WaxWorks
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Friday, October 28, 2005
Merry Fitzmas!
On the first day of Fitzmas
Patrick Fitzgerald gave to me
An indictment of Scooter Libby!
Remember, there are twelve days of Fitzmas. I don't think this will be the only present.
Thursday, October 27, 2005
A Little Humor On the Night Before Fitzmas
I enjoyed this piece on intelligent design from the New Yorker:
Day No. 1:
And the Lord God said, “Let there be light,” and lo, there was light. But
then the Lord God said, “Wait, what if I make it a sort of rosy,
sunset-at-the-beach, filtered half-light, so that everything else I design will
look younger?”
“I’m loving that,” said Buddha. “It’s new.”
“You should design a restaurant,” added Allah.
Day No. 2:
“Today,” the Lord God said, “let’s do land.” And lo, there was land.
“Well, it’s really not just land,” noted Vishnu. “You’ve got mountains and valleys and—is that lava?”
“It’s not a single statement,” said the Lord God. “I want it to say, ‘Yes,
this is land, but it’s not afraid to ooze.’ ”
“It’s really a backdrop, a sort of blank canvas,” put in Apollo. “It’s, like, minimalism, only with scale.”
“But—brown?” Buddha asked.
“Brown with infinite variations,” said the Lord God. “Taupe, ochre, burnt umber—they’re called earth tones.”
“I wasn’t criticizing,” said Buddha. “I was just noticing.”
Day No. 3:
“Just to make everyone happy,” said the Lord God, “today I’m thinking
oceans, for contrast.”
“It’s wet, it’s deep, yet it’s frothy; it’s design without dogma,” said Buddha, approvingly.
“Now, there’s movement,” agreed Allah. “It’s not just ‘Hi, I’m a planet—no splashing.’ ”
“But are those ice caps?” inquired Thor. “Is this a coherent vision, or a highball?”
“I can do ice caps if I want to,” sniffed the Lord God.
“It’s about a mood,” said the Angel Moroni, supportively.
“Thank you,” said the Lord God.
Day No. 4:
“One word,” said the Lord God. “Landscaping. But I want it to look
natural, as if it all somehow just happened.”
“Do rain forests,” suggested a primitive tribal god, who was known only as a clicking noise.
“Rain forests here,” decreed the Lord God. “And deserts there. For a spa feeling.”
“Which is fresh, but let’s give it glow,” said Buddha. “Polished stones and bamboo,
with a soothing trickle of something.”
“I know where you’re going,” said the Lord God. “But why am I seeing scented candles and a signature body wash?”
“Shut up,” said Buddha.
“You shut up,” said the Lord God.
“It’s all about the mix,” Allah declared in a calming voice. “Now let’s look at some
swatches.”
Day No. 5:
“I’d like to design some creatures of the sea,” the Lord God said. “Sleek but not slick.”
“Yes, yes, and more yes—it’s a total gills moment,” said Apollo. “But what if you added wings?”
“Fussy,” whispered Buddha to Zeus. “Why not epaulets and a sash?”
“Legs,” said Allah. “Now let’s do legs.”
“Are we already doing dining-room tables?” asked the Lord God, confused.
“No, design some creatures with legs,” said Allah. So the Lord God, nodding, designed an ostrich.
“First draft,” everyone agreed, and so the Lord God designed an alligator.
“There’s gonna be a waiting list,” Zeus murmured appreciatively.
“Now do puppies!” pleaded Vishnu. “And kitties!”
“Ooooo!” all the gods cooed. Then, feeling a bit embarrassed, Zeus
ventured, “Design something more practical, like a horse or a mule.”
“What about a koala?” asked the Lord God.
“Much better,” Zeus declared, cuddling the furry little animal. “I’m going to call him Buttons.”
Day No. 6:
“Today I’m really going out there,” said the Lord God. “And I know it
won’t be popular at first, and you’re all gonna be saying, ‘Earth to Lord God,’
but in a few million years it’s going to be timeless. I’m going to design a
man.”
And everyone looked upon the man that the Lord God designed.
“It has your eyes,” Zeus told the Lord God.
“Does it stack?” inquired Allah.
“It has a naïve, folk-artsy, I-made-it-myself vibe,” said Buddha. The Inca
sun god, however, only scoffed. “Been there. Evolution,” he said. “It’s called a
shaved monkey.”
“I like it,” protested Buddha. “But it can’t work a strapless dress.” Everyone agreed on this point, so the Lord God announced, “Well, what if I give it nice round breasts and lose the penis?”
“Yes,” the gods said immediately.
“Now it’s intelligent,” said Aphrodite.
“But what if I made it blond?” giggled the Lord God.
“And what if I made you a booming offscreen voice in a lot of bad movies?” asked Aphrodite.
Day No. 7:
“You know, I’m really feeling good about this whole intelligent-design
deal,” said the Lord God. “But do you think that I could redo it, keeping the
quality but making it at a price point we could all live with?”
“I’m not sure,” said Buddha. “You mean, what if you designed a really basic, no-frills
planet? Like, do the man and the woman really need all those toes?”
“Hello!” said the Lord God. “Clean lines, no moving parts, functional but fun. Three
bright, happy, wash ’n’ go colors.”
“Swedish meets Japanese, with maybe a Platinum Collector’s Edition for the geeks,” Buddha decided.
“Done,” said the Lord God. “Now let’s start thinking about Pluto. What if everything on Pluto was brushed aluminum?”
“You mean, let’s do Neptune again?” said Buddha.
Get Ready For A Real Nut-Job
In 1998, when the world was crashing down around him, what saved Bill Clinton from impeachment was that his base stuck with him. So that's where Bush is going to go now with the new Supreme Court nomination.
And Democrats should feel emboldened, particularly after Republicans made it perfectly acceptable to oppose a nominee on ideological (even religious!) grounds, to filibuster if a real right-wing wacko gets put up.
We've got the political strength right now and we can't be afraid to use it.
Thanks, Harriet
Miers withdraws, after the right revolts. She claims she's withdrawing because she doesn't want to have to turn over documents from her work in the executive branch, wanting to preserve the sanctity of those communications.
So this is a two fer: a black-eye for Bush and it provides vindication and justification for the Democratic filibusters of Miguel Estrada and John Bolton, because they wouldn't turn over the relevant information.
Oh, and let's not forget that the right's objection to Miers on ideological grounds (i.e. not sure she was conservative enough or the right type of conservative) will dovetail nicely for Democrats when they now oppose Bush's next nominee on ideological grounds. They've provided us some great cover on this issue.
Thanks for recommending Harriet, Harry Reid. Good work.
Wednesday, October 26, 2005
Cheney Knew The Consequences of What He Was Doing
Gary Hart provides some interesting spin on Cheney's possible involvement in the Plame case:
It is now fashionable among columnists supporting the Bush administration,
New York Times journalist Judith Miller, Robert Novak and the increasing network
of senior administration officials implicated in the Valerie Plame Wilson outing
to say, "So what? Where's the crime?"
The federal statute making it a criminal penalty to knowingly divulge
the identity of anyone working undercover for the Central Intelligence Agency
was not enacted in a vacuum. In the early 1970s, in part as a result of the
radicalization of individuals and groups over the Vietnam War, a former CIA
employee named Philip Agee wrote a book revealing the identities of several
dozen CIA employees, many under deep cover and some including agency station
chiefs in foreign capitals.
Richard Welch, a brilliant Harvard-educated classicist, had been stationed
in Greece as CIA station chief only a few months before he was murdered, by a
radical Greek terrorist organization called the 17th of November, in the doorway
of his house in Athens on Dec. 23, 1975. Had Agee not divulged his name, there
is every reason to believe that Welch would be alive today after decades of
loyal service to his country.
Largely as a result of Agee's perfidy and Welch's unnecessary death, the
Intelligence Identities Protection Act (IIPA) of 1982 was enacted, making it a
felony to knowingly divulge the identity of a covert CIA operative. It carries
penalties of 10 years in prison and a $50,000 fine for each offense. There are
those who dismiss the crime by saying, "Oh, Wilson only had a desk job." That is
not a defense under this felony statute. It is for the CIA, not Karl Rove or
Robert Novak, to determine who requires identity protection and who does not.
I served on the first Senate Intelligence Oversight Committee in the late
1970s and have continued to be a strong believer in and supporter of the CIA. I
deplore those who want to diminish it, politicize it, or require it to produce
bogus intelligence it would not otherwise produce simply to fit some
preconceived political or ideological agenda. In almost every case where the CIA
has malfunctioned, it did so under pressure from one political administration or
another....
There is one final irony to this story. On Christmas Eve in 1975, I got a
call at my home from the director of the CIA, William Colby. He asked if I would
intervene with the White House to obtain presidential approval to have Welch
buried at Arlington National Cemetery, a hero fallen in service to his country.
I quickly called President Ford's chief of staff on Colby's behalf and made the
request. Within two hours, the president had agreed to sign the order permitting
Welch to be buried at Arlington.
The chief of staff's name was Richard Cheney.
Tuesday, October 25, 2005
The Cabal
Last week, Lawrence Wilkerson, who was chief of staff to former Secretary of State Colin Powell, confirmed what most of us already suspected: that foreign policy had been usurped by a Cheney-Rumsfeld "cabal." Wilkerson also had harsh words about Condi Rice's job as National Security Adviser, similar to the arguments I have made repeatedly here over past two years:
Wilkerson said Rice, as national security adviser during Bush's first term, was
``extremely weak.'' Rather than ensure a broad airing of views within the White
House, ``she made a decision that she would side with the president to build her
intimacy with the president.'' She did not play the role of ``the balancer''
or ``the person who would make sure that every dissent got to the president that
made sense,'' Wilkerson said.
Today, Wilkerson writes an op-ed in the L.A. Times and elaborates on his earlier comments:
The administration's performance during its first four years would have
been even worse without Powell's damage control. At least once a week, it
seemed, Powell trooped over to the Oval Office and cleaned all the dog poop off
the carpet. He held a youthful, inexperienced president's hand. He told him
everything would be all right because he, the secretary of State, would fix it.
And he did — everything from a serious crisis with China when a U.S.
reconnaissance aircraft was struck by a Chinese F-8 fighter jet in April 2001,
to the secretary's constant reassurances to European leaders following the
bitter breach in relations over the Iraq war. It wasn't enough, of course, but
it helped.
Today, we have a president whose approval rating is 38% and a vice
president who speaks only to Rush Limbaugh and assembled military forces. We
have a secretary of Defense presiding over the death-by-a-thousand-cuts of our
overstretched armed forces (no surprise to ignored dissenters such as former
Army Chief of Staff Gen. Eric Shinseki or former Army Secretary Thomas White).
It's a disaster. Given the choice, I'd choose a frustrating bureaucracy
over an efficient cabal every time.
Monday, October 24, 2005
A True Judicial Activist
Washington is about to erupt in Fitzmas, so if I want to post on something other than the leak investigation, I feel I should do so now.
Sufficient time has passed since the death of Chief Justice Rehnquist that I feel it is appropriate to now address my central criticism of Rehnquist's tenure: that he was just as much a judicial activist as William Brennan was accused of being. Many years ago, Brennan surprised friends by telling them that Rehnquist was his best friend on the Court, yet the two may have had more in common than right-wingers are willing to admit. Brennan was famous for saying he knew how to "count to five" on the Court, meaning that he understood all he needed was five votes to be in the majority, and critics say that Brennan looked only at end results, without consistent legal reasoning or arguments. Rehnquist could "count to five" with the best of them.
Last month, the Powerline blog posted this article on Rehnquist by Harvard law professor, William Stuntz. I was a little bit surprised that a conservative blog would favorably post such an item, which seemed to confirm my thesis about Rehnquist the activist judge. But I'm grateful for them for calling it to my attention.
I had Stuntz as a law professor when I was at the University of Virginia School of Law and he is simply a brilliant man. Stuntz clerked for Justice Powell the same term that Bowers v. Hardwick came down and had some interesting comments about how he thought Powell might have come down differently in the case if presented with different arguments. But I digress.
Stuntz makes some interesting points about Rehnquist's tenure:
Rehnquist opinions have a certain casualness about both reasoning and
citation -- he was famous for misdescribing past cases to make them say what he
wanted. He was also well-known by law clerks for cutting out most of the
reasoning in their opinion drafts. The classic Rehnquist opinion would state the
facts (sparely), state the issue, and state the result, with as little
explanation as possible. With one exception: Rehnquist was an artist at laying the groundwork for some future legal development he wanted but for which he didn't yet have the votes. When reasoning was just reasoning, Rehnquist didn't much care about it. When the choice of legal arguments offered a shot at some future bottom line, he cared a lot. Reasons were mere tools. Results were the point of the exercise.
And he believed in seizing opportunities. I clerked for Lewis Powell during his next-to-last year on the Court. That year, Rehnquist was assigned the majority opinion in what looked like a not-very-important criminal case. His law clerk wrote an opinion draft; Rehnquist pared it down a little, then circulated it. Quickly, six of the other
eight Justices -- including William Brennan and Thurgood Marshall, the Court's
leading liberals -- joined. Rehnquist was appalled: if he was getting more than five votes, that meant he had left money on the table, that he could have pushed the law farther in his preferred direction without losing his majority.
Above all, he was the bottom-line Justice. Faced with a choice between theoretical consistency and a favorable outcome, he would pick the outcome every time. No judge's decisions fit any theory perfectly, but Rehnquist was clearly at one end of the spectrum in this regard. Lawyers call it "result oriented," and it's usually a pejorative. Rehnquist might have considered it a compliment. He seemed to think that law should be result-oriented: the Brennans of the world had their preferred results and he had his; the two sides should duke it out. Theoretical consistency, in his view, was overvalued. Rehnquist understood that the law is filled with compromise and conflicting principles, that without those inconsistencies the machinery can't run. And he believed in making the machinery run -- even the most liberal Justices rejoiced at how smoothly the Court functioned after he took over the
Chief's chair from Warren Burger. Just as meetings in George Bush's White House
begin when they're supposed to and end when they're supposed to.
A large and important strain in American conservatism emphasizes the power of
ideas. Twenty years ago, a favorite conservative slogan was the title of Richard
Weaver's book: "Ideas Have Consequences." But another important strain values
institutions and societies more. Theories come and go -- crucially, one can
never tell which theory will rule the roost tomorrow -- but the Court, and the
justice system, live on. Like most conservatives of his generation, Rehnquist
was always one of the institutionalists. Legal conservatives of his generation
sometimes made "original intent" arguments and sometimes not; they didn't
consistently buy any one theory. Instead, they had a general sense that
individual rights had expanded too much and federalism was protected too little.
Rehnquist agreed, and pushed against both trends, using whatever theory was most
convenient....
Something similar is true of Rehnquist's federalism cases. They are shaky
legal authority, not just because most of them received only five votes
(including both Rehnquist and O'Connor, the two Justices Bush is about to
replace), but because they contain no clearly articulated, well-defined theory
that explains why someone with a different view might want to switch
sides.
Stuntz's view of Rehnquist as a results-oriented justice screams "activist," even if Stuntz never uses that phrase. But the evidence is surely there.
Perhaps the best example of Rehnquist The Judicial Activist is Seminole Tribe of Florida v. Florida (1996). Seminole Tribe had its origins in the obscure Eleventh Amendment, but it had important, significant implications in the areas of federalism and the commerce clause.
First, Rehnquist held that the plain text of the Eleventh Amendment didn't mean what it said and imposed a broader meaning into the Amendment based upon what he claimed was the unwritten meaning of the Amendment. Even though the Amendment clearly only serves to bar suits against a state by citizens of another state, Rehnquist's opinion interpreted the Eleventh Amendment to also bar suits against a state by citizens of that same state, a restriction that appears nowhere in the Amendment's text. Stunningly, a supposed strict constructionist was claiming that this decision was founded upon the "jurisprudence in all civilized nations" and that strict devotion to only the text of the Eleventh Amendment would "strain the Constitution and the law to a construction never imagined or dreamed of." Ignore the inequivocal language of the Constitution itself, Rehnquist held -- it means something different because me and four other justices say so.
But this was a critical step to get where Rehnquist needed to go, which was to limit Congress' commerce power. You see, the law at issue in Seminole Tribe was passed pursuant to the Indian Commerce Clause and was designed to abrogate Florida's Eleventh Amendment immunity. But Rehnquist then took his next critical step -- Congress could abrogate soveign immunity based upon Section Five of the Fourteenth Amendment, but not the commerce clause. In one full swoop, Rehnquist was able to limit Congress' ability to provide individuals with private federal causes of action against states for a litany of violations.
But Rehnquist couldn't stop there. The problem he had was a mechanism had been developed pursuant to a case called Ex Parte Young that allowed individuals to sue a state by suing an official of that state in his or her "official capacity," creating a fiction that you are not suing the state and avoiding Eleventh Amendment problems. Rehnquist had to cut off this possibility or else everything else he had done in the opinion would be for naught.
So Rehnquist wrote for the Court that Ex Parte Young was not applicable to this case because Congress had created a remedial scheme under the applicable statute which did not include a private right of action, and, where Congress does so, a cause of action under Ex Parte Young should no longer exist. (Rehnquist, of course, ignored the fact that the specific remedial scheme developed by Congress that he touted could not be initiated absent a finding first by a federal judge against that state). Thus, Rehnquist's opinion meant that, although Congress had intended to abrogate state sovereign immunity, it lacked the constitutional authority to do so, and Congress had not intended to allow suit against the state official, despite the fact that it did have authority to do so. (For an excellent discussion of the Seminole Tribe opinion, I recommend this law review article.)
Such legal gymnastics are truly the mark of an legal activist. A true judicial conservative should be outraged by this piece of work by Rehnquist. But "activists" on the right were thrilled -- Rehnquist had breathed new life into a powerful conservative weapon. Make no mistake: Bill Rehnquist was no less political as Chief Justice than he was harassing minority voters for Goldwater in 1964 or when he was in Nixon's Office of Legal Counsel. He just had five votes.
