Stromata Blog

Rosa Parks, Anti-Statist

Today’s Best of the Web has a bit of fun with Thomas Sowell’s “Rosa Parks and History”. Dr. Sowell, seeking to emphasize that racism in public transportation was a relatively late Jim Crow development, writes that “racially segregated seating on streetcars and buses in the South did not go back for centuries”, prompting James Taranto’s cheeky, “Maybe Because Streetcars and Buses Weren’t Invented Yet”.

Leaving such byplay aside, though, the column makes a key point about the causes and cures of racist practices.

Far from existing from time immemorial, as many have assumed, racially segregated seating in public transportation began in the South in the late 19th and early 20th centuries.

Those who see government as the solution to social problems may be surprised to learn that it was government which created this problem. Many, if not most, municipal transit systems were privately owned in the 19th century and the private owners of these systems had no incentive to segregate the races.

Then Southern legislatures began passing laws making segregated seating compulsory. Charles W. Chesnutt’s fine novel, The Marrow of Tradition, published in 1901, includes a scene in which the novel law is enforced for the first time against a Negro doctor. But, as Dr. Sowell notes, blacks were not the only opponents of this state action.

The incentives of the economic system and the incentives of the political system were not only different, they clashed. Private owners of streetcar, bus, and railroad companies in the South lobbied against the Jim Crow laws while these laws were being written, challenged them in the courts after the laws were passed, and then dragged their feet in enforcing those laws after they were upheld by the courts.

These tactics delayed the enforcement of Jim Crow seating laws for years in some places. Then company employees began to be arrested for not enforcing such laws and at least one president of a streetcar company was threatened with jail if he didn’t comply.

None of this resistance was based on a desire for civil rights for blacks. It was based on a fear of losing money if racial segregation caused black customers to use public transportation less often than they would have in the absence of this affront. . . .

People who decry the fact that businesses are in business “just to make money” seldom understand the implications of what they are saying. You make money by doing what other people want, not what you want.

In other words, an unregulated economy did not generate the unfairness against which Rosa Parks protested. Rather, governmental disregard of the principles of free enterprise made it possible to a white racist majority to impose its prejudices on the owners of transit lines, who were forbidden to maximize profits and contract freely with their customers. Self-interest isn’t a cure-all for bigotry, but, as this bit of history shows, it can be a powerful preventative.

Further reading: Anthony R. Bradley, “The Moral Legacy of Rosa Parks”:

The black America that focuses on financial independence, entrepreneurship, education, and a resurgence of black pastoral leadership will remain, for the most part, outside of government control. Truly free blacks are those who are free to make their own morally formed choices without government involvement. What is needed to continue Parks’ legacy is to free blacks disempowered by government surrogacy, and restore their dignity through a resurgence of black religious leadership, a focus on education, and a renewal of marriage and family. These were the pillars of the civil-rights movement and are the principles that will bring true liberation to those blacks left behind.

The Disinformation Campaign Begins

Though the Angry Left’s visions of sugar plums turned into a stocking full of coal, it still has the benefit, as Cliff May points out, of a simple narrative line that friendly media will allow Joe Wilson, Harry Reid et al. to recite without contradiction.

Also assisting the leftist prevaricators is the laziness of the press. I doubt, for instance, that Michael Duffy, writing a long article about Scooter Libby’s downfall for Time, intends to falsify the record. Nonetheless, it is obvious that he has not actually read and digested the Libby indictment. If he had, he could not have written, “The indictment alleges that Libby . . . leaked the identity of Wilson's wife to several reporters to undercut the validity of Wilson’s criticism”, for that is not alleged. What the indictment actually asserts is that Mr. Libby did not talk about Mrs. Wilson with Tim Russert, confirmed Matt Cooper’s information, derived from other sources, that she worked for the CIA (according to Mr. Cooper, the confirmation consisted of, “Yeah, I’ve heard that”) and may have said something to Judith Miller (though Miss Miller can’t remember what). On no reasonable reading does that add up to “leaked the identity of Wilson's wife to several reporters”, and, of course, Mr. Libby is not charged with having done so.

A yet clearer sign of failure to read the source material is Mr. Duffy’s later howler,

Fitzgerald was appointed to run the case, and the hard-charging prosecutor began interviewing witnesses within weeks. That, according to Fitzgerald, is when Libby began to spin his web. In his interviews with the FBI and later in his testimony to the grand jury, Libby swore that he had first heard about Wilson’s wife not from other senior officials in June 2003 but instead on July 10 or 11, 2003, from NBC News Washington bureau chief Tim Russert [emphasis added].

The indictment does not say that. It states that Mr. Libby told the FBI and the grand jury that he first learned about Mrs. Wilson’s employment from sources within the Administration but that he had forgotten that information when he spoke to Tim Russert. He is not accused of lying about his original source, only of inventing details of a subsequent conversation with a reporter.

Needless to say, Mr. Duffy, while repeating Joe Wilson’s version of his famous mission to Niger, neglects to add the important detail that Wilson’s narrative has been proven false. Even the Washington Post, no center of Bush fandom, has labeled it “mostly erroneous”.

With so much of the media earnestly peddling disinformation, getting the truth out to the public will be a challenge. Happily, the truth is in this case clear, convincing and simple: A special counsel of unquestionable ability and with complete access to the facts examined this affair for two years. He knows what Valerie Plame Wilson really did for the CIA and how the fact of her CIA employment became public. With that knowledge in hand, he has chosen to bring charges against no one for improperly disclosing confidential information. The case against Mr. Libby deals solely with what he did after the inquiry began, not with any earlier misconduct. The idea that a grand conspiracy existed to silence a “whistle blower” or that the White House’s conduct was improper to any extent rests purely on partisan wishful thinking.

What the Libby Indictment Really Says

Normally I wouldn’t regard the details of Lewis “Scooter” Libby’s indictment as falling within the scope of my interests. They will, however, be the raw material for years of conspiracy theorizing by Angry Leftists disappointed at so small a “Fitzmas” package, so reading the document is worthwhile, if only to make it easier to recognize its future misuse.

One implication stands out clearly, though the media are not likely to make much of it: The special counsel found no evidence of misconduct by the Bush Administration in its response to Joseph Wilson’s falsehoods about his mission to Niger (see the Addendum infra). In particular, Mr. Fitzgerald evidently concluded that the disclosure of Valerie Plame Wilson’s employment by the CIA was not improper and did not endanger national security. He thought, at the outset of his inquiry, that he might uncover a significant breach of security. As the indictment puts it,

The responsibilities of certain CIA employees required that their association with the CIA be kept secret; as a result, the fact that these individuals were employed by the CIA was classified. Disclosure of the fact that such individuals were employed by the CIA had the potential to damage the national security in ways that ranged from preventing the future use of those individuals in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who dealt with them. [Indictment, Count One, ¶1.d]

Mrs. Wilson assertedly fell into that category [Indictment, Count One, ¶1.f] We can reasonably infer that she did not meet the criteria for coverage under the Intelligence Identities Protection Act. If she had, the indictment would undoubtedly say so, rather than rely on a broader legal theory that, if correct, would render the IIPA superfluous. Since the IIPA did not apply, the special counsel had to ascertain (i) whether someone who knew that she was “under cover” leaked her CIA connection to an unauthorized person and (ii) whether publication of that information was detrimental to national security.

A major focus of the Grand Jury Investigation was to determine which government officials had disclosed to the media prior to July 14, 2003, information concerning the affiliation of Valerie Wilson with the CIA, and the nature, time, extent, and purpose of such disclosures, as well as whether any official making such a disclosure did so knowing that the employment of Valerie Wilson by the CIA was classified information. [Indictment, Count One, ¶28]

We must indulge in a little argumentum ad silentium here, for Mr. Fitzgerald has not told us in so many words what he didn’t discover. But his silence is eloquent. He certainly knows –

• who told Bob Novak that Valerie Plame Wilson worked for CIA;

• whence those informants got their information;

• whether they knew or should have known that Mrs. Wilson’s status was classified;

• what Mrs. Wilson really did in her CIA position;

• why the CIA wanted to keep her employment secret; and

• how much importance it attached to that secrecy.

Having those data in his possession, Mr. Fitzgerald is in a better position than any of us to judge whether the leak was harmless or innocent. He let his grand jury expire without returning indictments against anyone except Mr. Libby, who is not charged with disclosing classified information and was not a source for Bob Novak, the columnist who made the leak public. The only rational inference is that he found no mishandling of official secrets that was blameworthy enough to prosecute. Until and unless new facts emerge, I don’t see how anyone can reasonably disagree. (Unreasonable disagreements we will see in plenty, of course.)

Turning to the case against Mr. Libby, its entirety is that he lied to FBI agents and the grand jury about four conversations that he had with reporters: Tim Russert (NBC) on July 10, 2003, Matt Cooper (Time) on July 12, 2003 and Judith Miller (New York Times), on July 8, 2003, and July 12, 2003. All took place before Bob Novak’s column appeared (July 14, 2003) but well after Mr. Libby had learned from multiple sources within the Administration that Mrs. Wilson worked for the CIA and had arranged for her husband to be sent to Niger in February 2002 to investigate whether Saddam Hussein’s regime was attempting to purchase uranium from that country. Presumably, though we are not told this, Mr. Libby also knew by then that Mr. Wilson’s accounts of his findings, as told to gullible reporters and expounded in a New York Times op-ed, were bold-faced lies.

The indictment charges that Mr. Libby misrepresented the crucial conversations as follows:

1. Tim Russert – The Libby version: Mr. Russert asked him whether Mr. Wilson’s wife worked for the CIA and averred that her employment was well known among reporters. Mr. Libby found this information surprising. The indictment: The conversation was about a different subject altogether, and Mrs. Wilson never came up.

2. Matt Cooper – The Libby version: Mr. Libby raised the subject of Mrs. Wilson, saying that other reporters had told him that she worked for the CIA but that he couldn’t vouch for the story’s accuracy. The indictment: All that happened was that Mr. Cooper asked whether Mrs. Wilson was a CIA employee, and Mr. Libby confirmed that she was.

3. Judith Miller – The allegations concerning the conversations with Miss Miller are set forth in the narrative portion of Count One, but there are no corresponding counts of false statements or perjury. That is probably because her own account of what she told the grand jury basically supports the defense. For what it is worth, the narrative asserts that, on July 8, 2003, “LIBBY advised Miller of his belief that Wilson’s wife worked for the CIA” (Count One, ¶17) and, on July 12, 2003, the two of them “discussed Wilson’s wife, and that she worked at the CIA” (Count One, ¶24). Miss Miller doesn’t recall receiving information about Mrs. Wilson from Mr. Libby, though the names “Valerie Flame [sic]” and “Victoria [sic] Wilson” appear, with no context, in her notes. She doesn’t remember why she wrote them down, nor whether they reflect any portion of the discussion with Mr. Libby.

The indictment does not allege that Mr. Libby ever gave classified information to any reporter other than Judith Miller. In its version of events, he said nothing to Tim Russert about the matter and merely confirmed information that Matt Cooper already had from another source. Miss Miller’s testimony (unless she bizarrely misled her readers) tends to vindicate the defendant. Not only does she have no recollection of what would have been a significant revelation, but a leaker isn’t likely to have gotten the key name wrong twice in different ways. (Maybe he was presciently warding off suspicion? If he was that clever, he wouldn’t be in this jam.)

What we are left with, then, is this: If the special counsel is right, a veteran Washington lawyer lied about innocent events in order to make himself look guilty. That sounds beyond bizarre. Unless one wishes to construct a truly labyrinthine conspiracy theory – and I have no doubt that such theories are already popping up weed-like at Daily Kos and its ilk – the plausible hypothesis is that Mr. Libby was betrayed by faulty memory. The special counsel rejects that notion, not, I think, because he was bound and determined to indict someone, but because there are limits to how much memory loss is credible. On this point, the purported conversation with Tim Russert is the key. The indictment quotes Mr. Libby’s grand jury testimony on March 5, 2004 [I have edited slightly for clarity]:

And then [Russert] said, “Did you know that Ambassador Wilson’s wife works at the CIA?” And I was a little taken aback by that. I remember being taken aback by that. He may have said a little more than that. And I said, “No, I don’t know that” – intentionally, because I didn’t want him to take anything I was saying as in any way confirming what he said [and] because at that point in time I did not recall that I had ever known [it]. I thought this [was] something that he was telling me that I was first learning. . . .

And then he said, “Yeah, all the reporters know it.” And I said again, “I don’t know that.” I just wanted to be clear that I wasn’t confirming anything for him in this. And, you know, I was struck by what he was saying in that he thought it was an important fact, but I didn’t ask him any more about it, because I didn’t want to be digging in on him. And then he moved on and finished the conversation. [Indictment, Count Four, ¶2]

Several months earlier, Mr. Libby had told the same tale to the FBI. The indictment summarizes his statement as follows:

During a conversation with Tim Russert of NBC News on July 10 or 11, 2003, Russert asked LIBBY if LIBBY was aware that Wilson’s wife worked for the CIA. LIBBY responded to Russert that he did not know that, and Russert replied that all the reporters knew it. LIBBY was surprised by this statement, because, while speaking with Russert, LIBBY did not recall that he previously had learned about Wilson’s wife’s employment from the Vice President. [Indictment, Count Two, ¶3]

The indictment alleges that these details were fabricated. In reality, “LIBBY spoke to . . . Russert to complain about press coverage of LIBBY by an MSNBC reporter. LIBBY did not discuss Wilson’s wife with Russert.” [Indictment, Count One, ¶20] No doubt that is Mr. Russert’s version, and he probably has contemporaneous notes to back it up. It is also fairly incredible that Mr. Libby wouldn’t have remembered, at the time of his conversation, that Mrs. Wilson was a CIA employee. He had, the indictment states, discussed her position with the White House press secretary on July 7th and the Vice President’s counsel on July 8th [Indictment, Count One, ¶¶16 and 18] and with other government officials on quite a few earlier occasions [Indictment, Count One, ¶33.a.ii]. From the transcript of his testimony and the summary of his statement to the FBI, one can see that he didn’t claim to have heard about Valerie Wilson for the first time from Tim Russert, only that he forgot about it during that particular conversation.

Libby on Russert doesn’t sound real believable. Indeed, it can’t be true unless Tim Russert lied to the special counsel and forged corroborative documentation, which is more than even a press skeptic like me can swallow. It’s easy to figure out why the special counsel is unhappy: Disproving Mr. Libby’s insistence that the Plame-CIA link was well known to reporters must have consumed time and resources, thus materially interfering with the rest of the investigation. Concern about such detours is one reason why perjury, including seemingly innocent fibs, is (or ought to be) punished harshly.

All that sounds simple and clear-cut, so much so that the consensus of lawyers willing to be quoted is that the prosecution has an immensely strong case. Criminal defense law is about as far away from my area of expertise as one can get. Nonetheless, it seems to me that the consensus view is overhasty and that there are weaknesses for the defense to exploit.

First and foremost is the absence of a motive for perjury, without which it will be hard to overcome jurors’ reasonable doubts. A question posed to Mr. Libby suggests how the prosecution will seek to fill that gap:

And let me ask you this directly. Did the fact that you knew that the law could turn, the law as to whether a crime was committed, could turn on where you learned the information from, affect your account for the FBI when you told them that you were telling reporters Wilson’s wife worked at the CIA but your source was a reporter rather than the Vice President? [Indictment, Count Five, ¶2.b]

The weakness of that theory is that, according to the indictment’s view of the facts, Mr. Libby didn’t “tell reporters Wilson’s wife worked at the CIA”. The jury will hear that he said nothing about the subject to Tim Russert and nodded at information that Matt Cooper already possessed. It will hear nothing about Judith Miller, unless the prosecutor is willing to risk a hostile witness or a devastating cross-examination. Will the Twelve Good and True believe that Mr. Libby concocted an excuse for actions that he hadn’t engaged in?

I see a dilemma for the prosecution. Its case would be strengthened if the Libby version of his conversation with Mr. Cooper were true, that is, if the defendant initiated the discussion of Mrs. Wilson. But if Mr. Libby is verus in uno, may the jury not think him verus in omnibus? Defense counsel will have fun with, “Mr. Fitzgerald charged my client with lying about what he said to Matt Cooper. Now he admits that it was Mr. Cooper who was mistaken, but he hasn’t indicted him for perjury. Can you be so sure that Tim Russert isn’t mistaken, too? Are you sure beyond a reasonable doubt?”

It won’t surprise me if the defense puts on no witnesses, then argues that the prosecution is seeking to send a man to jail for up to 30 years and fine him up to $1.25 million, all based on a discrepancy in recollections about two brief conversations and without showing any plausible reason why he would have deliberately lied. He could well have been wrong about what he, Tim Russert and Matt Cooper said to one another, and he could certainly have misrecollected, after the Plame Affair had been in the news for months, his state of mind in July 2003, but what has the prosecution put in evidence to demonstrate that any errors were intentional and designed to mislead? That sounds to me like a line of defense that could very well end in acquittal, whether or not the defendant is, in the recesses of his heart, guilty as charged. If Mr. Fitzgerald hopes to overcome it, he had better have more arrows in his quiver than he has displayed so far. Maybe he does; maybe not.

Addendum: National Review Online’s Media Blog is campaigning to shame newspapers and TV networks into telling the truth about Joe Wilson’s deceptions, instead of covering him in a warm, fuzzy, “brave whistle blower” blanket. Every informed commentator who isn’t a raving victim of Bush Derangement Syndrome knows that Wilson lied and lied and lied and lied and keeps on lying. The Washington Post’s editorial page, of all places, acknowledges that his “allegations that the administration twisted that small part of the case against Saddam Hussein” were “mostly erroneous”.

I urge everyone who blogs about the Libby case to be sure to mention that, whatever he did wrong, Scooter Libby’s objective was to expose a malignant, antisemitic, anti-American prevaricator.

Addendum (11/1/05): For insight into what Wilson was saying before he became famous, vide “Before Novak, The Joe Wilson Speech that Made Clear His Agenda”. “Malignant, antisemitic, anti-American prevaricator” is a characterization that he earned long ago.

Caution: Moonbat on Board: Someone calling himself “kstreetfriend” has posted a long comment below. Rather, he has cut and pasted an entry from his own blog, apparently afraid that nobody would follow a link to that site (which is, I note in passing, racist and paranoid). The bulk of his rant consists of attacks on Reginald Walton, the judge who has been presiding over the special counsel’s investigation. My research assistant, Mr. Google, quickly found that slandering Judge Walton, a George H. W. Bush appointee, is popular in certain left wing circles. It gives them psychological comfort as “Fitzmas” fizzles, I suppose.

Indictments and Opportunities

Is that all there is? Despite the superheated rhetoric that we’ll read over the next several days, Scooter Libby has been indicted for lying about when and how he learned facts that he had the right to know (as the holder of a high level security clearance) and didn’t illegally disclose. There is no charge that he leaked classified information to anybody or endangered national security in any way. If he really did make false statements to FBI agents and perjure himself before Special Counsel Fitzgerald’s grand jury, he acted foolishly and deserves to be punished, but, on the scale of offenses, this one is pretty trivial. It scarcely ranks with Sandy Berger’s lightly punished removal and destruction of secret documents.

Nevertheless, Mr. Fitzgerald presumably believes that the matter is serious enough to go to trial, and his judgement isn’t to be scoffed at. Whether it is correct is the concern of Mr. Libby and his lawyers. As for the rest of us, I see no reason to bewail this development. It is an opportunity to drive home substantive historical points, in particular, that Joseph Wilson lied grotesquely when he claimed to reporters and in his famous New York Times op-ed that his mission to Niger discredited reports that Ba’athist Iraq had sought to buy uranium from that country. What’s more, the CIA knew that he was lying and made no attempt to correct the record. Instead, it claimed – with no basis, it now appears – that Wilson’s wife’s role with the CIA had been illegally revealed, referred that dubious accusation to the Justice Department and leaked the referral, which was supposed to be classified, to the news media (the one clear instance of law breaking in this whole affair). It’s hard to read that pattern of events as anything other than evidence that persons within the CIA were eager to influence American public opinion by enhancing the credibility of spurious charges against the Bush Administration and by manufacturing a political crisis.

Now that the Libby prosecution lends current interest to this history, it’s time to think hard about concepts like the relative roles of elected and career officials in our system of government. Liberals were outraged in the 1970’s by what they characterized as a rogue CIA that carried out a foreign policy of its own. Did their outrage stem from the agency’s mutiny against democratic authority or merely from the fact that its policies were adverse to communist interests? Are today’s rogues all right, because they bend their efforts to undermining a Republican Presidency and its campaigns against our country’s declared enemies?

Just to be completely clear: This is not a case of brave whistle blowers bringing to light truths that elected officials want to keep under wraps. Wilson and his abettors spread lies, and they worked to enlist the law enforcement process in a vendetta against high government officials who tried to correct their disinformation. Their conspiracy may have snared one incautious victim. It will be a sad day for America if it enjoys more success than that.

Covering for the U.N. Crooks

Regular readers of the Wall Street Journal are well aware of the enormous gap between its conservative editorial page and the rest of the paper, which, when it goes beyond business and economic coverage, is as unswervingly left-wing as the Guardian. Yesterday Paul Volcker’s investigative team issued its final report on the massive corruption in the United Nations “Oil for Food” program. An editorial (not yet available on-line) summarizes the findings:

The Volcker report confirms that Saddam Hussein demanded, and got, some $1.8 billion in illegal surcharges, kickbacks and bribes from companies doing business in Iraq. It confirms that he steered billions in oil and humanitarian contracts to his politically preferred clients, particularly Russia and France, and smaller sums to agents of influence (or their associates) such as British MP George Galloway, French Senator Charles Pasqua, and Oil for Food director Benon Sevan. It confirms that Saddam did so under the noses, and frequently with the connivance, of the U.N. agencies entrusted to monitor the program. . . .

The report also provides a list, which runs to 60 pages, of influential individuals or groups awarded lucrative oil allocations by Iraq because they “espoused pro-Iraq views or organized anti-sanctions activities.” Here again, the range is astonishing. In addition to Messrs. Galloway and Pasqua (each of whom was given oil allocations of 11 million barrels), one finds the names of a pro-Iraq Vatican priest (2.5 million), the Palestinian Liberation Front (nine million), the French-Iraqi Amity society (11.8 million), Burma's forestry minister (27 million), the Orthodox Church of Russia [ouch!] (two million), and the Presidential Office of Russia (21.3 million). . . .

All of which reminds us again that the sanctions regime was corrupted to its roots, and that this corruption ultimately tainted nearly every branch and every leaf connected to it, including all the assorted “peace activists” and champions of internationalism who were in the pay of a despot. Of the Iraq war’s many benefits to the international system, exposing that corruption, and stopping it, must be counted among the most significant.

Isn’t there news here? Shouldn’t the public know that many of the same people who ascribed greedy motives to the Ba’athist regime’s opponents were themselves in Saddam Hussein’s pay? And that the supposedly peace-seeking U.N. facilitated the distribution of the despot’s bribes?

Not, it appears, in the eyes of the news staff. So far as I can determine, not a word about the Volcker Report appears anywhere else in the Journal. Coming elections in Azerbaijan rate a story, as does controversy over pension reform in Belgium. There is, of course, plenty about whether the Vice President’s chief of staff testified fully and truthfully about his role in a trivial security breach that had no significant consequences. The largest financial fraud in world history? That doesn’t make the cut. It isn’t speculative or paranoid to suspect the reason: Scandals involving left-wing politicians and the U.N. aren’t included in the Public’s Right to Know.

The Journal’s editors are, I fear, too optimistic. Exposing and stopping the U.N.’s corruption won’t be among the most significant achievements of the Iraqi campaign until and unless the media, including their own newsroom, stop covering up bien pensant fraud.

Correction: I overlooked a story on page A3, which, however, focuses on the receipt of oil allotments by Siemens and DaimlerChrysler, that is, on the business story. There is a generalized reference to the report’s conclusion that “Mr. Hussein used Iraqi oil allocations from the program to reward companies and individual politicians in countries deemed friendly to Iraqi interests while punishing those deemed hostile” but nothing about the subventions to “peace movement” leaders like the unspeakable Galloway.

No More Quagmiers!

Surveying reactions to Harriet Miers’ withdrawal from consideration for the Supreme Court, one sees that a large portion of the Left cannot comprehend that the primary conservative objection centered on intellectual stature, not ideology. She is a successful, intelligent, hardworking lawyer, but not of the quality that the Right expected after John Roberts. The general theme of early right-of-center reactions (mine, for instance) was “underwhelmed”, and nothing learned during the next three weeks improved the picture. Was it really a great idea to leapfrog to the Supreme Court a nominee who had never argued a major case, written a law review article or even, so one as anybody could discover, had a serious conversation about Constitutional questions? Next to literally (which I do not use as a synonym for “figuratively”) scores of members of the conservative legal community, Miss Miers was unimpressive. Nor did she do a great deal to further her own cause. Perhaps her Judiciary Committee questionnaire wasn’t as dreadful as Senators Specter and Leahy complained. Still, it was a routine, mediocre effort. If ever I am per impossible nominated to the Court, I shall polish that document until it blinds Chuck Schumer at twenty paces. Apparently, Harriet Miers couldn’t work herself up to that. Why should others be more enthusiastic in her behalf?

I don’t suppose that I should be surprised that leftists miss all this and presume that she failed a political litmus test. The National Organization for Women fantasizes, “The real reason Bush’s right-wing base demanded her withdrawal was the lack of an iron-clad guarantee (which they had with John Roberts) that Miers would be a solid vote to overturn longstanding precedents like Roe v. Wade and Griswold v. Connecticut and uphold abortion restrictions enacted under this administration.” Ah, yes, the Roberts blood oath, administered in the cellar of Skull & Bones by Pope Benedict and the Grand Kleagle of the Federalist Society. I guess Harriet couldn’t swear it, because women aren’t allowed into the Bones tomb . . . or something like that.

There’s no doubt that such commentators are sincere in thinking that the Right evaluates judges solely in political terms, without regard to neutral competence. That is, after all, their own standard. If quality mattered to NOW, PFAW, NARAL and the rest of the alphabet sinister, they would have been the first to raise the hue and cry over the thin Miers résumé. Instead, they sound as if they would have liked to see her confirmed, simply in the hope that she might “evolve” into a second David Souter. With that evidence of their frivolous approach to jurisprudence, we need never again feel obligated to pay any attention to it.

Enough of that. It’s time to look ahead. Those who claim, optimistically or pessimistically, that the passing imbroglio has opened a chasm between President Bush and his hitherto most loyal supporters overlook the fact that almost all of the latter brim with confidence that his next Supreme Court pick will be top-notch – hardly a symptom of deep disillusionment. He could disappoint us, which might well touch off a crisis in American conservatism, but hardly anyone thinks that he will. The next few months are most likely to see an end to the Administration’s summer doldrums. As matters of import take the stage – tax relief, restraints on government spending, the spread of democracy in the Arab world, the growing belligerence of Iran, terminal breakdown of Communist Korea and yapping nuisance of Chavista Venezuela, the burgeoning U.N. scandal, the advent of the White Sox dynasty (just joking) – the Angry Left’s incoherent venom will steadily lose its sting. The Miers nomination was a brief, fierce storm for conservatism and the Bush Presidency. Brighter days, if not less contentious ones, lie ahead.

Quote of the Day

Jim Geraghty on why it is so hard to get elite opinion to take the War on Terror seriously:

[M]any of our highest-ranking minds and loudest voices cannot comprehend the threat. It makes the McMansion, the good job, the press clippings, the fame, the fortune, their titles, etc. seem so ephemeral, so insignificant, so irrelevant to the great issues and great challenges of the day. So they ignore it, they ridicule the administration for making mistakes. They insist Mayor Bloomberg is overreacting when he puts the subways on alert; if he hadn’t taken those steps, they would mock him for not doing enough. Whatever those trying to address the problem do, it’s either too much or not enough. There is always a Richard Clarke, or a Wes Clark, or a Sandy Berger, or a Michael Scheuer or a former President Clinton to say, “boy, if I were in charge, we wouldn’t have these problems, I’d solve it in five seconds.” Their ego demands that they believe this.

The Permanent Government Pleads Its Case

Today’s Los Angeles Times brings us a timely reminder that a significant portion of the U.S. bureaucracy regards elected governments as essentially illegitimate. Decisions, in its view, ought to be made by well-informed mandarins, then tamely adopted by the President and his appointees.

For four years, Lawrence B. Wilkerson was a key member of Secretary of State Colin Powell’s staff. His Times op-ed, based on a recent speech to the leftist New America Foundation, attributes “the ruinous foreign policy of George W. Bush” to the President’s refusal to leave policy making to “the traditional NSC [National Security Council] process”. Instead, he tells us,

In President Bush’s first term, some of the most important decisions about U.S. national security – including vital decisions about postwar Iraq – were made by a secretive, little-known cabal. It was made up of a very small group of people led by Vice President Dick Cheney and Defense Secretary Donald Rumsfeld.

I wonder in what circles the influence of the Vice President and the Secretary of Defense over foreign policy was “little known”. This talk of cabals has the ring of the conspiracy theorist, and Col. Wilkerson is hardly the first to make accusations about the control of policy by a small, sinister group. What makes him different is the precise grounds of his complaint: not that the conspirators are Jews neoconservatives but that they are democratically chosen officials and, worse yet, are “efficient and swift”. That’s not the way things are supposed to be done in Washington.

I knew that what I was observing was not what Congress intended when it passed the 1947 National Security Act. The law created the National Security Council – consisting of the president, vice president and the secretaries of State and Defense – to make sure the nation’s vital national security decisions were thoroughly vetted. The NSC has often been expanded, depending on the president in office, to include the CIA director, the chairman of the Joint Chiefs of Staff, the Treasury secretary and others, and it has accumulated a staff of sometimes more than 100 people.

But many of the most crucial decisions from 2001 to 2005 were not made within the traditional NSC process.

One might speculate that the reason for this eclipse was what Col. Wilkerson himself describes as “the dysfunction and inefficiency of the formal decision-making process, where decisions, if they were reached at all, had to wend their way through the bureaucracy, with its dissenters, obstructionists and ‘guardians of the turf’.” But no, he prefers that to the “furtive” activities of Messrs. Cheney and Rumsfeld.

Discounting the professional experience available within the federal bureaucracy – and ignoring entirely the inevitable but often frustrating dissent that often arises therein – makes for quick and painless decisions. But when government agencies are confronted with decisions in which they did not participate and with which they frequently disagree, their implementation of those decisions is fractured, uncoordinated and inefficient.

In plain English, career officers do not see themselves as civil servants in the classic mode, doing the bidding of the leaders elected by the public. Rather, they demand an independent policy making role, and, if that is denied them, will mishandle the jobs that they were hired to do. If that is true, it is a strong argument not for asking the President to surrender a portion of his authority to the unelected bureaucracy but for a root-and-branch reconstruction of the Department of State.

Decision makers should not, of course, ignore expert advice – assuming that it is given in disinterested good faith. When the “experts” are primarily concerned with their own institutional prerogatives, and are prone to Col. Wilkerson’s puerile insults and tantrums, what can a reasonable man do but leave them out in the cold?

Two Thousand Heroes

For weeks, the Angry Left has been eagerly anticipating the announcement of the 2,000th American combat death in Iraq. We will now see a round of parties and protests. They’ve waited 31 months for this moment and won’t be denied the opportunity to shriek about the futility of it all.

Sometimes satire does the best job of showing up a truly idiotic moral posture. Here is Scrappleface, writing in a slightly different context but directly on point in this one:

“The Bush foreign policy continues to be fatally wounded by clarity of purpose, dogged persistence and a pathetic failure to capitulate in the face of opposition,” the source said. “At a time when a real leader would be paralyzed with self-doubt over the meaningless deaths of 2,000 American troops, Bush continues to act as if freeing 25 million Iraqis from decades of oppression, torture and death is somehow worth the price paid by those who volunteered to fight.”

I won’t rehearse once more all of the arguments in favor of overthrowing the Ba’athist tyranny in Iraq. It’s enough to thank the soldiers who have risked their lives for liberty and civilization. Those who regard their sacrifices as just another opportunity to bark at political foes, and who care nothing about any lives or freedoms except their own, deserve all of the contempt that I’m sure they’ll get.

The Originalism of Brown v. Board of Education

Although I’ve forsworn further commentary on the Miers contretemps until new and interesting events occur, a Supreme Court nomination is an irresistible opportunity to expatiate on broad legal and constitutional issues. I don’t claim deep expertise in such matters, but they are, as the saying goes, too important to be left to the experts. Even a humble pension lawyers, whose practice brings him no closer to the text of the Constitution than an occasional brush with the Supremacy Clause, has the right and duty to ponder what our nation’s highest court ought to do and how it ought to do it.

On the simplified level of popular discourse, the complex question of the proper methodology for interpreting the Constitution has been reduced to “originalism” versus an alternative that currently seems bereft of a handy name. It was called “the living Constitution” for a while, but that moniker has acquired pejorative associations. Faute de mieux, I will call it Brownism, after the case that its advocates invoke first and foremost as its mark of legitimacy. Brown v. Board of Education is the one major Supreme Court decision since the New Deal whose outcome no longer draws serious criticism from any legal quarter. To “Brownists” it is the great anti-originalist trump card. It proves, to their minds, that construing the Constitution in accordance with nothing more than “original intent” leads to injustice: An originalist Court, so they contend, would have looked at the original intent of the Fourteenth Amendment and concluded that it embodied the principle of “separate but equal”, from which it follows that America would be a legally segregated society today, were it not for the refusal of the Justices to be bound by the dead hand of the Founders.

Brown is, I think, central to all contemporary controversies over the role of the judiciary in American politics. Its universally lauded end – the toppling of Jim Crow – justifies the means employed and, by extension, blesses other decisions whose rationales cannot be located in the original understanding of the Constitution’s framers. To demonstrations that the Constitution sets forth no protected right to procure abortions or denies governments at all levels the power to take private property for private use comes the crushing rejoinder: “Originalism repudiates Brown”, often accompanied by the insinuation that originalists favor repudiation in practice as well as theory.

It’s a little odd that liberals in our day implicitly accept the segregationist premise that the Fourteenth Amendment does not, when construed in accordance with its originally intended meaning, forbid separation of the races in public education. The Court’s opinion in Brown doesn’t say any such thing. To the contrary, its main line of argument is consistent with an unswerving originalism. It rejects “separate but equal” not because society’s understanding of equality has evolved since the Fourteenth Amendment was adopted but on the ground that it is impossible to apply without undermining equal protection: Evidence that the Justices regarded as compelling established that racially separate schools were inevitably and necessarily unequal, even in the unlikely event that they received comparable government support. They then proceeded to interpret the Fourteenth Amendment in accordance with ordinary canons of statutory construction: Given that its draftsmen clearly intended to grant all citizens equal rights, without regard to color, and that segregated schools cannot be equal, the inescapable conclusion is that the practice of educational segregation, however widespread and longstanding, is unconstitutional.

One can debate, as many did as the time, whether the evidence cited by the Court, particularly Gunnar Myrdahl’s controversial studies, fully supported its holding, but there is no reason to doubt that the Justices believed in good faith that it did. The Brownist reinterpretation of Brown effectively treats them as stealthily deciding the case on grounds that they were unwilling to submit to the world. Is that really likely? I will grant that Justice Warren may well have been determined to outlaw segregated schools and little concerned about how he got to that result. He did not, however, carry his fellow Justices with him by calling on the enlightened views of the international community or a progressive unfolding of new social norms or “emanations” and “penumbras”. There was nothing in his approach to the question that is repugnant to the jurisprudence of a Bork or a Scalia.

The concept of Brown as the antithesis of originalism stems largely from reading back into it the methods that the Warren Court adopted in later cases, when it began treating the Constitution as a mandate for post-war liberalism. A decision like Griswold v. Connecticut, though many originalists like its result, can’t reasonably be related to anything in the language of the Constitution, and the Court made little attempt to find a link. The majority of the Justices simply pulled a broad principle out of thin air in order to strike down a state law that offended liberal prejudices. Apologists for that and similar decisions found it effective to claim that the Court was acting in the great tradition of Brown. But Brown was not “Brownist” in its reasoning, and its deployment to justify lawmaking from the bench is a serious distortion that has had dire consequences for Constitutional government.

Pork, Pork Everywhere, But Not a Dime to Cut

Senator Tom Coburn (R-Okla) lost heavily when he tried to reallocate a few slices of pork, most notably a $220 million bridge connecting a nearly uninhabited Alaskan island to the mainland, to Hurricane Katrina relief. Everybody abhors waste in general, but only 14 Republicans and a Democrat from a barely blue state were willing to vote against particular instances.

Just as notable as the low number of “ayes” is the turnout of fully 82 Senators to cast unneeded “nays” against amendments whose defeat was preordained. It is almost as if they wanted to assure nervous colleagues that they were no closet porkbusters. Suspicions about one’s loyalty to the Incumbent Party might, as Washington’s Patty Murray (last heard commending Osama bin Laden’s charitable enterprises) warned, jeopardize projects in one’s own state.

Many bloggers seem surprised that the anti-pork campaign is faring so poorly, and their surprise swiftly turns to outrage at the “hypocrisy” of soi disant “fiscal conservatives” who never actually favor conserving the fisc. There’s much to be angry about, but hypocrisy isn’t a useful explanation. Pork barrel politics is not a moral disease; it is the outcome of the perceptions and incentives at work in Congress. If the Coburn minority is ever to swell to a majority, it is important to examine the phenomenon realistically.

No Congressman, believe it or not, wants to spend tax money in ways that his constituents or oppose. Nor are there many who favor actions that the know will wreak economic harm. Unfortunately, what they perceive is that public works projects, not excluding the “bridge to nowhere”, are desired indiscriminately by voters and have a positive impact on the economy. Tom DeLay, in his less chastened days, said as much: An attack on Congressionally mandated boondoggles is an attack on the economy.

The supposedly benign economics of pork is one of the reasons why legislators believe that it is popular, no matter what isolated loudmouths may say. A second reason doesn’t depend on unwitting acceptance of semi-socialist logic. It is, rather, structural.

Members of Congress live in Washington, D.C. They read the Washington Post, watch the local TV stations, chat regularly with the local residents. The places that they represent are mostly an inconvenient distance away, visited intermittently under the highly artificial conditions of the “permanent campaign”. What a Senator or Representative “knows” about people is inevitably shaped by what he sees and hears in his real, inside-the-Beltway domicile.

The D.C. area is, as everyone knows, heavily left-liberal. Most right-of-center Congressmen are resilient enough to resist adopting its overt positions. The problem arises from the covert assumptions that enter beneath the threshold of awareness. The contemporary Left has a firm and definitive view of what motivates ordinary citizens. Its prejudices are absorbed unconsciously by many lawmakers who never deliberately vote for a liberal, or even a moderate, bill.

On this view, voters fall into two classes: the greedy and the misled. The greedy are acting as nature intended. If they are rich, they want tax cuts. If they are not rich, they want the government to transfer money from the rich to themselves. Luckily (from the liberal point of view), there aren’t very many rich people. Unluckily, a distressing percentage of people who ought to be liberals suffer “false consciousness” and vote for right-wing candidates for irrelevant noneconomic reasons like foreign policy or social issues.

A conservative who assimilates this perception of human nature (which isn’t far from that of much old-fashioned, pre-Reagan conservatism) will come to believe that, whatever he may personally think, the folks back home either like spending programs that bring federal dollars visibly to their neighborhoods or are uninterested in that kind of issue. Visits to their districts reinforce that belief, for voters who want favors from the government are the ones who have the strongest incentive to buttonhole their representatives. A huge proportion of what the traveling Congressman hears consists of pleas for federal funds. Almost never does a constituent say to his face that the pet project of a local interest group isn’t worthy of funding.

Moreover, if he should hear or think that, he must also consider a reality of the budget process. If the federal government doesn’t pay for a new wing for his home town art museum, the money won’t be saved. It will simply become some other district’s earmark, which may be still less meritorious. “If we don’t take this money, they will” is a powerful argument, even among right-wingers.

The task facing “porkbusters”, then, is not just to identify unworthy projects. It is to discover a way to shatter the pork barrel mentalité. Senator Coburn has part of the strategy right. It can be called “virtuous logrolling”: Instead of voting for a project that your colleague likes, in return for his vote for your own project, vote against one that he hates, in return for his doing the same for you. For that dynamic to have a chance, though, it must be applied to more than the handful of targets that the Senator selected. A worthwhile start would be a blanket resolution to defund each district’s least defensible earmark. By sacrificing one slice of his own pork, a Congressman could vote to eliminate 434 about which he is likely to be dubious at heart.

While trying to get the logs to roll in the right direction, we also need to emphasize exactly why bridges to nowhere are a bad thing. Their vice is not wastefulness in the abstract. It is the diversion of resources that could be better employed differently. Building a bridge takes labor, materials, energy, the attention of competent professionals and other goods that could be used to construct something else. If those inputs are consumed for a bridge that nobody needs, it is just like throwing them into the ocean. The plethora of budget earmarks aggregate into a silent Hurricane Katrina, destroying wealth with Category 5 force.

Any idea of abolishing federal spending on infrastructure is, needless to say, utopian. Outside the inner sanctums of anarchocapitalism, no one thinks that the country would have been better off waiting for private enterprise to build the interstate highway system. But we could use truth in labeling for proposed projects, perhaps an Infrastructure Commission that would quantify the damage that each would inflict in return for whatever benefits its supporters envision. “Municipal bike gallery: 25 jobs destroyed”, “1000-space Parking Garage for Town of 500: 100 jobs destroyed”, “Addition of Two Lanes to Unused Highway: 250 jobs destroyed”, and so on. Maybe then Senator Coburn could get from 15 to 51 votes.

Correction: There were three Coburn amendments, and votes differed among them. In all, four Democrats voted for at least one. Three were from very red states (Indiana, North Dakota, Louisiana), one from purplish Wisconsin. Sorry about the mistake supra.

Harriet Tips Over

As the old saying goes, you never get a second chance to make a first impression. Whatever virtues Harriet Miers may have as a potential jurist – and I wouldn’t be surprised if they were considerable – a tardy, mediocrely written response to the Senate Judiciary Committee’s questionnaire isn’t the right first impression, particularly not for a nominee whose greatest talking points were that she was hard-working and thorough. Her boosters assured us that she had hidden talents. They remain in hiding.

What’s most significant is not the abstract merits of Miss Miers’ answers. They impress me as typical résumé fare. Senators Specter and Leahy, whose views are the ones that count here, have a much lower opinion. The consequences are predictable. Senator Specter takes pride in showing no gratitude to the President who rescued his Senate seat by resolutely opposing an conservative primary challenger. Now that he is on record as doubting Miss Miers’ intellectual credentials, it’s hard to see how he will be able to reconcile his eccentric conscience with voting for her.

Meanwhile, Senator Leahy and his comrades have an array of nonideological arguments, which their severest detractors can scarcely dismiss as frivolous, to deploy against a candidate whose one known stance, against legalized abortion, is anathema to their party’s Angry Left base. It would be rational to accept a weak conservative on the Court for the sake of preempting a strong one. The Democratic core is no longer rational, however. It will demand “no” votes. Against the superbly qualified John Roberts, it could muster only half of the Democratic caucus. This time, no Senator can counter their pressure by pointing to apolitical excellence.

Like Orin Kerr, I think that this scale has reached a tipping point. Until today, I expected Harriet Miers to be confirmed by virtue of solid, if unenthusiastic GOP support and Democratic unwillingness to risk a filibuster. Now I expect her to fail, probably embarrassing herself and the President along the way.

Having said that, I’m going to stop writing about this depressing affair, unless some event falsifies my prediction. Conservatives should be looking forward. We have a war to win, pork to slice, taxes to cut, overregulation to dismantle, tort abuses to correct, Social Security to reform, conspiracy theorists to discredit: much more of an agenda than the career aspirations of a lawyer from Texas.

There is one point, though, that I want to make to those who do keep worrying this bone: Treating the Miers nomination as evidence of gross incompetence on President Bush’s part and working oneself into a state of outrage are foolish. Several right-of-center pundits are underwhelmed and overreacting. The choice was a mistake, but it is an understandable mistake. Lots of men think that their own lawyer is brilliant, and Miss Miers initially seemed uncontroversial. I imagine that the President saw her as a second, but more reliably conservative Lewis Powell: a commercial lawyer at a major firm with no judicial experience, a few years of government service and a high-profile career in bar associations. A misjudgement in this area doesn’t undercut his successes in Iraq or as a tax cutter, nor should it detract from the credit due him as the first national politician to question the Social Security status quo. He hasn’t suddenly become the dunce of leftist and paleoconservative caricature. The conservative movement hurts only itself if we depict him that way.

Preempting a Quiet Ending

The New York Times, using information gathered through leaks, guesswork or clairvoyance, reports today that Patrick Fitzgerald “has told associates he has no plans to issue a final report about the results of the investigation” into the Plame Game (a/k/a “Nadagate”). That might sound ho-hummish to some. When was the last time that a Justice Department official, which is what Mr. Fitzgerald is in his Plame-related capacity, publicly documented an investigation in that fashion? The standard operating procedure is indictments or silence. It would be just as informative to know the special counsel doesn’t plan to end his work by throwing a party for the witnesses or hiring Carnegie Hall for a banjo recital.

The Times sees matters differently. Though conceding that “Justice Department officials have been dubious about his legal authority to issue such a report”, it prefers the view, attributed to unnamed “lawyers in the case and law enforcement officials”, that, if Mr. Fitzgerald is not considering a report, it is probably because “he intends to bring indictments”. Why? Because “closing his investigation with no public disclosure of his findings . . . would set off a political firestorm”.

One couldn’t have clearer recognition that the Angry Left has no interest in the truth about this contretemps. If Mr. Fitzgerald simply concludes that no crimes were committed and goes quietly away, having done the job for which he was appointed, the Daily Kossacks and their ilk will scream louder than Howard Dean on a high intensity day. The Times writes of that prospective behavior as if it were normal and proper. Indeed, it is hard to avoid suspecting that predictions of a “firestorm” are intended to stir one up, should the special counsel not find the facts that the Left hopes for.

The Times will, over the coming months, repeat incessantly that Saddam Hussein and his accomplices deserve fair and impartial justice. It finds that concern much less pressing, I gather, when American conservatives, rather than Iraqi fascists, are the targets.

What If Harriet Wins? What If Harriet Loses?

So much agitation about the Miers nomination is roiling the blogosphere, yet I find it so hard to keep my interest from flagging. As I’ve said before, Miss Miers is a disappointing choice, a lost opportunity to bolster the Supreme Court with a highly qualified conservative jurist. But let’s remember, as the rhetorical bullets fly, that it is no worse than a lost opportunity.

Suppose that she is confirmed by the Senate. Unless she is a legal light hid in a bushel basket, her career is predictable. Like Sandra Day O’Connor or Ruth Bader Ginsburg, she will be important mostly as a vote. It isn’t likely that she will make any significant contributions to legal thinking. Perhaps she will find a specialized niche or two and become the Court’s expert on admiralty or bank regulation or ERISA preemption or the like. In any event, she will certainly give conscientious attention to the cases before her, will resolve them to the best of her ability and will probably be right far more often than she is wrong. She won’t be a distinguished Justice, but she won’t be a disaster either.

What if the nomination fails? There will be a flurry of speculation about the President’s loss of influence and the breakup of the conservative coalition, all of which is nonsense. Some Washingtonians will stop chatting at cocktail parties. Meanwhile, the same right-of-center consensus will continue on the War on Terror and tax policy and deregulation – and the same lack of consensus on government spending, social issues and immigration. There is bound to be residual disillusionment with the President in some quarters, but he isn’t running for reelection. Opinions about his performance are now matters for history rather than politics.

The first big event after the failure of a Miers nomination will be nomination number two, almost certain to be someone much more visibly qualified. Conservatives will quickly rally to the selection of, say, Michael Luttig, and we’ll be back to an ordinary advise-and-consent drama, in which there is a high probability of a morale-boosting victory.

Moreover, no matter what happens on the Court, the limbo in Presidential leadership has had one very good effect: It has provided running room for critics of excessive federal spending. The President’s personal popularity among conservatives for a long time discouraged complaints about the failure to shrink the size of the government. Now there’s a certain cachet to that form of “disloyalty”, which brings hope that Congress won’t eventually stifle economic growth by diverting too large a share of resources to the public sector.

In Anthony Trollope’s novel The Prime Minister, the Duke of Omnium’s government collapses over a disputed nomination for the Order of the Garter. While the Supreme Court is more consequential than the Garter, conservatism is, I think, better founded than Trollope’s fictional cabinet. If it is going to be derailed, this is not the issue to send it off the tracks.

All in all, if Harriet loses, we win, and if she wins, we don’t lose. Prospects could be worse.

Judith Miller, Mystery Woman

I’m not one of the Plame Game afficionadi, but Tom McGuire is away this weekend, so I must think for myself rather than rely on him to analyze Judith Miller’s account of her grand jury testimony.

This is the testimony that Miss Miller went to jail to avoid having to give. She martyred herself for the sake of “protecting her source”, Vice Presidential chief of staff “Scooter” Libby. Yet now we learn from her own hand that she had nothing adverse to say about him: So far as she can recall, he didn’t “expose” Valerie Plame Wilson’s role as an undercover CIA agent (assuming arguendo that there was any role to expose), handled classified information “very carefully” and told her nothing beyond what sound like legitimate talking points concerning Joe Wilson’s mendacious account of his fact-finding trip to Niger. What in the world was there to protect?

Power Line hypothesizes that her motives had nothing to do with Scotter Libby. Rather, feared being asked about matters unrelated to the Plame affair. A paragraph of her story is quoted as supporting evidence:

Equally central to my decision [to go to jail rather than testify when first summoned] was Mr. Fitzgerald, the prosecutor. He had declined to confine his questioning to the subject of Mr. Libby. This meant I would have been unable to protect other confidential sources who had provided information - unrelated to Mr. Wilson or his wife [emphasis added] - for articles published in The Times. Last month, Mr. Fitzgerald agreed to limit his questioning.

The flaw in that theory is that Peter Fitzgerald is no Ronnie Earle. He isn’t likely to stray beyond his mandate, which is to investigate whether a crime was committed in connection with Mrs. Plame Wilson. Unless his authority has been secretly expanded, Power Line’s favorite idea, that he has been pursuing Miss Miller’s tipoff to a Moslem terrorist front group that was about to be raided by the FBI, can’t be correct. The quoted paragraph in fact makes no sense: Nothing within the scope of Mr. Fitzgerald’s inquiry is “unrelated to Mr. Wilson or his wife”. I suspect prevarication, aimed at distracting attention from the hollowness of the ostensible motives for the writer’s peculiar conduct.

Instead of hunting for strange, secret machinations here, I suggest a straightforward explanation: Judith Miller went to jail, because she wanted to be a First Amendment heroine and dramatize the “need” for a federal shield law to exempt the professional press corps from the ordinary duties of citizenship. A shield law is now making progress in Congress, she has attracted as much favorable publicity as she can reasonably expect, and the time has come to go back to work. I doubt that her prison ordeal was unbearable. Is any warden so dull-witted as to inflict discomfort on a New York Times reporter in his custody?

It’s worth noting that her actions did Mr. Libby, their ostensible beneficiary, no good. The natural presumption in many quarters was that Miss Miller wouldn’t “protect” him unless her testimony would be incriminating. So he had to endure months of groundless speculation, and the Bush Administration was tarnished by the sort of rumors and innuendo that never fade completely away. I doubt that she aimed at that outcome, but it probably didn’t displease the BDS sufferers at the Time one little bit.

The Miers Perplex

National Review has quite a good editorial urging Harriet Miers to turn down her nomination to the Supreme Court. NR’s arguments impress me as solid, though I think that they are made in the wrong order. What is principally wrong with this appointment is that Miss Miers, though doubtless an excellent lawyer, is well below the standard that Presidents ought to set for the nation’s highest court. Her judicial philosophy is a secondary consideration. While I would be delighted if every Justice were a Scalia, a Thomas or a John Roberts, one of the consequences of elections is that the winners get to fill the courts. President Bush has placed many admirable conservatives on the bench. If he now wants to balance them with moderates, or even enigmas, that is part of the Constitutional process, just as it was Bill Clinton’s prerogative to appoint liberals. If each side of the political divide develops a habit of fighting to the death against ideologically unsatisfactory judges, politics will grow nastier, and it is more likely that the work of the judiciary will deteriorate than that it will turn into a right-of-center stronghold.

Bypassing debates about Miss Miers’ commitment to conservatism makes the issues clear and concise: Does someone who, based on her professional accomplishments and writings, may be among the 10,000 best lawyers in America – but certainly is not in the top hundred or thousand – merit one of the nine highest ranking spots in our legal hierarchy?

We wouldn’t have reached the point of quarreling over that question were is not for one striking fact: Despite my scoffing at Harriet Miers’ qualifications, she is the best-qualified woman ever nominated for the Supreme Court. Sandra Day O’Connor was a state lower court judge. Ruth Bader Ginsburg was a law professor whose scholarly achievements were unremarkable and whose litigating career was devoted to cases that she liked for politically reasons rather than to a broad range of legal issues. Neither, if male, would have been thought of as even an Appeals Court prospect, whereas no one seriously doubts that Miss Miers, as an experienced litigator, former managing partner of a major law firm, leader of the Texas Bar and White House counsel, is amply suited for a position on that level. It’s possible that service on, say, the Fifth Circuit would enable her to demonstrate that she is indeed of Supreme Court caliber. She has, however, been exempted from having to prove herself.

That women can reach the Court without traveling the cursus honorum can be acceptable only to those who believe that distributing the sexes equally in all walks of life is a higher priority than the administration of justice. The problem isn’t that no women are qualified but that, once one elevates sex above quality, the latter tends to play little role in decision making. If that were not the case, why wasn’t Edith Jones or Edith Clement or another highly regarded woman judge the President’s choice?

Lamentation does not, I realize, do a lot of good. Harriet Miers is not going to step aside. The President won’t bow to chastisement from the editors of National Review. The Senate might refuse its advice and consent, but no conservative can be eager for what would surely be a rancorous political fight. The middle of a war – even one that is, on the whole, going well – isn’t the time for domestic strife.

All that we can do, I’m afraid, is keep our heads down and muddle through. And take note of the bitter fruits of Affirmative Action.

Technical Difficulties

Every few days, a crawler from Inktomi Corporation (maker, I believe, of Yahoo’s search engine) visits this site and downloads hundreds of pages, consuming a large share of my bandwidth. It hasn’t yet gobbled so much as to shut me down, but it is coming nearer and nearer. Here is how Sitemeter recorded one of its recent depredations:

Domain Name yahoo.com ? (Commercial)
IP Address 68.142.211.# (Inktomi Corporation)
ISP Inktomi Corporation
Location
Continent : North America
Country : United States
State : California
City : Sunnyvale
Lat/Long : 37.1894, -121.7053 (Map)
Language English (United States)
Operating System FreeBSD Unknown
Browser Default 3.2
YahooSeeker/CafeKelsa (compatible; Konqueror/3.2; FreeBSD ;
http://help.yahoo.com/ help/hotjobs/webmaster) (KHTML, like Gecko)
Javascript enabled
Monitor Resolution : 1280 x 1024
Color Depth : 4 bits
Time of Visit Oct 14 2005 3:50:05 am
Last Page View Oct 14 2005 9:52:00 am
Visit Length 6 hours 1 minute 55 seconds
Page Views 353
Referring URL [blank]
Visit Entry Page http://stromata.type...pharmaceutical_.html
Visit Exit Page http://stromata.type...searching_for_m.html
Time Zone UTC-9:00
YST - Yukon Standard Time
AKST - Alaska Standard Time
AKDT - Alaska Standard Daylight Saving Time
Visitor's Time Oct 14 2005 1:50:05 am

Typepad tried to put a stop to these shenanigans with a robots.txt file, which reads,

User-agent: *
Disallow: /t/comments
Disallow: /t/stats
Disallow: /t/app

# weird MSIE thing that keeps hammering
User-agent: Active Cache Request
Disallow: *

I’ve also tried denying access to the Yahoo spiders “slurp” and “yahooseeker”. Nothing has done any good. I sent e-mail to Yahoo and got a response stating that their crawler obeys robots.txt files and that they have detected no abnormal behavior.

So, in desperation, I ask whether anybody who stumbles across this site has any ideas about the cause of or, better, cure for this malady. I’m beginning to wonder whether there’s a cause of action for theft of bandwidth or negligent trespass to caches.

Katrina, Stan and Gold Miners from Nevada

As the malign exaggerations embedded in the news coverage of Hurricane Katrina continue to come to light (today’s exposé was of the toxic water myth), the conclusion that biens pensants drew from them remain unshaken: Katrina demonstrated that only government can cope with natural disasters – and not just any government. It must be a government with a firm disdain for capitalism and the profit motive.

Last week, Hurricane Stan killed more people than Katrina. You’d hardly know it from watching TV, because Stan struck Central America, a region of as little interest to our media as the far side of the Moon (except, that is, when something occurs that can be blamed on Wicked Uncle Sam). Completely ignored was the relief effort there. But the invaluable (and only $3.95/month) OpinionJournal Political Diary today carried an interesting account:

Hurricane Stan’s torrential rains sparked landslides that have left hundreds dead in hard-to-reach Indian villages along the southern coast of Guatemala and in the western highlands. The ill-equipped Guatemalan military is short of aircraft, and U.S. helicopters are on the way. But in the meantime, it's a good thing Guatemala has a private sector.

Just as survivors of Katrina relied on Wal-Mart in the early days, Guatemalans affected by Hurricane Stan are depending heavily on Guatemala’s City's Aero Club, whose members have been ferrying donated beans, corn, sugar, water, medicine and clothing to the victims. Some 50 small, privately-owned airplanes have been flying into the area and handing off parcels to privately-owned helicopters that have been making runs to remote towns continuously for the past week.

Also playing a crucial role is a private gold mine owned by Glamis Gold Ltd., based in Reno, Nevada, which is working with the air bridge to distribute goods to Red Cross centers in the devastated highlands. The mine just opened last month despite opposition from U.S.-based Friends of the Earth and local activists. Now the only road bridge still standing in the area is one Glamis built.

The Aero Club has been inundated with goods from Guatemalans of all walks of life and from corporations. To its credit, the Guatemalan government has understood its limitations and let this market for goodwill thrive. This, in a political culture that has long made a living off of demonizing for-profit business activities, may be the silver lining in Stan’s dark clouds.

Had Friends of the Earth succeeded in keeping Glamis Gold out of Guatemala, environmentalists everywhere would be cheering, and a few hundred or thousand human beings would now be dead.

Paul Martin’s Contribution to the War on Terror

Via Cronaca, always a delightful source of curious information, I learn that Canada (oops – CANADA) is taking the war seriously with “heightened security measures”. As summarized by our own Postal Service:

All postal items (except postcards) that do not display the complete name and address of both the sender and the recipient – in roman letters (A, B, C) and Arabic numerals (1, 2, 3) – are being denied entry into Canada. . . .

According to Canadian officials, this action is pursuant to the Canada Customs Act and reflects heightened security measures.

Accordingly, addresses to recipients in Canada should be printed in ink or typewritten in capital letters, and the last line of the address must show only the country name, written in full, and in capital letters. When a Canadian postal delivery zone number is included in the address, mailing requirements allow that number to appear as the last line of the address. . . .

Canadian Customs offices report a backlog of incoming postal items containing incomplete or inaccurate information. According to Canadian officials, these items eventually [sic] will be returned to their points of origin for correction by the sender as soon as practical.

So, if Osama bin-Laden mails anthrax spores to Canada CANADA and wants to slip them through the ace Canadian Customs Service, he will have to provide a full return address in ALL CAPS, and we can then nail him. Brilliant thinking, Mr. Premier!

Harriet’s Bear Market

Difficult though it is to psychoanalyze Wall Street, I’m struck (and my portfolio more so) by the steady decline in stock prices since the nomination of Harriet Miers to the Supreme Court. The downward trend started two days after the announcement, time enough for investors to make judgements about the potential impact on the country’s long-term financial picture, and has since then taken the Dow about 350 points southward.

The economic news during that period scarcely justifies a nascent bear market. The conventional explanation is new worries about inflation, which would indeed be cause for concern if the Fed were either taking a do-nothing posture or hurrying toward a panicky shutdown of monetary growth. Neither is the reality. Instead, it has done just what a prudent central bank would do, namely, continue its current course of modest tightening, with the option of tamping the brakes down just a touch more firmly. What is Alan Greenspan’s big worry at the moment? The one-liner on the Wall Street Journal’s Web site this afternoon is marvelous: “The Fed is grappling with ‘speculative excesses’ caused by the economy’s increasing flexibility and stability, Greenspan said.” Which is, in fact, what he did say. Stable, flexible economies are the newest threat to the stock market?

There is, however, a perfectly rational fear: The unanticipated quarrel among conservatives over the Miers choice could make it impossible for Republicans to emerge from their summer doldrums. If they are weary and demoralized a year from now, the next Congress could have Democratic majorities in one or both houses, putting the Angry Left in a position to obstruct the War on Terror and frustrate efforts, already too feeble, to liberalize the economy.

My personal pessimism is still firmly in check. While right-of-center pundits have been making less-than-brotherly remarks about each other, the dispute over Miss Miers is not any kind of clash of principles. Everybody from David Frum to Hugh Hewitt pretty much agrees on what qualities they want in a Justice: an outstanding legal intellect, fidelity to the text of the Constitution, aversion to writing personal preferences into law, respect for separation of powers and the federal system, and reluctance to expand judicial power. Where they disagree so vehemently is on whether Harriet Miers embodies those qualities. That isn’t a coalition-splitting brouhaha, no matter what hopeful leftists may dream.

Nonetheless, while the controversy may do little long-run damage, its very existence demonstrates that the nomination was less than ideal. It has certainly led more than a few stalwart Bush supporters to entertain the idea that the President devotes his best thinking to only a narrow range of issues, one of which is not the state of the American judiciary. That impression won’t help him in the GOP primaries in – oh, wait, I forgot. Well, it will distract public attention from the areas where he is at his best. The media would in any event have buried the superb speech on the current state of the war that he delivered last Thursday to the National Endowment for Democracy. Harriet Miers gave them soil to pile on top of it.

The best ending to this story would be for the nominee to withdraw gracefully, perhaps to an appeals court post, for which no one doubts her qualifications. The President could open up a Texas Fifth Circuit seat for her by nominating Edith Jones or Jerry Smith for the high court. [N.B.: My old college buddies will know how immense a concession it is for me to suggest Judge Smith’s name.]

If nothing like that happens, if events play out to their conclusion – well, let’s think of it as a “great buying opportunity”.

Addendum: I highly recommend this cri du coeur from a conservative law student. The argument that he makes against the Miers nomination is not often heard, but it is definitely worth your attention.

Arguing Further With Professor Rubinstein

William D. Rubinstein, co-author of The Truth Will Out: Unmasking the Real Shakespeare, has offered a response (scroll down) to my most recent expression of skepticism about his efforts:

I would like to reply to some of the points made by Mr Veal in his posting about The Truth Will Out, both here and on his own website (Stomata [sic]). They are in error; readers will have to decide whether they are also a comedy.

It is of course possible that The Comedy of Errors was written before its first recorded performance on 28 December 1594, as Chambers suggests, but there is simply no evidence that it was performed before this and recent authorities do not accept that it was. For instance, Michael Dobson and Stanley Wells in their Oxford Companion to Shakespeare (Oxford, 2001) – a source hardly likely to be sympathetic to anti-Stratfordian views – state (p. 84) that “it is unlikely that the lawyers and students [of Gray’s Inn] would have hired actors to appear at a grand festive occasion with anything but a new, or at least current play…stylistic texts confirm a dating around 1594, with rare vocabulary placing it between The Taming of the Shrew [c1592] and Romeo and Juliet [c1594].” Two other points are relevant here. First, the Gray’s Inn performance was preceded by a series of masques which many scholars, including AL Rowse, believe were by Francis Bacon. Bacon was a close kinsman by marriage of Neville’s (Not a blood relative, as is sometimes stated) – when Neville's mother died, Neville's father remarried Bacon’s much older half-sister. Both were deeply learned university men and MPs. It is inconceivable that they did not know each other well, and presumably admire each other. Errors is about separated sets of twins. Draw your own conclusion. In contrast, what conceivable connection was there between Bacon and William Shakespeare? As well, Errors was not known to have been performed again until 1604. It was apparently not in the Chamberlain’s Men’s repertoire, which lends weight to the argument that it was written for a one-off ad hoc performance.

As to the date of the Greenwich performance, 28 December 1594 is what it says. Mr Veal would not dream of questioning it if some other date were specified, but would certainly accept it as valid primary evidence. He has done so here only because it is inconvenient to Stratfordian orthodoxy.

The most remarkable point about this rejoinder is that it all but ignores the major issue – whether, as Professor Rubinstein contends, Shakespeare and his fellows were demonstrably elsewhere when The Comedy of Errors was performed at Gray’s Inn – in favor of a trivial one: whether that performance was the play’s premiere. Then, having decided to fight on that ground, Professor Rubinstein reads far too much into the authority that he cites. As any reader can see, Dobson and Wells do not assert that the December 28th performance was the first, only that the play was new or current. Their disagreement is with those who date it to the 1580’s. What they actually say, as opposed to what Professor Rubinstein reads into them, is consistent with my contention that a date before July 1593, when the French civil war to which a joke in the play alludes came to an end, is most likely.

(Note: One of Wells and Dobson’s arguments strikes me as ill-founded. Do we know what sort of plays London lawyers wanted to see in 1594? Many audiences, before and since, have preferred revivals of old favorites over new productions.)

Nor can one infer, on the basis of the fact that only two performances are known from Shakespeare’s lifetime, that the play “was written for a one-off ad hoc performance” or “was apparently not in the Chamberlain’s Men’s repertoire”. Elizabethan theatrical records are extremely scanty. The great majority of known performances come from the Revels Office accounts, which do not give the names of plays during the latter part of Elizabeth’s reign. Except for Philip Henslowe’s “diary”, which doesn’t deal with the Lord Chamberlain’s Men and stops noting titles after 1597, our knowledge of what was playing in the public theaters is near to a blank. As I noted before, Professor Rubinstein seems to have a seriously mistaken notion of the quality and quantity of the extant performance evidence.

He next moves into strange territory. It is not true that “many scholars” believe that the masques preceding the Gray’s Inn performance of The Comedy of Errors were written by Francis Bacon. The most that one can say is that Bacon played some role in the Inn’s revelries over a period of many years. Documents show that he helped put on a dumb show there in 1588 and wrote speeches for an entertainment of unknown date (c. 1595). (Vide E. K. Chambers, The Elizabethan Stage, III:211-14 (1923)). How much else he did in that line is guesswork. Whatever it was, I fail to see how his step-relationship to Henry Neville makes it more plausible that Neville wrote The Comedy of Errors. Does Professor Rubinstein picture Bacon as the Gray’s Inn gatekeeper, willing to admit only work written by his kindred? And what is the conclusion that we are encouraged to draw from “Errors is about separated sets of twins”? Is a half-uncle by marriage like a twin brother? Are we to suppose that the Antipholus twins are portraits of Neville and Bacon? (In his book, it appears, Professor Rubinstein sees Falstaff as Neville’s self-depiction, an idea that certainly is, er, original.) We are veering toward the same lee shore of the intellect as the Oxenfordians who think that their auctorial candidate identified himself with Hamlet.

After all that, how does Professor Rubinstein respond to my central argument? By ignoring it. The reason for doubting that the Lord Chamberlain’s Men performed at Court on December 28, 1594, isn’t “because it is inconvenient to Stratfordian orthodoxy” but because the Revels accounts show two companies playing on the same day. Barring a unique double bill by the two leading London troupes, the date of one performance or the other must be wrong, and it takes no special pleading to assume that a clerk, making out the payment orders 2½ months after the fact, wrote “xxviii” where he meant “xxvii”.

In his own field of expertise, Professor Rubinstein wouldn’t tolerate the evasion of central issues, tendentious reading of authorities and odd divagations into hazy speculation that he adopts when discussing Shakespeare. His manner of argumentation is redolent of the classic crackpot, frequently encountered in anti-Stratfordian circles. It does nothing to dispel my expectations for his forthcoming volume.

Serenity: A Half-Thumb Up

My plan for yesterday was to go the Maryland Renaissance Festival in company with old college buddies. Unluckily, eastern Maryland was under the spell of Tropical Storm Tammy. Last year we went to the Festival in the rain and didn’t have to prove anything by reprising the performance. Instead, we saw Serenity, the Firefly spinoff movie that has been buzzed very favorably by both SF-oriented and mundane bloggers.

I’ve seen two episodes of Firefly, the two that were nominated for Hugos. One was pretty good; the other was the umpteenth Seven Samurai remake, with a true touch of absurdity: bad guys shooting their lasers from horseback. So I entered the theater with a slight bias against what I was about to see – and came out with feelings pretty much unchanged.

Serenity is basically a series of high-tech shoot-’em-ups, mostly exciting and all well-done, around which are draped hastily sketched characters and a preposterous, government-conspiracy-driven plot. Well, that’s too harsh. The action sequences display a high degree of imagination, and the characters have the limited, but real, virtues of space operatic commedia dell’arte. Within the confines of their types, they can be striking: As a cynical trader/smuggler/mercenary, Mal Reynolds (Natan Fillion) makes Han Solo look like a soft-hearted sissy.

In fact, realizing that not every movie can be The Man Who Shot Liberty Valance, I’d give Serenity a hesitantly upraised thumb. What cuts the thumb off at its joint is the plot and, particularly, its political subtext. The basic outline is ho-hum: a Terrible Secret that the Evil Government doesn’t want exposed. The twist is that the Evil Government is a parliamentary democracy, which seizes one of the heroines right after she criticizes its “meddling” with the uncivilized parts of the galaxy. While one could, of course, develop a believable setting like that, the movie takes it for granted that barbarism and civilized society are moral equivalents (except that the barbarians are freer and nobler) and that democracy is an illusion. In my boyhood, those prejudices were harmless. In the midst of a war against barbarians, it is surprising, to put it mildly, that they are part of the mental furniture, too ingrained to question, of someone making films for distribution to civilized audiences.

During the Cold War, there were pro-communist motion pictures, but they weren’t innocently and unconsciously pro-communist. Their auteurs knew what they were doing. I’m quite sure that Joss Whedon doesn’t.

More on the “New” Shakespeare

One must, of course, reserve judgement until the book appears, but nothing that I see about The Truth Will Out: Unmasking the Real Shakespeare (discussed in a previous post) encourages me to believe that its thesis – that the real Bard was Sir Henry Neville, a minor courtier, anti-Catholic zealot and quondam ambassador to France – has been baked until done.

The blog of the Social Affairs Unit, which I had hitherto thought of as a sensible right-of-center British outfit, today carries co-author William Rubinstein’s puff piece for the volume. It offers an argument for doubting Shakespeare of Stratford’s authorship that is ill-grounded in the evidence and exposes a root inconsistency in Professor Rubinstein’s hypothesis:

To give one example of where legitimate doubts must exist, on the night of 28th December 1594 A Comedy of Errors was given its premier [sic] at Gray’s Inn before an audience of lawyers, an occasion marked by a drunken saturnalia which became known at the time as “the night of errors”. At precisely the same time, however, William Shakespeare and his entire acting company were known to be elsewhere, specifically at Greenwich Palace, performing before the Court. There cannot be the slightest doubt of this, since payment was specifically recorded to William Shakespeare (who is named) for the performance, dated 28th December 1594. Stratfordians have attempted to get round this contradiction either by asserting that the entry was misdated (for which, of course, there is no evidence) or that the performance took place during the day, and then Shakespeare and his company went on to Gray’s Inn (presumably without rehearsing) to give the premier of Errors on the same night. But, as E. K. Chambers pointed out in 1907, all Court performances took place at night, starting at 10 p.m. and ending at 1 a.m. In other words, Shakespeare and his acting company were known to be elsewhere literally at the moment when one of his plays was being premiered. Such anomalies as this one, of which there are many, are consistently swept under the rug in orthodox biographies of Shakespeare.

What Professor Rubinstein omits – through lack of reading Chambers thoroughly, I presume, rather than disingenuousness – is that there is evidence that the December 28th date for the performance by Shakespeare’s company, the Lord Chamberlain’s Men, was an error. The same Court records (set down 2½ months after the event) state that a different company, the Lord Admiral’s Men, was paid for performing on that same day. Since a double bill is highly unlikely, one company or the other was not at Court on the 28th. (E. K. Chambers, The Elizabethan Stage, IV:164-65 (1923)) It’s not even a slight stretch to assume that the Lord Chamberlain’s Men played for the Queen on the 27th, then for the lawyers the next day.

There is, incidentally, no reason to think that the Gray’s Inn performance was the premiere of A Comedy of Errors. It is simply the first surviving mention of the play, which was almost certainly written earlier. It contains a reference to the civil war over Henri IV’s succession to the French throne (France “making war against her hair”, III.ii.126) that would have lost its point after the conflict ended in July 1593. There are also a couple of verbal echoes in books published in 1592. (E. K. Chambers, Shakespeare: A Study of Facts and Problems, I:310-11 (1930)) While the point isn’t central to Professor Rubinstein’s thesis, his casual assumption that first mention equals mention of premiere suggests less than an intimate acquaintance with the available materials on the Elizabethan theater.

What is most interesting, though, and the surest sign of muddled thinking, is his failure to see that his anti-Stratfordian “evidence” contradicts his own theory. According to the “media pack” promoting his book,

a simple pseudonym could not provide adequate protection from the curious, and to ensure absolute anonymity [emphasis added] he [Neville] went one step further and employed William Shakespeare to stand in as the author of his works.

But if neither the “stand-in” nor his troupe showed up for the premiere of one of the plays, wouldn’t it have been obvious even to bibulous English lawyers that the authorship façade was a fraud? As so often happens with anti-Stratfordian fantasies, the web tangles itself into knots. Sometimes the secret is tightly hidden, other times known to the whole world. Professor Rubinstein is far from unique in overlooking his own contradictions.

Update (10/10/05): Professor Rubinstein has responded to this post (scroll down), and I naturally have a sur-rebuttal.

For the Record: Katrina, DeLay, Judicial Incentives

• “The search for Hurricane Katrina victims has ended in Louisiana with a death toll at 964, but more searches will be conducted if someone reports seeing a body, a state official said Monday.” [Associated Press] Nearly 23,000 buildings were searched room-by-room in New Orleans, and there is no rational likelihood that more than a few additional bodies will be discovered. Almost a thousand deaths is nothing to cheer about, but the figure ought to embarrass reporters who imagined that there might be 10,000 or more dead in New Orleans alone. They won’t be embarrassed, of course, nor are we likely to see – until perhaps years from now – any reexamination of the largely concocted tales of a disastrously slow federal response to the storm.

• While I continue not to be Tom DeLay’s most fervent booster, it’s only fair to observe that his second indictment, like the first, neglects to accuse him of actually doing anything. He is, once again, named in the opening paragraph as having “agreed” with others to commit the offense. He then vanishes until the end, where we are told that he waived the statute of limitations three weeks ago. In between is a recital of acts by others. They may, for all I know, have been illegal, but none of them is asserted to have involved Rep. DeLay. Is it possible to launder money without setting foot inside the laundromat?

• An e-mail to the NRO Corner makes a point that deserves to be trumpeted: Nominating “stealth conservatives” like Harriet Miers to the Supreme Court is the wrong way to foster a sound American legal culture.

Consider the difference between how Democrats and Republicans treat their legal activists: If you spend your legal life explicitly advocating left-wing causes like Ruth Bader Ginsburg, you go to the head of the class. On the other hand, if you are an ambitious conservative legal theorist, well, you simply can’t be an ambitious conservative legal theorist. I doubt that this sort of appointment process will lead to a bumper crop of Scalias and Thomases out there in the judiciary at-large anytime soon.

Much right-of-center commentary about the Miers nomination is overblown. It’s not as if the President had chosen Christine Todd Whitman. Still, it is a strangely missed opportunity by a man who hasn’t missed many in the past.

Regressing to the SCOTUS Mean

If I were a Senator, I would, based on what I know now and am likely to find out, vote to confirm Harriet Miers as a Supreme Court Justice. She’s no John Roberts, but, in terms of ability to perform the duties of the office, she’s more than a Sandra Day O’Connor and towers above Ruth Bader Ginsburg. (Why couldn’t Bill Clinton have picked Mr. Ginsburg, one of the great tax lawyers of our era, for the Court instead?) Having satisfied the criterion of competence, a President’s choice shouldn’t be subject to a great deal of second guessing by the Senate. Turning every Court nomination into an all-out battle won’t lead to a higher quality of Justice, just to a more thoroughly politicized appointment process.

Not being a Senator, however, I am allowed to second guess, and I have to agree with those who are “underwhelmed”. Miss Miers, after graduating from a good but not outstanding law school, compiled a solid record as a lawyer, but there’s nothing in it to distinguish her from hundreds of her peers. She isn’t among the first rank of advocates – on the level of Robert Bork or Ted Olson or Miguel Estrada or, on the other side, Robert Bennett – whom litigants seek out for earth-shaking cases. (Eugene Volokh has suggested that her background fits the mold of Justices White and Powell. I’m not sure about Byron White, but her stature falls well short of Lewis Powell’s before his appointment to the Court.) Her publication record is effectively a blank. (All that I can find in the Lexis database is a single, very short, non-technical article in Arizona Attorney. Dave Kopel has found another, more substantive though likewise non-technical, in Texas Lawyer.) Since 2001, she has held White House positions, in which she has reportedly been effective. She is also known to work grueling hours, have an excellent ability to comprehend detail and get along well with colleagues – qualities that a Supreme Court Justice can use. One of the less widely noted aspirations of the new Chief Justice is to get the Court to work harder at reaching agreement in more cases. He will doubtless find Justice Miers helpful in that regard.

That’s about the most that I can find to praise: hard-working, intelligent, clubbable – fine qualities all, but distinctly uninspiring. My lack of enthusiasm does not, let me asseverate, spring from worry about whether the prospective Justice will be a reliable conservative. Although I would like to be confident that she will vote the right way on politically charged issues, those are only a secondary part of the Court’s docket. As both Left and Right tend to forget, the Court is not a Council of Mullahs charged with conforming American law to ideological principles. It is our highest court of appeal, and its most important role lies in interpreting statutes. If it does that in a slipshod manner, law and the economy, which depends crucially on sound interpretation of the law, will fall into disrepair. It won’t then matter whether the Justices overturn Roe v. Wade.

From my perspective as a specialist in a narrow field of law (pensions and employee benefits), the Court has a less than stellar record. Its members, with the notable exception of Justice Thomas, seem to have made little effort to understand the statutes that they are called on to construe, often substituting ill-informed notions of “fairness” instead. If other areas are equally ill-served, the Court stands in need of an infusion of truly top-notch lawyers in the John Roberts mold. Harriet Miers is doubtless above the mean for the American legal profession; that is not, I fear, good enough.

The Unfinished Business of Rathergate

It was surprising, but not exactly astonishing, to learn, via PowerLine, that liberal journalistic icon Marvin Kalb doesn’t think that there is any, much less abundant, evidence that the infamous “Killian memos” were forged. He didn’t need to read blogs to learn the truth; the Washington Post reported it over a year ago.

When John Hinderaker of PowerLine sent Mr. Kalb a summary of the evidence, the response was a classic brush-off: It wasn’t important whether “The documents in Rather's story were faulthy [sic], fake, fogeries [sic], – choose your word [and choose your spelling, too, I guess].” All that’s important is that, thirty-some years ago, George W. Bush didn’t serve in Vietnam. Trying to change the course of a Presidential election by basing a major news story on phony “facts” is evidently a venial offense by comparison.

What, I wonder, would Mr. Kalb have thought if the Swift Boat Veterans for Truth had circulated forgeries about John Kerry’s war record, then dismissed criticism on the grounds that Kerry later made false accusations of atrocities against his fellow soldiers? I suspect that he – and the rest of the journalistic Left – would be in full hue and cry after the forgers to this day. The scandal would be as unending as the Valerie Plame affair, with considerably more justification.

By contrast, Kalb and his peers, though occasionally willing, when pressed, to admit to the existence of the Rathergate fraud, are incurious about who perpetrated it. It’s well known that a crank named Bill Burkett was the proximate source of the fakes and that his shifting stories of how he obtained them are unbelievable. The unanswered, because unasked, questions are, Where did he really obtain them, and why did CBS treat them so credulously?

The general assumption on the Right side of the blogosphere is that Burkett manufactured the memos himself. If so, their misuse of military acronyms and nomenclature indicates that he was amazingly careless. As Col. William Campenni, who has first-hand knowledge of the Texas Air National Guard in Lt. Bush’s day, observes,

Whereas the typographical errors were the starting point in exposing these forgeries, for those of us actually there it was the content and format of the memos themselves that were the proof of their falsity – we just didn’t do it that way or use those forms, and the dates and people involved were fictitious or impossible. We were able to cross match them with our own records and calendars to prove that dates and events were incompatible, or that the people referenced (Strong, Carr, Hackworth, Lechliter, Burkett) were not in a position to give accurate comment.

Bill Burkett served in the same outfit and shouldn’t have committed blunders that are so obvious to his erstwhile colleagues. If he was himself the forger, one would expect greater care about matters that were within the realm of his personal experience. A more plausible hypothesis is that the documents were given to him and, in his zeal to “get” the Evil George W. Bush, he ignored all signs of inauthenticity. Believing what one wants to believe, without critical examination, is typical crank behavior.

On the other hand, accepting at face value documents without a verifiable provenance that come from the hand of a known partisan zealot is not typical journalistic behavior. Biased the MSM may be, but it isn’t a ship of fools. While I’ll grant that Mary Mapes is, on the evidence of the posted chapter of her forthcoming book, a fool and a half, 60 Minutes II had a staff that was certainly capable of detecting a fake on the “Killian” level of amateurishness. Moreover, the staff started the vetting process the right way, by sending the memos to independent experts for review.

As is well known now, the examiners’ first reactions were mostly negative. Yet the network shunted them aside and went ahead with the story, cherry picking testimony from the one whose conclusions were favorable to a limited extent on a narrow issue. (He couldn’t prove that the purported signatures on the memos were forged, though he also stated that signatures cannot be authenticated from a photocopy, which is all that he was given to work with.)

No matter how much those in charge of 60 Minutes II loathed George W. Bush or how eager they were to scoop the competition, it is impossible to believe that they proceeded without greater assurance that they were relying on genuine documents. The “Killian memos” were not secondary support for a report based primarily on other evidence; they were the Big News, the breakthrough that lent credibility to an interview with a former Texas House Speaker, who contradicted past public statements about whether he had used political influence on young George Bush’s behalf, and lesser anti-Bush tidbits. Almost everyone, including ardent Bush defenders, took it for granted at the outset that the memos had checked out; any debate would center on what they proved or didn’t prove about Lt. Bush’s conduct.

That they were instead frauds – and inept frauds at that – was flabbergasting. CBS’s credulity remains flabbergasting and unexplained to this day. The Thornburgh report did not address this mystery. Yet the answer remains important, if only to make the historical record complete. Long ago I expounded my own theory: that someone whom the network’s decision makers implicitly trusted and do not want to embarrass vouched for the memos. The details of my original scenario need to be revised in light of what we have learned since then, but the overall idea remains sound, I think, or at least more sensible than the alternative notion of mass idiocy at CBS. If I’m right, it would be extremely interesting to know who had the stature both to entice veteran journalists into a fiasco and be worth protecting afterward.