Strengthening Constitutional Self-Government

No Left Turns

The Classy DNC

Mike Krempasky of RedState collects the good on an unsigned, "not-for-attribution" memo circulating DC attacking Judge Alito for failing to secure the prosecution of a few Italian mobsters back in the 1980s. Just what are they trying to imply here, hmmm?

Trouble is, Microsoft Word documents can be unlocked to see their coding, etc, and it turns out this document was produced at the Democratic National Committee. Moreover, the document originated back in July. Who knows how many anonymous, "not-for-attribution" slime sheets the DNC has on file for all the other potential Court nominees.

What a classy bunch.

CIA stuff

David Ignatius, apropos Libby, says that the battle between the White House and the CIA was the wrong battle. The Belmont Club has a few thoughts on all that--and Iran--and you make of it what you will. There is always hope that the CIA will get better.

Riots in Paris

Here is the brief BBC on the fourth day of rioting in a Paris suburb; and this is the Reuters story on the same. Note that tear gas has been fired into a mosque, further aggravating the situation. How Sarkozy handles this matter may have everything to do with his political future.

Alito is a good political move

I think that these few paragraphs from Stanley Kurtz (at The Corner) on why the Alito nomination is a winning political move for Bush and the GOP just about nails it in a few paragraphs. Harry Reid warned Bush not to pick Alito, by the way. Hugh Hewitt mentions that Jonathan Turley told Katie Curic that the Demos "will come out of the dugout on this one," and predicted a filibuster. Kurtz thinks that should that happen it will be to the GOP’s long range advantage (i.e., 2006 elections). People for the American Way are hopping mad about this. The president of that outfit, Ralph G. Neas, said this: "Right-wing leaders vetoed Miers because she failed their ideological litmus test. With Judge Alito, President Bush has obediently picked a nominee who passes that test with flying colors." By the way, someone just said to me that if Alito is confirmed he will make the fifth Catholic on the Court. Is this true?

The president has snapped out of it

David Forte reconsiders what Bush was up to with the Miers nomination, and argues that the Alito nomination is very good and W. "has recentered himself on values consonant with his basic instincts and our constitutional order."   

Prince Charles, Village Idiot

Prince Charles hasn’t visited the United States for 20 years. We should be thankful for such small favors, and hope it is another 20 years before he visits again. According to The Daily Telegraph, Prince Charles thinks the U.S. has been too intolerant of Islam since 9/11, and plans to make this case to President Bush in his upcoming visit.

SCOTUS rumors

We’ll know today, this article says. The top three are said to be Alito, Luttig, and (Peter, sit down) Batchelder. Harry Reid says:

"If he wants to divert attention from all of his many problems, he can send us somebody that is going to create a lot of problems. I think this time he would be ill-advised to do that. But the right wing, the radical right wing, is pushing a lot of his buttons, and he may just go along with them."

Having been attuned to Reid’s political instincts last time, I don’t think the President will make the same mistake again.

This article adds McConnell, Karen Williams, and Maura Corrigan to the mix, and contains another Reid quote:

"The president should come forward with some middle-of-the-road person, somebody that is going to be a good Supreme Court justice, not somebody that’s going to be writing the law from the bench."

The good news here is that we all apparently agree now that legislating from the bench is a bad thing to do. The President may be under fire, but he is still setting the agenda. And the Democrats can’t offer an alternative that doesn’t echo his rhetoric.

This NYT article adds Priscilla Owen to the WaPo list and doesn’t mention McConnell. The big issue here is the filibuster. Reid makes yet another appearance, objecting most strenuously to Alito and Owen, and mentioning a filibuster.

I say to Reid: make my day. Public opinion will support the President on his judicial nomination, and he can take a page from Bill Clinton’s government shutdown book (sans unconventional uses of the oval office) in the face of Democratic obstructionism. I’m feeling better already.

Update: As noted in the first comment, it’s Alito. More later, once I’ve had time to think about it.

Is the White House in retreat?

The MSM in every form--print, radio, TV--has been pushing the line that the White House is in dissaray and chaos. The Libby indictment is simply the straw that broke the camel’s back: That camel has been burdened with Iraq, the failed response to Katrina, the foolish Miers nomination, etc. The president is now alone, he no longer trusts his staff. It goes on and on. David Broder--a man who always seems to perfectly and thoughtlessly reflect the latest liberal-establishment view of things--asked whether the White House "has the capacity to recover" from the full retreat it finds itself in. Quite remarkable that a man can make a living saying such things. What we have here in the case of Libby, I suggest, is a cover up of a non crime, and W. must be very happy that this is all there is to it. Rove stays. But I think that the Harriet Myers debacle will be blamed on the Chief of Staff Andy Card, and he will leave by January. In the meantime the President has a do-over in the Supreme Court seat. He should decide who he nominates only on the basis of excellence, and he will win the battle and public opinion will begin to turn back toward him, as the Democrats continue to rave inanely about the far right. This will be the beginning of the comeback, helped by the economy growing at 3.8%, and the upcoming Iraqi elections. Three or four months from now, the White House will be writing another story, one that even the MSM will not be able to ignore, and the current low approval rating of 39% will be ancient history.

French Foreign minister in Israel

This story about the visit of French Foreign Minister Philippe Douste-Blazy to Jerusalem’s Yad Vashem Holocaust memorial and museum is worth reading. It is not the Douste-Blazy’s advantage. (via Oxblog).

Libby and the reporters

To follow-up on Joe’s point, just below, note this well-posed question from the Wall Street Journal, What was the exact role of Robert Novak, the journalist whose column unmasked CIA operative Valerie Plame? There are many things I don’t understand about all this, and this is one of them.

Reporters in the prosecution of Libby

I’m not going to get involved in speculating about Libby’s guilt or innocence, but these two articles point to the central role of reporters in the case against him. This has two consequences, both problematical for the profession of journalism.

First, any decent defense attorney is going to work pretty hard to impeach the reporters as witnesses, which means putting their careers under a microscope. It’s hard to imagine anyone emerging from such scrutiny unscathed. And it’s hard to imagine these three (Tim Russert, Matthew Cooper, and Judith Miller) not serving as stand-ins for their respective news media (television, news magazines, and newspapers), at least in the public mind (to the extent, of course, that anyone pays attention to this).

Second, once these three testify against Libby, any source is going to think twice about promises of confidentiality and about speaking to journalists in anything other than the most bland and innocuous manner. News-gathering will get more difficult, and the people who are willing to say "interesting" things may be different from those who actually have "interesting" things to say.

Update: There’s more along roughly the same lines here.

McClay on the use and abuse of history

Here’s the text of a wonderful lecture given at the Heritage Foundation (scroll down if you want to find a downloadable MP3 file). From smart critiques of a history that serves only to disconnect us from our past to celebrations of Lincoln’s own superior understanding of the role of history, this is a tour de force, Here’s something pretty close to a conclusion:

Perhaps it is not too fanciful to propose that the Constitution itself is our epic, or what passes for one, in function if not in form. It too functions as a text standing at the very core of our national identity. It too serves as a cultural mirror, in which a people is able to see what it is, and is reminded of what it was, and should be. It too is a vessel of American myth and memory. It is an amalgam of both creed and culture, particularly if read, as Lincoln insisted it should be, in conjunction with the Declaration of Independence. Although it does not narrate a shared story, it certainly presumes one, the long and complex Anglo-American experience that produced our understanding of constitutionalism, federalism, individual rights, religious liberty, and separation of powers.

The fact that it does not does not seek to personify the American experiment, does not make Washington the new Aeneas, or indeed name any names at all, may be precisely why it is peculiarly suited to be the object of republican veneration. People will always disagree, and properly so, about the veneration of any particular leader, perhaps even George Washington himself. But the Constitution itself ought to be another matter.

This is an important essay that deserves wide readership.

The Libby indictment and resignation

This is the site for the U.S. District Court, and this is the five count Indictment (PDF file, 22 pages). ABC News is reporting that Libby has resigned.

Teaching and higher ed

Bill McClay has smart things to say. A taste:

It will be a good thing if parents and students become more demanding, and it will be a very good thing if more sources of information are made available to them about what constitutes good teaching and where it is taking place--and not taking place. There is a huge and completely unanswered need for college guides that are as frank, intelligent and unsparingly honest about the quality of undergraduate instruction as consumer guides are about, say, cars and stereo equipment. Unless, that is, we think of higher education as nothing more than a credential and a badge, a source of social prestige that we buy for ourselves and our kids. In that case, we will continue to get what we pay for.

Read the whole thing.

We want a warrior!

The concluding line from Peter Lawler’s characteristically smart and sympathetic post-mortem reconstruction of Harriet Miers’s judicial philosophy 

Special counsel

It is said that the special counsel will release the paperwork at noon. Perhaps it will be in his website also. I’m tired of looking at headlines like this (WaPo), Rove said to be spared, for now, so I’m going to lunch.

Back to the 1980s?

In the news today, Sylvester Stallone announced that he’ll make another "Rambo" movie. This, on top of the previously announced news that he’ll make another "Rocky" movie.

This might be taken as news that Hollywood has no new ideas. But look for Jay Leno to revive one of his old jokes, namely, that Stallone could do a "Rocky vs. Rambo" movie (and why not? Hollywood gave us "Alien vs. Predator"), in which Stallone would simply punch himself to death.

It also reminds me of the nickname we had for Peter Schramm out in Claremont in those days: "Schrambo."

Now back to work.

The Miers aftermath

If you’re looking for coverage of the relationship between the White House and the conservative movement, there are these WaPo articles and this Washington Times piece. E.J. Dionne, Jr. gloats about how difficult it will be for Republicans to return to their strategy for dignified judicial nomination processes. And the Post editorializes in the following vein:

The Miers debate gave the lie to a common Republican assertion that the judicial nomination wars are a struggle between liberals demanding particular results from the courts and conservatives bent on fidelity to a coherent judicial methodology. Rather, there are people in both parties for whom results on social issues trump everything; similarly, there are people on both sides for whom seriousness about the law as a discipline independent of politics remains the lodestone of a good judge.

This is surely true, though the proportions on both sides are, so far as I can tell, quite different. The bulk of the conservative concern about Miers stemmed from the fact that she didn’t seem to have a coherent theoretical basis for judicial restraint. And while half the Democrats in the Senate did bow to the inevitable and support the appointment of John Roberts, the liberal interest groups--and every Democratic Senator with presidential ambitions (I’m assuming Joe Lieberman no longer has any)--offered results-driven opposition.

Update: Hugh Hewitt echoes some of Dionne’s points, with more nuance and without the gloating.

Michael McConnell again

Jon Schaff takes note of the favorable mentions of Michael McConnell, a potential nominee I’ve mentioned on numerous occasions (here, here, here, here, here, here, here, here, here, and, finally, here). There will be some conservative opposition to McConnell, such as that offered here, but anyone who objects to a nominee because he’s insufficiently partisan has disqualified himself as a serious commentator on judicial matters. Hat tip: Southern Appeal.

The tipping point

Hotline claims to know how this Miers decision worked:

"The tipping point came within the past several days. GOP Senators privately communicated to WH CoS Andy Card that unless they had access to hard evidence that Miers was conversant in constitutional issues, there was no way she would be confirmed. Her performance in private meetings was weak, at best, these senators told Card. Throughout the day yesterday, says a senior Senate aide, there were "conversations throughout the day at the staff level." Late yesterday, Senate Maj. Leader Bill Frist (R-TN) called Card and told him in no uncertain terms that Miers would probably not be confirmed. An aide: "He provided frank assessment of situation in the Senate. [The] lay of land on committee." After that call, according to White House sources, Bush and Card met privately with Miers, and they decided jointly that preserving WH privilege on documents was too important a principle to risk. Miers officially informed Bush at 8:30 pm ET. As late as 8 p.m., one White House aide said the WH counsel’s office was rushing to finish a revision to the Senate Judiciary Committee questionnaire. (It arrived after 11:00 pm ET). Word began to spread through conservative Washington last night. The White House office of political affairs notified allies at about 8:30 a.m ET this morning but swore them to secrecy until the White House released the President’s statement.

Also note this valuable chronology from the Wall Street Journal.


Esoteric laughter. Hat tip: John von Heyking.

More on the Miers withdrawal

Harriet Miers should be commended for withdrawing her name from consideration. And the President should be praised for understanding that he has done the right thing in "reluctantly" accepting her nomination. In the long run, this misstep by the White House will not be remembered (does anyone remember that Reagan nominated Ginsburg to the high court, and then withdrew his name?). Here is the official White House statement on Miers by President Bush. This is Miers’s letter (PDF file) to the President. The reason offered for her withdrawal was scripted a few days ago by Charles Krauthammer (i.e., executive privilege on her paperwork), but the real reason, of course, is that she was losing everyone’s support, as I explained here, four days ago. Some conservatives are worried that Bush will now nominate Gonzales. This will not happen because he would have the same problems with the executive privilege issue over confidential papers with Gonzales that he said he did with Miers. Bush is likely to go with a known conservative, at least in part because he fears losing his base. I am hoping that he will look carefully at Alice Batchelder, again.

Joe Knippenberg wrote this on Harriet Miers last night, just hours before she withdrew. Joe was not pleased with a speech she gave twelve years ago. He called it "muddled and imprecise," unworthy of a good lawyer. I am betting that Joe is not displeased that she backed off.

Moving right along

Having spent a few hours last night writing this now irrelevant piece, I’m ready to move on. Let’s honor an honorable woman who was miscast as a Supreme Court Justice, encourage the President to revisit his distinguished short list of nominees...quickly, await his next announcement, and, in the mean time, think about something else.

My recommendations include Jonah Goldberg’s thumbnail history of American conservatism, Antonin Scalia’s piece in First Things, Frederick W. Kagan’s essay on Iraq strategy, and this excellent treatment of the constitutional issues surrounding gay marriage.

Miers Withdraws

Read the story here.

Clarity from Iran

In case we needeed it, here is some clarity from Iran. Iran’s president on Wednesday declared that Israel should be "wiped off the map" and warned Arab countries against developing economic ties with Israel in response to its withdrawal from Gaza. France, Spain and others are lodging diplomatic protests.

There’s one in every crowd

Thanks to Hunter Baker, I was able to attend this event last night, along with a couple of Oglethorpe students.

Here are a few thoughts, in no particular order. First, the Georgia Family Council is a polished professional organization that does good work, not only in the state legislative arena, but in the trenches dealing with genuine social problems (divorce and absent fathers). Second, Jim Daly, the President and CEO of Focus on the Family, is an interesting choice as successor to Dr. James Dobson. Much of his experience with FOF is in the international arena, where, he observed, it’s often easier to work on issues of family and fatherhood with pragmatic Chinese and South African leaders than it is with Western Europeans and Canadians. In addition, Daly himself is the product of a highly dysfunctional family; he feels and understands in his bones the problem his organization is addressing.

Third, silent auctions raise more money when you serve something stronger than iced tea to the bidders. (I know this from experience.) Fourth, my Oglethorpe guests acquitted themselves very well in conversations with grown-ups.

Finally, there was at least one NLT reader in the room, indeed at my table (and it wasn’t Hunter or his lovely wife). The internet is a wonderful thing.

A Bridge of Steele

Michael Steele (R), has announced that he will run for the U.S. Senate seat being vacated by Sarbanes.

Ramirez Cartoon

Miers, losing

Republican Senators who have met with Harriet Miers continue to be unimpressed. She is also losing the public’s support, according to Gallup.
Tony Blankley also recommends that her nomination be withdrawn.

Miers on the courts and social issues

I’m still chewing this speech and this speech over. My first response is not to be impressed by the clarity of the thought and to be a little disturbed by some of the opinions expressed. I’ll have more later. In the meantime, you can read this WaPo story.

Thucydides and Us, Take 2

I’ve elaborated on this post in this column. I’ll leave you, dear readers, to judge whether the elaboration is an improvement.

While you’re at it, you might take a look at this piece by Victor Davis Hanson from last week’s LAT.

Guelzo on Gettysburg

It’s always appropriate to reflect on the greatness of Lincoln, and so the Richmond Times-Dispatch (as in Richmond, Virginia) ran a Sunday column by our friend Allen Guelzo, who tidily and masterfully explains why Lincoln deserves the title "Great Emancipator." I know, it’s a bit early to commemorate Lincoln’s Gettysburg Address (Nov. 19, 1863), but Guelzo’s column is truly a cerebral pause that refreshes. Give it a perusal.   

More Galston/Kamarck

James Pinkerton highlights the role of religion in Galston and Kamarck’s "The Politics of Polarization." Noting a recent visit by evangelist Joel Osteen to the New York metro area, he observes that, while Osteen is "entirely apolitical," it is hard to overlook the potential political consequences of the faith-based worldview he is promoting. Since Osteen’s New York metro audience is two-thirds African-American and Hispanic, this is bad news for Democrats, if they cannot overcome the well-documented public perception that they are hostile to religion.

Iraq’s Constitution

The formal annoluncement has been made that the Iraqi Constitution has been approved by the voters. Elections will be held in December.

Rosa Parks

Rosa Parks passed away. She was 92. One little lady, one little act--refused to give up her seat on the bus because of her color--had massive consequences. RIP. Also see, Booker Rising and La Shawn Barber and this and this.


Lech Kaczynski, the president-elect of Poland, is making clear that his administration is pro-American, and he is taking a tough line toward Germany and Russia. The Germans are worried. Interesting, nicht wahr?


One afternoon a wealthy lawyer was riding in his limousine when he saw
two men along the roadside eating grass. Disturbed, he ordered his
driver to stop and he got out to investigate.
He asked one man, "Why are you eating grass?"
We don’t have any money for food," the poor man replied. "We have to eat
"Well, then, you can come with me to my house and I’ll feed you," the
lawyer said. "But, sir! I have a wife and two children with me. They are over there,
under that tree"
"Bring them along," the lawyer replied. Turning to the other poor man he
stated, "You come with us also."
The second man, in a pitiful voice then said, "But sir, I also have a
and SIX children with me!"
"Bring them all, as well," the lawyer answered.
They all entered the car, which was no easy task, even for a car as
the limousine was. Once underway, one of the poor fellows turned to the
lawyer and said, "Sir, you are too kind. Thank you for taking all of us
with you."
The lawyer replied, "Glad to do it. You’ll really love my place -- the grass is almost a foot high."

Fund on Miers

This is John Fund’s take on how the Harriet Miers nomination came to be, and how it was botched. Not a pretty story, if true. Near the end of his piece he says: "I believe it is almost inevitable that Ms. Miers will withdraw or be defeated."

Stitching Shakespeare

John Simon elegantly notes that because we know so little about the life of Shakespeare, his life requires some stitching. He thinks that the authors of the two books he is reviewing are handy with the needle and therefore calls them "sartorial successes."

Harriet Miers will withdraw

I now have an opinion on what will happen with Harriet Miers: She will withdraw her nomination before the start of the Judiciary Committee hearings. This opinion is not based on the latest George Will column that explains why she cannot be defended, nor is it based on my discovery of the tacky Harriet Miers’s Blog. My opinion is based on overhearing private conversations (i.e., reading between the lines in press reports), getting a sense of her declining fortunes from Senators and staffers who have been inclined to support her, and my visit to the local watering hole last night.

Even overlooking the congenital anti-Bush bias in the MSM, press reports make clear that the more would-be-defenders of Miers get to know her (visits to their offices, reading responses to written questions, etc.), the less they like her. This is supported by private, off-the-record opinions I get a whiff of now and then indicating that almost everyone who has had dealings with her during the last few weeks has come to regret that she has been nominated. And, if she doesn’t withdraw, this negative opinion will come to a peak during the Judiciary Committee hearings, to everyone’s huge embarrassment. Since neither political interest nor honor will not allow this to happen, she will not make it to the scheduled hearings.

My second reason for thinking that she will withdraw is the sampling of the opinion of local citizens, culminating in last night’s visit to the tavern. I haven’t been to O’Brian’s since July (the department had dinner with James Muller; I had a steak and drank water, by the way) and last night had the opportunity to sample the opinion of a number of people who came by to say they were glad to see me alive and so on. These are good, conservative, Republican folks, always giving Bush the benefit of the doubt; trusting Bush. Not this time. They have become convinced that this nomination is a huge mistake and their thoughtful conversation convinced me that they are right: the best thing Bush can do is to ask her to withdraw because she has no support. I was a bit surprised how deliberate and thoughtful their logic was; neither bitter nor vengeful, just the common sense of the subject. One man, a Marine, said this was like a bad love affair: the more you got to know Miers, the less you liked her. Very clarifying, I thought. It’s over. Never mind the justice of the thing. It’s over. Now the only thing left is for either Bush or Meirs to find a graceful way out. Perhaps

this will help.

The good guy in the White Hat

If you are under the impression that one man cannot make a huge difference for good in our public life, you haven’t heard of David Brennan. The Columbus Dispatch runs a front-page story, "The self-appointed superintendent," on Brennan, the choice movement, and his charter schools. He is almost single-handedly responsible for the choice movement in Ohio. His schools are enticing mostly black innercity children away from public schools, and there are waiting lists to his schools. I’ve been to some of his schools and have been deeply impressed. Good article.   

2006 = 1994?

That’s the burden of this article, though it does contain a few hedges like this one:

"It’s not as easy as it looks," said former representative Robert S. Walker (Pa.). Walker sees plenty of parallels between his crowd of 1994 GOP House revolutionaries and the young Democrats, but he notes that the Republicans started laying the groundwork for their takeover in the early 1980s, at least a decade before their electoral coup. "I can understand why people say an opportunity is presenting itself," Walker said. "But it does take more than a couple of election cycles to change things."

Thucydides and us

It’s hard to avoid thinking about our current conflicts when teaching Thucydides, as I do every fall. I wrote explicitly about it once and implicitly another time (no link, but if you want a copy of the essay, shoot me an email). Victor Davis Hanson can, of course, write much more authoritatively on this subject than I can, and Paul Johnson is the kind of reviewer he deserves.

Here’s one provocative thought (mine, not Johnson’s or Hanson’s), which I advance very tentatively and with great trepidation (I’m not sure how much I believe it myself): Perikles urges the Athenians to accept the challenge of the Spartans and their allies, and recommends that they cautiously wage a long war of attrition. Such a strategy requires that Athens rein in the dynamism that seems to be its leading civic feature. And it requires the authoritative leadership of someone like Perikles.

But Thucydides notes that Perikles (predictably) didn’t live long enough to see his policy bear fruit, and that (predictably) his successors lacked his stature, self-restraint, and capacity for identifying his good with the city’s good. Hence there were blunders, among them (allegedly and most famously) the Sicilian Expedition. Of course, Thucydides notes that the problem with the expedition was not its object, but rather the way in which Athenian domestic politics affected and afflicted its execution.

From these considerations, two thoughts follow. First, Perikles’ caution was actually imprudent and incautious, since the policy he recommended was one that only he could execute, which in turn required that he live a preternaturally long life. Second, if the war was necessary (a big "if," of course, albeit apparently not to Thucydides or Perikles), a bold stroke early (like the Sicilian Expedition) could so have altered the military balance that Athens could have prevailed against its Peloponnesian adversaries. Unlike his successors, Perikles had the stature to manage matters at home so as to avoid the distractions that ultimately doomed the expedition.

And now for the contemporary application. The GWOT has been advertised since its inception as a long-term struggle. Almost everyone who still supports George W. Bush admires his resolve in waging that war. The question that has to be on everyone’s mind is whether GWB’s successors will be as serious about it. I can think of a few who might be, but of many who surely wouldn’t be. Under the circumstances, isn’t the Iraq war the rough (very rough) equivalent of the Sicilian Expedition, albeit for different reasons than the ones usually cited (e.g., evidence of imperial overweening, a distraction from the main conflict, and so on)? One could present it as the kind of bold and risky stroke that, if successful (a big "if," to be sure), so changes the constellation of forces that the long-term disciplined struggle (hard for any democracy under any circumstances) becomes somewhat easier to manage (I hesitate to say "less necessary").

In other words, if one of the lessons of Thucydides is that a dynamic global democracy cannot consistently or easily pursue a disciplined policy, then a leader who has the opportunity to change the constellation of forces so as to render consistency and self-discipline somewhat less crucial ought to do so. A democracy that has global responsibilities, concerns, and interests must be bold. Or else it should draw in its horns altogether, and put itself at the mercy of forces it has willed to be beyond its control, whether they are or not. No one should expect that those forces be anything other than merciless, regardless of the benignity of our aspect.

Any thoughts?


The Battle of Trafalgar, the death of Admiral Horatio Nelson (killed by a French sniper on the day of victory), 200 years ago. The end of Napoleon, the start of 100 years of British dominated peace. Still exciting stuff.

Bush as conservative

Unlike some, Jonah Goldberg is not quite ready to read George W. Bush out of the conservative movement. One wishes--O.K., I wish--Goldberg had more to say about how GWB’s evangelicalism interacts with his conservatism. Bush is clearly not a libertarian (not even a quasi- or proto-libertarian), nor is he a Catholic, Anglo-Catholic, or Anglican Tory traditionalist. So he doesn’t fit the categories with which libertarians or Kirkians--or fusionists, for that matter--are most comfortable. And he’s not simply a neo-conservative (to the extent that that category is reserved either for ex-liberals, Jews, and/or largely secular intellectuals who respect religion).

Many--not all, as Jim Wallis keeps telling us--evangelicals are socially and morally "traditionalist," but their emphasis on the individual believer’s encounter with Scripture cuts against the grain of traditional authority structures, whether religious or "secular." And while there is an emphasis on personal responsibility, it often (albeit not always) looks toward a community in ways that libertarianism does not.

Does anyone have a convenient label for this?

Update: Jonah says he’ll think about it and post over the weekend. Stay tuned, both here and at NRO’s The Corner.

Katrina "vouchers" revisited

Ted Kennedy supports them, but, er, technically they’re not vouchers. He’s right (yes, you read that correctly); he and his Senate colleagues a proposing a voucher-like form of per capita aid to public and private schools that have taken in Katrina victims. However "temporary" and "pragmatic" this proposal is, Kennedy is conceding the high ground to proponents of school choice. I’m happy; Barry Lynn of Americans United is apoplectic. I wonder if his organization will take the politically unpalatable step of filing a lawsuit against a program to aid Katrina victims.

My health

I was up at the Cleveland Clinic last Thursday and Friday for some blood tests and a CAT Scan. The results are in: The doctor said that for now "no treatment is needed." He’ll do another scan in six months. So, I am OK! And fifty pounds lighter, remembering to take my pills, can’t eat anything that tastes good, no cigarettes, no alcohol, but I’m OK, no surgery is needed and I am almost at full strength. Walked by my bike this morning and thought about dusting it off… not yet, but now I know I can. Thanks to everyone for your good wishes.

Can the Dems move toward the Center?

Joe Knippenberg composes articles faster than I can talk. This one, Tiptoeing Toward the Center, is an analysis of a long piece by William Galston and Elaine Kamarck. They try to argue that the Dems should move toward the center. Joe takes their arguments seriously--he thinks they are two of the smartest Democrats around, and he’s right--yet, he does not think they succeed.  

The faith-based initiative and the First Amendment

The WaPo’s Alan Cooperman fairly summarizes the status of various lawsuits, one a victory for the co-religionist exemption in hiring, another a preliminary defeat for aid to a religious school in Alaska, and another--just about to go to trial--about a faith-based prison program.

John Tierney on academic politics

Power Line’s John Hinderaker call our attention to this column by the NYT’s John Tierney (taken in this case from the Minneapolis paper, since Tierney is behind the Times Select barrier over at the NYT site). Tierney doesn’t break any new ground, but he goes over the existing discussion of the professoriate’s leftward tilt very well.

Photo IDs and poll taxes

My piece on this subject, occasioned by a preliminary injunction handed down in this case, is posted at The American Enterprise Online, which is offering two or three new columns every day.

This is a clear case of political judging, with a Jimmy Carter-appointed federal judge siding with Democrats and a Democratic Secretary of State with gubernatorial ambitions against a Republican governor (up for reelection next year) and a Republican legislature. Carter himself has intervened in the dispute, despite the fact that his very own electoral reform commission has recommended photo ID’s. So we have Carter siding with his judge against his commission. When will the man pipe down?

Update: I learned from the AJC’s Jim Wooten that Harold Murphy, the judge in this case, is the cousin of long-time Democratic House Speaker Tom Murphy. As Wooten, the AJC’s lone conservative, puts it: "Often it’s true: You pick the judge, you pick the outcome. Appeal."

Masugi et al vs. Bork

Ken Masugi and Harry Jaffa respond to Robert Bork’s WSJ op-ed, as do Richard Reeb and Hugh Hewitt.

New laptop

Sony laptop made of carbon fiber; very light, very thin. (via Drudge)

Can Bush’s support go lower?

Mystery Pollster considers Bush’s very low poll numbers, compares him to other Presidents with low numbers (Bush is still the highest of the lows) and advises us to watch whether his support among Republicans (which has been around 80%; his big drops have been from Dems and Independents leaning to Dems) will hold steady. Good charts and links.


Cisco Systems will triple the number of workers it employs in India in its biggest investment outside the US. It plans to inject $1.1bn of investment into India over the next three years. Cisco Systems is the world’s biggest maker of internet equipment. India’s economy continues to grow at a good pace and by 2025 the Indian economy is projected to be 60% of the U.S. economy, and by 2035 the Indian economy will be only a little smaller than the US economy but larger than that of Western Europe.

Optimism in Iraq

Property prices have skyrocketed across Iraq. This is a good sign, it means that Iraqis are optimistic about their future, as they should be. Maybe soon, the MSM could start reporting on the reasons behind the optimism....

Trends in Secondary Education

A couple of nights ago a former student majoring in social studies education asked me for some guidance. She’s in the midst of her student teaching and wanted to know if I had any thoughts on how she could teach the subject of World War I. Before I could answer, though, she informed me that her students were "burned out on book work," which I took to mean that any suggestion that involved their actually reading something would be ill-received. When I tried to get more of a sense of what she was looking for, she helpfully informed me that last week she had taught the students how to fox-trot.

I apologized, and told her that I didn’t think I could be of help. I’m afraid I’m hopeless as a ballroom dancer.

Hayward at NRO

Here. And you can order the book here.

Saddam’s Trial

Saddam Hussein pleads not guilty to the charges brought against him. The Belmont Club finds that there are interesting echoes of the debates over Nurenberg Trials.

Slandering Shakespeare

In my youth I actually paid some attention to the famous (and still living disputes): Who really wrote Shakespeare? Note that in this AP report of the latest attempt to prove that someone else wrote Shakespeare; not Marlowe, Bacon, or de Vere, but Henry Neville. A common line in this argument is revealed in this sentence: "James and Rubinstein, a professor of history at the University of Wales, Aberystwyth, argue that Shakespeare of Stratford, who came from a modest background and did not attend university, could not have had enough knowledge of the politics, foreign languages and European cities described in the plays to have written them." Now let’s could Abraham Lincoln have written the Gettysburg Address and the Second Inaugural having attended less school for less than one year? By this standard Woodrow Wilson should be our greatest president. Read Shakespeare and learn about this great stage of fools.

Saddam and French pride

Some French links to Saddam are becoming clearer, to no one’s surprise. The AFP reports: "A judicial investigation into two high-ranking former French diplomats -- both suspected of benefitting from the largesse of Saddam Hussein’s Iraq -- has cast a spotlight on the often ambiguous relations between Paris and the former dictator.

The affair also casts a shadow over France’s Iraqi policy and raises suspicions about the complicity of top political figures, according to French analysts and newspapers." But, Prime minister Dominique de Villepin says that France’s honor
will not be sullied by these revelations.

No more doughnuts

How uncivil of Steve to say something like this! On the other hand, truth be told, I would love to have a doughnut about now! Quitting smoking is nothing compared to not eating what I like! You put a steak in front of me and a loaf of good bread (with some butter), and I’ll pick the bread every time. Then, I would have doughnuts for dessert. But, alas, no more. I now eat merely to live, not to live well. Gloom and misery reigns, poor me, fifty pounds lighter, but a heavier soul, for sure.

Iraq optimism, take 2

Michael Rubin, who is in Washington, D.C., and shouldn’t have been hard for a WaPo reporter to find, offers his own much sunnier (that’s not Sunni-er) take on the referendum. A sample:

When people fear for their future, they invest in gold; jewelry and coins can be sewn into clothes and smuggled out of the country. When people feel confident about the future, they buy real estate. Property prices have skyrocketed across Iraq. Decrepit houses in Sadr City, a Shiite slum on the outskirts of Baghdad, can easily cost $45,000. Houses in upper-middle-class districts of Mansour and Karrada can cost more than 20 times that. Restaurant owners spend $50,000 on top-of-the-line generators to keep open despite the frequent blackouts. In September 2005, there were 40 buildings nine stories or higher under construction in the Kurdish city of Sulaymani. Five years ago, there were none. Iraqis would not spend hundreds of thousands of dollars on real estate if they weren’t confident that the law would protect their investment.

Read the whole thing.


Miers Senate Judiciary Committee Questionnaire

Is here (57 page pdf). Thanks to Bench Memos.

Another Consequence of Peter’s Illness

Krispy Kreme Donuts has filed Chapter 11 bankruptcy.

Grading in school

This piece, by Jay Mathews, the WaPo’s education columnist, examines the history and current status of the letter grade. The most chilling quote comes at the end:

"Ask any number of parents and students what they are hoping to get out of a given class and they will tell you, ’A good grade,’ " [high school teacher Jason] Busby said. "Ask them, as I do every year of my students, if they would accept an A at the cost of learning nothing about the subject in class. . . . The answer is 99 percent yes."

A grand liberal-moderate coalition?

We’ve alluded to this report a couple of times. I finally got the chance to read it; you’ll find my analysis here. Bottom line: I think Bill Galston is extremely smart, but that he has little or no following in the Democratic Party. His effort to persuade Democrats to move toward the center amounts, in my view, to urging upon them gestures that he regards as substantive and that I regard as symbolic.

Others have responded, either to the report or to my analysis, among them Power Line, Michael DeBow, Jon Schaff (who spanks me for going wobbly on the USA Patriot Act; I didn’t say Republicans couldn’t win the debate over which sort of ig government we need, just that they’d have to explain why one sort of big government was good and another wasn’t; there are some erstwhile Republicans, like Bob Barr, who don’t get it), and Noam Scheiber, whose thoughts are very much worth reading. Here’s a taste of Scheiber:

The same ideological "sorting-out" process that has made it more urgent for Democrats to appeal to the center has simultaneously made it harder for them to do so--because it has made their liberal base larger, more vocal, and more powerful than ever before. Galston and Kamarck argue that "[t]he Democratic Party must be able to articulate a coherent foreign policy that is based on a belief in America’s role in the world." Then, somewhat amazingly, they conclude, "While this will cause internal conflict in the Democratic coalition, it will not be any more severe than the fight Bill Clinton sparked when he confronted his coalition with proposals for reforming welfare." In fact, according to their own analysis, it should cause much greater internal conflict, since there are more liberals around to oppose this policy and fewer conservatives around to support it. While liberal opposition perversely made Bill Clinton a more credible general election candidate in 1992, greater internal conflict could prevent a Clintonesque candidate--or, say, a Clinton--from winning the Democratic nomination in 2008.

Given that Galston and Kamarck say nothing about the GWOT--they’d apparently prefer to use the U.S. military in places like Darfur, which, to be sure, need serious assistance, much of it only facilitated by American airlift and logistical capabilities--it’s striking that both Scheiber and Power Line are willing to assume that defense credibility for them means dealing with terrorism. Perhaps it goes without saying; perhaps it can’t be said to a Democratic audience, which would indicate how far from credibility the mainstream of that party is.

Another measure of Galston’s clear-sightedness, and his distance from his party, shows up in connection with his and Kamarck’s advocacy of a Darfur intervention. In my analysis, I suggested that they couldn’t be serious, given our current commitments in Iraq and the ways in which our deployable troops have been stretched. Well, to be fair, Galston is on the record
here as favoring a draft, which, of course, has little or no support in his party or anywhere else in the political spectrum.

Update: Tod Lindberg suggests that Galston and Kamarck are in search of the Democratic John McCain, a formulation that can also be seen in Scheiber’s reference to "national greatness liberalism." Perhaps McCain can seek both parties’ nominations. His ego is certainly up to it.

Advice to Harvard freshmen

The Weekly Standard calls our attention to this advice, offered by the inimitable Harvey C. Mansfield, Jr., on "How to Survive as a Conservative at Harvard." Here’s one pearl:

"Entering Harvard, you are faced with a curriculum that has lots of choice. . . . Lots of choice doesn’t mean lots of good choices, as you know from the student dining halls. . . . It doesn’t matter so much what the professor’s politics may be, liberal or even left. What matters is whether the class is conducted honestly, by which I mean presenting and considering ideas contrary to his own. Like an honest salesman, or better than that, the honest professor makes you aware of the defects or the difficulties of the argument he is propounding."

There’s more, so read the whole thing.

Miers and Roe

The witness list for the Miers confirmation hearing just got much longer.

I have two very preliminary thoughts. First, the predictable attempts to downplay the significance of the conference call will predictably not be altogether successful. Miers will face very pointed questions about the status of Roe v. Wade, and it will be difficult for her to respond in as non-responsive a fashion as Roberts did.

Second, this is not necessarily a bad thing, if she is willing and able to criticize Roe on genuinely constitutional grounds. In fact, I’d even add this guy to the witness list, in case this issue arose. The Miers hearings would then prove entertaining and enlightening in ways that it’s unlikely that the Bush Adminsitration anticipated. Karl Rove may be smart and prescient, but not that smart and prescient.

Update: Power Line’s Paul Mirengoff has more here, as do Claremont’s Richard Reeb and Matthew Franck over at Bench Memos.

Sen. Kennedy to the rescue

At first I thought this was a joke! Sen. Kennedy attempted to rescue six men who had become trapped by high tide on a jetty off Hyannisport on Sunday.

Iraq optimism?

This NYT analysis suggests that the Administration has conceded that democracy--such as it is and will be in Iraq-will not stop the violence there. Well, yes: the Administration is talking not about an "insurgency," but as Iraq as the central front in the GWOT. But the Times analyst can’t bring himself to concede that this is a point the Bush Administration has been making for quite some time.

On the other hand, this WaPo analysis can’t find a single "independent" analyst who hails the referendum results in Iraq. Of the four--the ubiquitous and vitriolic Juan Cole, Larry Diamond, Anthony Cordesman, and Clintonista Martin Indyk--Diamond comes closest to being positive:

"The fundamental problem is this is not a consensus constitution, and one part of the country has massively rejected it," said Larry Diamond, senior fellow at Stanford University’s Hoover Institution and a former adviser to the U.S.-led Iraqi provisional government. "This was not a joyful vote. It was a pragmatic vote to continue the process."

No one asked him what he makes of the fact that two of the Sunni-dominated provinces apparently voted for the Constitution. And the lack of balance in the entire article suggests that the thesis was there before the experts were consulted.


If these analysts are right, this is a mistake.

Substanceless march

Charles Johnson’s op-ed in the Journal on the latest Million Man March is worth reading.

Penguin pooh

This is the winner of the Ig Nobel prize in Fluid Dynamics: Victor Benno Meyer-Rochow of International University Bremen, Germany and the University of Oulu , Finland; and Jozsef Gal of Loránd Eötvös University, Hungary, for using basic principles of physics to calculate the pressure that builds up inside a penguin, as detailed in their report "Pressures Produced When Penguins Pooh -- Calculations on Avian Defaecation." Here is more detail, in case you don’t remember why you decided to read history as an undergraduate.

Why are conservatives angry at Bush?

Andy Busch speculates on why conservatives are so angry at the President for the Miers nomination. Abbreviated, he argues thus: First, President Bush has asked conservatives to trust him once too often and, second, Bush has not made the public arguments that are needed to build long-term majorities. Conservatives don’t want political victories on the cheap. In nominating Miers, Bush has lost another great opportunity at persuasion, and this may be seen as the final straw "of an administration pattern of simply not making the philosophical case for principles like federalism, limited government, or strict construction. Even when discussing judicial appointments, Bush has asserted the principles but rarely made the case for them. Though some of Reagan’s Supreme Court appointments may well be worse from a conservative standpoint than Miers will turn out to be, he also spent eight years of his presidency making the case for constitutionalism day in and day out. The GOP majority is built on the foundation laid by that effort twenty years ago. Conservatives anxiously ask where Bush’s disinclination to fight this fight will leave them twenty years from now."  

Pew Survey on Miers and the judiciary

Here it is. Note that the survey was taken within a few days of the Miers nomination, so the comparison with Roberts is based on very different levels of information. The good news, from the conservative point of view, is that the conservatism of the Court is not an issue for the majority of those surveyed, either because the President’s nominees don’t seem especially conservative or because the majorty like the conservatism they see. I’m generally speaking inclined toward the latter point of view.

These detailed deomgraphic breakouts point to the usual suspects--non-whites, seculars, and Democrats--as the only groups opposed to the Miers nomination. But most groups--the exceptions are Republicans, Protestants (evangelical and mainline), and seniors--are rather narrowly divided. Only liberal Democrats think that Miers would make the Court too conservative. In every other group, a majority isn’t worried about this.

Makes you think GWB could have won a fight over judicial philosophy in the proverbial court of public opinion.

Why we need legal/constitutional theory

Some defenders of Harriet Miers--above all, the indefatigable Hugh Hewitt--argue that, in effect, constitutional lawyering is not all that difficult, so that her apparent or alleged shortcomings in this regard are not sufficient to disqualify her. On this matter, I’m with Richard Brookhiser: in a different age, one not so shot through with highfalutin theory, sound and extensive legal learning, an inexhaustible capacity for hard work, humility, and common sense (along, perhaps, with a good or equitable heart)--all of which Harriet Miers arguably has--might be sufficient qualifications for being a Supreme Court Justice. But a return to the primacy of these qualities, however desirable it is, cannot depend simply upon the assertion of their primacy. Bad, or over-clever, theory requires a theoretical antidote; otherwise, the possessors of sober prudence and common sense might always be susceptible to the clever sophists in robes and suits.

This has been true since Aristotle wrote the Ethics and Politics and remains true to this day.

Here’s an example. Consider Ronald Dworkin who here cleverly justifies creative theorizing about the spirit and intention of the Constitution and here offers an example of how that theorizing would operate in the "constitutional" relationship between religion and politics:

He said there are two models America can follow: religious tolerant and secular tolerant. A religious tolerant community is committed to the principle of religion but respects people who choose not to practice a religion. A secular tolerant community considers itself neutral about religion but tolerant of people’s freedom to practice any religion they choose.

A religious tolerant community treats religion as something special, and sees no reason to extend the freedom of religion to other freedoms, for example gay marriage; in fact, [it] encourages prohibitions on other freedoms based on religious concerns. The secular tolerant community does not treat religion as something special; it treats the freedom of religion as a general freedom, as a general right to other freedoms.

While the Constitution may contain some "abstract" principles that require more elaboration than the words themselves offer--hence the move from "textualism" to some version of "originalism," which provides some understanding of what those who approved the Constitution thought they were signing onto--Dworkin’s understanding of this fact licenses all manner of interpetive creativity. Indeed, the demand for "theory" is the only thing that purportedly limits the bare assertion of political will. In the instance cited above, the problem with Dworkin’s theory is that neither alternative is self-evidently rooted in the text and history of the Constitution. And his preferred theory (secular toleration) poses an obvious textual problem, inasmuch as religious freedom is singled out int he First Amendment.

Now, I suppose that a dogged mistrust of all manner of cleverness might for a time be proof against impressive theoretical and rhetorical edifaces. But in order to avoid being understood merely as an act of political will, rather than an exercise of modest and humble judgment, it needs to be able to defend itself in the court of public and legal opinion. It needs theory.

I’m confident that Roberts, Scalia, and Thomas have the theoretical chops to defend humble and modest judicial common sense. And there are any number of other potential nominees (McConnell and Brown come most readily to mind) who also have those chops. Does Miers?

The Miers Enigma

Trying to make a judgment about Harriet Miers is reminding me of the Churchill comment about the Soviet Union being an enigma surrounded by a riddle and wrapped in a mystery. There are two arguments in her favor that should give us pause. The first, from Hugh Hewitt and others, is that the past nominees who went bad (O’Connor, Kennedy, Souter) were people who the White House didn’t know and came from far outside. The three best justices (Rehnquist, Scalia, and Thomas) came from within the administrations, (though of course Thomas and Scalia had put in some bench time on the DC Circuit). Few Presidents have been as close to a nominee as Bush is to Miers. While a good argument, in the other three cases (Rehnquist, Scalia, and Thomas) there was lots of independent evidence that they were solid picks. Rehnquist had worked on the Goldwater campaign in 1964; Scalia had a long publication record, and Thomas had given those very ringing speeches about natural law and natural right, showing that he had a definite constitutional philosophy. With Miers we still haven’t the slightest clue.

The second argument is that Miers was apparently first recommended for consideration by her deputy, Larry Kelly. Kelly is, according to reliable sources I trust, One Of Us--a good Federalist Society conservative from the University of Notre Dame Law School. Kelly is right now properly keeping a discrete silence about the matter, and not returning reporters’ phone calls. It is not likely this is Machiavellian calculation on Kelly’s part to move up to the counsel’s office himself; he intends to return to Notre Dame next year. If Kelly thinks Miers is worthy of appointment, it should give us encouragement.

But then there is transcript of Miers testimony back in 1990, posted by Drudge today, where she criticizes the Federalist Society for being too politicized, but then goes on to say that she doesn’t consider the NAACP to be a politicized group. This is a horrible sign. Then, too, we hear some old Texas friends saying she is "conservative on social issues, but liberal on economic issues." If this is vaguely true it is the sign of a deeply confused and unreliable mind. One thing to note over the last 20 years is the high correlation between Supreme Court votes on social issues and votes on economic and regulatory issues (and federalism), especially property rights. The Reagan Administration Justice Department, I am told, used prospective judges’ views on property rights as a proxy for their views on Roe v. Wade, and with the exception of the inconsistent O’Connor (who voted right on most property rights cases), this correlation has been near iron clad.

So I repair to what I have been saying from the beginning. Miers needs to say something specific in her hearings. She needs to give Leahy and Biden an ulcer. Ken Mehlman of the RNC told the blogger conference call yesterday to "wait for the hearings," and we’d see Miers strut her stuff. I’ll be disappointed and dismayed if it is just pablum about her character, glass-ceiling shattering, and what an honor it has been to work for George W. Bush.

Babies are good!

Peter Lawler adds a few good words on Bill Bennett’s modest proposal.

More Miers

I have been trying to keep an open mind on Harriet Miers, in large part because I fear that a confirmation failure will make it much harder for the President to put forward a distinguished nominee in its aftermath. But the signs out there are not good. As I noted earlier, evangelicals are not exactly rallying behind her, rightly preferring to see her show her stuff. It’s also quite clear that Republican Senators and their staffers are not exactly solidly in her corner. The two Judiciary Committee Senators most closely identified with social conservatives, Tom Coburn and Sam Brownback, are, according to the NYT, among the most skeptical. If they live up to their advance billing in the press (not a totally reliable source, I’ll concede), the hearings could well be a bloodbath, with Miers essentially facing difficult and/or hostile questioning without much assistance from anyone on the other side of the table. I hope Mier has the resources to take it or the realism to recognize that she can’t.

And the sherpa Dan Coats--who is supposed to be helpful--has resorted to the Roman Hruska defense:

"If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole," Coats said.

Leaving aside the fact that representation is supposed to provide for leaders who deserve it by being in some respects more able than their constituents, Coats misunderstands the Court’s principal constituency, which is not the people simply, but the "constitutional people," whose wishes are embodied in the document. If the Court is supposed to be a representative body in the sense that Coats suggests, then we might as well just abandon the Constitution altogether and let the elected representatives duke it out.

Moses as leader

Waller R. Newell’s (I know him by the name that begins with R) reflections on this subject are very much worth reading.   

Breakthrough deal on Iraq’s Constitution

It looks even more likely that the Iraqi Constitution will be approved by the people with the new agreements reached with some important Sunni groups. Very promising news. I think the MSM has got to start giving the Iraqi political leaders some credit for what they have accomplished thus far, and then for what they are about to accomplish. Very good politics, thus far. Impressive.

Ramirez Cartoon

Ramirez speaks

Michael Ramirez, Pulitzer prize winning cartoonist for the Los Angeles Times, is speaking today at 12:30. Click on his name to hear it live. He is an excellent (and amusing) fellow.
You can see some of his cartoons here.

The other great conservative biographer weighs in

Richard Brookhiser is perturbed:

If the Supreme Court has been behaving like a super legislature, then it is time for the court to take in sail. Congress could perhaps make it do so, by limiting its purview, but it won’t. That means Presidents have to appoint justices of modest inclination. That doesn’t mean justices of modest ability. In a better world, Harriet Miers’ appointment shouldn’t matter. Justice Miers wouldn’t bring that world about.

Read the whole thing, which includes references to Bushrod Washington (GW’s nephew) and Brockholst Livingston, who packed a pistol to lethal effect (apparently).

Major Red Flag on Miers

When David Souter was nominated by Bush pere, and we were assured (by John Sununu, among others) that he would be a conservative "home run," a red flag went off in my mind when I heard Souter say that one of his favorite justices was Oliver Wendell Holmes. This can’t be a good sign, I thought.

Today’s Washington Post reports that Harriet Miers told Sen. Leahy that one of her favorite justices from history is . . . Oliver Wendell Holmes. If true, this is not a good sign. (I’ll hold out hope Leahy is making this up.) Holmes is the epitome of positivist, nihilist jurisprudence.

Souter received strong support from conservatives when he was nominated, and after the full debacle of his appointment became evident, I recall a number of conservative leaders saying that never again would they support an unknown stealth nominee.

Miers needs to pick a very public fight with liberalism in or before her confirmation hearings to reassure conservatives. I put the odds of this at less than 1 in 20.

Evangelicals and Miers

This article adds an important perspective on the role of Miers’s evangelicalism in her nomination, an issue I’ve raised here and here, that Ken Masugi has addressed here, here, and here, and that has been aired in these posts at Southern Appeal. Here’s the money quote:

"I don’t think it’s fair to call us sexist or elitist just because we ask the question, ’Why did he choose her instead of so many better-qualified candidates?’ " said Richard Cizik, vice president for governmental affairs at the National Association of Evangelicals.

"In the president’s view, he has chosen the best person he can find -- in the [Justice Antonin] Scalia and [Justice Clarence] Thomas tradition. But that remains to be seen," Mr. Cizik said. "I’m like a lot of other evangelicals -- eager to be persuaded. The Senate confirmation hearings are when we will make that judgment. Those hearings will be very critical for this nominee, I think."

If the White House was playing some sort of identity politics with this nomination, it hasn’t yet succeeded. This is good news, for it indicates a certain political maturity among evangelicals. As I have contended
before, the evangelical leadership is aware of the distinction between judging and policy-making, and hence of the differences between the qualifications for one and for the other. However gratified they might be to have an evangelical on the Court, they’re not about to support someone who hasn’t fully demonstrated her fitness just because of her religious affiliation.

Post-Katrina welfare policy

The NYT’s Jason DeParle chronicles liberal domestic policy disappointments in Katrina’s aftermath. While few people may be paying attention to President Bush’s bold new plans, even fewer are hearkening to the Democrats’ old, old plans.

al Qaeda letter

Here’s the letter (13 page pdf). Here’s the WaPo summary; here’s the NYT’s. Both take note of this passage:

"Things may develop faster than we imagine," Mr. Zawahiri wrote. "The aftermath of the collapse of American power in Vietnam - and how they ran and left their agents - is noteworthy. Because of that, we must be ready starting now, before events overtake us, and before we are surprised by the conspiracies of the Americans and the United Nations and their plans to fill the void behind them."

Need I say more?

Update:Actually, I need to, since there’s this good news from Iraq to note. I wonder if news of al Qaeda’s plans encouraged all sides to be more accommodating.

In this connection, see this article:

Now, "the only opponents should be the Zarqawi people," [Sunni negotiator Mishan] Jabouri said, referring to followers of Abu Musab Zarqawi, the head of the insurgent group al Qaeda in Iraq. "They oppose everything. If they wrote the constitution, they would oppose it."

New Orleans, New London, and New Haven

Ken Masugi’s rather generous praise of an interesting but somewhat confused WaPo op-ed provoked an intemperate, and indeed nasty, response from this man.

My two cents’: Yes, eminent domain is often used by the politically connected against those who lack the connections, but connections don’t always simply follow class. We in Atlanta, for example, even build highways through well-to-do neighborhoods.

Any reader of John Locke would have to concede that natural property rights are civilized and limited once we enter civil society, and that the principal limitations are to be justified on behalf of the public good. The use and abuse of eminent domain should be regulated, above all, by a representative and hence responsive legislature and secondarily by a judiciary that upholds the Constitution. At the same time, Locke’s emphasis on the natural roots of "civil" property rights ought to educate citizens and political leaders about the intimate relationship between property and individuality. We are, according to Locke, individuals who express ourselves largely through our labor, which is "reified" in property. If the smart undergrads who made their way into Yale Law School, and their professors, paid as much attention to the roots of classical liberalism as they appear to have done to Marxism and neo-Marxism, perhaps they would be able to engage Ken’s arguments without resorting to ad hominem attacks.

Brain food

I guess I have to eat more fishI.

Defending Bennett

John McWhorter comes to Bill Bennett’s defense on the abortion comment.

The Trouble With Stealthiness

Brendan Miniter in today’s Wall Street Journal:

"Anyone who suppresses all evidence of having conservative principles for decades in hopes of one day winning a seat on the Supreme Court probably isn’t really a conservative."

Read the whole thing.

Dionne on Buckley

E.J. Dionne, Jr. admires (or is it envies?) William F. Buckley, Jr. He professes to admire WFB’s commitment to giving conservatives a "serious intellectual life," but then suggests that conservative ideas are simply subservient "to the interests of the wealthy and powerful." If Dionne thinks ideology is serious intellectual life, he reveals his own limitations as an, er, intellectual. Or he is so self-righteous in his liberalism that he can’t imagine that those who disagree with him are moved by ideas rather than, or in addition to, interests, which also reveals his intellectual limitations.

All of this suggests that Dionne’s celebration of Buckley’s accomplishments is a little disingenuous. He writes of WFB’s war against "wing nuts" and anti-Semites on the right. Is he, or anyone else on the left, willing to wage a war against the all-too-common extremists on their side? Or does Dionne think that his side is beyond reproach? If he took Buckley seriously, as he professes to do, he’d look in the mirror, and look around himself.

Update: Dionne passed on an opportunity to marginalize the wing-nuts and anti-Semites here. If anyone can find evidence of any criticism of, say, Cindy Sheehan by E.J. Dionne, Jr. anywhere, please post the link in the comments.

Update #2: Over at WFB HQ, aka The Corner, Jonah Goldberg--not an ideologue in my sense of the word, unless he’s either secretly defending a horde of wealth about which I’m clueless or simply prostituting his wit and intellect to the highest bidder--has more here, here, and here.

Bork book free

Robert Bork’s edited collection, A Country I Do Not Recognize: The Legal Assault on American Values, with contributions from Lino Graglia, Gary McDowell, and Terry Eastland, among others, can be downloaded from
this site. Hat tip: Michael DeBow at Southern Appeal.

Sexism, Elitism, Activism?

In response to conservative opposition to Harriet Miers’ nomination, the Miers’ defenders have mounted a series of unworthy and, quite frankly, ridiculous attacks. First, Ed Gillespie appeared before a conservative gathering in Washington and suggested that the criticisms of Miers smelled of sexism and elitism. Gillespies’ comment, however, smelled of desperation--given that the short list preferred by conservatives included the likes of Judges Maura Corrigan (University of Detroit Law School), Alice Batchelder (Akron University School of Law), Edith Jones (University of Texas), Priscilla Owen (Baylor Law School), and Janice Rogers Brown (UCLA Law School). The comments were roundly ridiculed, but that didn’t stop Brit Hume from suggesting that David Frum, Bill Kristol, Charles Krauthammer, Laura Ingraham, and George Will are all school snobs who suffer from Ivy League blinders—notwithstanding their support for the aforementioned non-Ivy-League prospective nominees.

Having failed in this first attempt, Miers’ defenders appear to be starting a whisper campaign against prominent—and notably more qualified—judges who were oft-mentioned as being on the short list. On Fox News Sunday, when Bill Kristol suggested that Judges Edith Jones or Alice Batchelder would have been better picks, Hume interrupted:

Bill, I can tell you this about Alice Batchelder. She was very, very closely vetted. And you know what they found? They found all kinds of evidence of activism in her record. And they were quite surprised and not pleased to find that.

When Kristol questioned this new smear tactic, Brit incredulously suggested that this is something he found on his own. But, as Brit’s first statement makes clear, the only way he could have gotten this information about White House opinion is by hearing it from the White House (unless of course he is simply reporting second hand reports—which would mean that he was engaging in rather loose reporting practices).

What then is to be made of this attack on Judge Batchelder? Despite the allegation of "all kinds of evidence of activism," neither Hume nor any other Miers’ defender has produced a single case. By contrast, at least one NRO writer has listed several specific cases demonstrating the fact that Batchelder has a record of ruling according to the dictates of the law, even when the law is contrary to her own policy preferences. As a former clerk to Judge Batchelder, I can attest that she is the very picture of judicial restraint—someone who has a solid record of not prejudging cases. And you don’t need to take my word for it: you can simply look at her 20 years of well-reasoned opinions.

Now that Miers’ defenders are playing a game of confirmation "catch-up," they would do well to realize that they are not going to win over any conservatives by making spurious accusations about sexism, elitism, and activism--or by smearing the reputation of well-respected jurists.

The Unintended Consequences of Viagra

The New York Times Magazine reported this story three years ago, but now Nature magazine has got round to reporting how viagra is helping to save endangered species. Chalk up another win for the pharmaceutical industry.

Scalia interview

Via How Appealing, here’s the transcript of Justice Antonin Scalia’s interview on the Today Show. I think his comments contrast nicely with those offered by Ruth Bader Ginsburg. We know where Scalia stands, but he neither advocates nor comments on the nomination process.

Richard Land profiled

Southern Baptist Richard Land proves sophisticated and hard to caricature in this Boston Globe profile. Hat tip: Religion Clause.

GOP and Miers

Michael DeBow calls our attention to this piece on the Senate Republicans.

Gay marriage in Massachusetts and elsewhere

Via AmSpec Blog, we have this report of an attempt to overturn a 1913 Massachusetts law that prevents out-of-state residents from marrying in Massachusetts if their marriages wouldn’t be legal back home. This is just the first step toward attempting to compel other states to honor marriage as defined by Massachusetts law, either through the courts or by a more subtle political means.

Miers as constitutional lawyer

Steve Hayward calls our attention to this excursion through Harriet Miers’s record as a litigator.

One of the highlights is her participation in Jones v. Bush, a 12th Amendment challenge to the results of the 2000 election, based upon the claim that George W. Bush and Dick Cheney were allegedly both inhabitants of Texas. As Beldar notes, Miers’s opposing counsel was the formidable
Sanford Levinson, who would make anyone’s short list of distinguished liberal con law types. Here’s Beldar’s summary of the result:

Well, the short answer, friends and neighbors, is that Harriet Miers just flat out kicked the distinguished Prof. Levinson’s butt in court. On just about every issue, too. And she did it not once, not twice, but three times: federal district court, then again on appeal in the Fifth Circuit, and then again in the U.S. Supreme Court — another one of those "cert. denied" notations.

You ask breathlessly: "But is that ’cert. denied’ really a win?" Why yes, friends, it surely is. Because, you see, when you’ve won in the lower courts, then your job as a lawyer is to persuade the Supreme Court not to take the case. Which is exactly what Harriet Miers did here — after first winning so convincingly in the federal district court that the Fifth Circuit, on the way up, didn’t even bother to write an opinion of its own.

There are some who would minimize the significance of this case, arguing that "[t]he Jones case seems pretty straightforward, and it’s hard to draw much of a conclusion about Miers’ legal skills from the opinions that were filed and the decisions that were reached."
Others remind us of the stakes and argue that the issues were far from clear. Among them is the aforementioned Professor Levinson, who co-authored a law review article on the subject.

I don’t have time at the moment to evaluate Levinson’s lengthy argument, other than to note that it’s not implausible, suggesting that the case was not a slam-dunk for Miers and Bush. For more, you might consult this article, which suggests a certain inventiveness and lawyerly plasticity on Miers’s part.

In general,Hugh Hewitt’s brief on Miers’s behalf is worth reading.

Update: This article reports Levinson’s comments on the case and on Miers:

Levinson, who described the case as a "law professor’s dream," said that part of what made the case fun for him was that he could argue the case like a Republican, meaning that he and his colleagues based the case on a narrow reading of the Constitution going back to the Framers’ original intent. Miers took the opposite tack, sounding more like a liberal, arguing in her brief to the court for a "broad and inclusive" interpretation of the Constitution based on the belief that the clause makes no sense in today’s world. She simultaneously focused on technicalities -- Cheney had forwarded his mail to Wyoming from his Dallas home and canceled his Texas driver’s license.

Levinson said that to extrapolate from this case that Miers was a closet liberal would be a mistake. "This is a person who has almost no experience doing constitutional law, and the one case she is involved with is on a subject almost no one has talked about, at a time of extraordinary partisan interest," he said. "The only thing to infer from this is that she’s a good lawyer." A federal judge dismissed the case on Dec. 1, 2000, the day it was filed.

A Clsoer Look at Miers

Beldar does some impressive digging into Harriet Miers’ actualy legal experience, and suggests there is more there than meets the eye.

Hat Tip: Instapundit. (Who else?)

Bush and Miers

ABC News reports that some Senate Democrats are coming to Harriet Miers defense. Powerline notes this and includes this comment from John Hinderaker:

"My guess is that Harkin et al. don’t know anything about Miers except that she is a conservative and a trusted confidante of GWB, which would normally have them frothing at the mouth to keep her off the Court. I suspect that they are saying a few kind words to enjoy the fun of seeing the Republican Party dividing and self-destructing, while, of course, making no commitment as to how they eventually will vote.

"One basic question that I don’t think has gotten enough attention is, why did President Bush nominate Miers in the first place? The answer, I think, is reasonably clear, and it’s deeply ironic that conservative critics are wondering whether, given her lack of a paper trail, she will turn into another David Souter. I think that Bush is acutely aware that the Souter nomination was his father’s worst and most avoidable mistake. I think that, as was widely reported, he liked John Roberts and was impressed by him during their relatively brief interview. But what grounds, really, does Bush have to trust Roberts? How does he know he won’t "grow in office"? It seems pretty obvious to me that Bush selected Miers to make damn sure that at least one of his nominees won’t drift to the left. He knows Miers well enough to know that she won’t be seduced by Washington Post editorials and Georgetown dinner parties, as a number of Republican appointees have been. He doesn’t think Roberts will be seduced, either, but he can’t know for sure. Isn’t it obvious that the reason Bush chose Miers instead of a better known, objectively better qualified nominee, is that he wanted to be absolutely sure of appointing a staunch and unwavering conservative?

"I can only imagine how Bush and those who are privy to his reasoning view the current outpouring of conservative venom against Miers. Which is not to retract my oft-stated view that Bush would have done better to choose one of the party’s leading intellectual lights; but, as I have said, that conviction does not rest on a suspicion that Harriet Miers might not be a conservative."

Defending DeLay

Rich Lowry comes to the defense of Tom DeLay, who "seems guilty only of committing politics."

Illegals, Tancredo, and Bush

George Will reflects on Rep. Tom Tancredo’s quixotic presidential candidacy in 2008. Maybe it is quixotic, but Tancredo also "knows that presidential primaries are, among other things, market research mechanisms whereby unserved constituencies are discovered and dormant issues brought to life." Illegal immigration will be his issue and the GOP will have to deal with it. Morton Kondracke argues that President Bush should step up to the plate and be a leader on this critical issue. "If Bush continues to let the issue fester, chances are good that Congress will deadlock, U.S. borders will remain insecure, 11 million illegal immigrants will continue to live in the shadows and be subject to exploitation and hundreds of people will die each year trying to make their way across the parched Arizona desert.

And if that happens, the issue is likely to become even more divisive in the GOP and in the country at large, possibly upsetting chances that Hispanics will emerge as a two-party swing constituency."


It sounds as if Zimbabwe is on the verge of total economic collapse, according to this New York Times story. The government is trying to put an end to the only part of the economy that works.
Perfect man-made misery.

National Review at Fifty

National Review is celebrating its fiftieth birthday. I salute Buckley and everyone else involved in this great enterprise. NR has been good for the country. This was Bill Buckley’s opening statement in November, 1955, justifying the creation of this new magazine. I started reading NR in 1964 just before my first year in college. I was involved in politics, by then, you understand. Goldwater was the good guy and Rockefeller was the bad guy; he represented the East Coast Elite, Liberalism somehow in GOP clothes. Goldwater was straightforward, he spoke about extremism and liberty and virtue, and why some things are worth the effort. I stuck with the cowboy from Arizona through his unjust loss to LBJ, and then stayed with the actor who became famous during that campaign. I mention this because--and this may seem odd to you--once I started reading National Review I actually participated less in practical politics, while becoming more deeply political. By 1965 I stopped almost all my political activities (Young Republicans, etc.) because my time was now consumed less in political action than in the words surrounding that action. These guys writing for NR were interesting and, it seemed to me, deeply thoughtful about almost everything. The words in National Review, I surmised, would have much deeper effect on the common life of the nation than most elections. I was right. NR’s writers always dug deeper, led me to things I knew nothing about, led me to wonder. In short, the minds writing for NR began my education. By the summer of 1965 I was attending seminars offered by professors I could not hope to meet at the state college I attended: Ronald McArthur, Thomas Molnar, Martin Diamond, and Harry Jaffa. I have National Review to thank for all that, and I do.

It is interesting to note that the draft Goldwater movement was launched in 1961 by Ohio Congressman John Ashbrook, William Rusher (the publisher of National Review), and F. Clifton White. White ended up running the extremely effective Goldwater primary campaign against Rockefeller for the GOP nomination in 1964 (see White’s book Suite 3505: The Story of the Draft Goldwater Movement). After the death of John Ashbrook (1982) Clif White became the first director of the Ashbrook Center, with Rusher as Chairman of the Board. Rusher is still active on the Board. Of course, John Ashbrook had one more memorable national moment: He opposed Richard Nixon in the primaries in 1972 (price controls, China policy, etc.; many things about Nixon irritated Ashbrook). In the end, of course, Ashbrook failed, but he helped set things up for Reagan and the conservatism of the eighties. In all these things he was supported by National Review. This is National Review’s endorsement of Ashbrook’s campaign against Nixon in the January 21, 1972 issue of NR. Bill Buckley said of Ashbrook: "He shows the kind of political courage by which one distinguishes between those automatons who represent us in Washington and those special others who are human beings endowed with mind and an active conscience… a human force in which the high qualities of the statesman come together in profusion."

John Ashbrook died on April 24, 1982, during a campaign for the U.S. Senate (Democrat Howard Metzenbaum was running for re-election). Ashbrook was 53 years old. William Rusher mourned the passing of John Ashrbook in the May 14, 1982 issue of National Review.


I can’t improve on these two commentaries on this speech.

A liberal who gets it (sometimes)

I rarely like what the WaPo’s Colbert King has to say, but in this column he’s right, at least about the role that legislatures ought to play.

Eastland on Miers

If for some reason you haven’t followed the religion-and-politics angle of the Miers story, Terry Eastland offers a fair-minded rundown.

The Un-Candidate for the High Court

Poor Sen. Cornyn (R-TX): He had the duty this week to pen a Wall St. Journal op-ed arguing for Harriet Miers’s appointment to the Supreme Court. Forget Charles Krauthammer, forget George Will, forget Bill Kristol and all the other "must read" op-eds against Miers. Just read Cornyn’s argument for Texas’ favorite daughter to know why this nomination is a blunder. Setting aside the straw-men arguments he knocks down, his reasons in favor of her appointment contain their own refutation. They can be summed up as follows: Miers deserves to be a S Ct justice precisely because the nomination was so un-expected, so counter-intuitive, so un-[fill in the blank].

The short response to all of this un-reasoning is the simple fact that President Bush never made any of Cornyn’s arguments when he discussed the qualities of potential candidates for the Court. Now for the long response: When did Bush praise the lack of "judicial experience" as refreshing for the high court? When did he extol being a "legal practitioner" as an "asset" for the Supremes? When did Bush say he couldn’t wait to appoint men and women who had spent their careers "representing real people in courtrooms across America"? How often did Bush highlight "the burdens of modern litigation," "frivolous lawsuits," and "tort reform" as pressing concerns in his consideration of whom to appoint to the federal bench? Can anyone recall when Bush remarked even casually that he would jump at the chance to appoint someone who knew not "the Beltway"?

Folks like Cornyn argue that we should not "rush to judgment" simply because we don’t know Miers. But Bush has told us repeatedly the kind of judges he wanted on the Court. And so the American people had every reason to expect a certain kind of judge be nominated. Two names come to mind; need I say more?

It’s been said that you don’t really know what your expectations are until they are disappointed. Up till now, pundits have noted how often Bush has exceeded expectations on a number of political issues. But with this nomination, having vetted numerous qualified candidates for the gig of a lifetime, the president has disappointed expectations of his own making.

Miers nomination stalling?

This is Newt Gingrich’s attempt to persuade reluctant (and angry) conservatives to give support to Bush and Miers. R.J. Pestritto is not persuaded and uses Alexander Hamilton’s warning
against the nomination of candidates "who had no other merit than that of coming from the same State to which [the president] particularly belonged, or of being in some way or other personally allied to him," to make his point. Pestritto:

"The point here, of course, is not that the president should be prevented from nominating his allies or associates, but rather that one’s friendship with the president should not be the primary qualification one has for office. Yes, Hamilton and Marshall were close allies of the men who nominated them, but independent of this they also happened to be supremely qualified for the posts to which they were appointed, as everybody at the time recognized. By contrast, this is exactly where the Miers appointment runs into trouble: If one omits the jobs that were given to her by President Bush—the jobs that allowed her to be named to lists of the most powerful lawyers in the country—all you have left is a corporate attorney who has shown an ability for administration, both in her firm and in bar associations. Although admirable, these, without any evidence of a developed and clear understanding of the Constitution, are not the qualifications of a Supreme Court justice. Or, to put it more bluntly, the substantial weight of the evidence of her capacity to be a justice—that is, the key government positions she has held—are all the fruits of her continuing relationship with the president. If this doesn’t raise serious questions about cronyism, I’m not sure what does."

And his concluding paragraph:

"Miers may turn out to be a perfectly fine justice, but there is nothing in her record which would give us any basis to believe that. Ironically, by attempting to avoid the pitfalls of modern senatorial "advice and consent," President Bush has triggered more stringent scrutiny under the framers’ understanding of that term as a check against the nomination of home-state cronies who lack the objective qualifications for the office. The Senate should therefore diligently exercise its check of advice and consent—not in the modern sense as a litmus test concerning ideology, but as the framers intended: to assure that her qualifications extend beyond mere friendship with the president."

If Republican Senators take this advice seriously, as they surely already took note of betrayal felt among the rank and file, there is a very good chance that Miers’ nomination will not make it out of the Judiciary Committee. Sometimes you can just feel the ground--public opinion in this case--shift under your feet. This may be one of those times. I think Bush may be losing this mess that is his own creation. Charles Krauthammer doesn’t want to wait until the hearings start. He says that this nomination is a retreat by Bush into "smallness" and asks Bush to withdraw it.

Stick to the Center, Report Warns

According to this Washington Post story, Democratic intellectuals William Galston and Elaine Kamarck have issued a report warning their party that moving to the left would be a disastrous electoral strategy.

The groups that were supposed to constitute the new Democratic majority in 2004 simply failed to materialize in sufficient number to overcome the right-center coalition of the Republican Party.

They note that GOP support is rising among hispanics, a group whom liberals had been counting on. Moreover, they claim that issues like health care and education, traditionally key cards for Democrats to play, have lost their power to win large numbers of votes. Finally:

On defense and social issues, "liberals espouse views diverging not only from those of other Democrats, but from Americans as a whole. To the extent that liberals now constitute both the largest bloc within the Democratic coalition and the public face of the party, Democratic candidates for national office will be running uphill."

Miers opinion roundup

Charles Krauthammer and Michelle Malkin are unhappy. Sam Brownback is noncommittal, unable as yet to muster any enthusiasm. Chuck Shumer is enjoying the spectacle:

"John Roberts only had to worry about, you know, the left," he said, referring to the recently confirmed chief justice. "She’s going to have to worry about the left and the right."

E. J. Dionne, Jr. is in high dudgeon, upset that the Bush Administration has made an issue of Miers’s evangelicalism but refused to let the Left make an issue of Roberts’s Catholicism. Hypocrisy, he says. That would be the pot calling the kettle black, as, by his lights, the Administration is taking his advice. Of course, Dionne is interested in religion because he assumes that it will influence a judge’s rulings. I have disagreed with this position before, as have people
much smarter than I am.

That said, the Bush Administration is taking a risk in calling attention to Miers’s church life, however much it indicates about her heart (which is what the Democrats said they wanted to know about Roberts). With nuances getting lost in the noise, it may serve to reinforce expectations on the Left and educate expectations among evangelicals that one’s faith does and should influence one’s Constitutional doctrine. Smart evangelicals have carefully avoided this implication thus far; I’d hate for the Bush Administration to undo the good work they’ve done as they rally the troops for this confirmation battle.

Update: Power Liner Paul Mirengoff has more thoughts on Dionne’s column. I would beg to differ with him about the meaning of the "religious test" clause of the Constitution, which forbids only formal religious tests, not religiously-bigoted voting by Senators. Such bigotry may well be reprehensible, and provide grounds for political criticism, but it’s not thereby unconstitutional. Yes, the spirit of the Constitution discourages "private" bigotry, but it prohibits only the overt or public emblem of it, e.g., a formal legal requirement that one profess or repudiate a faith in order to be eligible for office. Mr. Mirengoff’s position would lead to the kind of mind-reading attempted by the Court in its application of the infamous Lemon test.

No Left Turns Mug Drawing Winners for September

Congratulations to this month’s winners of a No Left Turns mug! The winners are as follows:

Kevin Portteus

Willie Martin, Jr.

Steven Schmitt

Denise Parrish

Sharon Hilton-Gage

Thanks to all who entered. An email has been sent to the winners. If you are listed as a winner and did not receive an email, contact Ben Kunkel. If you didn’t win this month, enter October’s drawing.

Evangelicals vs. intellectuals

Disregarding for the moment the fact that Michael McConnell is both an evangelical and an intellectual, this line of argument is not uninteresting. I will say that if the Bush Administration is going to mobilize evangelicals on Miers’s behalf, they haven’t yet succeeded in doing so, at least down in the grass roots. My church friends (generally well-informed and generally well-educated) haven’t yet focused on the Miers nomination, and don’t go googoo-eyed when they hear that she’s an evangelical. Just an anecdote, I know....

Another Miers round-up

I was shocked, just shocked, to learn that conservatives are unhappy. As a result, there is, of course, a certain Schadenfreude on the part of folks on the Left:

On Wednesday, however, the Democrats mostly stood back as conservatives took aim at the selection of Ms. Miers.

Conservatives should remember that anything they say can and will be used against Miers in the Senate Judiciary Committee.

The quote of the day belongs to John Thune:

Senator John Thune, Republican of South Dakota, said he, too, was nervous about Ms. Miers but also about a fight within his party. "I don’t think that an intraparty battle is what we need," he said. "But I think before too long the left is going to go off on her, and that will effectively bring everybody together."

Enough said.

More on Miers

Will I ever write about anything else again?

Citing, among other things, this op-ed and having this NYT article in the back of his mind, Ken Masugi reminds us of the unavoidably political dimension of the fight to restore a constitutional judiciary.

Yes, I think that this fight could have been waged with another nominee sitting across from the Senate Judiciary Committee, but that is not going to happen. Bush will not withdraw his nomination. What makes anyone--save for those on the Left--think that the defeat of Miers will produce a jurisprudentially more congenial replacement nominee? Consider this: if the Miers nomination timetable follows the conventional schedule, the Senate Judiciary Committee would likely vote in early December, with a Senate vote following in mid-December. If the nomination fails, the pressure on the President to name a filibuster-proof "consensus" nominee comes into play. After all, once we get into the new year, the impending fall elections start dominating the political scene. And if the Democrats think they can regain control of the Senate from a weakened Republican Party, they will likely do all they can to slow the process down. We could end up with a nominee the Post and the Times (not to mention the Harvard and Yale law faculties) will welcome as a "moderate."

Obviously, as well, should Republicans lose control of the Senate, the prospect for future attractive judicial nominees virtually disappears.

All this leads me to swallow my disappointment and stick with Miers at least through the hearings. There is no realistic prospect of a nominee I like better being produced by the process currently in train. And I am not at the moment convinced that anyone likely to be elected in 2008 will nominate men and women more faithful to the intentions of the Founders. If President Bush’s judicial legacy is as important as people say (and I think it is), then we have to hope that he succeeds and help him along. The realistic alternative is, I think, far worse.

Pestritto on Miers

If folks are interested in my two cents, my essay on the Miers nomination has been posted by the Claremont Institute and is available here.

Ramirez Cartoon

Comment on Miers

I bring to your attention a revealing comment from a reader (Brad Preston) on the Miers nomination. You can sense the frustration, and see the hope slipping away. Bush had better be right about her, and it would be in everyone’s interest if she revealed something of her virtues at the hearings (also see Knippenberg, just below):

"I agree with you that I don’t know enough about her qualifications to make a decision on her ability. However, I know why I am upset with Bush nominating her. As an employee of mine stated last week, he has been putting up with all the big government coming out of D.C. because he hoped that the Court would be turned around. Now we don’t know if that will happen or not. Miers may be a wonderful pick, but those of us out here in the boonies won’t know that for what, two or three years? The tax cuts are all temporary. We now have the Homeland Security Dept., McCain-Finegold, and Sarbanes-Oxley. Government spending is way up. Bush has done nothing to cut government. Not one veto. It is not clear to me that the court is any different in its composition than it was 6 months ago. As a conservative, what have I gained with this administration? Am I better off than I was in 2000? Yes. Will I be better off in 2009? I don’t know. The Supreme Court is the one thing that will outlast this administration, and I can’t see a big improvement. I don’t see how this will help the Republicans in the mid-term elections. We peons have been putting up with all the other stuff because we were going to get a better Court. It is not obvious that that has happened."

The Miers confirmation: three scenarios

Many of us find ourselves wishing that the President had nominated someone other than Harriet Miers. But she’s the nominee we have. What next?

Suppose, in the first place, that the combination of conservative discontent and (gleeful) liberal opposition is sufficient to defeat this nominee. Does this weaken or strengthen the President’s hand with the next nomination? If it weakens his hand (as I think it will), those looking for a judge faithful to original intent are even worse off in the next round.

Suppose, secondly, that Miers is confirmed, but raked over the coals in the process. This, it seems to me, emboldens the Left in its opposition to Bush’s future Appeals Court and Supreme Court nominees, and places the President on the defensive as he makes his nominations. This also is not an encouraging prospect.

Finally, there is the possibility, however remote, that Miers will exceed expectations in the hearings. I have no doubt but that, in the proverbial fair fight, Miers could hold her own, one on one, with almost anyone on the Senate Judiciary Committee (not a terribly high bar, to be sure). But if conservatives sit on their hands, the fight won’t be fair. One can only hope that Miers is a quick study and that she has (and is open to) the same kinds of teachers and advisors that Clarence Thomas had as he prepared for his judicial career.

For what it’s worth, I think at the moment that the second scenario is most likely. Everything then would depend upon how the Left decides to oppose this nomination. They could put the Bush Administration on trial, question Miers’s competence and credentials, or make an issue of her conservative evangelicalism. The third is probably a winner for the Bush Administration, or at least a loser for the Left; the first is a storm they could probably weather; the second represents the toughest challenge. My guess is that we’ll see all three tacks.

President Bush seems to have put us in a difficult position. Redeeming it at this point seems to require conservative willingness to contribute to the constitutional education of Harriet Miers and then an effective defense of her nomination. Anyone want to sign onto this mission?

Hayward’s statesmanship

Powerline praises Hayward’s new book, Greatness: Reagan, Churchill, & the Making of Extraordinary Leaders: Plutarchian parallel lives, the peaks of human excellence, Aristotle’s statesmanship, and why self-education is what counts, etc.! Over the top praise? I don’t know, but great copy for the dust jacket. Use it, Steve.

Presumptive opposition to Miers

George Will is near vicious in his criticism of Bush, and the Miers nomination. Note this: "In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech." And this:

"It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court’s role. Otherwise the sound principle of substantial deference to a president’s choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends."

"The wisdom of presumptive opposition to Miers’s confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer’s career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination."

Miers, Conservative Elites, and What About the Hapless Senate?

If I was losing patience yesterday with what seemed to me to be ducking a fight, today I am losing patience with Conservative elites--including some of my dear friends here--who seem to be too quick to point out Ms. Miers’ lack of "credentials." A caller on Hugh Hewitt’s show today and a graduate of the University of Dayton’s law school, pointed out that all of this whining about her degree from a small law school in Texas is starting to sound to him like Conservative elitism. I agree. Since when do big name law degrees hold sway with us? We don’t know this woman’s mind. Bush says he does. He ought not to be held accountable for the sins of his father. I will be amazed if this woman is a Souter. Peter’s point that we don’t know anything about this woman other than that she is not Alice Batchelder, Mike McConnell, or Edith Jones, is exactly right. So we didn’t get way. Boo, hoo. If you want your way in judicial appointments, stick your neck out and run for President.

And finally, if we really want to pick a fight with someone, why not take it to the spineless Republicans in the Senate whose shameful behavior in the last year has given us this moment? One might ask WHY Bush feels the need to play politics right now instead of complaining about the fact that he does. The Senate is why. We all know the Senate is why. Voinovich and DeWine--Ohio’s two senators--are why. We need to do something about that before before we demand more of Bush. To do less is peevish and, worse, it hurts our cause. We will get another shot at it. The problem is that I think the people we most want to get the next nomination will be so tainted by the support of these childish rants that they won’t be taken seriously. Too bad.

It has happened

We didn’t have to wait all too terribly long before someone made an issue of Miers’s putative religious convictions. Jeremy Richey calls our attention to this post by Paul Butler, a law professor at George Washington University.

Butler, who makes no bones about his allegiance to the Critical Legal Studies movement, doesn’t object to legislating from the bench. Indeed, he can’t imagine a judge who doesn’t do so. As such, he’s simply a frank or more extreme version of all the liberal activists (including some on the Senate Judiciary Committee) who seem to think that policymaking is something judges ought to be doing. Like the critics of Justice Sunday (remember that?), he can’t admit the possibility tha a judge could separate his or her Constitutional and legal views from his or her religious and moral commitments. And like many on the Left, he harbors a cartoonish view of conservative evangelicalism. Butler has "profiled" Harriet Miers, having paid little or no attention either to the larger phenomenon of conservative evangelicalism or to Harriet Miers’s role in her church and her interactions with others. If, indeed, "nothing she’s asked to do in church is beneath her,", and if "she genuinely cares about people at every level--personally, professionally, socially", then Butler’s "profile" is a poorly drawn caricature. I wish I were surprised by this.

Miers’s religion

The estimable Mr. Hayward, whose book is available on Amazon, and I have mentioned Harriet Miers’s religious affiliation. Over at Get Religion, Terry Mattingly has the goods, calling our attention to these articles and this helpful blog post.

Update: Terry Mattingly, who knows this turf as well as anyone, has collected and commented on all the leading Miers religion stories in one post. I can’t at the moment do any better, and doubt that I could even under the best of circumstances

Harriet Miers on faith

I was at first perplexed by the Miers nomination. Then, the more I listened to the MSM and conservatives commenting, even on NLT), the more angry I became, becoming persuaded that this was a very bad move on Dubya’s part. I wrote a peevish paragraph on it, re-read it an hour later, but realized that my anger didn’t mean anything. I didn’t know why I was angry at Bush. Do I care that this person has no judicial experience? Of course not. I think it would be fine to appoint non-lawyers to the Court. Does anyone think that Walter Berns, for example, would be a bad appointment? Is it a problem that she works for Bush and he has known her for years and he likes her and trusts her? Of course not. So what’s the problem? Well, I just happen to know Alice Batchelder better, and I have heard from friends who know McConnell that he is really great. Well, Bush disagrees with me and my friends. O.K., we don’t know anything about her jurisprudence. How could we? Well, let’s give her the opportunity of explaining herself to the Judiciary Committee. Perhaps the conservative members of the Committee (e.g., Brownback and Coburn) can press her a bit and ask her to make her jurisprudence clear. Perhaps she can do it as well as Roberts did. Was Roberts’ testimony entirely satisfying? Bush has asked us to take this nomination on faith. So we should, for now. Then let her reason in front of the Judiciary Committee support both our faith and Bush’s.

By the way, it may be prudent to give her a copy of Heritage Guide to the Constitution, which just rolled of the press this week (the official publication date is November 3). It is a line-by-line analysis of the Constitution and is edited by Matthew Spalding and David Forte, with (I’m guessing) about a hundred different contributors; almost all of them wothies.

Ashbrook Center

Shameless Self-Promo Alert

My newest book, Greatness: Reagan, Churchill and the Making og Extraordinary Leaders goes on sale today at fine bookstores everywhere.

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Kmiec and Barnett on Miers

I missed this in the Post this morning.On the other hand, Randy Barnett has written a draft of the speech that more than a few folks on the Left and the Right might be tempted to give. Alexander Hamilton is invoked by both sides.

Update: Caleb Verbois (Comment #1) and Ken Masugi make the same point against Barnett, and in other respects are on much the same wavelength.

The Evangelical Seat?

Could Miers be a half-in-the-closet evangelical? Jonah Goldberg wonders. . .

If this turns out to be true, it could change many things (though not everything, such as the absence of any meaningful judicial record. Couldn’t she at least be on record about hapless toads??)

Miers roundup

Here’s a WaPo profile from June, when she was White House counsel. Here are two profiles from today’s papers. She’s clearly enjoying a bit of a honeymoon in the press, perhaps in part facilitated by conservative discontent.

These analyses suggest a nomination made from political weakness, as if the President couldn’t afford the "distraction" of a fight with Democrats over this nomination. If there’s any "Rovian cleverness" at work here, it’s that conservative discontentment could make liberals more willing to embrace Miers. But my expectation remains that Senate Democrats and their interest group allies will not pass up the opportunity to revisit what they regard as embarrassments and/or hot buttons in the Bush Administration’s record. Because Miers was in the White House the whole time, they can dredge everything up, not so much to defeat her (that would be a bonus) but to make as much political hay as they can. And the less they find in her personal record, the more they will take this other road.

After reading everything this morning, I’m even more convinced that Miers will play reasonably well in red regions outside the Beltway: she looks like an evangelical social conservative and will have plenty of credible testimonials on her behalf. On this front, I wonder whether Democrats and their allies will fall for the temptation, as they did with Roberts, to make her religion an issue. They do so, I think, at their peril.

Miers and Beating up on Bush

I am not eager to jump on the Conservative bandwagon of beating up on Bush over the Miers nomination. Neither am I ready to rush to his defense. But I will say this: while I understand and share the disappointment that is the natural result of gearing up for a fight that never happens--sometimes that IS the best course of action (even if the adrenaline is still stuck in your throat). I don’t know if this is one of those times but it could be it that is. Maybe Bush knows something we don’t--perhaps we could not have won the fight right now. It could be that Bush thought it was better to live to fight another day. He will likely get another go at this before 2008. It could also be that the gang of 14 and the other weak-willed GOP senators (2 of whom hail from Ohio, of course) were more problematic than we think. Perhaps Miers is a safe and solid pick. I agree with Eastman that we need to have it out over the true meaning of the Constitution and the role of the judiciary. I’m not sure if we need to have it out now--though I am getting impatient too.

Olasky on Miers

Ken Masugi calls our attention to a series of posts by Marvin Olasky, the Texas-based editor of World magazine. According to Olasky’s source, Miers is an active member of a conservative evangelical church, with views that match that general profile. This post on her "originalism" is helpful.

I’m still keeping an open mind.

Fred Barnes on Harriet Miers

Unlike his boss, Barnes is sanguine. Thw Weekly Standard covers the conservative waterfront.

Leaps of Faith vs Government by Consent

Harriet Miers is the President’s pick to replace Justice Sandra Day O’Connor. I do not know Ms. Miers. Few people do. She has no judicial record. Nothing in her background to demonstrate that she has a thorough understanding of the principles of the Constitution. Nothing, in short, to demonstrate that the President has fulfilled his campaign pledge to nominate people like Justices Scalia and Thomas who understand that the role of the courts is to interpret, not make, the law.

The President is therefore asking his conservative base to accept his judgment as an article of faith, and there is little doubt that she will be confirmed. Maybe Harriet Miers will prove in the fullness of time that faith to be well-founded. Maybe she will instead prove to be another David Souter. But whatever proves to be true, one thing is certain. By nominating a blank slate, the President has missed an opportunity to drive home in the political arena envisioned by the Constitution what has been wrong with the view, adopted by the Court over the past generation, that it is for the courts to decide all political controversies for us. "Trust me. Harriet Miers will vote the right way" is no answer to that problem, and it is a much more serious threat to our constitutional system of government than any particular decision.

Kristol on Miers

He’s Disappointed, Depressed and Demoralized. Enough said.

The Left on Miers

Kos loves watching the meltdown on the Right. He probably recognizes that that Miers is the best imaginable nominee for his side--not a forty- or fiftysomething, not an influential originalist/textualist scholar or judge, not a McConnell, Luttig, Estrada, Batchelder, or Brown.

I’m going to go out on a limb and predict that the hearings will focus on vain efforts to get her to articulate in detail a judicial philosophy and on efforts to tie her to every alleged Bush Administration misstep. The issue will be George W. Bush, and I wonder to what extent Republicans in the Senate will be enthusiastic about defending him.

Miers will likely be confirmed, with opponents citing a thin record and Bush’s alleged cronyism as reasons for their negative votes. But, I repeat, the principal focus of the public debate will be the Bush Administration, with Miers’s close ties to GWB as the point of entry.

Tepid Endorsement

Hugh Hewitt has now weighed in with a tepid endorsement of Miers. He rests his argument mostly on the thin reed that Miers will support executive power in the GWOT.

One other possibility arises that differs from the Machiavellian explanation floated below (which I don’t believe for a minute): Bush somehow knows that Miers is solid, but her stealth candidacy, which seems to have disarmed the Left for at least this morning, gives Bush the image of having "broken" from his base (a low-grade Sister Souljah moment), which the media thinks is necessary to retrieve his standing with moderate voters. Of course, this kind of gesture never works, but the White House has had a terrible month.

Never Mind

Turns out David Frum was only joking about Miers. And today he calls the Miers pick "an unforced error." So as of this moment there are apparently no conservatives showing enthusiasm about this pick.

Maybe Not So Stealthy?

David Frum singled out Miers as a possible SCOTUS pick way back in July, writing that while she is not ideological, she is "firmly pro-life." Wonder how he knows that? Maybe he’ll get a subpoena from the Judiciary Committee.

Could This Be. . .

. . . some kind of double-topspin Machiavellian play to goad Democrats (and weak-kneed Republicans) into tanking a stealth nominee and then coming back with Luttig or Estrada or Janice Rogers Brown?

What the Hell?

Harriet Miers? A quick perusal of the right side of the blogosphere finds reaction running from lack of enthusiasm to alarm and dismay. The success of Roberts shows that a smart conservative (Luttig, McConnell) will steamroll the liberals. A stealth nominee is a big step backward. Redstate notes that Miers has given serious campaign contributions to Democrats ($1,000 to Al Gore in 1988), but also to (fellow Texan) Phil Gramm.

The acid test will be the reaction of Hugh Hewitt, who hasn’t posted yet from his early morning perch out of the left coast. The only way Miers can generate enthusiasm among conservatives is if she picks a big fight with liberals in her confirmation process. But picking public fights is not something this White House does, so don’t hold your breath.

Stay tuned

The announcement of the next nominee comes at 8 a.m. EDT. AP says that it’s White House counsel Harriet Miers, about whom I know absolutely nothing. Here’s hoping that this is disinformation.

Update: It is Miers. I guess now that we have a "southwestern woman’s seat" on the Court. I’m disappointed but will keep an open mind.

Parents and schools

This, sadly, ought to be unbelievable, but is not.

Kudlow on Bush’s Katrina response

Lawrence Kudlow has many smart things to say about GWB’s Gulf Coast rebuilding program. Among others, he downplays the significance of the cost and emphasizes, as I have before, the role of the market and personal responsibility in the plan.

But the most interesting observation concerns the international audience for Bush’s proposals:

Bush knows, even if others have forgotten, that the terrorists are carefully watching the U.S. government’s response to the natural disasters in New Orleans, Houston, and elsewhere. Hurricanes are one thing, but a terrorist attack with biochemical weapons or a nuclear weapon would be far more devastating. Even another 9/11-type bombing episode from the air, ground, or sea could present more of a challenge than what we now face in the Gulf Coast. Bush knows this. He knows that the U.S. must rebuild the Gulf no matter what it takes because this effort might be a test run for something far worse.

Is $200 billion too high a price to pay to send a message to our terrorist enemies? I doubt it.

Steyn on the media

Mark Steyn’s latest rips the media for its coverage of the sufferings
brought by Katrina. A taste:

Think about that: Hurricane week was in large part a week of drivel, mostly the bizarre fantasies of New Orleans’ incompetent police chief but amplified hugely by a gullible media. Given everything we now know they got wrong in Louisiana, where they speak the language, how likely is it that the great blundering herd are getting it any more accurate in Iraq?

Interpretive genius at the WaPo Book World

Roughly a month ago, the WaPo published this review of a book on Chuck Colson, deconstructed by the Power Line guys here and here. One of the bones of contention was the reviewer’s meritless claim that "Colson’s coffers" were "filled" by grants from the faith-based initiative.

In tomorrow’s WaPo, you’ll find this exchange, with Mark Earley, PFM’s President and CEO explicitly denying the reviewer’s claim. Here, in full, so you can see its interpretive mendacity, is the reviewer’s (David Greenberg of Rutgers University) response:

Pages 411-412 of Jonathan Aitken’s Charles W. Colson , along with many news reports, make clear that Colson’s involvement with George W. Bush’s "faith-based" program in Texas inspired the president’s current policies at the federal level.

Earley is correct that the book doesn’t claim Colson’s groups take federal funds, and I didn’t mean to imply otherwise. I took care not to assert, contrary to Earley’s letter, that Prison Fellowship receives "federal funds" -- merely to quip that Colson’s "coffers" have received money from faith-based initiatives. On rereading, I can see why Earley interpreted my language as he did, and I regret that I wasn’t more careful and precise in my wording. My phrase "cashing in" was meant as a lighthearted pun on the meaning of "redemption," and I regret that in my glibness I offended Earley.

The real question isn’t one of taking "federal" money but rather of government’s entanglement with religion. News accounts have reported that Colson’s outfits have financially benefited, directly or indirectly, from state programs, including in Texas under Bush. In Iowa, a Colson group’s receipt of taxpayer funds occasioned a lawsuit. Hence, my larger point stands.

It is apparently O.K. to make a misleading claim in a book review so long as one is on the side of the separationist angels. It is O.K. to impugn Chuck Colson’s character so long as one is thereby promoting a particular vision of the separation of church and state. This from an author whose
book on Nixon won a prize. Makes me wonder about the book and about the organization that gave the award.

Update: Over at Power Line, Scott Johnson has much more, taking Greenberg the the woodshed once again.

The Indians

This story on the Indians-White Sox game last night is pretty good. It should probably be harsher on the Indians, actually. They had a man on third with one out twice in the ballgame and couldn’t score. Bad show. Here is the story from the Plain-Dealer. The two scenarious for the Indians to get in the playoffs are these:

If the Indians win the last two games of the season, they can win the wild card outright if the Red Sox or Yankees lose the last two games of their series.

If the Indians win the last two games, they could force a one-game playoff if the Yankees and Red Sox split the last two games of their series.

Louisiana’s history of corruption

This New York Times story on corruption in Louisiana is important. It’s the first MSM article I have seen on it, so people can now begin talking about how to try to get the billions of federal dollars in the right hands, rather than corrupt government officials (how is LA like a thrid world country?) without sounding politically incorrect.