Three things I like about Judge John Roberts

I was very concerned about whom Dubya was going to nominate to the U.S. Supreme Court to fill the spot of O'Connor. I thought it was going to be his favorite little sycophant, Alberto Gonzales, and was very gratefully surprised when I was wrong.

As an aside, I don't remember where I read the description of Gonzales as a mediocre lawyer. Couldn't agree more.

Roberts is not my first choice as the next justice. I am sure I will disagree with some of his opinions over the coming decades. But the Democrats lost the presidential election, and they are a distinct minority in the Senate -- that means they don't get to choose. With that in mind, there are three things I do like about Roberts:

1. He's actually practiced law in private practice in the near-distant past. I don't care if it was as an appellate lawyer in a big D.C. firm, or a small firm anywhere else, or anything. But significant, real-world practice -- where a client is paying legal bills or your client might go to jail if you lose -- is my most important criterium in deciding whether or not somebody is qualified. To the contrary, being a full-time professor is the worst type of experience you can have, in my opinion, for the job.
   
2. From the descriptions I've read, he is predicted to look at every case without preconceived theories of who should win. Which I hope means he isn't wedded to any particular ideology that dictates results.
   
3. He's got two adopted kids (and one of them is named Jack). I think that speaks volumes of his nice-guy character.

I pulled up the Supreme Court's official bios on the current justices. I wanted to know which ones had the real-world private practice experience I think is important. Here's what I found out:

• Rehnquist practiced in Phoenix from 1953 to 1969. That's great, but it doesn't fit the bill for "not-too distant" experience. I guess it just means he's really old.
  
• Stevens' bio doesn't list what he did from 1955 to 1970, but does note he was Second V.P. of the Chicago Bar Ass'n in 1970. Who knows what that means. But it certainly was a long time ago as well.
  
• O'Connor was in private practice for only two listed years, from 1958 to 1960, in Maryvale Arizona. Yikes.
• Scalia was in practice from 1961 to 1967, which is good. But he was a professor from 1967 until 1982 (not counting several temporary political stints), so that overrides any good he got from actual work.
  
• Kennedy practiced from 1961 to 1965, although he claims private practice to 1975 while he was also a professor. I can't tell what that means so I'll give him a break.
  
• Souter was an associate in New Hampshire from 1966 to 1968, although he has many years as an attorney general. Being an A.G. is pretty damn good experience, from what I can tell.
  
• Thomas was an assistant A.G. from 1974 to 1977 and in-house lawyer from 1977 to 1979.
  
• Ginsburg was the ACLU's general counsel from 1973 to 1980.
• Beyer never practiced privately. Law clerk, special assistant prosecutor, government lawyer stuff only.

All of which means, by the way, that my least credentialed justices on my little scale are O'Connor, Souter, Thomas, and Beyer.

b.

Going Mild

So, my good buddy Dan Ryan has linked my little blog to his. See and check out the links on the left side. Wow, that's pressure! Now I have to start adding a bunch of stuff on a timely basis, just to keep up.

Of course, we'll really be even when he starts posting pictures of his impressive clan on his blog. Come on Dan, just a few snapshots -- you can do it.

A pure critique of the "dubya doctrine"

So, I’ve been thinking about my brother's explanation of the word "imminent" when used in relation to the invasion of Iraq. The administration has carefully avoided describing the W.M.D. threat as "imminent." Liberal websites quote statements and press conferences that get those in the administration close to using the specific word, but upon careful review, they are dancing around it -- usually they prefer the phrase "grave and gathering" to "imminent." Rob pointed out to me that according to international standards, countries are justified in attacking in response to a perceived "imminent" threat. But, the administration denies that they attacked Iraq in response to an "imminent" threat.

So, I admit that I did not know that the specific word “imminent” meant anything in particular, other than just a description of the risk of danger. I honestly thought, if there was any difference at all, that “grave and gathering” is maybe and only a small time aspect away from “imminent,” although that time difference did not appear material to me. Now I know why journalists keep wanting to pin the word on the administration; I also now know why the administration and its apologists so vehemently deny the application of the word.

So, it must then mean that the administration purposely and specifically intended to go to war WITHOUT a legally justifiable cause. Or, at least, a cause that met the previously accepted standards for declaring war. I therefore must understand that dubya has declared a new legal standard for war – the dubya doctrine.

Next: I do recognize the power and right of American presidents to unilaterally declare new foreign policy doctrines. There’s a long history of such declarations, dating at least to the Monroe Doctrine.

Next, in response to 9/11 and the nebulous threat of Al Queda terrorism in particular, I also do not have any inherent problem with a new doctrine in response. Seems perfectly appropriate to react to a new threat in a new way.

But. (And I know this is the point at which my bellicose relatives will disagree with me.) If you are going to either violate internationally accepted standards for invading a sovereign country, by declaring any specific threat to be only “grave and gathering,” as opposed to “imminent,” then it is my position that there should be a higher standard of proof of that threat. Reaching into my field, the phrase that comes to mind is “clear and convincing.” Which is less than “beyond any reasonable doubt.” But certainly more than “because I felt like it and wanted to.”

An example comes to mind. I know you all know the specifics much better than I do, but wasn’t it in the 1980s that the Israelis took out a nuclear reactor? Somewhere close – Syria, Iraq, Iran – I don’t recall where it was located at. That appears to my vague recollection to be a real threat that may not have been imminent. But it was real, it was important, and in the right circumstances they were entirely justified in just taking it out.

So, how do I apply these new-found realizations to the dubya doctrine? First – the evidence was beyond shaky. The threat was non-existent, literally. But, this is largely a critique of the intelligence community, not the personalities of the administration itself.

Next: dubya and his cronies pushed for support to a conclusion they had reached. That’s a sign of a bad decision-making process in general and also small personal intelligence of those at the highest level in particular.

Next, and this is the part that pisses me off, dubya and his cronies purposely and intentionally “fixed” their arguments without strong evidence. That’s the exact wording that the Downing Street memo reflects. And the extreme reaction that Rove/Libby displayed in response to the Wilson editorial also reflects a known weakness in their position.

Last: words do matter. But so do moral absolutes. The problem with the close parsing displayed in the dancing around the word “imminent” reminds me all too well of Clintonian squeezing of words. Or, similarly, the reliance on the distinction between “clandestine” and “covert.” I call that horseshit. The dubya doctrine was not applied well. And the outing of a CIA agent – covert, clandestine, secret, or double secret – is just plain wrong. And the deliberate discussion of CIA agents to friendly journalists was and is contrary to U.S. interests – even if the master of political strategy thought it was the best way to get at somebody not toeing the administration’s talking points line.

One final somewhat unrelated subject. I don’t have a problem with death. I am all in favor of the death penalty, especially when applied to bind-torture-kill sickos. I recognize that abortion is akin to murder – but I don’t think the government gets to take that decision away from all mothers, all of the time. I completely and absolutely believe families should get to decide to pull the plugs on relatives in a permanent vegetative state – without any interference from the full federal government into that awful decision. And I fully support U.S. soldiers killing each and every known terrorist, one Al Queda tent, cavern or cave at a time.

But life is valuable. It shouldn’t be taken lightly. Invading Iraq – thereby causing the deaths of nigh-upon thousands of U.S. personnel, and thousands and thousands of Iraqis – was wrong. Legally unsupportable, according to accepted international standards. And unsupportable, even under the dubya doctrine, based upon the false, flighty, and trumped-up intelligence used to support the war.

And causing the deaths of thousands and thousands of people, American or otherwise, without just cause, is morally and absolutely wrong.

Was Plame a "covert" agent?

Here is how to effectively debunk the bogus suggestion that Plame was not undercover when she was "outed":

Ask rhetorically: If Plame was not undercover, why then did the CIA ask the Justice Department to Investigate her "outing," and why did the Justice Department agree to investigate?

If she wasn't at least titurally "covert," how would the investigation have triggered a need for a special prosecutor? There must be some fire to the smoke.

Original thought was posted on a different blog. I'm paraphrasing.

Frank Rich, NYT, 7-24-5, "Eight Days in July"

THE second narrative to be unearthed in the scandal's early timeline is the motive for this reckless vindictiveness against anyone questioning the war. On May 1, 2003, Mr. Bush celebrated "Mission Accomplished." On May 29, Mr. Bush announced that "we found the weapons of mass destruction." On July 2, as attacks increased on American troops, Mr. Bush dared the insurgents to "bring 'em on." But the mission was not accomplished, the weapons were not found and the enemy kept bringing 'em on. It was against this backdrop of mounting desperation on July 6 that Mr. Wilson went public with his incriminating claim that the most potent argument for the war in the first place, the administration's repeated intimations of nuclear Armageddon, involved twisted intelligence.

Mr. Wilson's charge had such force that just three days after its publication, Mr. Bush radically revised his language about W.M.D.'s. Saddam no longer had W.M.D.'s; he had a W.M.D. "program." Right after that George Tenet suddenly decided to release a Friday-evening statement saying that the 16 errant words about African uranium "should never have been included" in the January 2003 State of the Union address - even though those 16 words could and should have been retracted months earlier. By the next State of the Union, in January 2004, Mr. Bush would retreat completely, talking not about finding W.M.D.'s or even W.M.D. programs, but about "weapons of mass destruction-related program activities."

In July 2005, there are still no W.M.D.'s, and we're still waiting to hear the full story of how, in the words of the Downing Street memo, the intelligence was fixed to foretell all those imminent mushroom clouds in the run-up to war in Iraq. The two official investigations into America's prewar intelligence have both found that our intelligence was wrong, but neither has answered the question of how the administration used that wrong intelligence in selling the war. That issue was pointedly kept out of the charter of the Silberman-Robb commission; the Senate Intelligence Committee promised to get to it after the election but conspicuously has not.

From Mother Jones, "The Machinery of Mendacity," May/June 2005

More generally, “Climate of Denial” could serve as a title for the political times we live in. On issue after issue, this administration and this Congress continue to pursue policies that cannot stand the test of honest debate, and require a rewriting of basic facts. The dangers to the country are evident in myriad policy debacles: the illegal, expensive, and unnecessary war we were led into under false pretenses; the “reform” of Social Security based on the unfounded assertion that the program is in “crisis” (and pursued by ideologues pretending their goal is not to end it entirely); the economy plundered by fiscal improvidence; the budget busted by grand theft billed as tax relief.

The danger is graver because the negation of truth is so systematic. Dishonest accounting, willful scientific illiteracy, bowdlerized federal fact sheets, payola paid to putative journalists, “news” networks run by right-wing apparatchiks, think tanks devoted to propaganda rather than thought, the purging of intelligence gatherers and experts throughout the bureaucracy whose findings might refute the party line—this is the machinery of mendacity. Its products are not the cherry-tree lies of embarrassed schoolboys covering up their misdemeanors, but the agitprop of a political ascendancy that considers the manipulation of truth an essential tool. There’s no embarrassment in it. The same partisans who clucked loudly during their impeachment of President Clinton about the need for a government so transparent that the most private details of a president’s personal life should be open to inspection have wrapped such a dense cloak of secrecy around the current president that even the roster of his administration’s meetings is withheld from the citizenry, under the expressed claim that the White House can’t do what needs doing if the American people are allowed to know what that is. The point here is not the hypocrisy involved, though that is egregious. The point is the downgrading of truth and honesty from principles with universal meaning to partisan weapons to be sheathed or drawn as necessary. No wonder the Bush administration feels no compunction to honor the truth or seek it; it conceives truth as a tactic, valuable only insofar as it is useful against one’s enemies.

Also The New Republic, "Revisiting Wilson"

"Both the national security adviser and the CIA director at the time (Condoleezza Rice and George Tenet, respectively) issued public apologies for the Niger claim, admitting it was unsubstantiated. And the most authoritative report on the matter comes from the Iraq Survey Group (ISG), which spent a year combing the Iraqi countryside for alleged weapons of mass destruction. Its conclusion: "ISG has not found evidence to show that Iraq sought uranium from abroad after 1991 or renewed indigenous production of such material."

How can the administration and its allies be so cavalier about the truth? Because that's the way they've operated all along. As numerous press accounts (including in these pages) have shown, when the intelligence bureaucracy questioned arguments that Saddam posed an imminent WMD threat, the White House intimidated would-be dissenters within the intelligence community: Dick Cheney paid personal visits to CIA headquarters at Langley, sending a message to analysts who might buck the party line, while Pentagon officials actually set up their own parallel intelligence office to get around CIA bureaucrats with the temerity to question inflated claims of Saddam's nuclear capability.

Of course, the skeptics turned out to be right; as even most supporters of the war (this magazine included) now acknowledge, the publicly stated rationale for war was false."

From The New Republic, "Revisiting Wilson," 7-22-5.

"[A]ll of which obscures a broader, more important story--the story of how this administration misled the public in order to make a convincing case for war in Iraq.


Remember that it was the controversy over bad prewar intelligence that first thrust Plame--and her husband, former Ambassador Joe Wilson--into the public eye. In 2002, the CIA dispatched Wilson to substantiate claims that Iraq had tried to purchase yellowcake uranium from Niger, an allegation that would have substantially bolstered the administration's case that Saddam Hussein posed an imminent threat. Wilson found no evidence of an Iraq-Niger connection, but the administration continued to cite the Niger story, most famously in the 2003 State of the Union, as evidence of Saddam's menace. After the war began, and no weapons of mass destruction turned up, Wilson started telling people that the Niger story had been bogus--first through leaks to reporters, then in a New York Times op-ed he wrote under his own name. As both the Los Angeles Times and Newsweek have reported, that's when administration officials looked into Wilson's background, discovered he was married to Plame, and publicized her CIA role. This, in turn, prompted Fitzgerald's investigation.

Time to get political

I'm a loyal Democrat. However, as Supreme Court nominees go, Judge John Roberts is not objectionable. He's got an incredible academic pedigree, impressive experience as a Solicitor, real experience in a real law firm, and a minimal amount of experience on the appellate bench. He's NOT an academician or some radical theorist, a la Scalia. Although I no doubt will disagree with many of his rulings, once confirmed, it seems to me that the Democrats lost the White House and are a minority in the Senate -- we have to take our lumps now. The country could have done much, much worse for a Supreme Court nominee from the insufferable clown we have in the White House. It is my humble opinion that we need to save our righteous anger, indignation, and ammunition for when a truly horrific person is nominated to the Court. Judge John Roberts, by all accounts, is not the flamethrower we need to oppose.

Mom & Dad's 45th Anniversary cake