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October 23, 2005 - Getting Under the News, Again

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"Trying to determine what is going on in the world by reading newspapers is like trying to tell the time by watching the second hand of a clock." - Ben Hecht

In the swirl of troubles facing the White House faces at the moment - possible indictments of key people for not playing nice, or for covering up not playing nice - something about national security and compromising intelligence assets in the struggle to stop the proliferation of weapons of mass destruction to make sure no one knew we didn't have to go to war in Iraq immediately way back when - there was other news.

The Secretary of State, Condoleezza Rice, testified before congress, and said we were in Iraq for the long haul - Rice: US May Still Be in Iraq in 10 Years - and that we still could invade some other countries if we had a mind to - Rice Won't Rule Out Force on Syria, Iran. But she did say we'd rebuild Iraq using, as a model, how we rebuilt Afghanistan. No one asked her if Iraq had enough tillable land available for massive fields of opium poppies.

Well, she was trying to get back to serious issues, or trying to cheer us up. But in the press the subject didn't change.

You would think the long-awaited trial of Saddam Hussein, finally getting underway, would grab the headlines. But that was disappointing, as in Saddam trial gets off to chaotic start and 'I am the president of Iraq. I do not recognise this court' - and then the court adjourned until late November. As a "change the subject" big event, that was a bust.

There was no hot news regarding the investigation of the majority leader of the senate, Bill Frist, for dumping stock on insider information to make a bundle, which the SEC thinks might be a problem. There was a blip in the news with this - Texas Court Issues Warrant for DeLay - as the house majority leader needed to be fingerprinted and have his mug shot taken, but that was expected.

The new hurricane, Wilma, the strongest ever recorded, was days away from any land, stopped moving and got a tad weaker, so all in all there was no relief from the scandals.

Percolating in the background was the Supreme Court business. As a way to keep people from focusing on the congressional scandals and the possible indictments of key people in the administration, the nomination of Harriet Miers to the court gave political types something else to talk about.

There was a shift in White House tactics, as noted in many places, including the Washington Post here


Bush hosted half a dozen former Texas Supreme Court justices in the Oval Office yesterday to highlight their support of Miers, the sort of validation event he did not need personally to mount on behalf of Roberts.

"They're here to send a message here in Washington that the person I picked to take Sandra Day O'Connor's place is not only a person of high character and of integrity but a person who can get the job done," Bush said, flanked by the ex-judges. The president added, "She's impressed these folks. They know her well. They know that she'll bring excellence to the bench."

The White House hoped the appearance would help it refocus attention on Miers's qualifications and away from issues such as her religion and position on abortion.


Time Magazine says this is a plan "to relaunch the nomination of Harriet Miers for the Supreme Court by moving from what they call a 'biographical phase' to an 'accomplishment phase.'"

Right. So what are her accomplishments and her "substantive legal qualifications?"

See the legal writer Dahlia Lithwick here


... the only substantive legal qualification anyone cares about right now is Harriet Miers' views on abortion. Having jettisoned the John Roberts playbook, in which the nominee and the White House say nothing whatsoever about Roe, the Bush team has put itself in the unenviable position of having to keep talking and un-talking and re-talking about abortion. They set the terms of this debate - even if they did so in code - as a set of promises about Harriet Miers and abortion, and now it's all anyone wants to talk about.

We can talk about Roe in religious code ("Shhhh. Miers is a member of a fundamentalist church.") or we can talk about it in constitutional code ("Shhhhh. Miers supports the right to privacy.") It hardly matters. Miers and the White House just can't seem to stop talking.

First, Miers was for reversing Roe: On Oct. 3, Karl Rove apparently hooked up James Dobson and other members of a coalition of evangelical groups with two Texas judges including Nathan Hecht - for weeks the White House's sole expert witness on All Things Harriet. As reported in yesterday's Wall Street Journal, Hecht and Judge Ed Kinkeade assured the Christian right that Miers would "absolutely" vote to overturn Roe. So, now the lot of them face the prospect of being subpoenaed to testify before the Judiciary Committee, where they will assuredly say that they cannot recall anyone promising them that Miers would do what she would have needed to do in order to win their support in the first place.

Then Miers was for privacy: After meeting with her yesterday, Sen. Arlen Specter came away happily reporting that Miers agreed with Griswold v. Connecticut - the 1965 case establishing that married people had the right to use contraception, by way of privacy rights guaranteed in the U.S. Constitution. John Roberts had testified, in the one interesting nanosecond of his confirmation hearings, that he had no problem with Griswold. So, Specter's report seemed par for the course. But no! Suddenly Harriet has a problem with Griswold. Obviously the good senator from Pennsylvania misunderstood her, as he announced last night. She had in fact offered no opinion to him on Griswold. She must have been talking about Grisburn v. Massachusetts - a little-known tax case from 1987.


This is getting to be joke. Miers now is adamantly saying no one knows here views on Roe v. Wade or Griswold - on abortion or on its legal underpinning, the idea that the constitution implies everyone has a right to privacy, that there are some places the government cannot intrude.

What do we know about her? Lithwick notes she filled out the Judiciary Committee questionnaire, a fairly meaningless pro forma thing, but she also provided a second questionnaire, from 1989, when she was running for Dallas City Council. There she pledged her willingness to "actively support" ratification of a constitutional amendment to ban all abortion, unless it was necessary to save the life of the mother, but then, that questionnaire was sponsored by Texans United for Life.  According to this, the same year she filled out another questionnaire where she notes gays and lesbians deserve the same civil rights as everyone else. That one was from the Lesbian/Gay Political Coalition of Dallas.

She aims to please? Or she is not exactly "centered," and may not herself know what she thinks. What do you want to hear? She'll provide it.

Lithwick has much more detail, and ends with this:


So I am begging now. This is embarrassing. End it. Karl Rove: Either plant the 500 pounds of cocaine you keep for such occasions in Miers' car, or trot out some actress to play her bitter, gay ex-lover. You have the power to end this. So do whatever it is you do. But end the unnecessary pain and suffering now, before someone really gets hurt.


And Lithwick said that before this from the New York Times


WASHINGTON, Oct. 19 - The Supreme Court nomination of Harriet E. Miers suffered another setback on Wednesday when the Republican and Democratic leaders of the Senate Judiciary Committee asked her to resubmit parts of her judicial questionnaire, saying various members had found her responses "inadequate," "insufficient" and "insulting."


So it wasn't a fairly meaningless pro forma thing after all. And more from the Associated Press here


The senators in charge of Harriet Miers' confirmation are demanding more information from her before hearings begin, with one lawmaker describing the Supreme Court nominee's answers so far as "incomplete to insulting."

The chairman of the Senate Judiciary Committee, Sen. Arlen Specter, and the top Democrat, Sen. Patrick Leahy, agreed on Wednesday to begin Miers' hearings on Nov. 7. Specter, R-Pa., and Leahy, D-Vt., also sent a letter to the White House counsel asking her to more fully answer a questionnaire she submitted Tuesday.

... "The comments I have heard range from incomplete to insulting," Leahy said.

Specter said he and Leahy "took a look at it and agreed that it was insufficient."

... The lawmakers want her to explain more about her temporary suspension from the Washington, D.C., Bar for nonpayment of dues and double-check that she submitted all of her litigated work to the committee.

"The committee has, for example, identified additional cases not included in your original response," they said.

Miers, in her letter, also disclosed that her Texas law license had been suspended from Sept. 1-26, 1989, for late payment of bar dues. She said it happened because of an "administrative oversight."

... Specter and Leahy also want her to explain how she would handle cases dealing with the Bush administration, which she serves now as White House counsel. In her questionnaire response, Miers said she would comply with the "spirit and letter of the law ... the Code of Conduct for United States Judges and other applicable requirements."


She has until the 26th to come up with a better answer than that.


Our Wall Street attorney friend, sometimes quoted here, right now is trying to coach a relative writing an essay to get into law school. He suggested his nephew shouldn't really say bland, pleasant things and end every paragraph with, "I really want to be a lawyer." Same sort of thing here - substance would be nice, and thinking would be nice. That kind of matters.

Now all this really odd back-and-forth over this really odd nomination may distract the media from the possible indictments, the real arrest warrant, and the SEC investigation (and a few other matters like the way the war is going and FEMA and all the rest) but it's tearing the Republicans apart. Note this from Robert Bork - a man of the right who knows a lot about the law, and about getting rejected for a seat on the Supreme Court - in the Wall Street Journal no less –


With a single stroke - the nomination of Harriet Miers - the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work - for liberals.



Just what is going on here? Well, one explanation comes from Jonathan Chait in The National Review, with Crash Test: Conservatives Get Taken For A Ride, web posted October 19th and from the October 24 issue.

Here's the scoop.


There are two basic ways to think about President Bush's relationship with the religious right. The first is that Bush is a genuine ally of social conservatives who, while often cagey in public, takes every opportunity to advance their agenda. As liberals would phrase this interpretation, Bush is a tool of the religious right. The second - utterly diametrical - theory is that Bush is mainly interested in harvesting votes from religious conservatives in order to implement an agenda dominated by his economic backers. In liberal-ese: Social conservatives are hapless GOP dupes. At this point, five years and two Supreme Court nominations into the Bush presidency, we can arrive at a definitive answer. And the verdict is: hapless dupes.


And Chait goes on to explain that, quoting Pat Buchanan - "Bush may have tossed away his and our last chance to roll back the social revolution imposed upon us by our judicial dictatorship since the days of Earl Warren." And he note the case of other nominees - John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, David Souter - each of whom turned out to be less "religious" in their ruling than promised.

And the Roberts nomination ticked them off. Conservatives expected Bush might nominate a justice so conservative that the entire Democratic Party - and even three or four moderate Republicans - would reject him. Food fight! But he was bland, and worse yet, appeared "thoughtful." Danger!

Them there was contrast is between the way Bush handled Social Security privatization and gay marriage. He fought hard for the first, even if the whole nation thought the idea worthless. The second? He made some statements, the shrugged it off. And on stem cells, Bush "tried to forge a compromise rather than battle for undiluted conservative principle." When polls showed his intervention for Terri Schiavo was unpopular, "he dropped the issue like a stone."

No wonder the religious right is upset. As Chait says, this man gave "social conservatives symbolism and imagery but little in the way of actual policy change. Affluent conservative investors, on the other hand, get massive policy changes that they like."

Screwed again –


It's hard not to suspect that a good number of social conservatives have simply been co-opted by the Republican establishment. That would explain why, while social conservative intellectuals and commentators have almost unanimously rejected Miers, social conservative organizations have had a far more mixed reaction. While some criticized Miers, Dobson praised her, and she won unqualified endorsements from Jerry Falwell and groups like the Christian Coalition and the American Center for Law and Justice. With allies like these, Bush doesn't have much incentive to work harder to reward his social conservative base. No wonder the poor, nutty bastards got hosed again.


Oh well. But how about this from the man of the right Jonah Goldberg at the far edge of the right National Review


What is remarkable about the Miers nomination is that the pro-Miers side managed to define the debate as one between elitists and "heartlanders" or some similar nonsense first. There was no way that anyone could say National Review, the Weekly Standard, the Federalist Society, Bork, George Will and Krauthammer were somehow collectively of insufficient conservative authenticity, especially when the defenders - with some exceptions - do tend to be more moderate or, as the Judge says, lukewarm. Hugh Hewitt, for example, is famously dismissive of ideological conservatism preferring to talk about Republicans versus Democrats, not liberals versus conservatives.

I actually think this is a profoundly significant signal in the ongoing - and at times somewhat lamentable - transformation of the GOP into a populist party. For example, I've written many times about how liberals don't understand that Fox News' popularity has had less to do with conservatism and more to do with populism than they are prepared to see. Liberals think they're the party of the people, so they tend not to understand populism when it comes from non-liberal quarters. But it is Fox's anti-elitism, which pulls in the ratings more than its conservatism. This has been hard to see in the past because Fox's anti-elitism has generally been aimed at liberal institutions - the New York Times, the ACLU, Harvard, etc. But anti-elitism and conservatism are not and never have been the same thing. And I do think this will be more obvious in the months and years to come. I think this new "elites" versus "heartlanders" trend is only going to grow within the ranks of the GOP. I can't say it's all bad or all good. But it is a major sociological change if the arguments within conservatism are now going to be about "loyalty" to our people (trans: our Party) instead of loyalty to our ideas.


Yep, Jonah is now chasing the zeitgeist, or "hunting the meme" or whatever, and has uncovered a beauty. His own party is fracturing along the line dividing faith from reason, thinking ("elite") and feeling ("populism"). So Fox news is NOT their friend - at Fox they play to those who find matters of the mind suspicious.

On Comedy Central, on the premier of Stephen Colbert's new show, the new compliment to Jon Stewart's "Daily Show," Colbert nailed the whole thing in his opening segment, a satire of Bill O'Reilly's daily opening, "Talking Points." This is Fox News:


Anybody who knows me knows that I am no fan of dictionaries or reference books. They're elitist for constantly telling us what is or isn't true, what did or didn't happen...

I don't trust books. They're all fact and no heart. And that's exactly what's pulling our country apart today. Because face it, folks, we are a divided nation... We are divided by those who think with their head, and those who know with their heart.

Consider Harriett Miers. If you think about Harriett Miers, of course her nomination's absurd! But the President didn't say he thought about this selection, he said this:

President Bush: "I know her heart." [with a video clip of Bush saying just that, with his sly smile]

Notice that he didn't say anything about her brain? He didn't have to. He feels the truth about Harriett Miers. And what about Iraq? If you think about it, maybe there are a few missing pieces to the rationale for war. But doesn't taking Saddam out feel like the right thing... right here in the gut? Because that's where the truth comes from, ladies and gentlemen... the gut.

Did you know that you have more nerve endings in your stomach than in your head? Look it up. Now, somebody's gonna say - "I did look that up and its wrong." Well, Mister, that's because you looked it up in a book. Next time, try looking it up in your gut. I did. And my gut tells me that's how our nervous system works.

Now I know some of you may not trust your gut... yet. But with my help you will. The "truthiness" is, anyone can read the news to you. I promise to feel the news... at you.


That about captures the essence of what the "thoughtful right" faces.

But it's not just the "thoughtful right" that faces the modern "know nothings."

You remember the original group: "The Know-Nothing movement was a nativist American political movement of the 1850s. It grew up as a popular reaction to the large numbers of immigrants - mostly Irish Roman Catholics - entering the United States starting in the late 1840s, and was characterized by calls for a number of measures to maintain the United States as a nation of Anglo-Saxon Protestants."

They're back. (Substitute "Mexican" for "Irish Roman Catholic.") Some things never change.

As mentioned previously, one really ought to think about the what's "under" the transitory news stories. Faith (and trust) versus reason (and inquiry), the apple that tasted so good and got us kicked out of Eden, Galileo and the Catholic Church, Voltaire mocking religion and being denounced, Darwin and Huxley all the way to the Scopes trial, to Dover in Pennsylvania this month, to the president listening to supernatural voices, to the defense of know-little want-to-know-less nominees for the Supreme Court. This all had not been resolved, and may never be resolved. It's just one long argument, over and over.

The Republicans are just surprised by it now.


But it's and old, old story.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
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