Based on the op-ed, anyway, Peter's wrong on his first claim, and the second claim is precisely what Wilson said in the op-ed. On the third point: it, too, is consistent with Wilson's op-ed's reference to the Ambassador's views, and nowhere in the op-ed does he describe his findings as somehow challenging to the intelligence community's existing beliefs. This fact doesn't harm Wilson's credibility at all, though it is quite damning of the Bush Administration's misuse of intelligence (if you can call stating the opposite of X to be a misuse of X) . As for the "Ouch", it seems misdirected.

Frankly, I am puzzled that a person as smart as Peter could find it devastating that the report of a man who describes a report as containing "nothing secret or earth-shattering" would later be described by intelligence community analysts as not "adding a great deal of new information".

I find it further puzzling that he would describe as his "Bottom line" a series of statements that are either false or entirely consistent with Wilson's own writing, and then somehow conclude that Wilson has a credibility problem.

I don't have a Joe Wilson-hero-worship complex; in fact, I think he's pretty clearly a media hound. But his original op-ed seems to have been basically on-target. And many of the attacks on him have been on strawmen, to put it mildly (for instance, he has never, ever, ever said that the OVP asked to send him to Niger). And his contention that OVP asked CIA to check into the Niger reports is, in fact, confirmed by the indictment, as, it appears, is his claim that there were a number of people in the WH trying to discredit him at all costs.

Personally, I think Peter's last post is embarrassing to him both in its failure to provide any sourcing for the claims attributed to Wilson and in its mischaracterization of the basics of Wilson's contentions. Perhaps Wilson has made other claims to the contrary of his written ones, but then Peter ought to present those claims and explain why they are contrary to the plain words of the original op-ed.

"Joe Wilson's underlying claims ... were basically true"?

So stated Jonah in a recent post. That's a serious enough claim that it is worthy of a post.

A Washington Post article, discussing a bipartisan Senate intelligence committee report, would tend to refute that assertion.

Wilson Claim: His report to the CIA debunked intelligence about purported uranium sales to Iraq.
Committee Finding: His report added to the evidence that Iraq may have
tried to buy uranium in Niger, bolstering the case for most intelligence analysts.

Wilson Claim: He discussed with his CIA contacts which names and signatures should have appeared on any documentation of a legitimate uranium transaction.
Committee Finding: His report made no mention of the alleged Iraq-Niger uranium deal or signatures that should have appeared on any documentation of such a deal.

Wilson Claim: He concluded the Niger intelligence was based on documents -- -- purported sales agreements between Niger and Iraq -- that had clearly been forged because "the dates were wrong and the names were wrong."
Committee Finding: Wilson never saw the CIA reports and had no knowledge of what names and dates were in the reports. The documents were not in U.S. hands until eight months after Wilson made his trip to Niger.

Wilson Claim: His report refuted both the possibility that Niger could have sold uranium to Iraq and that Iraq approached Niger to purchase uranium.
Committee Finding: His report did not refute the possibility that Iraq approached Niger to purachse uranium.

Perhaps most devistating is that, instead of Wilson's report being some kind of bombshell, intelligence community analysts "had a fairly consistent response to the intelligence report based on [Wilson's] trip in that no one believed it added a great deal of new information to the Iraq-Niger uranium story."

Bottom line? What Wilson claims to have found is at variance with what he reported he found, what he reported he found was not at all groundbreaking, and what new information he did report simply bolstered the intelligence community's then-current views. Ouch.