Swing State Project

Monday, February 27, 2006

SCOTUS Hearing Two Important Election-Related Cases This Week

Posted by DavidNYC

The Supreme Court is hearing oral arguments in two big campaign & election-related cases this week. The first concerns Tom DeLay's mid-decade re-districting in Texas. The second involves Vermont's new spending limits law.

There are two major issues in the first case. One is whether partisanship is an acceptable reason for redistricting. The other is whether the new Texas plan violated the Voting Rights Act. On the first score, I don't think the SCOTUS will overturn - most justices seem really antsy about whether you can develop a fair "test" to see when partisanship has been used permissibly vs. impermissibly. I think the VRA challenge is probably the stronger one, especially since (as you may recall) DoJ attorneys said the Texas plan violated the VRA but were over-ruled by political appointees. Ultimately, I'd expect perhaps some small court-ordered changes to the DeLaymander, but not a full-scale roll-back.

The second case has gotten a lot less attention but I think it's potentially just as - if not more - important than the first one. Vermont passed a new law saying that candidates could only spend certain amounts while seeking election. The Supreme Court pretty clearly said such limits were invalid because they violated free speech rights, back in Buckley v. Valeo thirty years ago. (Contribution limits, however, were upheld in Buckley.) The Supremes would pretty much have to over-rule (or creatively side-step) Buckley in order to uphold these VT laws, but if they did, the consequences could be very far-reaching.

I personally am of two minds on spending limits. On the one hand, they might really help to take money out of politics. (Whereas contribution limits just mean that candidates have to spend more time seeking money from a great number of people.) On the flip-side, I worry that such limits on campaigns would only increase the flood of unaccountable third-party money. I also think that first amendment concerns have to come into play at some point - surely if VT said that candidates couldn't spend any money, that would violate free speech rights. And when it comes to seats in the state House - where the law says you can only spend $2,000 - that's getting awfully close to zero. (And, I think, it probably only helps incumbents.)

Anyhow, what really matters, of course, is what those nine black-robed justices think - and we won't hear from them until June. Stay tuned.

Posted at 04:12 PM in Supreme Court | Comments (3) | TrackBack (0) | Technorati

Tuesday, November 01, 2005

The Day Democrats Said Enough

Posted by Bob Brigham

Every Republican Senator should be on notice, today isn't like yesterday. Tomorrow won't be either. We have new rules, Democrats with spine, and enough is enough. Today, Harry Reid attempted to end the cover-up surrounding how the Administration lied to the American people while fabricating a case for a needless war. Kos says:

Reid asked the Senate to go into special session on intelligence -- that is, a closed session -- to discuss prewar intelligence. This mostion, along with a second (provided by Durbin), requires all Senators to report to the Senate floor. It is a non-debatable motion.

Cue in lots of hystrionics from Frist and company. Republicans whined that this was a violation of Senate tradition. This coming from the gang that wants to eliminate the judicial filibuster. Frist whined that he wasn't consulted. As though Democrats have had a seat at the table in this Congress. They want to play hardball? Fine. Reid sent notice that he can play that game as well.

Frist whined, "Senator Daschle never did anything like this." Damn right. A new sheriff is in town.

Now, this is more than a temporary stunt. The Democratic leadership has promised to call a special session in the Senate every single day until Republicans alllow for a real investigation.

So let's see what we have here --

Democrats showing leadership and fight. Very nice. Democrats creating a media narrative around Republican stonewalling of a real investigation into pre-war intelligence. Also very nice. Republicans getting a taste of things to come if they initiate the nuclear option? Very crafty.

Here are some quick facts on Rule 21:

KEY FACTS ON SECRET SESSIONS OF THE SENATE

* Since 1929, the Senate has held 53 secret sessions, generally for reasons of national security.
* For example, in 1997 the Senate held a secret session to consider the Chemical Weapons Convention (treaty).
* In 1992, the Senate met in secret session to consider “most favored nation” trade status for China.
* In 1988, a session was held to consider the Intermediate Range Nuclear Forces Treaty and in 1983 a session was held on Nicaragua.
* In 1942, a secret session was held on navy plans to build battleships and aircraft carriers, and in 1943 a secret session was held on reports from the war fronts.
* Six of the most recent secret sessions, however, were held during the impeachment trial of President Bill Clinton.


SENATE RULES ON SECRET SESSIONS

* During a secret session, the doors of the chamber are closed, and the chamber and its galleries are cleared of all individuals except Members and those officers and employees specified in the rules or essential to the session.

* Standing Senate Rules 21, 29, and 31 cover secret sessions for legislative and executive business. Rule 21 calls for the Senate to close its doors once a motion is made and seconded. The motion is not debatable, and its disposition is made behind closed doors.

Reid's full statement in the extended entry.

Reid ask to go into special session on intelligence to discuss intelligence failures and the war in Iraq. Statement below

Statement by Senator Reid
Troops and Security First

This past weekend, we witnessed the indictment of the I. Lewis Libby, the Vice President's Chief of Staff and a senior Advisor to President Bush. Libby is the first sitting White House staffer to be indicted in 135 years. This indictment raises very serious charges. It asserts this Administration engaged in actions that both harmed our national security and are morally repugnant.

The decision to place U.S. soldiers in harm's way is the most significant responsibility the Constitution invests in the Congress. The Libby indictment provides a window into what this is really about: how the Administration manufactured and manipulated intelligence in order to sell the war in Iraq and attempted to destroy those who dared to challenge its actions.

As a result of its improper conduct, a cloud now hangs over this Administration. This cloud is further darkened by the Administration's mistakes in prisoner abuse scandal, Hurricane Katrina, and the cronyism and corruption in numerous agencies.

And, unfortunately, it must be said that a cloud also hangs over this Republican-controlled Congress for its unwillingness to hold this Republican Administration accountable for its misdeeds on all of these issues.

Let's take a look back at how we got here with respect to Iraq Mr. President. The record will show that within hours of the terrorist attacks on 9/11, senior officials in this Administration recognized these attacks could be used as a pretext to invade Iraq.

The record will also show that in the months and years after 9/11, the Administration engaged in a pattern of manipulation of the facts and retribution against anyone who got in its way as it made the case for attacking Iraq.

There are numerous examples of how the Administration misstated and manipulated the facts as it made the case for war. Administration statements on Saddam's alleged nuclear weapons capabilities and ties with Al Qaeda represent the best examples of how it consistently and repeatedly manipulated the facts.

The American people were warned time and again by the President, the Vice President, and the current Secretary of State about Saddam's nuclear weapons capabilities. The Vice President said Iraq "has reconstituted its nuclear weapons." Playing upon the fears of Americans after September 11, these officials and others raised the specter that, left unchecked, Saddam could soon attack America with nuclear weapons.

Obviously we know now their nuclear claims were wholly inaccurate. But more troubling is the fact that a lot of intelligence experts were telling the Administration then that its claims about Saddam's nuclear capabilities were false.
The situation was very similar with respect to Saddam's links to Al Qaeda. The Vice President told the American people, "We know he's out trying once again to produce nuclear weapons and we know he has a longstanding relationship with various terrorist groups including the Al Qaeda organization."

The Administration's assertions on this score have been totally discredited. But again, the Administration went ahead with these assertions in spite of the fact that the government's top experts did not agree with these claims.

What has been the response of this Republican-controlled Congress to the Administration's manipulation of intelligence that led to this protracted war in Iraq? Basically nothing. Did the Republican-controlled Congress carry out its constitutional obligations to conduct oversight? No. Did it support our troops and their families by providing them the answers to many important questions? No. Did it even attempt to force this Administration to answer the most basic questions about its behavior? No.

Unfortunately the unwillingness of the Republican-controlled Congress to exercise its oversight responsibilities is not limited to just Iraq. We see it with respect to the prisoner abuse scandal. We see it with respect to Katrina. And we see it with respect to the cronyism and corruption that permeates this Administration.

Time and time again, this Republican-controlled Congress has consistently chosen to put its political interests ahead of our national security. They have repeatedly chosen to protect the Republican Administration rather than get to the bottom of what happened and why.

There is also another disturbing pattern here, namely about how the Administration responded to those who challenged its assertions. Time and again this Administration has actively sought to attack and undercut those who dared to raise questions about its preferred course.

For example, when General Shinseki indicated several hundred thousand troops would be needed in Iraq, his military career came to an end. When then OMB Director Larry Lindsay suggested the cost of this war would approach $200 billion, his career in the Administration came to an end. When U.N. Chief Weapons Inspector Hans Blix challenged conclusions about Saddam's WMD capabilities, the Administration pulled out his inspectors. When Nobel Prize winner and IAEA head Mohammed el-Baridei raised questions about the Administration's claims of Saddam's nuclear capabilities, the Administration attempted to remove him from his post. When Joe Wilson stated that there was no attempt by Saddam to acquire uranium from Niger, the Administration launched a vicious and coordinated campaign to demean and discredit him, going so far as to expose the fact that his wife worked as a CIA agent.

Given this Administration's pattern of squashing those who challenge its misstatements, what has been the response of this Republican-controlled Congress? Again, absolutely nothing. And with their inactions, they provide political cover for this Administration at the same time they keep the truth from our troops who continue to make large sacrifices in Iraq.

This behavior is unacceptable. The toll in Iraq is as staggering as it is solemn. More than 2,000 Americans have lost their lives. Over 90 Americans have paid the ultimate sacrifice this month alone - the fourth deadliest month since the war began. More than 15,000 have been wounded. More than 150,000 remain in harm's way. Enormous sacrifices have been and continue to be made.

The troops and the American people have a right to expect answers and accountability worthy of that sacrifice. For example, 40 Senate Democrats wrote a substantive and detailed letter to the President asking four basic questions about the Administration's Iraq policy and received a four sentence answer in response. These Senators and the American people deserve better.

They also deserve a searching and comprehensive investigation about how the Bush Administration brought this country to war. Key questions that need to be answered include:

o How did the Bush Administration assemble its case for war against Iraq?
o Who did Bush Administration officials listen to and who did they ignore?
o How did senior Administration officials manipulate or manufacture intelligence presented to the Congress and the American people?
o What was the role of the White House Iraq Group or WHIG, a group of senior White House officials tasked with marketing the war and taking down its critics?
o How did the Administration coordinate its efforts to attack individuals who dared to challenge the Administration's assertions?
o Why has the Administration failed to provide Congress with the documents that will shed light on their misconduct and misstatements?

Unfortunately the Senate committee that should be taking the lead in providing these answers is not. Despite the fact that the chairman of the Senate Intelligence Committee publicly committed to examine many of these questions more than 1 and ½ years ago, he has chosen not to keep this commitment. Despite the fact that he restated that commitment earlier this year on national television, he has still done nothing.

At this point, we can only conclude he will continue to put politics ahead of our national security. If he does anything at this point, I suspect he will play political games by producing an analysis that fails to answer any of these important questions. Instead, if history is any guide, this analysis will attempt to disperse and deflect blame away from the Administration.

We demand that the Intelligence Committee and other committees in this body with jurisdiction over these matters carry out a full and complete investigation immediately as called for by Democrats in the committee's annual intelligence authorization report. Our troops and the American people have sacrificed too much. It is time this Republican-controlled Congress put the interests of the American people ahead of their own political interests.

Indeed. In terms of the 2006 mid-term elections, it is important to note that Democrats have the high-ground:

Democratic Efforts to Address Misuse of Intelligence Have Been Repeatedly Blocked by Republicans

For more than two years, Senate Democrats have pressed Republicans to address the misuse of intelligence. At every turn, Republicans have blocked efforts to investigate how intelligence was used in the run-up to the war in Iraq. Below details the long record established by Democrats to investigate this matter.

March 14, 2003 – Senator Rockefeller sent a letter to Director Mueller requesting an investigation into the origin of the Niger documents.

May 23, 2003 – Senators Roberts and Rockefeller sent a letter to the CIA and State Department Inspectors General to review issues related to the Niger documents.

June 2, 2003 – Senator Rockefeller issued a press release endorsing a statement made of the previous weekend by Senator Warner calling for a joint SSCI/SASC investigation.

June 4, 2003 – Senator Rockefeller issued a press release saying he would push for an investigation. Senator Roberts issued a press release saying calls for an investigation are premature.

June 10, 2003 – Senator Rockefeller sent a letter to Senator Roberts asking for an investigation.

June 11, 2003 – All Committee Democrats signed a letter to Senator Roberts asking for a meeting of the Committee to discuss the question of authorizing an inquiry into the intelligence that formed the basis for going to war.

June 11, 2003 – Senator Roberts issued a press release saying this is routine committee oversight, and that criticism of the intelligence community is unwarranted. Senator Rockefeller issued a press release calling the ongoing review inadequate.

June 20, 2003 – Senators Roberts and Rockefeller issued a joint press release laying out the scope of the inquiry.

August 13, 2003 – Senator Rockefeller sent a letter to Senator Roberts making 14 points about the investigation, asking to expand the inquiry to address the “use of intelligence by policy makers” and asking for several other actions.

September 9, 2003 – After press reports quoting Senator Roberts as saying the investigation was almost over, Senator Rockefeller sent a letter to Senator Roberts urging him not to rush to complete the investigation prematurely.
October 29, 2003 – Senators Roberts and Rockefeller sent a letter to Director Tenet expressing in strong terms that he should provide documents that have been requested and make individuals available.

October 30, 2003 – Senators Roberts and Rockefeller sent letters to Secretaries Rumsfeld and Powell, and National Security Advisor Rice expressing in strong terms that they should provide documents that have been requested and make individuals available.

October 31, 2003 – Senator Rockefeller sent a letter to Director Tenet asking for documents related to the interaction between intelligence and policy makers, including the documents from the Vice President’s office related to the Powell speech.

November 2, 2003 – Senator Roberts made statements during a joint television appearance with Senator Rockefeller claiming that the White house would provide all documents they jointly requested.

December 5, 2003 – Senator Rockefeller sent a letter to National Security Advisor Rice asking for her help getting documents and access to individuals.

January 22, 2004 – Senator Rockefeller sent a letter to Director Tenet asking for compliance with the Oct. 31 request for documents.

February 12, 2004 – Senators Roberts and Rockefeller issued a joint press release announcing the Committee’s unanimous approval of the expansion of the Iraq review, to include use of intelligence in the form of public statements, and listing other aspects of what became Phase II.

March 23, 2004 – Senator Rockefeller sent yet another letter to Director Tenet asking for compliance with the Oct. 31 request for documents.

June 17, 2004 – Senators Roberts and Rockefeller joint press release announcing the unanimous approval of the report.

July 16, 2004 – Committee Democrats sent a letter to Bush asking for the one page summary of the NIE prepared for Bush. The Committee staff had been allowed to review it but could not take notes and the Committee was never given a copy.

February 3, 2005 – Senator Rockefeller sent a letter to Senator Roberts outlining Committee priorities for the coming year and encouraging completion of Phase II.

August 5, 2005 – Senator Rockefeller sent a letter to Senator Roberts expressing concern over the lack of progress on Phase II and calling for a draft to be presented to the Committee at a business meeting in September.

September 29, 2005 – All Committee Democrats joined in additional views to the annual Intelligence Authorization Bill criticizing the lack of progress on Phase II.

With actions like this, I think we will soon be hearing the title Majority Leader Harry Reid.

Posted at 04:14 PM in 2006 Elections - Senate, Culture of Corruption, Nuclear Option, Republicans, Scandals, Supreme Court | TrackBack (0) | Technorati

Tuesday, October 04, 2005

OH-Sen: Harriet Miers, the Blogs, and Mike DeWine's Re-Election Campaign

Posted by Bob Brigham

Following Paul Hackett's astonishing showing in the OH-02 Special Election, there was a great deal of ink used by pundits trying to understand how Hackett's blogosphere support allowed him to outspend Jean Schmidt in a congressional district Democrats had written off for the longest time.

In fact, Campaigns and Elections Magazine currently has a cover story: Blogging Down the Money Trail on the subject. The netroots scored CNN's Political Play of the Week. The press and establishment hacks on both sides of the aisle began paying attention to the potential of online small dollar donations being deployed to crucial districts. You would think more people would have been thinking this way after Howard Dean, but then again, most of the people now paying attention are the ones who said Dean was making a mistake by not accepting matching funds. Yet Dean raised more money with his distributed model, Hackett outspent Schmidt, and now a helluva lot of serious people are wondering how this will play out in 2006.

I think we can get an idea of this dynamic by looking a Senator Mike DeWine's re-election campaign in Ohio.

The Ohio Senate race is destined to be one of the most closely watched in the nation. Ohio is a crucial swing state, and Ohio Republicans are engulfed in major corruption scandals. As Democrats move to embrace the "Culture of Corruption" meme against Republicans, polls in Ohio will give us an early glimpse of how such a message could move voters.

Ohio is also home to very expensive media markets and the winning campaign will be the one most successful at capturing the attention of voters. As a tight swing state, the potential for a close race is very real and the impact of the blogs could be enormous.

Republican Blogs and Mike DeWine

Mike DeWine is in a tricky situation as a member of the Senate Judiciary Committee. Kos says:

One last key point -- DeWine sits on the judicial committee, which will become a flash point as social conservatives gear up to oppose the Miers nomination to the Supreme Court. DeWine can't afford to lose the diehard social conservatives, already made difficult when he joined the Gang of 14 that prevented Frist from executing his "nuclear option" on judicial filibusters.

After the Gang of 14 move by Senator DeWine, conservative bloggers mounted a Not. One. Dime. boycott of the National Republican Senatorial Committee:

Not. One. Dime. The next time Ken Mehlman sends you a request for money, that's the message he needs to get back. We ponied up in 2004, and in 2002, and in 2000. The GOP not only has not delivered, its current leadership won't even try. Frist and Rick Santorum claim they don't have the votes. Balderdash -- they don't have the leadership to get the votes. I'm not going to fund or support people who won't try to win, especially when the issue is so important.

Not. One. Dime. We're not in an election year, so this makes it easy for the Republicans to get this message to party leaders. No balls, no Blue Chips, boys. I don't mean just for the Senate, either. I mean for the entire Republican party. Feeding a fever may be good medicine, but feeding a failure only makes it last longer. Perhaps hunger will work where courage has so obviously failed.

Not. One. Dime. And when a vote does come, those Republicans who wind up supporting the minority's extortion over the majority in defiance of the Constitution will never see another dime from me -- but their opponents will, at every level of contest. Honestly, with Republicans like these in the Senate, we may as well have Democrats.

Now, convervative bloggers a livid over the Harriet Miers nomination to the Supreme Court. The GOP is fracturing and his now on the defense in 2006 and 2008. The Harriet Miers' paper trail is on the verge of making conservative heads explode.

The smart move for DeWine would be to use his position on the Judiciary Committee to blast Miers and then vote against her, saving his conservative credentials and patching up his strained relationship with the right-wing bloggers. But it doesn't look like that is his intention:

DeWine's ability to defend his seat against suddenly competitive Democrats might depend on his position on the Senate Judiciary Committee, which puts him at the center of the latest Supreme Court nomination process.

DeWine and his 17 committee mates will hold confirmation hearings for White House counsel Harriet Miers, announced Monday by President Bush as his nominee to replace retiring Justice Sandra Day O'Connor. [...]

In an interview Monday after the nomination was announced, DeWine gave Miers a strong endorsement.

That is not what the conservative bloggers want to hear. Even worse, it looks like DeWine's situation will both hurt him with his base while not yielding any position with independents:

White isn't so sure that voters will focus on the nomination process because of the investment and ethics scandals involving Ohio's Republican-controlled state government.

"At this time, (the Supreme Court) is not driving the political arena here," White said, adding DeWine could have to deal with fallout from decisions Miers and recently confirmed Chief Justice John Roberts make.

To recap, DeWine is in a situation where the voters are focusing on the "Culture of Corruption" in the Ohio Republican Party and the conservative blogs have zero interest in helping him. This was the same position (now) Congresswoman Jean Schmidt found herself in when the conservative bloggers sat out this year's Special Election.

Democratic Blogs and the Ohio Senate Race

Even with a (slim) prospect of Congressman Sherrod Brown challenging Paul Hackett for the Democratic Party nomination, the Democratic blogs are remarkably focused upon the race.

Sure, there is some internal tension with the Blogfather pushing Sherrod Brown and Paul Hackett enjoying a 70 percentage point advantage in a new straw poll.

Yet either way, the Democratic Blogosphere is going to be pumped to support the Democratic nominee against Senator DeWine.

Since Hackett is the only announced candidate, let's see what he brings to the table.

The above is a map of Hackett contributors during the Special Election. Yes, that is a 50 state base that came together in two weeks. With Hackett running, we can expect a campaign of straight talk and bold action that cuts through the clutter and connects with voters of all political leanings.

When I was embedded with the Hackett campaign, I kept hearing, "I don't agree with you, but I appreciate where you're coming from." These were voters who disagreed with, but respected, Major Hackett. They voted for Hackett, because they knew he was something special.

Democratic activists also have a lot of respect for Congressman Sherrod Brown since he is the exact personification of a Representative who will makes the grassroots feel a sense of pride in supporting.

2006

So going into 2006, it appears that Senator Mike DeWine will be lacking the newest force in politics for his re-election campaign. At the same time, the Democratic blogosphere and netroots are united to throw DeWine out of office.

The only out for DeWine is to vote against his President and vote against Harriet Miers nomination for the Supreme Court. But DeWine is too chicken and that is part of the reason the conservative base won't raise a finger for his campaign.

Meanwhile, the Democrats are embracing cutting edge campaign tactics. Paul Hackett ran the most efficient blogosphere campaign ever and Rep. Brown started Grow Ohio. No matter what happens, it is looking like the netroots are going to kick Mike DeWine's ass out of the U.S. Senate.

Posted at 08:18 PM in 2006 Elections - Senate, Netroots, Ohio, Scandals, Supreme Court | Comments (5) | TrackBack (0) | Technorati

Harriet Miers Paper Trail

Posted by Bob Brigham

Conservative bloggers were outraged to learn of Harriet Miers Homosexual Agenda of support gays and lesbians. Conservatives lost it when they found out Miers had donated money to Al Gore's campaign. During the first 24 hours, the Harriet Miers paper trail was nothing but bad news for her nomination.

Now we have the photo trail, an event that the mainstream media won't touch. From Editor and Publisher:

On its front page Tuesday, The New York Times published a photo of new U.S. Supreme Court nominee Harriet Miers going over a briefing paper with President George W. Bush at his Crawford ranch “in August 2001,” the caption reads.

USA Today and the Boston Globe carried the photo labeled simply “2001,” but many other newspapers ran the picture in print or on the Web with a more precise date: Aug. 6, 2001.

Does that date sound familiar? Indeed, that was the date, a little over a month before 9/11, that President Bush was briefed on the now-famous “PDB” that declared that Osama Bin Laden was “determined” to attack the U.S. homeland, perhaps with hijacked planes. But does that mean that Miers had anything to do with that briefing?

As it turns out, yes, according to Tuesday's Los Angeles Times. An article by Richard A. Serrano and Scott Gold observes that early in the Bush presidency “Miers assumed such an insider role that in 2001 it was she who handed Bush the crucial 'presidential daily briefing' hinting at terrorist plots against America just a month before the Sept. 11 attacks.”

The significance?

The PDB was headed “Bin Laden Determined to Strike in U.S.,” and notes, among other things, FBI information indicating “patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks.”

This is the probably with Bush promoting cronies -- they aren't fit for jobs they are giving. It appears Harriet Miers is earning the nickname, Brownie Miers

Posted at 03:14 PM in International, Scandals, Supreme Court | Comments (2) | TrackBack (0) | Technorati

Monday, October 03, 2005

Harriet Miers & 2006

Posted by Bob Brigham

Today, Bush nominated Harriet Miers in a move that is fracturing the GOP. As Kos notes:

Mier's nomination was predicated by fear. Bush is afraid. That's why the right-wingers are pissed. Their fearless leader couldn't muster up the courage for a real fight against Senate Democrats.

Fear yes, but of the Senate Democrats or fear of more conspiracy charges? From Think Progress:

Near the end of a round table discussion on ABC’s This Week, George Stephanopoulos dropped this bomb:

Definitely a political problem but I wonder, George Will, do you think it’s a manageable one for the White House especially if we don’t know whether Fitzgerald is going to write a report or have indictments but if he is able to show as a source close to this told me this week, that President Bush and Vice President Cheney were actually involved in some of these discussions.

This would explain why Bush spent more than an hour answering questions from special prosecutor Patrick Fitzgerald. It would also fundamentally change the dynamics of the scandal.

Indeed, serious people are using the term "unindicted co-conspirator". While Harriet Meirs doesn't have much of a paper trail legally, she does has a strong background when it comes to Bush scandals:

But she does know better than just about anyone else where the bodies are buried (relax, it's a just a metaphor...we hope) in President Bush's National Guard scandal. In fact, Bush's Texas gubenatorial campaign in 1998 (when he was starting to eye the White House) actually paid Miers $19,000 to run an internal pre-emptive probe of the potential scandal. Not long after, a since-settled lawsuit alleged that the Texas Lottery Commission -- while chaired by Bush appointee Miers -- played a role in a multi-million dollar cover-up of the scandal.

How will this effect the 2006 midterm elections?

Kos says:

More immediately, this is the sort of pick that can have real-world repercussions in 2006, with a demoralized Republican Right refusing to do the heavy lifting needed to stem big losses. That Bush went this route rather than throwing his base the red meat they craved is nothing less than a sign of weakness. For whatever reason, Rove and Co. decided they weren't in position to wage a filibuster fight with Democrats on a Supreme Court justice and instead sold out their base.

We'll have several months to pick through Miers' record, as well as highlight her role in any number of Bush scandals (like Georgia10 notes).

The GOP is totally on defense. Just look at the slate of GOP Senate challengers with a shot of being competitive. The only problem is that there is no list, the GOP senate plan is to minimize losses.

As for the House, Tom DeLay's indictment means that the gains could be tidal.

The GOP Culture of Corruption is catching up and the backlash is building for 2006 and 2008 campaigns.

Too many scandals. Too much corruption. And yet another crony appointed to a key post without any experience.

------

Wikipedia on Harriet Miers

Posted at 12:55 PM in 2006 Elections, Culture of Corruption, Republicans, Scandals, Supreme Court | TrackBack (0) | Technorati

Harriet Miers Fractures GOP in Real-Time

Posted by Bob Brigham

An important function of the blogosphere is a peek into real-time politics. Bloggers show and create what is going on in politics right now. The announcement of Harriet Miers gives us a short window to peer into the GOP.

First, look at the National Review's David Frum. Last week, Frum blasted Harriet Meirs:

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.

Today, not only did he blast her again, but he then deleted the middle paragraph in the following:

Harriet Miers is a taut, nervous, anxious personality. It is impossible to me to imagine that she can endure the anger and abuse - or resist the blandishments - that transformed, say, Anthony Kennedy into the judge he is today.

She rose to her present position by her absolute devotion to George Bush. I mentioned last week that she told me that the president was the most brilliant man she had ever met. To flatter on such a scale a person must either be an unscrupulous dissembler, which Miers most certainly is not, or a natural follower. And natural followers do not belong on the Supreme Court of the United States.

Nor is it safe for the president's conservative supporters to defer to the president's judgment and say, "Well, he must know best." The record shows I fear that the president's judgment has always been at its worst on personnel matters.

Right now, the White House is spinning like a top in GOP circles. Ankle Biting Pundits is "highly disappointed" and points out, "politically it's not good because it just opens the President up to charges of "cronyism"" while offering the following roundup of conservative bloggers reaction to the nomination of Harriet Miers to the Supreme Court:

John Hawkins of RightWingNews goes further than me and calls Miers a "disaster"
Michelle Malkin is "utterly underwhelmed"
Powerline is also disappointed.
Confirm Them is underwhelmed.
John Podhoretz calls it dumb.
Mike Krepasky at Red State rightly says the President has some explaining to do.
Polipundit isn't exactly thrilled but is willing to give her a chance.
Andrew Sullivan is going the "Crony" route. But can we say he's wrong?
Mark Levin says that the President "flinched"
Betsy Newmark has a hard time putting an adjective on just how disappointed she is and says the President bowed to pressure.
Gerry Daly is in the "Anger" stage (#2 of the 5 stages)
Captain Ed is "mystified", and not in a good way.

The timing couldn't be worse for the GOP as today's newsstands are graced with a new Newsweek cover-story titled, Troubled Waters: War, storms, leak probes—and a growing array of ethics clouds. Dark days for the Republican Party:

Bush and his fellow Republicans have little margin for error. Three forces—sky-high gasoline prices, the massive costs of rebuilding the Gulf Coast and ever-gloomier public assessments of the war in Iraq—have combined to weaken Bush's reputation as a strong leader, and leave him vulnerable to the kind of second-term fiascoes that tend to befall all presidents: think Ronald Reagan and Iran-contra, or Bill Clinton and Monica Lewinsky. Indeed, polltaker Frank Luntz, who helped develop the "Contract With America" message that swept Republicans to power in 1994, was on the Hill last week warning the party faithful that they could lose both the House and the Senate in next year's congressional elections.

The Republicans' power outage is real—and the historical irony is as vast as Texas. Beginning in the 1950s, the Democratic Party of Texans Lyndon Johnson and Sam Rayburn built a congressional machine of unrivaled power. But starting in the '80s, led by a firebrand named Newt Gingrich, Republicans led a revolt from below in the name of smaller government and an ethically cleansed Congress. In 1989 Newt & Co. forced out Democratic Speaker Jim Wright—a Texan, too, who resigned over charges that he profited improperly from book sales—and five years later the GOP took control of the House after a Biblical 40 years in the wilderness. But it took the Republicans only 10 years to become yet another ruling party beset by charges of profligate spending, bloated government and corruption—a party led by two Texans, Bush and DeLay, who don't particularly care whether they are beloved outside their inner circle. To paraphrase David Mamet, the Republicans became what they beheld.

And there is much to behold. Michael Brown, the hapless yet arrogant former head of FEMA, managed to anger even putative Republican allies in an appearance before a House committee.

Michael Brown is a name that should come up a great deal during the Miers' confirmation process. Harriet Miers is a Michael Brown quality pick. Even right-wing bloggers are using the word 'cronyism' and are worried because they know Bush can't afford this.

The storyline of Bush giving key jobs to completely unqualified political hacks is connecting with the American people. By picking people on the basis of loyalty, rather than effectiveness, Bush has set the stage for the Culture of Corruption that engulfs the entire Republican Party.

When these are the rules (or lack thereof), you have multi-million bagmen like Jack Abramoff. You have conspiring congressmen like Tom DeLay. You have national security traitors like Scooter Libby and Karl Rove.

Today's Republican Party puts allegiance to Party above duty to country. But individual Republicans are growing increasingly disgusted, because like so many members of the National Guard, they aren't getting what they signed up for.

The stakes are high, this is the swing vote, as evidenced by the following 5-4 decisions:

Sandra Day O'Connor has been the deciding fifth vote in many important Supreme Court decisions affecting civil rights, environmental protection, personal privacy, reproductive freedom and reproductive health, religious liberty, consumer protection and much more. If she is replaced by someone who doesn't share her fair and impartial perspective -- someone in the mold of Clarence Thomas and Antonin Scalia -- the constitutional consequences will be devastating. These are among the key 5-4 decisions in danger of being overturned:

Environmental protection

Alaska Department of Environmental Conservation v. EPA (2004) said the Environmental Protection Agency could step in and take action to reduce air pollution under the Clean Air Act when a state conservation agency fails to act.

Reproductive rights and privacy

Stenberg v. Carhart (2000) overturned a state law that would have had the effect of banning abortion as early as the 12th week of pregnancy and that lacked any exception to protect a woman’s health.

Consumer protection and corporate power

Rush Prudential HMO, Inc. v. Moran (2002) upheld state laws giving people the right to a second doctor's opinion if their HMOs tried to deny them treatment.

Civil rights: affirmative action and discrimination based on sex, race, and disability

Jackson v. Birmingham Bd. Of Educ. (2005) ruled that federal law protects against retaliation against someone for complaining about illegal sex discrimination in federally assisted education programs.

Tennessee v. Lane (2004) upheld the constitutionality of Title II of the Americans with Disabilities Act and required that courtrooms be physically accessible to the disabled.

Grutter v. Bollinger (2003) affirmed the right of state colleges and universities to use affirmative action in their admissions policies to increase educational opportunities for minorities and promote racial diversity on campus.

Davis v. Monroe County Bd. of Educ. (1999) ruled that it is a violation of federal law for school districts to be deliberately indifferent towards severe and pervasive student-on-student sexual harassment.

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) affirmed that civil rights laws apply to associations regulating interscholastic sports.

Morse v. Republican Party of Virginia (1996) said key anti-discrimination provisions of the Voting Rights Act apply to political conventions that choose party candidates.

Hunt v. Cromartie (2001) affirmed the right of state legislators to take race into account to secure minority voting rights in redistricting.

Access to justice

Zadvydas v. Davis (2001) told the government it could not indefinitely detain an immigrant who was under final order of removal even if no other country would accept that person and that access to federal courts is available to combat improper, indefinite detention.

Brown v. Legal Foundation of Washington (2003) maintained a key source of funding for legal assistance for the poor.

Hibbs v. Winn (2004) subjected discriminatory and unconstitutional state tax laws to review by the federal judiciary.

Religious liberty and church-state separation

McCreary County v. ACLU of Kentucky (2005) upheld the principle of government neutrality towards religion and ruled unconstitutional Ten Commandments displays in several courthouses

Lee v. Weisman (1992) continued the tradition of government neutrality toward religion, finding that government-sponsored prayer is unacceptable at graduations and other public school events.

Money, politics and government accountability

McConnell v. Federal Election Commission (2003) upheld most of the landmark McCain-Feingold campaign finance law, including its ban on political parties’ use of unlimited soft money contributions.

Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) upheld laws that limit political party expenditures that are coordinated with a candidate and seek to evade campaign contribution limits.

UPDATE: From Atrios:

Wingnuttia is rather angry at the choice. I don't think this is because they're really concerned that she's not conservative enough for their tastes, although that's part of it. They're angry because this was supposed to be their nomination. This is was their moment. They didn't just want a stealth victory, they wanted parades and fireworks. They wanted Bush to find the wingnuttiest wingnut on the planet, fully clothed and accessorized in all the latest wingnut fashions, not just to give them their desired Court rulings, but also to publicly validate their influence and power. They didn't just want substantive results, what they wanted even more were symbolic ones. They wanted Bush to extend a giant middle finger to everyone to the left of John Ashcroft. They wanted to watch Democrats howl and scream and then ultimately lose a nasty confirmation battle. They wanted this to be their "WE RUN THE COUNTRY AND THERE'S NOTHING YOU CAN DO ABOUT IT" moment.

Whatever kind of judge she would be, she doesn't provide them with that.

Indeed.

------

Wikipedia on Harriet Miers

Posted at 11:20 AM in 2006 Elections, Culture of Corruption, General, Netroots, Republicans, Scandals, Supreme Court | TrackBack (7) | Technorati

Tuesday, September 20, 2005

MT-Sen: Max Baucus Runs from Democratic Party

Posted by Bob Brigham

Montana Senator Max Baucus is a skittish senator known for bolting and running. In fact, Senator Baucus has quite a reputation for running. On November 22 of last year Baucus was running from something for 50 miles when he hit his head on a rock and needed urgent brain surgery. I'm no big city doctor, but I think Baucus lost his fucking mind:

WASHINGTON -- Montana Sen. Max Baucus, a Democrat, said Tuesday he will vote for Supreme Court nominee John Roberts. [...]

Baucus is breaking with his party's top senator in deciding to vote for the 50-year-old appeals court judge and former Reagan administration lawyer.

Why is Max Baucus running from the Democratic Party? Instead of running away, why can't Max Baucus play with the team? Call each number below and ask.

Washington D.C.(202) 224-2651
Billings (406) 657-6790
Bozeman (406) 586-6104
Butte (406) 782-8700
Great Falls (406) 761-1574
Helena (406) 449-5480
Kalispell (406) 756-1150
Missoula (406) 329-3123
Washington DC Fax (202) 224-0515

Thanks for taking 10 minutes to make those quick 8 calls. If you have 2 more minutes, use the email form.

I am totally fuckin' pissed at Baucus. Senator Reid is from a redder state, but he isn't running from what he cares about. Why is Baucus chicken?

Baucus isn't even up until 2008 and (hopefully) won't be running for re-election. Senator Baucus doesn't need to go around acting like a dipshit coward, but this isn't the first time. Matthew Yglesias explains (2.1.04):

As a result, literally none of the president's signature initiatives -- from tax cuts to the resolution authorizing war in Iraq to the Medicare bill -- garnered sufficient GOP support to pass without cooperation from some Democrats, cooperation that the White House has largely succeeded in obtaining.

Among the defectors, Sen. Zell Miller (D-Ga.) has tended to attract the lion's share of media attention for his florid denunciations of his ostensible party. But the practical effects of Miller's histrionics have been rather limited compared with the betrayals of his more low-key colleague Sen. Max Baucus (D-Mont.). As the ranking member (and, for a period, chairman) of the Finance Committee, arguably the Senate's most powerful, Baucus, who underwent successful brain surgery on Jan. 9, has not only voted for many pieces of Republican-backed legislation but actually taken the lead in authoring much of the president's domestic-policy agenda. During the 2001 tax-cut debate, Baucus cut a deal with committee Chairman Chuck Grassley (R-Iowa) and the White House to co-sponsor a slightly watered-down version of the president's proposal. In doing so, he not only gave the GOP his vote but, more importantly, his support for the tax cut effectively handed the White House the staff and other committee resources under his control.

Fellow Democrats were even more aggrieved, however, by Baucus' behavior during the Medicare battle with which Congress closed last year's session. The Senate initially passed a compromise bill with support from Republicans and some liberal Democrats like Ted Kennedy (D-Mass.), while the House put forward a much more partisan piece of legislation on a narrow vote. A conference committee composed of members of both chambers was convened, but the Republican leadership, in a sharp break from precedent, said that though Democrats could be officially appointed to the committee, none would be invited to the meetings where the substantive negotiations would take place and the actual bill be written. None, that is, except for Baucus and the similarly cooperative John Breaux of Louisiana, who will retire at the end of the year.

By lending this farce a veneer of bipartisan credibility, Baucus and Breaux essentially denied the Democrats what was not only their best chance of defeating the bill in question but the party's last hope of putting a stop to a long string of Republican provocations aimed at reducing the minority party to window-dressing status. (emphasis mine)

WTF? Call each phone number and let your rage be heard. This is totally fuckin' unacceptable and you can quote me on that.

Posted at 09:30 PM in Activism, Montana, Netroots, Scandals, Supreme Court | Comments (5) | Technorati

Supreme Court: I Oppose John Roberts

Posted by Bob Brigham

The Feminist Bloggers have announced opposition to John Roberts and I posted in the comments my signature to their letter and urge you to also.

The political optics are very simple: when Roberts drives the court away from Americans, Democrats need to be able to have clear contrast.

This is especially true for Democratic presidential candidates. Roberts will have a couple of years to do his worst before the primary heats up. Any presidential candidate who votes for Roberts will be blamed for Roberts.

As for rank and file Democrats, the play is easy to see. If you are on the judiciary committee you damn well better vote with your team. If a senator is going to make a comment other than opposition, don't. STFU.

Democrats win when we play as a team (i.e. Social Security). We need that now more than ever. We're watching to make sure every Democratic senator plays off the Democratic playbook;

WASHINGTON - Senate Democratic Leader Harry Reid has told associates he intends to oppose confirmation of John Roberts as chief justice, Senate sources said Tuesday as rank and file Democrats began staking out positions on the man named to succeed the late William H. Rehnquist. [...]

As party leader, Reid had urged fellow Democrats not to announce their positions until the conclusion of last week's confirmation hearings for Roberts.

By stating his own position first, Reid likely would set the stage for strong Democratic opposition to the 50-year-old appeals court judge and former Reagan administration lawyer.

We're watching.

UPDATE: And we're talking. From MSNBC:

Bob Brigham, a Democratic blogger who writes for Swingstateproject.com said Democratic activists are following the Roberts battle more closely than they did the 1991 Clarence Thomas saga.

“With the decentralization of politics and the blogs, there are a lot more people paying attention. The Democratic base is following this very closely,” Brigham said.

If he is confirmed, Brigham predicted, “Roberts is going to have a chance to hand down some serious decisions before the 2008 presidential race heats up. And every bad decision he makes will be blamed on any Democratic senator who votes for him. Democratic senators will be held accountable individually for the bad decisions he makes between now and 2008.”

Democratic Senators need to do the right thing.

UPDATE: Full statement from Leader Harry Reid:

“One of the Senate’s most important constitutional responsibilities is to provide “advice and consent” with respect to a President’s nominations. The task is especially important when the nomination is of an individual to be the Chief Justice of the United States.

“No one doubts that John Roberts is an excellent lawyer and an affable person. But at the end of this process, I have too many unanswered questions about the nominee to justify a vote confirming him to this enormously important lifetime position.

“The stakes for the American people could not be higher. The retirement of Justice O’Connor and the death of Chief Justice Rehnquist have left the Supreme Court in a period of transition. On key issues affecting the rights and freedoms of Americans, the Court is closely divided. If confirmed, Judge Roberts, who is only 50 years old, will likely serve as Chief Justice and leader of the third branch of the federal government for decades to come.

“The legal authority that we will hand to Judge Roberts by this confirmation vote is awesome. In my view, we should only vote to confirm this nominee if we are absolutely positive that he is the right person to hold that authority. This is a very close question for me. But I must resolve my doubts in favor of the American people whose rights would be in jeopardy if John Roberts turns out to be the wrong person for the job.

“Some say that the President is entitled to deference from the Senate in nominating individuals to high office. I agree that such deference is appropriate in the case of executive branch nominees such as Cabinet officers. With some important exceptions, the President may generally choose his own advisors.

“In contrast, the President is not entitled to very much deference in staffing the third branch of government, the judiciary. The Constitution envisions that the President and the Senate will work together to appoint and confirm federal judges. This is a shared constitutional duty.

“The Senate’s role in screening judicial candidates is especially important in the case of Supreme Court nominees, because the Supreme Court has assumed such a large role in resolving fundamental disputes in our civic life. As I see it, any nominee for the Supreme Court bears the burden of persuading the Senate and the American people that he or she deserves confirmation to a lifetime seat on the Court.

“Let me start by observing that Judge Roberts has been a thoughtful, mainstream judge on the DC Circuit Court of Appeals. But he has only been a member of that court for two years and has not confronted many cutting-edge constitutional issues. As a result, we cannot rely on his current judicial service to determine what kind of Supreme Court justice he would be.

“I was very impressed with Judge Roberts when I first met him, soon after he was nominated. But several factors caused me to reassess my initial view.

“Most notably, I was disturbed by the memos that surfaced from Judge Roberts’s years of service in the Reagan Administration. These memos raise serious questions about the nominee’s approach to civil rights.

“It is now clear that as a young lawyer, John Roberts played a significant role in shaping and advancing the Republican agenda to roll back civil rights protections. He wrote memos opposing legislative and judicial efforts to remedy race and gender discrimination. He urged his superiors to oppose Senator Kennedy’s 1982 bill to strengthen the Voting Rights Act and worked against affirmative action programs. He derided the concept of comparable worth and questioned whether women actually suffer discrimination in the workplace.

“No one suggests that John Roberts was motivated by bigotry or animosity towards minorities or women. But these memos lead one to question whether he truly appreciated the history of the civil rights struggle. He wrote about discrimination as an abstract concept, not as a flesh and blood reality for countless of his fellow citizens. The memos raised a real question for me whether their author would breathe life into the Equal Protection Clause and the landmark civil rights statutes that come before the Supreme Court repeatedly.

“Nonetheless, I was prepared to look past these memos, and chalk them up to the folly of youth. I looked forward to the confirmation hearings in the expectation that Judge Roberts would repudiate those views in some fashion. Instead, the nominee adopted what I consider a disingenuous strategy of suggesting that the views expressed in those memos were not his views, even at the time the memos were written. He claimed that he was merely a “staff lawyer” reflecting the positions of his client, the Reagan Administration.

“Anyone who has read the memos can see that Roberts was expressing his own personal views on these important policy matters. In memo after memo, the text is clear. It is simply not plausible for the nominee to claim that he did not share the views that he expressed.

“For example, there is a memo in which he refers to the Equal Employment Opportunity Commission as “un-American.” If Judge Roberts had testified that this was a twenty year old bad joke, I would have given the memo no weight. But instead, he provided a tortured reading of the memo that simply does not stand up under scrutiny.

“In another memo Judge Roberts spoke about a Hispanic group that President Reagan would soon address, and he suggested that the audience would be pleased to know that the Administration favored legal status for the “illegal amigos” of the audience members. The use of the Spanish word “amigos” in this memo is patronizing and offensive to a contemporary reader.

“I do not condemn Judge Roberts for using the word “amigos” twenty years ago in a non-public memo, but I was stunned when at his confirmation hearing he could not bring himself to express regret for using the term, or recognize that it might cause offense.

“My concerns about these Reagan-era memos were heightened by the fact that the White House rejected a reasonable request by Committee Democrats for documents written by Judge Roberts when he served in the first Bush Administration. After all, if memos written twenty years ago are to be dismissed as not reflecting the nominee’s mature thinking, it would be highly relevant to see memos he had written as an older man in an even more important policymaking job.

“The White House claim of attorney-client privilege to shield these documents is utterly unpersuasive. Senator Leahy asked Attorney General Gonzales for the courtesy of a meeting to discuss the matter and was turned down. This was simply a matter of stonewalling.

“The failure of the White House to produce relevant documents is reason enough for any Senator to oppose this nomination. The Administration cannot treat the Senate with such disrespect without some consequences.

“In the absence of these documents, it was especially important for the nominee to fully and forthrightly answer questions from Committee members at his hearing. He failed to do so adequately. I acknowledge the right – indeed, the duty – of a judicial nominee to decline to answer questions regarding specific cases that will come before the court to which the witness has been nominated. But Judge Roberts declined to answer many questions more remote than that, including questions seeking his views of long-settled precedents.

“Finally, I was very swayed by the testimony of civil rights and women’s rights leaders against confirmation. When a civil rights icon like John Lewis says that John Roberts was on the wrong side of history, Senators must take notice.

“I like Judge Roberts. I respect much of the work he has done in his career, such as his advocacy for environmentalists in the Lake Tahoe takings case several years ago. In the fullness of time, he may well prove to be a fine Supreme Court Justice. But I have reluctantly concluded that this nominee has not satisfied the high burden that would justify my voting for his confirmation based on the current record.

“Based on all of these factors, the balance shifts against Judge Roberts. The question is close, and the arguments against him do not warrant extraordinary procedural tactics to block the nomination. Nonetheless, I intend to cast my vote against this nominee when the Senate debates the matter next week.”

Posted at 02:45 PM in 2006 Elections - Senate, 2008 President - Democrats, Activism, Democrats, Site News, Supreme Court | Comments (1) | Technorati

Sunday, September 04, 2005

SCOTUS: Rehnquist Passes - Roberts Confirmation to Go Forward

Posted by Tim Tagaris

Not much in terms of links as the information is breaking on television right now, but for those of you online only, here is what we know.

William Rehnquist has passed away.

Confirmation hearings will go forward for John Roberts on Tuesday (via Fox News)

The Republican spin is already that Roberts was the moderate choice and now the president has the ability to pick a "strict contstructionist." (Again via Fox News)

Unfortunately, only Fox is live and has Hannity and Colmes in the studio at 12:30 on a Saturday night, which is nice.

Posted at 12:25 AM in Supreme Court | Technorati

Thursday, September 01, 2005

DLC Fuckup Endangers Evan Bayh's Presidential Bid

Posted by Bob Brigham

Former DLC Chair Evan Bayh is the man who spent four years acting cowardly by refusing to fire Al From even though From repeatedly harmed the Democratic Party by triangulating against mainstream Democrats. Under Bayh's DLC, they even enjoyed it. Now Senator Bayh wants to be President, yet for some unknown reason, he thinks the best way to make a name for himself is to make an ass of himself. From USA Today:

WASHINGTON — Supreme Court nominee John Roberts will be introduced to the Senate Judiciary Committee next week by a centrist Democrat and a veteran Republican, an important symbolic boost for his confirmation prospects.

Sen. Evan Bayh, a Democrat who represents Roberts' home state of Indiana, and Sen. John Warner, a Virginia Republican, have agreed to appear with him when confirmation hearings begin Tuesday. [...]

But the presence of Bayh, a potential 2008 presidential contender, will underscore differences in the Democratic Party over the Roberts nomination. Liberals such as Sens. Charles Schumer of New York and Edward Kennedy of Massachusetts have sharply criticized some of Roberts' positions.

Here's the thing, if Roberts is confirmed, he'll have two full years before the presidential race really heats up. Every bad decision John Roberts makes is going to be blamed on Evan Bayh. During that time, the blogosphere will double or triple in participation, so people will know about it. During that same period, the DLC will continue to lose relevance. Bayh's classic-DLC maneuver of providing bi-partisan cover for Bush does not inspire confidence in Bayh's decision making ability.

Posted at 11:01 AM in 2008 President - Democrats, Democrats, Supreme Court | Comments (6) | Technorati

Wednesday, August 24, 2005

Supreme Court: Netroots Watching Democratic Senators

Posted by Bob Brigham

From Armando:

The Democratic Senators on the Judiciary Committee must compel answers from Roberts and the White House. Senators Leahy, Kennedy, Schumer, Feingold, Feinstein, Biden, Kohl and Durbin - we will be watching. Please do your duty as we all know you can and as you have in the past.

Indeed.

Posted at 01:44 PM in Democrats, Netroots, Supreme Court | Technorati

Monday, July 25, 2005

Cover-up of John Roberts' Partisan Hack History

Posted by Bob Brigham

UPDATE: (Bob) According to the AP, Roberts has now clammed up:

Supreme Court nominee John Roberts declined Monday to explain why he was listed in a Federalist Society leadership directory when the White House says he doesn't recall being a member of the conservative legal organization.

Scott McClellan lied to the entire press corps, even mocked them with the word "ridiculous" during the coordinated cover-up of the Karl Rove scandal. Well guess what jounalists, the White House is still playing you:

Several news organizations, including The Associated Press, reported immediately after his nomination that Roberts had been a member of the Federalist Society. The AP and others printed corrections after the White House said later that Roberts doesn't recall ever belonging to the group.

The Washington Post reported Monday that it had obtained from a liberal group a 1997-98 Federalist Society leadership directory listing Roberts, then a partner in a private law firm, as being a steering committee member in the group's Washington chapter.

Who is misleading, the White House or Partisan Hack John Roberts?

AP:

John Roberts worked for two Republican administrations, offering private legal assessments that have yet to be opened to historians or the public. Now that Roberts is President Bush's choice to join the Supreme Court, some Senate Democrats want to see the documents he produced — all of them.

No, responded one White House representative. We'll see, said another.

Well? Which is it?

Atrios says:

Roberts is a made man whether or not he ever was part of the Federalist Society. Now we know he was an active member once but he just can't remember.

When they feel the need to lie about the little things (besides, wouldn't "Yeah, I was with them briefly but I didn't really fit in" been more effective?) we know they have no problem lying about the big ones...

Why is Roberts lying forgetting that he was a in a leadership role of a fringe political organization?

Chris Bowers says:

I wonder what else he has forgotten. Perhaps he has forgotten that he served a purely political position in the solicitor's general's office. Perhaps he has forgotten that he helped develop the strategy to circumvent the 2000 recount and allow the Florida legislature to give its electoral votes to Bush no matter what the recount found.

These seem to be things that even fellow Democrats are forgetting. This guy is not another David Souter. He is a partisan conservative, and he has been duly rewarded for his service to the Bush family.

He forgot--wtf? This is pretty damning. No wonder the Bush administration is blocking the release of some documents he has written.

Yes, John Roberts is just another partisan hack. But he's also a corporate shill, from David Sirota:

Not surprisingly, the Los Angeles Times today reports that Roberts is Corporate America's golden boy, handpicked by - you guessed it - the Chamber of Commerce. "He was the go-to lawyer for the business community. They are very comfortable with him," said Thomas Goldstein, a Washington lawyer who signed a letter in 2002 supporting Roberts' nomination to the U.S. Court of Appeals for the District of Columbia Circuit. "He definitely is a friend of the chamber. Of all the candidates, he is the one they knew best."

Posted at 09:30 AM in Supreme Court | Comments (1) | Technorati

Thursday, July 21, 2005

GOP Talking Points on John Roberts

Posted by Bob Brigham

Novak has his sources (Rove & Libby) and I have mine. In the extended entry you'll find the GOP background and talking points on Roberts. This is Karl Rove's justice and it is clear he's another Partisan Hack.

Memorandum

            John Roberts has enjoyed a distinguished career in government service, private practice and, most recently, as a federal judge.   He is a graduate, summa cum laude, of Harvard College and also Harvard Law School (magna cum laude).  After law school, he clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit and then-Associate Justice William Rehnquist on the U.S. Supreme Court.  

            Roberts has had a distinguished career as a public servant.  He served in several positions in the Reagan administration, including Associate White House Counsel.  He also served, from 1989-93, as the Principal Deputy Solicitor General, the government’s second highest ranking lawyer before the U.S. Supreme Court.  

            After leaving government, Roberts became known as one of the top Supreme Court advocates in the country as a partner at Hogan & Hartson in D.C.   In his government and private career, he has argued 39 cases before the U.S. Supreme Court, and has been described in the media as “one of [the Supreme Court’s] finest practitioners,” (Mauro, American Lawyer, Sept. 1, 2004), “one of the top appellate lawyers of his generation,” (Groner, Legal Times, Feb. 3, 2003), and “viewed by many as the best Supreme Court advocate in private law firm practice,” (Legal Times, Oct. 30, 2000).

            To the extent his record as an advocate can tell anything about Roberts, his arguments often speak to judicial restraint.  He co-authored the government’s successful brief in Lujan v. Defenders of Wildlife, which re-invigorated the doctrine of standing to sue in Article III Courts.  At the same time, he has represented criminal defendants, environmental interests, and the State of Hawaii in a dispute over legislation favoring Native Hawaiians as a group.

            Since his confirmation to the DC Circuit, Judge Roberts has authored about 40 opinions, but only three of his opinions have drawn any dissent.[1] Two of those cases involved rather arcane issues of statutory interpretation (e.g., availability of attorneys’ fees and interpretation of the False Claims Act), and in one case, Roberts (joined by D.H. Ginsburg) was criticized by Judge Henderson for being too lenient on a sentencing issue.  Similarly, though he has sat on numerous other three-judge or en banc panels, he has written dissenting opinions in only two cases.[2]  

Critics of Roberts’ nominations will seek to isolate particular positions espoused by advocate Roberts or adopted by Judge Roberts and argue that those positions are opposed to various political interest groups.  Most significantly, he co-authored a brief for the George H.W. Bush Administration in Rust v. Sullivan that sought to overturn Roe v. Wade.  That brief, however, restated a position that had previously been taken by the Bush Administration and the Reagan Administration before it.   The brief’s discussion of Roe took up only a few sentences in the brief and says nothing about the author’s (or co-author’s) personal views

            Similarly, critics may point to a dissent from denial of en banc rehearing he authored in the Rancho Viejo case, where Roberts cited recent Commerce Clause decisions in suggesting that the federal government might not have the power to regulate a non-migratory local species of toad, as evidence of an anti-environmental record.   Roberts’ opinion, however, simply followed recent decisions by the Supreme Court in Morrison and Lopez.  Any anti-environmental rhetoric is also belied by Roberts successful representation, while in private practice, of environmentalists fighting development around Lake Tahoe in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency.  Thus, his environmental record is hardly well-defined. 

            The battle is likely to occur over Robert’s position in Roe and the Democrats are likely to request all memoranda that Roberts wrote while he was in government service. 

Judge John G. Roberts

Circuit Judge, D.C. Circuit

3832 E. Barrett Prettyman United States Courthouse

333 Constitution Avenue, N.W.

Washington, D.C. 20001-2866

1.      Personal Background

Biographical Information

§         John Glover Roberts, Jr.

§         Born: January 27, 1955, Buffalo, New York

§         Married to Jane Marie Sullivan, July 27, 1996.  Jane Sullivan Roberts is currently a partner at Shaw Pittman in Washington, D.C.

§         Two children, both adopted

§         Religion: Catholic

Education

§         Harvard College, A.B., summa cum laude, 1976;

§         Harvard Law School, J.D., magna cum laude, 1979.

Health

§         Reported as “excellent” in March 2001 (Judge Roberts turned 50 years old in January 2005).

Finances

§         Roberts’ financial statement published during his confirmation hearing indicated a net worth of $3,782,275.  The only liability listed is the mortgage on his home, $270,272.  Assets are cash, securities, and real estate.

2.      Professional career

§         Clerkships: Law Clerk, Hon. Henry Friendly, United States Court of Appeals for the Second Circuit, 1979-1980; Law Clerk, Associate Justice William Rehnquist, Supreme Court of the United States, 1980-1981.

§         Private Practice: Hogan & Hartson, Washington, D.C., 1986-1989, 1993-2003.

§         Government Positions: Special Assistant to the Attorney General William French Smith, United States Department of Justice, 1981-1982; Associate Counsel to the President, White House Counsel’s Office, 1982-1986; Principal Deputy Solicitor General, United States Department of Justice, 1989-1993; United States Court of Appeals for the District of Columbia, 2003-present (confirmed May 8, 2003; sworn in June 2, 2003).

§         Professional Associations: District of Columbia Bar; American Law Institute; American Academy of Appellate Lawyers; Edward Coke Appellate Inn of Court; Supreme Court Historical Society.

§         Honors.  Named to Top Ten Civil Litigators by National Law Journal in 1999.   Described in the media as “one of [the Supreme Court’s] finest practitioners,” (Mauro, American Lawyer, Sept. 1, 2004), “one of the top appellate lawyers of his generation,” (Groner, Legal Times, Feb. 3, 2003), “viewed by many as the best Supreme Court advocate in private law firm practice,” (Legal Times, Oct. 30, 2000).

§         Supreme Court Experience.  Has argued 39 cases to the Supreme Court.  Argued more cases than any other private practitioner during 10 years leading up to appointment to D.C. Circuit.

3.      RECORD

            The most pertinent aspects of Judge Roberts’ record essentially fit into three categories:  (1) service in the Office of Solicitor General; (2) private practice at Hogan & Hartson; and (3) service as a Circuit Judge on the United States Court of Appeals for the District of Columbia. 

The most notable materials concerning Roberts’ service in the Office of Solicitor General were:  (1) the government’s brief in the Rust v. Sullivan  abortion case (see below), co-written by Roberts, which argued not only that regulations prohibiting Title X funding recipients from counseling patients on abortion did not violate Title X or the First or Fifth Amendments, but also restated the Bush Administration’s position that that Roe v. Wade was wrongly decided, and (2) the government’s briefs in Lujan (see below), upon which Robert’s was attacked during his circuit court confirmation hearings.

While in private practice at Hogan & Hartson, Roberts, for the most part, did not handle many highly politically sensitive cases.  While Roberts tended to represent corporate clients, he often . . . . ..  However, it is during this period of his career that Roberts earned the respect of people on both sides of the aisle.  Roberts also authored articles which necessarily contain some editorializing and his personal opinions. 

During his brief tenure on the D.C. Circuit,  Roberts’ written opinions evidence a record of judicial restraint.  Roberts’ two dissents from the denials of en banc review have attracted more attention than any of his written opinions.  Roberts dissented from denial of en banc review in the Rancho Viejo case -- a case upholding the Department of the Interior’s suppression of real estate development to protect an endangered species -- the southwestern arroyo toad.  Roberts’ dissent invoked recent changes in the Supreme Court’s Commerce Clause jurisprudence recognizing that the federal government’s legislative authority is not unlimited.   He questioned whether, as a result of that jurisprudence, the federal government had any interest in regulating the movement of a non-migratory, purely local species of frog.  

Roberts also dissented from the denial of en banc review in the Administration’s Energy Task Force case, which provoked claims that Roberts unduly supported Administration secrecy.  His position in that case was eventually affirmed by the Supreme Court on a 7-2 vote and subsequently by the en banc D.C. Circuit on remand by an 8-0 vote. 

4.      LIKELY GROUNDS OF ATTACK

            Roberts’ D.C. Circuit confirmation hearings will likely provide the roadmap for opponents’ attack strategies.  The criticisms brought by liberal groups and echoed in the Senate hearings, along with the best responses to those criticisms, updated to include references to Roberts’ recent D.C. Circuit Court opinions where relevant, are summarized below.

            During his relatively short tenure on the D.C. Circuit, Roberts’ judicial opinions, not surprisingly, concern principally technical administrative law issues and have not yet touched on many hot-button social or political issues.  Consequently, his decisions to date are not particularly revealing.  They nonetheless appear consistent with his reputation as a principled conservative jurist who favors judicial restraint and respects the separation of powers embodied in the Constitution, as someone who is impartial in his application of the law, and as one who exercises appropriate judicial temperament, rarely, if ever, resorting to strident or inflammatory rhetoric or argument.  It is a strong record that speaks of stellar legal qualifications and respect for the limited role of the courts.  It leaves a relatively small target for opponents, but also leaves some room for doubt as to Roberts position on many issues. 

Summary of Attacks Raised During Previous Confirmation Process and Best Responses (including references to relevant D.C. Circuit opinions):

Attack: Roberts is pro-life. 

Opponents will undoubtedly argue that Roberts is hostile to abortion rights based on a pair of briefs on which Roberts appeared while Deputy SG (a) Rust v. Sullivan and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).   Roberts’ opponents have argued that Roberts unnecessarily called for the Supreme Court to overturn Roe v. Wade in Rust, a case challenging federal regulations which prohibited certain receipients of federal funds from counseling patients on abortion.  Critics argue that the case could have been argued solely on the basis of statutory construction of the provisions at issue.   Critics also point to Roberts’ co-authoring the government’s amicus brief in Bray, a private suit brought against Operation Rescue, which argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection rights.  The unspoken undercurrent of these charges, and the likely basis for a whispering campaign against Roberts, is that he is a practicing Catholic and therefore predisposed to advancing the social policies of the Catholic Church through judicial opinions.

Response:  

•        In both cases, Roberts, as one of several attorneys on the brief for the government, was simply arguing the position of the United States, his client.

•        The Rust argument, which has been a focal point of criticism of Roberts by PFAW and other abortion interest groups, is easily rebutted.  The SG’s office was simply restating the position that the Reagan and Bush Administrations had already taken in several other cases.  Indeed, while the focus of the government’s Rust argument was statutory, the reference to Roe in the Rust brief was minimal:   “Petitioners argue that the Secretary’s regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . We continue to believe that Roe was wrongly decided and should be overruled.  As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.”   Judge Roberts has not decided any cases involving abortion, and it would be irresponsible to speculate on how he might rule in such a case. 

•        At bottom, critics who attack Roberts’ unstated views on abortion are simply attempting to impose a religious litmus test on nominees, i.e., practicing religious (especially Christians) need not apply.  This is the same scurrilous attack on several of the President’s lower court nominees, such as Bill Pryor, and has no place in modern politics.

Attack from People for the American Way: Dissent from the denial of rehearing en banc in Rancho Viejo v. Norton.

            The People for the American Way have sought to brand Roberts as both a right-wing extremist and anti-environmentalist as a result of his dissent from the denial of rehearing en banc in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003).  In Rancho Viejo, a real estate development company challenged the Department of Interior’s application of the Endangered Species Act to stop a project that “was likely to jeopardize the continued existence of the arroyo southwestern toad.”  The case principally involved an attack on Congress’ power to regulate what appeared to be completely intra-state activity.   The left’s attack focuses on how Roberts’ view of Commerce Clause jurisprudence would have prevented the arroyo southwestern toad’s protection from these particular developers.  (Judge David B. Sentelle also authored a separate dissent to the denial of en banc review).

Response:  Mission Viejo involved a Fish and Wildlife Service order to a developer to move a fence from its own property in order to accommodate the movement of southwest arroyo toads, a non-migratory species.  Roberts’ dissent, like Judge David Sentelle’s separate dissent, questioned whether, in light of recent Supreme Court decisions scaling back what was once viewed as Congress’ unlimited power over interstate commerce, the federal government really had any authority to regulate such non-commercial activities as the movement of a toad.   His position recognized the common sense view that the government should not regulate every aspect of every transaction in commerce that does not have an interstate component, arguing that it made little sense to conclude that “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States.”  While the position did not prevail, it was reasonable and well within the mainstream of conservative legal thought, given recent trends in Supreme Court decisions (Lopez and Morrison).  

 Roberts’ dissent, , suggests that the circuit should attempt to resolve what appeared to be a intra-circuit split given the opinions in Rancho Viejo and National Assoc. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and an intra-circuit split with a Fifth Circuit case (See GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622, 634-35 (5th Cir.2003)) that followed the Supreme Court’s decision in United States v. Morrison and United States v. Lopez, two major Commerce Clause decisions that substantially curtailed the federal government’s authority.   The decision should not be portrayed as anti-environment, but one that sought to reconcile seemingly conflicting circuit law in light of subsequent direction from the Supreme Court.

Attack: Roberts is anti-environment. 

            Opponents will again state that Roberts’ successful argument on behalf of the government in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), indicates a callous disregard for the environment.  They will cite as support his recent decision, writing for a unanimous panel, which included Judges Henderson and, si