Politics

Professor Stephen Bainbridge (via Orin Kerr) looks at the evidence and notices something:

After catching up on the first day of the Alito hearings, one conclusion seems inescapable; namely, that Alito is more machine now than man; twisted and evil. He yearns to take liberals, women, minorities, gays, small children, and puppies to the Dune Sea, and cast them into the pit of Carkoon, the nesting place of the all-powerful Sarlaac, in whose belly they will find a new definition of pain and suffering as they are slowly digested over a thousand years. (Or maybe it’s the slavering maw of Cthulhu the Great. I zoned out for awhile during Durbin’s opening remarks.)

What he somehow neglected to mention was:

Senate Democrats, in response, considered staging a filibuster to thwart the nomination, but decided it would not be dignified.

[Bonus pedantic explanation, since it’s the internet: Bainbridge, who supports Alito, was being sarcastic. That bit about the all-powerful Sarlaac? Not actually true. He is therefore implicitly urging that Alito be confirmed, since apparently not throwing puppies into the pit of Carkoon is now the standard for being elevated to the Supreme Court. I, in turn, was being counter-sarcastic, implicitly suggesting that spineless Democrats wouldn’t necessarily do their best to thwart a nomination even if those poor puppies lives were at stake. Putting up a fight might be worth a try.]

Hillary Clinton has moved rapidly in my mind from “You’re kidding, she won’t run for President, she doesn’t have a chance” to “Well, looks like she will run, maybe it won’t be a total fiasco” to “What a disaster — where do I donate money to her opponents?”

Hillary’s latest bit of triangulation is to co-sponsor a bill banning flag burning. It would be hard to come up with a better example of empty pandering. The United States is a rare country, one founded on ideals (liberty, self-government) rather than on an ethnic identity. The flag is a symbol of those national ideals. Laws against burning the flag have it precisely backwards: they protect the symbol by sacrificing the ideals themselves. Perhaps a subtle concept when first presented in tenth-grade social studies, but by the time you’re a United States Senator it should have sunk in.

At Daily Kos, georgia10 astutely quotes Justice William Brennan:

We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by — as one witness here did — according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

Maybe Ezra is right: Obama ’08.

There’s an old physics joke about the stages of the reception of a new idea: first it’s considered to be wrong, then it’s considered to be trivial, before finally people are claiming that it was their idea first. Some of our more colorful colleagues have even mastered the art of claiming all three at once!

The question of whether or not we should expeditiously withdraw from Iraq seems to be working through the stages of this joke. Hilzoy at Obsidian Wings points to an especially amusing example. Joe Biden (who, I think people on all sides can agree, is a craven opportunist if ever there was one) writes an editorial calling for a timetable for withdrawal. Right-wing hacks in the blogosphere and elsewhere jump all over the poor Senator, questioning his manhood and patriotism. Meanwhile, the White House congratulates Biden for coming up with a plan that was remarkably similar to their own. A slight communication problem for the ordinarily tightly-run noise machine.

The obvious next step: a joint Nobel Peace Prize for George W. Bush, Abu Musab al-Zarqawi, and Saddam Hussein.

I can be as amused by a theatrical political stunt as the next guy. You want to call the Senate into closed session? Close down the government for a bit? Be my guest. (Although, as Newt Gingrich will testify, sometimes stunts can backfire.)

But then there are stunts that are so fundamentally dishonest that they make your skin crawl, and it’s hard to understand how even people who agree on the politics can ever excuse the tactics. We were just handed a classic example by House Republicans. As you’ve undoubtedly heard, Democratic Representative John Murtha, an ex-Marine and noted hawk, recently came out in favor of withdrawal from Iraq. Originally a supporter of the war, Murtha gave an impassioned speech decrying the casualties and the lack of support for our troops within Iraq itself; see video of his speech at Crooks and Liars, read the text at firedoglake. He did not shy away from pointing out that many of the architects of the conflict had managed to avoid military service in their own day.

Here is the text of the resolution sponsored by Murtha:

Whereas, Congress and the American People have not been shown clear, measurable progress toward establishment of stable and improving security in Iraq or of a stable and improving economy in Iraq, both of which are essential to “promote the emergence of a democratic government”;

Whereas, additional stabilization in Iraq by U, S. military forces cannot be achieved without the deployment of hundreds of thousands of additional U.S. troops, which in turn cannot be achieved without a military draft;

Whereas, more than $277 billion has been appropriated by the United States Congress to prosecute U.S. military action in Iraq and Afghanistan;

Whereas, as of the drafting of this resolution, 2,079 U.S. troops have been killed in Operation Iraqi Freedom;

Whereas, U.S. forces have become the target of the insurgency,
Whereas, according to recent polls, over 80 percent of the Iraqi people want U.S. forces out of Iraq;

Whereas, polls also indicate that 45 percent of the Iraqi people feel that the attacks on U.S. forces are justified;

Whereas, due to the foregoing, Congress finds it evident that continuing U.S. military action in Iraq is not in the best interests of the United States of America, the people of Iraq, or the Persian Gulf Region, which were cited in Public Law 107-243 as justification for undertaking such action;

Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that:

Section 1. The deployment of United States forces in Iraq, by direction of Congress, is hereby terminated and the forces involved are to be redeployed at the earliest practicable date.

Section 2. A quick-reaction U.S. force and an over-the-horizon presence of U.S Marines shall be deployed in the region.

Section 3. The United States of America shall pursue security and stability in Iraq through diplomacy.

Even if you weren’t in favor of the war originally, it doesn’t necessarily follow that you support withdrawal at this point. My own attitude is that we have completely turned Iraq upside down, and have some responsibility to help the country get back on its feet — maybe the way to do that is to remove our troops and let them sort things out for themselves, maybe it’s to stay in there and help out how we can. I honestly don’t know. But at least it’s worth some reasonable consideration, by people on either side of the issue.

House Republicans, needless to say, don’t agree. They were scared to death that a pro-war conservative Democrat would come out in favor of withdrawal, as they see poll numbers for the war plummeting. The last thing they want is an actual debate on the merits. But, rather than just ignoring the resolution, they resorted to an incredibly dishonest tactic: they had California Republican Duncan Hunter propose a new (and stupid) resolution calling for withdrawal, and then debated against it, referring to it repeatedly as “the Murtha resolution” or “the Democratic proposal.” A starkly blatant lie, meant only to discredit the Democrats as soft-headed and unpatriotic.

Here is the full text of Hunter’s resolution (via Shakespeare’s Sister):

Expressing the sense of the House of Representatives that the deployment of United States forces in Iraq be terminated immediately.

1 Resolved, That it is the sense of the House of Representatives that the deployment of United States forces in Iraq be terminated immediately.

Notice any differences between this one and the one Murtha actually proposed? No justification, “immediate” withdrawal instead of “earliest practicable date,” no talk of quick-reaction forces. It’s a farce, and Nancy Pelosi was exactly correct when she called it “a new low, even for them.”

Of course the GOP didn’t stop there; predictably, they launched an immediate ethics investigation against Murtha. If I were a principled conservative who believed in good faith that the invasion and subsequent nation-building exercise in Iraq was the best way to spread democracy and stability in the region, it would make me feel sick that these were the people representing my views in the government. As it is, I simply feel sick that these are the people running my country.

As one tiny footnote, thank goodness for blogs. Although the Murtha controversy is all over the media, nine stories out of ten are completely confused about what happened with the competing resolutions — it takes some work to find out that the resolution was proposed by Republican Hunter. (And would be nearly impossible to find the text of the resolutions if you relied on newspaper stories.) Who knows, maybe this particular cheap stunt actually had the desired effect.

I think this is going to be one of those holidays that I grumble about in an unappealing Scroogish manner, rather than embracing with a childlike innocence. Fitzmas, for those who have been hiding from the Inter Net these past few weeks, is the day when cherubic investigator Peter Fitzgerald hands down his indictments in the Plamegate scandal, sticking a pointy dagger of righteousness into the icy heart of the Bush administration. The day itself was yesterday, as Fitzgerald fingered Scooter Libby for perjury, making false statements, and obstruction of justice; more indictments may be on the way, perhaps including the Prince of Darkness himself Karl Rove. (Although deserving of the moniker, I don’t think many people really call Rove the Prince of Darkness — the label has been appropriate for so many GOP operatives, it’s kind of lost its punch.)

The liberal blogosphere has been gleefully awaiting this day, when they finally get to see some justice brought to the pack of medacious scheming liars currently running the country. Atrios, to pick on him unfairly, has been hoarding bottles of champagne in anticipation.

Personally, I’m not in the holiday spirit. The recent troubles for the White House are not a “positive good” so much as a “minor slowing-down of a tremendous amount of positive bad.” For one thing, indicting a few administration aides, even quite influential ones, on perjury charges is just not that big a deal. For another, putting a crimp in the White House’s style just doesn’t seem like a cause for celebration; it perhaps generates some mild satisfaction, but mostly a melancholy appreciation of the depths to which the country has sunk.

A lot of people, in perfectly good faith, believe that invading Iraq was the right thing to do, for various reasons. That’s fine, we can disagree. But does any reasonable person deny that the Bush administration engaged in a systematic campaign of lies and distortions to get us there? Does anyone in their right mind think that these folks made a careful and conscientious effort to ascertain whether Saddam possessed weapons of mass destruction, and then presented the case to the world honestly as they best understood it? And are there sensible people out there who aren’t deeply bothered by this?

It’s sobering to understand that we are ruled by a group of people who (1) have only a tenuous connection to reality themselves, and (2) have absolutely no hesitation in using lies and intimidation to put into action the policies they want. It’s a dangerous combination, one that should be off-putting to conservatives just as much as liberals. When the current leadership of the Republican party wants something to be true, sincere arguments for or against that thing are completely beside the point. Saddam had WMD’s. Saddam was involved in September 11th. Human-produced emissions have no affect on our climate. Tax cuts reduce the deficit. Life is intelligently designed. The world supported us in Iraq. There’s nothing else we could have done after Katrina. Evidence for or against these propositions has no weight in their calculations.

Yesterday a friend of mine told me a story that she was told by a friend of hers, well-known explorer Sylvia Earle. Apparently Earle found herself at a fancy White House dinner, seated next to Trent Lott of all people. Innocent that she is, Earle thought this would be a great opportunity to explain to him the various ways in which our activities are wreaking havoc with the environment, in the oceans as well as in the atmosphere. After listening patiently to her over the course of dinner, at the end Lott nodded his head and said, But you have to understand that the long-term fate of the Earth doesn’t really matter to us, since everything will be re-arranged when the Lord returns on Judgment Day.

These are not the opinions of some fringe kook — these are the people who are ruling the country.

So I’m not in much of a celebratory mood. (To be fair, neither is Atrios.) We’ve been beaten senseless in a back alley by a group of a dozen thugs, and Fitzgerald’s indictments are like catching one or two of them for jay-walking violations. Even if by some miracle we could see the entire adminstration thrown out tomorrow, my mood would simply be one of relief, not of joy. Since that’s not about to happen, it’s all we can do just to minimize the damage.

Harriet Miers, it appears, has definitively confirmed the initial impression of someone who is utterly unqualified for the position of Supreme Court Justice. As far as I have heard, she has never even argued a case before the Court, or perhaps even stepped inside the building. She was nominated because she is a trusted friend of George W. Bush who will vote to protect him and his policies over the next decade or so. Other than that, and some hints from her history of political donations and which church she attends, she’s pretty much a cipher.

Nobody outside the White House is happy with this nomination. Conservatives are upset that they weren’t given an overtly ideological nominee with a well-articulated judicial philosophy (either social-conservative or laissez-faire libertarian, depending on one’s personal tilt). But liberals are really in a pickle. On the one hand, there’s no reason to think that Miers is anything other than a knee-jerk social conservative and protector of ulimited executive power. On the other, she isn’t an outspoken slouching-towards-Gomorrah conservative activist who will disguise an extended attack against civil liberties as a high-minded intellectual stance. And if Miers is not confirmed, the next nominee is quite likely to be such a person — and we can be confident that it won’t be anyone who will loudly affirm their support for Roe v. Wade during the confirmation hearings. So liberals are presented with an interesting philosophical question: given that it’s very unlikely we will be happy with the actual votes of any of Bush’s nominees to the Court, which is preferable, a competent conservative or an incompetent one? (Conservatives, of course, are in a different but equally interesting pickle.)

Cass Sunstein alludes to this issue on the new University of Chicago Law School blog:

We might distinguish between two grounds for evaluating Supreme Court nominees. The first is technocratic. Is the nominee excellent? Does the nominee have relevant knowledge and experience? The second ground is political. How is the nominee likely to vote? How does the nominee approach the Constitution?

As I’m sure Sunstein recognizes, that gloss of “excellent” is a little too glib. What does “excellent” really mean? Or even better, what good is excellence? Extraordinary competence in the service of bad ends is no virtue. For those of us who are likely to disagree with the political stance of a conservative Justice, we have to wonder who will do more damage: a technocratically excellent conservative, or a non-excellent one?

Roberts was, in my view, not worth opposing. He was experienced and competent without being the fire-breathing reactionary that many of the alternatives were. Ironically, the best articulation of the reasons to support Roberts were given by Barack Obama, who ended up voting against him. We have to pick our battles, and recognize that losing elections limits what can be accomplished. I don’t see any reason to believe that a subsequent nominee from the Bush administration would be any less objectionable than Roberts, who at least is not laughably unqualified.

But Miers is. And ultimately, for me, that’s the deciding point; liberals have to oppose Miers, simply on the basis of her complete lack of qualifications for the job. Mark Schmitt gets to the heart of the matter:

I realized last night that all this is too much double-thinking. The one and only thing to remember about Miers is that she is totally unqualified to sit on the Supreme Court. It’s not a particular thing, like that she went to second-string law school or has never been a judge or never argued a case at the federal appelate level. Nor is it that she’s been disbarred or fell asleep in court or stole money from escrow accounts. (None of which are true, as far as I know.) It’s that there’s nothing there. Take away the George W. Bush-loyal-staffer aspect of her resume, and there’s absolutely nothing except some modest corporate law-firm and bar-association management, skills that are of no relevance to the Court.

(See also Belle Waring and Kieran Healy. Scott Lemieux wavers, but ultimately comes down on the other side. Thank goodness for the blogosphere; in the old mainstream-media days it would have been nearly impossible for non-experts to get such nuanced commentary so quickly and accessibly.)

There are two very good reasons to value competence, even in someone of a disagreeable ideological cast. The first is a basic respect for the instution. It’s the Supreme Court we’re talking about here, not a sinecure for loyal cronies like the Federal Emergency Management Agency! We have to think beyond this particular nomination, into the much longer term. Precedents matter, in the actions of Congress and the President as well as for the courts, and we can’t allow it to become accepted practice to appoint unqualified personal friends to the Supreme Court. Ultimately, nobody wins if that becomes the standard.

But the second reason is just as important, if not more so: there’s no reason to think that, just because a certain conservative is less of a great legal mind, that they can’t end up doing far worse damage in the long run than an intellectually powerful ideologue. Miers is not an ideologue, she is a hack. Her loyalty is not to a philosophical system, it’s to George W. Bush. And that could be a disaster. She could end up not only sanguinely voting to overturn abortion rights and other privacy protections, but to systematically protect the executive branch from any form of judicial oversight. We don’t want someone on the Court who will cheerfully scuttle the Constitution in order to uphold the government’s right to torture people and to hold citizens in indefinite detention without legal recourse.

If Miers is rejected by the Senate, the next nominee will certainly be someone quite unpalatable to liberal sensibilities. But at least it could be someone who knows their way around the Constitution. And that should be a minimum standard for serving on the highest court in the land.

Bush nominates White House counsel Harriet Miers to the Supreme Court. Now, I don’t know anything about her, perhaps she’ll end up being a excellent Justice. But it boggles the mind — buffeted by accusations of cronyism and unqualified appointees, Bush needs to choose a Supreme Court Justice and nominates his own lawyer from his days in Texas. As David Bernstein says at the Volokh Conspiracy (no left-wing rag, trust me), the agenda seems pretty clear:

What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR’s primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn’t the priority of either his base or the nation as a whole.

The conservatives at ConfirmThem are also pissed. People of every ideological stripe are united in the conviction that they would prefer someone with some strong convictions (preferably their own), beyond simply loyalty to the President. See, he is a uniter!

Update: Ezra Klein links to what David Frum (of all people) has to say about Miers:

I believe I was the first to float the name of Harriet Miers, White House counsel, as a possible Supreme Court. Today her name is all over the news. I have to confess that at the time, I was mostly joking. Harriet Miers is a capable lawyer, a hard worker, and a kind and generous person. She would be an reasonable choice for a generalist attorney, which is indeed how George W. Bush first met her. She would make an excellent trial judge: She is a careful and fair-minded listener. But US Supreme Court?

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions – or to stand up under the criticism that a conservative justice must expect.