Monday, October 31, 2005

Bush picks Scalito

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Bush has nominated Samuel Alito to the Supreme Court. "Scalito" was a nickname his law clerks gave him because of his similiarity in judicial philosophy to Justice Scalia.

It doesn't look good...

Case History: A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania that required women seeking abortions to inform their husbands should have been upheld. As Judge Alito reasoned, "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems--such as economic constraints, future plans, or the husbands' previously expressed opposition--that may be obviated by discussion prior to the abortion." Chief Justice Rehnquist's dissent from the Supreme Court's 6-3 decision striking down the spousal notification provision of the law quoted Judge Alito's dissent and expressed support for Judge Alito's reasoning.


Planned Parenthood vs. Casey basically tried to undermine the basic tenets of Roe vs. Wade. In fact, with the help of a last minute reversal of Anthony Kennedy, Roe vs. Wade was re-affirmed in three parts. Information about the case and its implicatons for SCOTUS and Abortion can be found in my post: Does the Miers nomination mean the end of Roe?

I didn't think it was fair to criticize John Roberts on ideological grounds because he represented himself so effectively as being non-ideological, and trustworthy. His qualifications were impressive, and he deserved to be Confirmed by an even wider margin than he was, in my opinion. It is difficult at this stage to discern the response that Samuel Alito warrants, or whether his ideology would constitute the extreme measures outlined by the Gang of 14... this might justify and enable a fillibuster.

Like I said in my previous post, with the Miers withdrawal the triumvirate of rock solid Conservative judges: Roberts, Scalia, and Thomas just became a quartet. Scalia, Thomas, Alito, and Roberts is a very intimidating prospect for a considerable amount of time. Only Breyer, you feel, could possibly compete with that intellectual weight from one particular POV. Conservatives should be rightfully ecstatic. Like I repeatedly argued.... suddenly Harriet Miers doesn't seem so bad after all.

I also apologize for my sucky sucky short list, but I hope it helped set the legal landscape and context for this choice.

Listen to Scalito argue in front of the Supreme Court: FCC v. League of Women Voters of California. He argues that Public broadcasting doesn't have a right to editorialize.

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Friday, October 28, 2005

Miers nomination: Harriet's Legacy

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I originally posted this photoshop doodle of mine on Friday but took it down because I thought it was an excessively partisan way of expressing my point. Ruminating on it over the weekend, I still feel very strongly about what I was trying to say... This for me is the real legacy of the Harriet Miers debacle:

Bush said this when he announced her nomination:
"I believe that senators of both parties will find that Harriet Miers' talent, experience and judicial philosophy make her a superb choice to safeguard the constitutional liberties and equality of all Americans."

How can the very same people who so effectively campaigned against the Miers nomination now enthusiastically return to wholeheartedly supporting this President? How can you criticize Bush's judgment for concluding that Miers was the best qualified person to replace Sandra Day O'Connor on the one hand, and then retain confidence in his judgment in every other aspect of his governance?

Can someone explain that to me, because I don't get it... Is it a good thing that he was forced into ceding to the superior judgment of Conservative columnists and his party base? Is it a good thing that if Bush gets it wrong they can just aggressively articulate the error of his ways and change the course of Administration policy?

If the President sincerely believed in Harriet Miers as a Supreme Court Justice then what does the decision to withdraw her nomination say about his confidence in his own reasoning? A great leader stands up to his base, takes the political hit, and pursues what he/she believes is right, because results, and not politics are what matter in the end... it's one of the reasons that I believe that Tony Blair is a great Prime Minister in the UK.

That's what should give everyone pause for thought, regardless of their political leanings... We have a President who hasn't used a single veto, while non defense discretionary spending has soared, and the national debt has risen to almost eight trillion dollars. We have a President who took no initiative to consider and plan for the broader consequences of regime change in Iraq... who allowed the Republican Guard to be disbanded, dramatic, unhelpful economic reforms to be implemented, and who, after three years has been unable to find alternative solutions and make changes to failing strategies. We have a President who has done nothing to address the changing world, our environment, and future energy needs... at least not with the requisite vigor, and foresight. We have a President who in the midst of a national crisis, Hurricane Katrina, did nothing to exercise leadership, binding the nation together in determination and grief... like Reagan would have... like Giuliani did in NY.

Many of those who criticized Miers said that it wasn't a question of ideology, it was a question of her credentials and qualifications. But, ironically, haven't most of these people turned a blind eye to the President's failings simply because his ideology is so in keeping with theirs?

Isn't that the real legacy of the failed Miers nomination... The poor judgment and inadequacies of this President... that jeapordize the US economy, its safety, its foreign policy, and the integrity of world affairs, only really matter to his supporters when he disagrees with them. And even then, such is the President's lack of belief in his own reasoning, those who pulled the strings to incentivize the Miers withdrawal are confident that if required they can easily assert their influence in the future...

Maybe Bush will prove me wrong and nominate Alberto Gonzales to the Supreme Court... the man that HE always wanted to... but, I seriously doubt it.

Buzz words for Democratic Congressman here, here, here.

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Thursday, October 27, 2005

Miers Withdraws!

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Charles Krauthammer predicted the exact exit strategy, using Senate requests for Executive Branch records and materials as an irresolvable dispute. Check out his WP column here. It's also perfect political timing. With the announcement of Indictments tomorrow this embarrassing story will be quickly swept out of the headlines.

Now the real fight begins, and President Bush has an opportunity to fire up his base during a period when he will desperately be relying upon their support. The Miers replacement will probably be an explicitly Conservative Judge, with a clear track record delineating a staunch originalist judicial philosophy.

Ironically, considering the recent controversy surrounding the Miers nomination, I believe this is potentially a sad day for the future of the Supreme Court. The triumvirate of rock solid Conservative judges: Roberts, Scalia, and Thomas... in all likelihood just became a quartet.


The Shortlist to replace Miers:


J. Michael Luttig:
Briefly worked in the Whitehouse before serving as a law clerk to Conservative judge, Antonin Scalia. He was appointed to the Fourth Circuit of Appeals by George H.W. Bush in 1991. Frequently mentioned by Conservative pundits as a reliable nomination with a proven track record in originalist judicial philosophy. If Bush wants to satiate his base as a means of re-invigorating his ability to win public arguments, plus improve his public standing, Luttig would be the most obvious pick, and a worst case scenario for Democrats.

Two years ago, he struck down the Violence Against Women Act, writing an opinion that Congress had overstepped its authority in establishing the legislation. Years prior he upheld a ban on partial birth abortion, reversing a lower court ruling, + also allowing Virginia to require parental notification before a teenager could obtain an abortion.

The main controversy surrounding Luttig is the fact that his father was shot and killed in a car jacking, which also involved his mother in the driveway of their Texas home. Defense attorneys have in the past asked him to recuse himself from capital cases because of the personal tragedy he suffered. He is an ardent, long time supporter of the Death Penalty.

"His reputation is one of an extremely smart, hard-line conservative," said Heather Gerken, an assistant professor at Harvard Law School, "even those on the left, who disagree with his politics, really agree that he is very, very smart."

J. Michael Luttig = Scalia mark II, and would create a powerful and intimidating Conservative alliance, alongside Scalia, Thomas, and Roberts that would surely threaten Anthony Kennedy's uncertain position in support of Roe vs. Wade.

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Priscilla Owen:
Nominated to the 5th Circuit, Court of Appeals, where Democrats successfully filibustered her nomination. She would be one of the most divisive and controversial picks, however, if Bush is really looking for a fight, which many Conservative Republicans have called for, then he really need look no further:

Her views on abortion: She supported the elimination and narrowing of buffer zones around reproductive health care clinics in Houston. + In every judicial bypass case that came before the Texas Supreme Court(bypass allows a young woman to obtain an abortion without notifying her parents if she proves her maturity to a judge), Owen voted against granting the young woman that right.

She supports "stricter interpretation" of the state law that Bush signed requiring girls younger than 18 to inform their parents before obtaining an abortion. She has been criticized as being on the "far right wing" of the Texas court, further to the right than Bush's own appointees to that court when he was governor.

The biggest controversy surrounding Owen involves Enron donating $8,600 to her successful 1994 bid for the Texas Supreme Court. Two years later, Owen wrote the majority opinion that reversed a lower court order and reduced Enron's school taxes by $15 million. Since 1993, Enron contributed $134,058 — more than any other corporation — to Owen and other members of the Texas Supreme Court.

Personally, considering the political turmoil currently surrounding the President, even considering the Conservative lust for a great judicial battle, I would be shocked if he nominated Owen. She provides Democrats with criticisms that could be far more resonant publically than those they could level at Luddig or others.

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Edith Brown Clement:
Clement also has a reputation as a Conservative jurist, and a strict constructionist, only with a less controversial track record. In fact her track record is so thin, in terms of opinions, that she could conceivably meet with a less than enthusiastic response from the Republican base if she is nominated by Bush to replace Miers. Many thought that she was very close to being nominated last time out... her nomination would paralell Miers in its ambiguity.

Interesting: According to The Orlando Report, "MSNBC is reporting that Clement has acknowledged that Roe v. Wade is settled law and within the constitutionally protected right to privacy. She apparently stated this at her last confirmation hearing."

Arguably, this is the nomination Bush should have made instead of Miers, applying the same "stealth candidate" criteria. The difference is that now the game has changed, and so has what the White House are looking for. Edith Brown Clement would not provide Conservatives with as extensive a judicial track record as other prospective nominees. I think Laura would like her though...

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Edith Jones:
A Reagan appointee in 1985, Edith Jones is an outspoken Conservative judge, frequently mentioned by Conservative pundits, like Bill Kristol, that have opposed Miers, suggesting her extensive track record is much more in keeping with the campaign promises that Bush made to his supporters. In her opinions, she has questioned the legal reasoning which legalized abortion, advocated streamlining death penalty cases, invalidated a federal ban on possession of machine guns and advocated the toughening bankruptcy laws.

Her most well known case, could be the center of an enormously divisive national debate if she is nominated: In McCorvey vs. Hill, which was a request by the original plaintiff of Roe v. Wade to vacate that finding, Jones joined the Fifth Circuit in rejecting the petition on procedural grounds, but took the unusual step of filing a six-page concurrence to her own opinion. The concurrence credited the evidence presented by McCorvey and sharply criticized the Supreme Court's ruling in Roe, calling it an "exercise of raw judicial power."

She said: "That the court's constitutional decision making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication."

The nomination of Edith Jones will put the abortion debate at the front and center of her confirmation hearings, with a fairly clear, outlined position on her part that Roe vs. Wade is untennable and should be overturned. Edith Jones is definately the anti-Harriet Miers.

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Alberto Gonzales
The contrarian point of view is that the nomination Bush would like to have made to SCOTUS is Attorney General Alberto Gonzales, and that, resenting the right wing sabotage of Harriet Miers, he will take this opportunity to push through his personal preference in spite of his supporters, instead of directly appealing to them. Republican Senators were already extending themselves today suggesting that Gonzales would not be appropriate, for similar reasons that they gave for doubting Miers. It seems sad that in many ways the core of the Republican Party have drifted so far to the right that they cannot support a moderate Conservative like Gonzales, even when he is the President's ideal nominee.

Admitedly his nomination is highly unlikely, but it is not all together impossible. It could form part of a calculation to reach out to the center and political mainstream ahead of the 2006 mid terms, upon which Bush's legislative agenda for his second term rests heavily. The Gonzales nomination, like Colin Powell and Condi Rice before, would be an historic step towards the diversity of the nation being reflected at the highest level of the land... Although, to be fair, this strategy hasn't exactly improved the Republican standing with African American voters.

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Maureen Mahoney:
From my perspective, Mahoney is the best possible nominee that I can expect as a Democrat. She has a great deal in common with John Roberts, serving beside him in the Solicitor General's office, plus clerking for Chief Justice Rehnquist. She is now a leading appellate litigator for the Washington, D.C., firm Latham & Watkins. Her credentials are impeccable.

Mahoney has been referred to as one of the finest oral advocates of SCOTUS... which I have to say sounds kinda kinky to me. She has a reputation as a judicial Conservative, and yet she successfully represented the University of Michigan Law School in 2003 in a case in which the Supreme Court upheld diversity as a rationale for affirmative action. Asked in a 2004 interview with the University of Chicago Magazine why she had taken the case as a staunch Republican, Mahoney said that her personal views weren't relevant but added, "I certainly was very comfortable with Michigan's position."

And yet, she has a solid Conservative track record:

From "Underneath Their Robes":

She was previously nominated for a federal judgeship under Bush I (but President Clinton took office before she could be confirmed).

She is Republican, and she was on the Bush II transition team (and made the maximum contribution allowable under federal law to President Bush's 2000 presidential campaign).

She was reportedly considered by the Bush Administration for the post of Solicitor General, before Ted Olson got the job, and also for a seat on the D.C. Circuit.

She was picked, presumably by the White House Counsel's Office or the DOJ's Office of Legal Policy, to testify on behalf of Judge Roberts at his recent confirmation hearings.

Nina Totenberg has described Mahoney as "a very, very conservative woman Catholic."

I think the subtext of being a "very, very conservative woman Catholic" means that she's pro-life... although, where I'm from being a Conservative Catholic usualy means drinking only four pints of Guiness as opposed to eight at the local pub... but I'm digressing.

Very impressive: Listen to her oral argument in the affirmative action case GRUTTER vs. BOLLINGER.

In conclusion, when assessing the type of Justice Harriet Miers would have been you have to apply a different context in assessing her personal views than that you might typically apply to a politician. On the Supreme Court, asserting dogma, or politics, requires an ideology with the integrity to withstand the scrutiny of intellectual heavyweights like Breyer and Scalia. In ten years time, when the political climate of the nation might be entirely different to today, do you really think that someone like Miers, who has supported Gay rights, affirmative action, social activism, etc... upon her honest, searching introspection would consistently resort to an entrenched Conservative judicial philosophy? A philosophy she has never has never articulated once in her entire career.

Of course she wouldn't have... With Harriet Miers the opportunity existed for another Souter, or Sandra Day O'Connor, hence the Conservative outcry, not from the Republican Party base, but from its most elite thinkers like Kristol, and Krauthammer, and George Will, all too aware of the potential for Miers to not fulfill Conservative expectations on the bench.

Perhaps the Miers nomination was doomed from the beginning, but in my opinion, Democrats could have, and should have done more to ensure her confirmation, making her withdrawal from the process more difficult. Relinquishing their requests for her Presidential records could have been a start. Instead of Miers the best we can now possibly hope for, in my opinion, is a more moderate Conservative coalition between Roberts, Kennedy, and hopefully Mahoney... a die hard originalist quartet of Scalia, Thomas, Roberts, and J. Michael Luddig would have disastrous implications for the rights that we believe the constitution guarantees as Democrats.

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Related News Articles:
Pat Buchanan: Miers withdrawal saves Bush.
WP: Conservatives will regret Miers withdrawal.
WP: Focus shifts to next nominee.
NY Times: Why the right was wrong.

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Saturday, October 22, 2005

Miers nomination: The implications for Roe?

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As the Miers Senate Confirmation Hearings draw nearer, and political pressure builds on the Administration, very little attention is being paid to the fact that Abortion law as we know it rests precariously in the balance. John Roberts replacing Chief Justice Rehnquist didn't really shift the internal dynamics of the court. The implications for Harriet Miers replacing Sandra Day O'Connor are much more dramatic.

So the looming specter of Roe vs. Wade being overturned becomes increasingly more tangible... thanks in large part to the White House emphasis placed upon Miers' Pro-Life/Evangelical beliefs. And yet, for all the speculation, are we really examining where the Supreme Court currently stands on the issue of Abortion? Are we even considering, with specificity, how things are likely to change?

Answers can be found in the 1992 case, PLANNED PARENTHOOD vs. CASEY.

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Planned Parenthood vs. Casey asked whether the state of Pennsylvania could require women who wanted an abortion to obtain informed consent, wait 24 hours, and, if they were minors, obtain parental consent, without violating their right to abortions. The rights of the state legislature to restrict abortions, and apply a "rational basis" for those restrictions, brought back into question the fundamental principles of the Roe vs. Wade ruling.

Roe vs. Wade was re-affirmed in the case 5-4 in three parts:
1) The right of the woman to choose to have an abortion before viability.
2) The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
3) The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.


What does this all tell us about where we stand today?

Well, two of the four dissenting justices remain on the court: Justice Thomas, and Justice Scalia. Chief Justice Rehnquist stated in the dissenting opinion, joined by Thomas and Scalia: "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."

Rehnquist, of course has now been replaced by this guy...

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...who said: "Justices are like Umpires... I will remember it is my job to call balls and strikes, and not to pitch or bat."

The subtext to John Roberts' quote from his Senate Hearings is that he is an Originalist. He believes that the role of a judge is stick to the original text of the US constitution strictly, with as little, if no subjectivity. Originalists believe that nowhere is it specifically stated in the constitution that Abortion is a fundamental right, and that none of the principles that it articulates were ever originally intended to provide that right. Hence it is the responsibility of respective states to legislate on the issue, effectively meaning that Abortion can be criminalized.

Others, like myself, believe that the US Constitution is a "Living and breathing" constitution, growing and evolving through time in our interpretations, embodying principles that bear a different significance upon society as we change via cultural standards, + new technology, etc. For example: What does a right to privacy mean in the age of the internet, and online commerce, and emails, and CCTV potentially on every street corner... How could the founders' original intentions preclude a modern assessment of what the right to privacy really means today, in the modern world?

As I quoted in my previous post, Roe vs Wade relies upon the fourteenth amendment:

ROE vs. WADE, 1/22/73: State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

Nowhere in the fourteenth amendment does it explicitly state that the right to an abortion is guaranteed. It articulates a right to privacy... and it is a judgment call about whether privacy encompasses female productive rights. So, it is safe to conclude from Roberts' originalist judicial philosophy that he will be a passionate advocate of overturning Roe vs. Wade.

So where do the others stand?

By my mind, there are four justices that can reliably be expected to vote against Roe: Scalia, Thomas, Roberts, and Miers, or her replacement if she steps down or performs badly in her hearings. And there are also four justices, who can reliably be expected to vote to uphold Roe: Souter, Breyer, Stevens, and Ginsberg.

One Justice remains a question mark... the pivotal vote in Planned Parenthood vs. Casey... and that is Justice Anthony Kennedy:

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Now, there's a lot of cause for optimism... Justice Kennedy co-wrote the opinion upholding Roe vs. Wade in Casey vs. Planned Parenthood. He also, more recently, wrote the opinion in a case outlawing the use of Capital Punishment for minors, citing foreign law, which makes it absolutely clear that he is not a die hard originalist like Scalia or Roberts... meaning that he can be swayed by the notion that changing times, and values should be reflected in the interpretation of the principles that the Constitution sets forth.

However there also remains a great deal of uncertainty surrounding him:

"Recently released private court records of Roe vs. Wade architect Justice Harry Blackman tell the story of how close the 1973 landmark came to being overturned in 1992. The records are accompanied by an oral history recorded by Blackmun, and show that Roe's overturn was imminent until Kennedy changed his mind and voted to uphold Roe. Blackmun's commentary reveals that Kennedy, a Catholic, originally voted to support the Pennsylvania abortion restrictions challenged in the case, but changed his vote after vigorous lobbying by Blackmun."

Contrary to common misconception, Sandra Day O'Connor was not the swing vote on Abortion... Justice Kennedy was. Nobody knows what exactly made him change his mind... and nobody can say whether it was a concrete and permanent change of heart, or whether his vote is once again up for grabs. There is some comfort in knowing that Blackmun has been replaced by Breyer, an intellectual heavyweight more than capable of standing up to Scalia, Thomas, and Roberts, who are sure to form an intimidating triumvirate. And, the fact that Kennedy co-authored the opinion re-affirming the three principles of Roe vs. Wade also is cause to be hopeful that Miers or someone worse, replacing Sandra Day O'Connor, won't mean the end of female reproductive rights in the United States as we know them.

All is not lost, perhaps, as I had feared. But, with another nomination to the Court looming (Justice Stevens is 85 and prey to God going strong) the 2008 election takes on even more importance. Hopefully, by that time the Democratic Party will have a leader with the conviction to fight the battle of ideas that we have been forsaking to Conservatives for too long. An Originalist doctrine of the US Constitution is not reflective of modern, mainstream American values, no matter how many times Hannity, Limbaugh, Fred Barnes, et all say so.

Related Links:
Case History: Planned Parenthood V Casey
Oral Arguments: Audio
On the Issues: Anthony Kennedy on Abortion
NPR: Blackmun's Papers
Blackmun: Roe nearly overturned in 1992

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Friday, October 21, 2005

The Criminalization of Politics

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Many Conservatives are claiming that the indictments handed down against Tom Delay, and the current investigation into the role of the White House in the outing of CIA Agent Valerie Plame, plus the allegations of Insider Trading against Senate Majority Leader, Bill Frist, are all reflective of a sudden, unparalleled attempt to criminalize political opponents. Are they suffering from short term memory loss?

Did everyone forget this guy:

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Here are some of the highlights of Ken Starr's investigation into the Whitewater affair:

1. Starr held Monica Lewinsky without a lawyer for eight or nine hours. (She was technically free to go, but coerced psychologically with threats of 27-year prison sentences.)
2. Starr tried to force Marcia Lewis, Lewinksy's mother, to testify against her. (She became ill as a result.)
3. Starr's investigators were bearing guns when they interrogated Lewinksy's brother.
4. Starr tried to pressure Whitewater witness Steve Smith to testify falsely, according to Smith.
5. Starr threatened Whitewater witness Sarah Hawkins with indictment without any evidence of wrong-doing.
6. Starr subpoenaed a sixteen-year old boy at his school to intimidate him.
7. Starr subpoenaed Robert Weiner for making a phone call from his home.
8. Starr kept Susan McDougal locked in jail for eighteen months and tried to get her to testify to an imaginary affair.
9. Starr subpoenaed White House aide Sidney Blumenthal for talking with the press about his investigation.
10. Starr subpoenaed a Little Rock home decorating store where Webster Hubbell shopped.
11. Starr subpoenaed bookstores where Monica Lewinsky shopped, trying to learn her reading habits.
12. Starr has subpoenaed Secret Service agents to testify against the president.
13. Starr tried to dig up dirt on the president's sex life long before the Monica Lewinsky allegations.
14. Starr's investigators harrassed White House Interior Department liaison Bob Hattoy about recruiting gay people to work in the Clinton Administration.
15. Starr considered running for a Republican Senate nomination in Virginia.
16. Starr was co-chairman of an unsuccessful Republican congressional campaign (Kyle McSlarrow, 1994).
17. Starr contributed $5,475 to Republican political candidates in the 1993-94 election cycle.
18. Starr spoke at right-wing televangelist Pat Robertson's Regent University while working as independent counsel.
19. Starr spent nearly $40 million to smear the president and has found no evidence of wrong-doing anywhere, except for the cover-up of a sexual affair.
20. When Starr appeared before the House Judicial committee, he answered at least 30 times with statements like "I can't recall…" "I don't remember…" even for momentous events like when he learned about the Tripp tapes.


More here: 68 reasons why Ken Starr's investigation was erroneous.

Related News Articles:
Weekly Standard: Criminalizing Conservatives.
America Blog: The Normalization of Treason
Think Progress: FNC pushing "Criminalization of Politics."

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Sunday, October 16, 2005

Miers Nomination: The Future for Abortion

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ROE V WADE, 1/22/73: State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

Fourteenth Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


One of my closest friends growing up was my cousin. Every other weekend we would spend our Saturday or Sunday together playing computer games and sharing our respective passions for soccer, and WWF Wrestling, usually bantering and teasing each other into the evening, while enjoying marathon gaming sessions on his Commodore 64. These times are some of my fondest childhood memories.

My cousin suffered from a congenital degenerative muscular disease that confined him to a wheel chair for most of his life, and after a period of illness he passed away in 1993. Without wishing to romanticize my relationship with him, which is the last thing my boisterous, cocky and down to earth friend would have wanted, he remains a very significant part of my soul, and he is always in my thoughts.

The nature of his congenital disease exists in my father's lineage and can be passed down by women born from that side of my family, but only to their sons. After the extent of his disease and suffering was clear (and he did suffer greatly), his parents tried again, hoping to have a girl who could, with certainty, not inherit this genealogical trait. Twice they conceived boys who, tragically, both exhibited characteristics of my cousin's disease and in both instances they chose to have abortions. They did this firstly for the sake of themselves, after their immense, brave, and eventually grief strickened struggle with my cousin, and secondly, because of their intimate first hand knowledge of the quality of life ahead for a child with this disease. This was their calculus in making their choice.

Recently, a friend of mine related to me a story of a close companion she knew who had chosen to have an abortion because of her age, and economic circumstances. It just wasn't the right time in her life, and she wasn't in a position, along with her partner, to cope financially with the burden of rearing a child. Her partner had absolved himself of responsibility for the decision by simply stating he would be supportive of her choice, regardless, which wasn't helpful. And, after the passage of time she grew more and more traumatized by the choice she had made. With deep sadness, guilt, and sorrow she could not forgive herself for ending a life force that she felt powerfully in her heart. The memory of the fetus that she aborted became quite human in her mind.

My point: Abortion is not just an abstract, two dimensional political debate. Those who have abortions are not evil-doers, and those who believe abortion is wrong are not religious fundamentalists. This is real life. The practical implications of criminalizing abortion has real life consequences that everybody, regardless of their point of view, should take time to reflect upon.

I find myself with a lot of personal doubts about my own views on abortion. I come from a nation with a clear cultural consensus on the issue and when I play Devils Advocate with my own belief system, usually in the midst of listening to right wing talk radio, or reading the columns of my favorite US Conservative writers, abortion is the one subject where I find myself consistently reaching ambiguous conclusions. All I know is that the famous "Violin Player" analogy resonated with me when I was at college studying philosophy and that ever since I've passionately felt that within a reasonable time period a woman should retain rights over her own body... Intuitively, for reasons that transcend my political views, that still means everything to me.

There are three main questions I have:

Is abortion ethical?
What are the practical consequences of criminalizing abortion?
Is the qualified right to an abortion guaranteed by the US constitution like Roe V Wade states?


As a side note, if you're not interested in my own ideas on these questions, which are quite lengthy and detailed, I would still love to hear your POV in my comments section.

ETHICS
By what criteria can we make an assessment of whether a fetus is deserving of rights that override the reproductive rights of the mother? Is the fetus a human being and what does it really mean to be human?

I've always felt that human life is defined fundamentally by our sentient awareness of ourselves... our open eyes receiving, digesting and being transformed by our environment, and our cogniscence, even on a basic level, that this process defines our existence. But when you think about it, I'm wrong... was I endowed with sentient awareness when I immediately exited the womb? Was I immediately sentient when I entered the physical world for the very first time?

I have no memories of being one month old, or six months old, and if I had to speculate, I would say that I didn't grasp my life, birth, and death, till much later. Isn't sentient awareness a process our mind takes, adjusting, and involving itself with others and our surroundings? Isn't it something a human being arrives at after it is born?

If that is true sentience cannot define what it means to be human. A newly born baby is still human despite its lack of psychological development. Hence, how can a lack of this be the basis upon which we say a fetus is not human? It can't be.

So what is it then? What is the criteria for determining at what stage life overrides the right to an abortion, if that right ever exists in the first place?

Is it God and the Bible? To many I'm sure it is, and while I respect their perspective it isn't the basis upon which I can determine my own value system. I can think and reason for myself, and this is how I like to arrive at my principles.

Is it the physiological dependence that the fetus has upon its host/mother? Is it the physical development of the fetus... the size of its heart, the appearance of fingers and thumbs, its ability to feel pain? I know... it's not an easy question.

The only way to answer it in my opinion is to work backwards...

To criminalize abortion you are legally compelling a woman to bring a fetus/child to term, because the legal rights of the life inside her womb override her reproductive rights. Hence, abortion is killing. Abortion is murder.

Is the “morning after pill” killing? Has a woman who swallows the “morning after pill” ended a human life? I imagine many people reading this, like me, would conclude "no" to that question. But why? The egg has been fertilized by sperm. The pill works only by preventing a woman’s ovaries from releasing that egg, and by affecting her womb lining to keep it from embedding there.

For me this is the huge question to ask if you honestly want to reflect upon your own beliefs on abortion. Does a woman have the reproductive right to stop a fertilized egg embedding itself in her womb? Is it murder? Does she have the right to consider her own life, studies or economic circumstances and ability to provide for a child etc, at that stage, and chose to swallow that pill and potentially end what could eventually be a child?

There are many who think she shouldn't and that the morning after pill is murder, and I totally respect that point of view? But, I personally don't think that, and I don't believe the majority of Americans think that.

So if we can establish upon consensus that the morning after pill is not murder, we are concluding that human life does not begin at fertilization, and we can begin to look ahead...

Does human life begin when the fertilized egg embeds itself in the womb? Is an action to terminate the pregnancy at that stage murder? The majority of people who are against abortion would say yes at this stage. But ask yourself, what difference is there between the fertilized egg before it embeds itself in the womb, and a few moments after? Virtually nothing. There is no immediate change. The difference is that the womb facilitates the physical development of the fertilized egg into a fetus. It's the DEVELOPMENT of that fetus, and not its position in the womb, which should characterize our decision as a society about female reproductive rights...

After spending the last week or so re-considering my views, and talking to the people around me about their experiences and ideas, the conclusion I’ve reached is this:

Abortion is fundamentally a judgment we have to make about when the physical development of a fetus compromises a woman's reproductive rights. And as a society, we have to face up to this reality... there is a time frame to be determined... be it modern scientific standards... be it twenty weeks, twelve weeks, eight weeks. I understand how emotive the sight of an aborted fetus is, and some of the pictures I've seen online reading about this issue will be burned in my brain for quite some time... But, I recognize that it is irrational to call a woman who has an abortion a murderer, or the act itself killing, while thinking that the stage of her pregnancy doesn't makes any difference to the ethical questions involved. Of course it does, unless you believe life begins once the egg has been fertilized.

CRIMINALIZING ABORTION
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What are the real life practical consequences of criminalizing abortion?

Should my uncle and aunt have been prosecuted for murder for having abortions after their experiences with my cousin? Should a young woman studying at University attempting to create financial security for the sake of the children she will have be prosecuted for saying now is not the right time? Should a single woman, unemployed, be prosecuted for deciding that she is not in a financial or emotional position to bring a child to term, nor raise it?

Their possible punishments: Jail sentences up to life in prison + the Death Penalty.

A Pro-Life supporter might say:“Surely if you take the risk, there are consequences that are your responsibility, and if you don't want those consequences you possess the power to avoid them.”

And yet, in terms of the criminal implications, it's interesting how this responsibility rests solely upon the shoulders of women. I am sure that if Roe V Wade gets overturned you won't see any men, just as responsible for the act in question, being held legally accountable for an abortion that has taken place.

Criminalizing abortion basically comes down to criminalizing female sexual behavior that doesn't correspond to childbearing. It serves to de-sexualize them again in a society, where finally, they've emerged from the shackles of domesticity to freely express themselves in ways that they should never have been ashamed of in the first place. In a state where abortion is illegal the message will be clear to all women: SEX = motherhood or jail time or something potentially worse...

Would you even want to take a 2% risk when the stakes are that high?

THE NON-EXISTENT DEMOCRATIC DILEMMA
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I hope that even if you reach different conclusions to my own this post will help provoke a re-examination of your values, and the impending reality of abortion's criminalization in certain states. For instance, do you really think my uncle and aunt should have to defend themselves in a court of law for the choices they made? Aren't we just returning to an age of backstreet abortions, in terrible conditions for the poorest women in the nation?

Harriet Miers is passionately pro life and almost certainly will vote to overturn Roe V Wade. The SCOTUS will now say that abortion as a right is not guaranteed by the US constitution and, consequently, it will return the power to states to criminalize abortion if they so choose.

The truth is that I'm not in a position to judge whether the constitutional right to privacy guarantees a woman's qualified right to terminate her pregnancy as stated by Roe V Wade. I learned everything I know about the Supreme Court from the C-Span archives, I'm not well informed, and this is something I would definitely appreciate your viewpoints on...

But, what I do know well is politics... I know that from a Democratic perspective supporting Harriet Miers serves the party’s political aspirations for the 2006 mid-terms… I know it puts President Bush at greater risk with his own party at a time when he’s publicly struggling for the very first time.

I also know that Harriet Miers is the best justice Democrats can possibly hope for, and that if her nomination fails, she will be replaced by a more strident, intelligent, confident, and experienced Conservative who will undoubtedly wield more power in the context of the Supreme Court’s collegiate process.

The reality is that this battle has already been fought… and it has already been lost.

There is no question to me that in 2004 the Democratic Party failed the millions of Americans who will suffer if Roe V Wade is overturned. I have always been supportive of John Kerry. I supported him two years before the 04’ primary and I still support much of his platform as the best alternative to some of the problems we are currently experiencing. But, his failure, and the Democratic Party’s failure to articulate to the American people the reality of criminalizing abortion, while fairly discussing the constitutional issues surrounding Roe V Wade, and the ethical issues surrounding abortion… has threatened the liberty and privacy of millions of women in the United States.

Do you not think this was an argument Democrats could have won? And if we had lost, would it not have been better to have at least fought, and lost, rather than to now watch powerlessly on as the cultural foundations of the nation are transformed for a generation.

Democrats have an awful dilemma ahead of them with Harriet Miers. I'm sure it will weigh heavily on Democratic Senators over the coming weeks. But, the sad reality is that the choice they make doesn’t really matter now. It doesn’t really change anything... It is a non-existent dilemma. What really mattered isn't even in play.

Because when it really mattered on the issue of abortion and women's reproductive rights in the United States… the Democratic Party didn’t even put up a fight. We didn't even make an argument. We didn't even try.

George Bush ran in 2000 and 2004 to make appointments to the Supreme Court in the mold of Scalia and Thomas, to overturn Roe V Wade and return the power to states to criminalize abortion...

...I believe history will remember that Democrats didn't even call him on it when they had the chance.

Related News Articles
WSJ: Assurances to Conservatives that Miers will oppose Roe.
Daily Kos: Dobson and Miers.
Rush Limbaugh: Holding Court.
David Brooks: In her own muddled words.

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Friday, October 14, 2005

The next British Prime Minister?

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After this brooding Scot of course...

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For those unaware, in the UK we are currently in the midst of a Conservative party leadership contest, the most remarkable aspect of which has been the unusually impressive caliber of the candidates. Ken Clarke: popular former Chancellor... David Davis: right winger with an almost Presidential physical stature... Liam Fox: thoughtful, articulate, and principled MP from the religious right of the party. But, the most notable candidate has been the one pictured above, David Cameron, a young, modern centrist, and a sincere compassionate conservative.

I will be a Labour party supporter until the day I die, and yet, I can't help but feel satisfied with Cameron's inevitable leadership victory. For this reason...

From my 7/16 post on consensus politics:

In the UK, the last twenty six years has seen four successive Conservative terms in office, followed by three successive Labour terms. The reasons behind this are that 1) the respective parties in power both attained a high degree of success in implementing their policies, and 2) their respective opposition parties struggled to drag themselves back from the political extremes on the left and right... where, notoriously, the British electorate rarely dwell. What good is it for us to simply sway between competing political visions, like this?

Well, for me, I believe it's about progress through consensus. The Conservative party liberalized the British economy dramatically in the early 80's which transformed our society for good and bad. The test of their accomplishment, or of any political accomplishment in my opinion, is the response the opposition takes to regain support and power, and of course, what it does when it gets into power. Margaret Thatcher's reforms had so many positive benefits that slowly but surely the Labour party was required to reposition its economic vision. The Labour vision remained distinct and unique, with elements of increased taxation, and more gov't activism, but they were suddenly forced to acquire a pragmatic conviction in the positive benefits of free markets domestically, and abroad.

Progress through consensus. The public's recognition of what constitutes progress redefining the electoral landscape.


David Cameron's ascendence in the Conservative party, while quite possibly dawning a new era of success for his party, marks undoubtedly, a dramatic shift in the political landscape of Britain. The success of New Labour, under Tony Blair, has been to define the public discourse in terms of progressive values, the quality of our schools, hospitals, lifting people out of poverty, and intervening in society for the benefit of those who require a helping hand. Margeret Thatcher famously said "there is no such thing as society." Finally, that abhorent, divisive notion that had such a negative impact upon my country has been put where it belongs, on the extreme periphery of British politics.

David Cameron will soon be elected Conservative leader, and, in spite my many disagreements with him, I recognize that when this happens British politics will have taken a huge step forward.

UPDATE: Oh bugger... Cameron embroiled in drug scandal. I still think he'll win.

Official Site: Campaign for Cameron
Daily Telegraph: Cameron stakes his claim
BBC: David Cameron profile

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Tuesday, October 11, 2005

The White House at war with itself?

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From Hardball with Chris Matthews:

HOWARD FINEMAN, NBC, CHIEF POLITICAL CORRESPONDENT:
That‘s the point of the lance of this whole thing.
Right now, my sense, in reporting this, Chris, is that the Bush family, political family, is at war with itself inside the White House. My sense is, it‘s Andy Card, the chief of staff, and his people against Karl Rove, the brain.

MATTHEWS:
Right.

FINEMAN:
And that runs through a whole lot of things, whether it‘s Harriet Miers or Katrina. But it all starts with Iraq.
And some submerged, but now emerging divisions within the administration over why we went into that war, how we went into that war and what was done to sell it. There are people are out for Karl Rove inside that White House, which makes his situation even more perilous.
My understanding, from talking to somebody quite close to this investigation, is that they think there are going to be indictments and possibly Karl Rove could be among them, if not for the act of the leaking information about Valerie Plame, then perhaps for perjury, because he‘s now testified four times.

...End of Transcript.

Can you believe it gets worse? From the Huffington Post:
The Wall Street Journal and Bloomberg are working on stories that point to Vice President Dick Cheney as the target of special prosecutor Patrick Fitzgerald's investigation into the leaking of CIA operative Valerie Plame's name.

What's interesting about Cheney's name being brought into the equation is that it was originally his request to the CIA that started this. He asked the CIA to investigate British Intelligence claims that Iraq had attempted to purchase enriched Uranium in Niger, and that inturn instigated the involvement of Joe Wilson. What I also find interesting is the role of Scooter Libby, Cheney's Chief of Staff, who has been such an intense focus of Special Prosecutor Fitzgerald and the Grand Jury. Are we really expected to believe he could have acted completely independent of his boss in attempting to smear Wilson via discussing his wife's position at the CIA?

From the National Journal:
In two appearances before the federal grand jury investigating the leak of a covert CIA operative's name, Lewis (Scooter) Libby, the chief of staff to Vice President Cheney, did not disclose a crucial conversation that he had with New York Times reporter Judith Miller in June 2003 about the operative, Valerie Plame, according to sources with firsthand knowledge of his sworn testimony.

The problem with this story is that it is immensely complicated. Yes, it exposes the extent of the smear tactics employed by this Administration. And to that end, yes, an undercover CIA operative was outed by White House political staff to Bob Novak, Time Reporter Matthew Cooper, and also New York Times Journalist Judith Miller (although she did not report it). But that's not just what this is all about...

George Bush, 2003 State of the Union:
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"The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa. ... Saddam Hussein has not credibly explained these activities. He clearly has much to hide."

This claim by George Bush, and the specific basis for Dick Cheney's repeated assertion of Saddam's Nuclear capability in the lead up to war, was debunked by Joe Wilson, and two other CIA operatives. Yet the Administration still chose to refer to this Intelligence in the 2003 State of the Union address, with the approval of then CIA Director George Tenet. It was when Joe Wilson made his findings public that the smear campaign ensued to undermine his credibility, and the criminal act of exposing his wife's undercover CIA status was committed by the White House political staff.

It will be interesting to see how this all develops during the coming weeks...

Related Posts:
Plame Indictments Imminent.
The ten steps that have implicated Karl Rove.

WSJ: Focus of CIA Leak Probe Widens
Hat Tip: Crooks and Liars, America Blog

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Saturday, October 08, 2005

Three months on...

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Yesterday was the three month anniversary of the terrorist attacks in London... made all the more poignant by the news that New York authorities had received specified threats against their city's subway system. It now seems clear that regardless of our continued military efforts to thwart Al Quaeda and its decentralized network of indoctrinated militants, this threat will remain in our lives for years if not decades to come. Extreme Islamic terror in our largest cities around the world is unquestionably here to stay.

It still feels like only yesterday that the chaos of that morning ensued in London... the explosion of images, muddled reports, and a desperate concern for relatives and loved ones. The immediate aftermath where it was swiftly explained that the apparent seven explosions were in actual fact only four. And then, in the days that followed we saw the faces of those responsible. Human beings all. One, a loving father and teacher, others too young to legally drink alcohol in the United States. A story emerged that the parents of one of the suicide bombers had tipped off the police by inquiring about whether their son had been a victim in the attacks. I can only begin to imagine their shock.

What occurred on July 7th made me immensely proud of my home city, and our inviolate spirit forged by the Blitz of World War 2 and the IRA bombing campaign in the 1980's. If the object of terrorism is to terrorize, then those ultimately responsible for these attacks utterly failed. There has been no outbreak of anti-muslim violence here, no dramatic political upheaval like that witnessed as a consequence of the Madrid bombings. They did not damage our economy, nor our willingness to continue on in pursuit of what they fear most of all - a free society, comprising people of all religions and creeds, fostering self determination, individualism, equality of the races, sexes, and different sexualities... and, of course, most fundamentally, the liberty to dissent without fear of retribution. It's our way of life that ultimately poses the greatest threat to Islamic Extremists who, by contrast, require the violent enforcement of scripture to retain the perpetuation and longevity of their power and control.

I don't know whether or not the nature of the potential threat posed to NYC two days ago demanded full public disclosure. None of us are in a position to make an informed judgment about that because we do not know all of the facts. All I know is that we need to prize even more highly our way of life. Every possible precaution sometimes doesn't serve our larger battle against terrorism in my opinion, and, I couldn't understand why some people responded to the NYC tip off with an almost vitriolic, eager excitement to remind us all that it is good to always be afraid... to always be fearful, as if it was a bad thing that New York had began to move on from the trauma of September 11th.

It is good to not be afraid. To be undaunted. To be unmoved. Ask yourself this: When those responsible for the London bombings saw the city's commuters flood back onto underground trains the very next day, how powerless must they have felt? When those planning to attack see public figures promoting mass hysteria, by contrast, how powerful must they feel?

To qualify this post I am a foreign policy hawk. I believe in preemptive action where appropriate. I'm not singing kumbaya around the campfire, while preaching appeasement, and ignorance. It's just sometimes I think people need to be reminded exactly what it is we are fighting for... our way of life. It's our way of life that threatens terrorists' grandiloquent fascistic designs... it's our way of life that they want to destroy... and its our way of life, consequently, that we should prize most highly of all.

Related Posts:
When the unthinkable happens...
Why did the terrorists attack?

Wednesday, October 05, 2005

Plame Indictments Imminent...

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Rumours suggest 22 Indictments are about to be handed down in the Valerie Plame investigation.

Here is my post on the case from July 11th: The ten steps that have implicated Karl Rove.

I've also read online that Ari Fleischer will be indicted for perjury.

Radar Online: Indictments Imminent.
Reuters: US officials brace for decisions in CIA leak case.
The Raw Story: Rove has been missing from White House events.

From my 07/11 post: "What we do know now is precisely what was responsible for the Whitehouse leak of Valerie Plame's undercover CIA Identity: A concerted, co-ordinated smear campaign against Joseph Wilson, of which Rove was at least involved.

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Monday, October 03, 2005

Bush nominates Miers

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Is it really possible that we will have a Supreme Court that will be less and not more Conservative as a consequence of Bush's nominations? It's early days, and there's much that we do not know about White House Counsel Harriet Miers. But we do know this already:

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In the aftermath of Nov 04, I don't think anybody could have expected two such moderate and, at least prosaically, non-ideological nominations to the Supreme Court. John Roberts, in spite of his past political affiliations, explicitly demonstrated a willingness to be objective and open minded as a fundamental personal philosophy. Harriet Miers, it seems, has first hand experience confronting discrimination, and her political contributions to Al Gore and Lloyd Bentsen show that she retains the capacity to truly appreciate arguments from both sides of the political spectrum.

These choices, at least on the surface, are completely inconsistent with Bush's governing philosophy... which has been to aggressively pursue a Conservative agenda, no matter the cost, completely abdicating the politics of consensus. Perhaps this nomination is symptomatic of a White House that is seeking to reclaim the political center in the wake of dire recent events. So far it has been Liberal pundits expressing almost unconditional support for Miers, while Conservatives like Bill Krystol and Fred Barnes have been left to vent, disappointed. I wonder if this was the desired intention. I wonder also if Bush has independently asserted himself in opposition to his political staff in making this nomination.

The truth is that Harriet Miers appears to be a perfectly suitable replacement for Sandra Day O'Connor. It's just highly ironic that after five years of dogmatic partisanship, the Bush Administration has sacrificed its opportunity to permanently alter the Judicial landscape for decades. Astonishingly, while many Democrats will be crossing their fingers, hoping for a relatively expedient confirmation process, Conservatives might, by contrast, be strategizing to derail her nomination. Who would have thought? It seems that Harriet Miers has taken everybody, on both sides of political spectrum, by complete surprise.

(UPDATE) 10/04/05:
It keeps getting better and better. Miers supported civil rights for Gays and Lesbians in 1989, + Aids education programs for the city of Dallas. That's pretty impressive even for a Conservative Democrat back then. Even if she completely disavows these views, they contribute to the burgeoning civil war amongst Conservatives.

RNC Chairman: "Miers was a Democrat throughout the 1980's..."
Bill Krystol: "I'm Disappointed, Depressed and Demoralized"
David Frum: "Miers nomination... is an unforced error"
MSNBC Profile: A Pitbull in Size 6 Shoes
Hat Tip: Wonkette

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