Mark Schmitt

Now That Ms. Huffington Has Come Out and Said It...

One of the great questions that has remained unanswered -- and virtually unasked -- in the Rove-Plame scandal is, just what is Judy Miller in jail for? Is it simply refusing to disclose a source to whom she promised confidentiality? Or is it something a little more elaborate, perhaps a more active participation in the effort to discredit Ambassador Wilson?

There's certainly plenty of evidence that Miller has taken on roles not normally associated with reporting, in Iraq in particular. If she did play some other role in the transmission of classified information on Plame's identity -- for example, if she passed the information from a person authorized to hold classified information to another who was not -- then even if a reporter's shield existed, she would be no more entitled to it than would a lawyer who actively participates in a conspiracy be entitled to attorney-client privelege.

Arianna Huffington has broken the respectful silence by going all the way with this speculation:

It's July 6, 2003, and Joe Wilson's now famous op-ed piece appears in the Times, raising the idea that the Bush administration has "manipulate[d]" and "twisted" intelligence "to exaggerate the Iraqi threat." Miller, who has been pushing this manipulated, twisted, and exaggerated intel in the Times for months, goes ballistic. Someone is using the pages of her own paper to call into question the justification for the war -- and, indirectly, much of her reporting. The idea that intelligence was being fixed goes to the heart of Miller's credibility. So she calls her friends in the intelligence community and asks, Who is this guy? She finds out he's married to a CIA agent. She then passes on the info about Mrs. Wilson to Scooter Libby (Newsday has identified a meeting Miller had on July 8 in Washington with an "unnamed government official"). Maybe Miller tells Rove too -- or Libby does. The White House hatchet men turn around and tell Novak and Cooper. The story gets out.

This is why Miller doesn't want to reveal her "source" at the White House -- because she was the source...in this scenario, Miller certainly wasn't an innocent writer caught up in the whirl of history. She had a starring role in it. This also explains why Miller never wrote a story about Plame, because her goal wasn't to write a story, but to get out the story that cast doubts on Wilson's motives.

This really is speculation of the rawest sort. It's a scenario that various people have been dancing around and hinting at for weeks, but now it's out there. There are some other versions of this scenario, but they all involve Miller playing a key role in transmitting the information from one place in the executive branch (what Huffington refers to as "the intelligence community," but which could mean various things, including Bolton's office) to another, the political arm of the White House.

Add to Huffington's speculation a much more informed story in the Wall Street Journal about the divergence of approaches between Time, Inc. and the Times. The heart of the story has to do with the realization by Time and Matthew Cooper that they did not necessarily have the same interests as Miller and the Times, and should not share a lawyer, Floyd Abrams. (Abrams takes a vicious swipe at Cooper, saying that "From Judy's perspective, the first thing she wanted to know was what to do to protect her confidential sources, rather than what to do to stay out of jail.") One point of difference is that Time concluded that it owned the electronic file of Cooper's notes, or at least his e-mail to an editor, while The Times's position, and Miller's, has been that she alone holds the information.

But toward the end of the story, it suggests something else was going on: that at some point, when Time Inc. editor-in-chief Norm Pearlstine got involved, he realized that the case was a very big deal, one that could put the company at risk for contempt charges, and that he had to figure out an acceptable way out. His counterpart at the Times, however, publisher Arthur Sulzberger, Jr., seems not to have taken the matter so seriously, proposing at a meeting that they respond by distributing buttons that read, "Free Judy, Free Matt, Free Speech." The Journal reports that "Pearlstine demurred."

Given that the Times does not seem to want to know what's in Miller's notes, and given Sulzberger's less serious approach to the charges, it's time to add another question. Now it's not just, "What is Judy Miller in jail for?" It's also, "Does the New York Times know what Judy Miller's in jail for?" And, "Does the New York Times care?"

More diGenova/Toensing Nonsense

Last week on TPM Cafe I picked on former prosecutor Joseph diGenova, who asserted knowledgably that the CIA gave "materially false" information to prosecutor Patrick Fitzgerald to provoke the Plame investigation, when in fact no crime had occurred. I commented there that diGenova's "only competition for the title of worst partisan hack disguised as impartial legal expert comes from within his own household."

That would be his wife, Victoria Toensing. Yesterday she reclaimed the title in a video interview with the Washington Post's Terry Neal. It took me a long time to watch it -- the video kept pausing -- so to spare you the difficulty, here are some of Toensing's points that might be of interest to you:

* The Intelligence Identities Protection Act, which Toensing claims to have written, was really meant only to go after people like rogue CIA agent Philip Agee, who disclosed agents "for purposes of having them assassinated. That's what the law is all about." Since Plame was not assasinated, evidently no crime occurred.

*Rove, in his conversation with Matt Cooper, said, "you can't use this" about the information about Plame. This is a spin that Rove's lawyer, the world's dumbest Luskin, briefly tried to use, but Toensing spends enough time talking to reporters that she doesn't seriously believe that telling a reporter something on "double super secret background" is the same as keeping it an actual secret. Reporters, after all, aren't in the secret-keeping business.

*"Rove's lawyer was told he was neither a subject nor a target" of the investigation. This is a new spin on an old canard. Yes, Luskin says his client is not a "target." Being a "target" is tantamount to being indicted. Luskin has never claimed that his client was not a subject, saying only that lots of people might be subjects of the investigation.

* "You know who's really responsible for this whole mess? The Press. It's the press that demanded an independent counsel." And independent counsels always make a big deal of things and seek indictments that aren't justified.

This is wrong on several counts, but most notably, Fitzgerald is not an "independent counsel." It is true that under the expired Independent Counsel act, IC's had no other responsibility and set their own budget; they had every incentive to do stretch out their investigations for years and then seek indictments that a normal prosecutor, allocating resources carefully, would not seek.

The quintessential example of that phenomenon is the case of David Barrett, an independent counsel who has been investigating Clinton's first secretary of Housing and Urban Development, Henry Cisneros, since 1995, and is still spending $2.5 million a year six years after securing a misdemeanor conviction against Cisneros for misleading the FBI about a non-criminal personal matter. Toensing's husband was an exception to the typical independent counsel rule: he spent three years on the public dole investigating whether the first Bush administration had illegally searched Clinton's passport file; he found that they had but didn't bother to indict anyone. Hmm.

Fitzgerald, on the other hand, is a regular prosecutor with a special assignment. He has a real job, in which he is aggressively chasing down corruption in Chicago government. He has every incentive to conclude the Plame investigation quickly and efficiently so he can get back to that work.

To his credit, Terry Neal did the best he could to force Toensing out of the spin and into a normal conversation, asking, for example, "Isn't it equally pernicious to exonerate Rove before the facts are out." But the mistake is in allowing either half of this couple to pose as an "expert."

TPM Cafe vs. The Decembrist

I haven't developed a good system for deciding what to post here and what to post on TPM Cafe. Generally I've used this space for longer pieces, irrelevant things, or when I think I'm wearing out my welcome on TPM Cafe.

There are more readers there than here, and the comment threads are fabulous. But I also know that there is a lot of material there, between the main "Coffee House" group blog, the user blogs, discussion tables, and the other hosted blogs. I can't claim to keep up with all of it myself, and it's easy to lose track, as new material pushes even a day-old comment down the stack.

I'm not sure of the best solution. I'll probably start cross-posting more. In the meantime, here's a link to the page that brings up all my posts there:

http://www.tpmcafe.com/author/mschmitt

Lately I've been writing a little about the Roberts nomination, the Rove scandal , and some of the very rich debate about principles for progressive politics.

I encourage you to read TPM Cafe. There's so much good stuff there, and Josh has been adding more every day.

Stealth Nominees

The news that President Bush seems likely to has nominated Judge Edith Brown Clement John Roberts to the Supreme Court, choosing the potential nominee with the thinnest record on most of the issues, means that we will really have to wait for the hearings to see whether this nominee can be treated as a mainstream conservative or someone far beyond the pale.

I am sorely tempted to start a left-wing blogosphere love-in for Clement: "She's perfect, my second cousin's wife clerked for her and assures me she's secretly pro-choice," etc., just to make the right-wing crazy. What's the harm? We're not going to get a better nominee. And it would also make the nomination anti-climactic, so we can get back to Rove-gate, Social Security, etc. But in fact I don't know anything about her, and had her mixed up with Edith Jones until two weeks ago.

Bruce Ackerman has said all that needs to be said about stealth nominees, here and more recently in the American Prospect. But I have my own perspective on the prospect of a stealth nominee. In 1990, I was hired by Bill Bradley to be his speechwriter. I was 27. Within a month, Bush the First nominated David Souter to succeed Justice Brennan. After the hearnings, Bradley decided to vote against Souter, one of only seven. I drafted his floor statement, which he delivered with less rewriting than usual, and a day or two later, the Washington Post devoted about a third of its op-ed page to reprinting the statement, which essentially made the case against a stealth nominee. At the time, that was a pretty nice accomplishment for a new job! Unfortunately, it's not much to brag about since it was totally WRONG. Since then, I've met Souter and he was appropriately non-plussed about it, joking that it proved that Rhodes Scholars didn't stick up for each other.

I hadn't read this in a long time, and even though it is WRONG about Souter, it's not bad as a way of making the point that even though a nominee can and often should evade questions about particular decisions, it is reasonable to expect a nominee to hold and to state some views on basic principles, such as the right to privacy or the relevance of the Commerce Clause.  And I think the point made here that the concept of a right to privacy is not only relevant to abortion is all the true today and all the more likely to be forgotten.

It was only wrong in a tactical sense: Souter has turned out to be a very good justice (not just from an ideological standpoint) and if he had actually answered some of these questions honestly he would have been torpedoed by the right. Whether Bush I knew what he was doing or not remains a mystery. It was very reasonable for Bradley to try to set a higher standard of what nominees should talk about, and Senators of both parties have an obligation to demand more from Edith Brown Clement Roberts than they got from either Souter or Clarence Thomas.

 

Mr. BRADLEY. Mr. President, there is very little that the Constitution asks this body to do that cannot be undone. But there is one responsibility by which each of us as a U.S. Senator leaves a nearly indelible mark on the fabric of this Nation, not just as a government, but as a people. That is our role of `advice and consent' in the confirmation of the nine Justices of the U.S. Supreme Court.

Our role in determining which nine fallible human beings should hold these unmatched powers over the direction of our society is a power we share with the President. It is nonetheless one that we must take very seriously.

The history of this century shows that the Court can be a force of reaction. For decades, the Court denied such basic freedoms as the right to criticize war or to organize a union, and such basic measures of justice as the minimum wage. The Court can also light the path of progress toward an open, free, and fair society, as it did when it ruled that segregated schools were unconstitutional or that people cannot be forced to pay a tax in order to vote. Most of what we do in this body involves shaping a part of America through the instrument of legislation; the Court, on the other hand, defines possibilities for an entire Nation.

Mr. President, the nomination that is presently before us requires, I believe, even more thoughtful scrutiny than most. President Bush chose to nominate a man whose views on most of the fundamental principles of constitutional jurisprudence were unknown. Judge David Souter has spent most of his career in the courts resolving basic conflicts among individuals. While this experience is in some ways preferable to that of a nominee whose whole life has been spent on a law school faculty, it does require us to demand answers to some very relevant questions that, for another nominee, might be answered by his record.

There are no clear guidelines about what a nominee to the Supreme Court should or should not talk about. The distinguished chairman of the Judiciary Committee put it quite succinctly to Judge Souter in saying that the committee reserved the right to ask any question and granted Judge Souter the right to refuse to answer any question. Some Court nominees have answered every question on every topic in excruciating detail, while others have eschewed all but the most general discussions of principle. I understand that a nominee might conceivably refuse to answer almost every question other than the biographical, on the grounds that it might become relevant to a case before the Court. Of course, I would not hesitate to vote against such a nominee, and I'm sure that a majority of my colleagues would join me. Every Senator understands that different circumstances require different standards of candor from the nominee. In the current circumstance--a nominee with no record on constitutional issues--a high degree of candor is required, but more importantly, a nominee must be consistently candid. It is not appropriate to discuss some pending legal questions, such as separation of church and state, in great detail, and then to decline to answer when the questions move to other areas of the Constitution.

Judge Souter provided the Judiciary Committee with thoughtful, thorough answers about several major areas of the law. He described the principles by which he would adjudge cases of discrimination based on race or gender. He described his views on the separation of church and state, the first amendment, and capital punishment. He was even willing to discuss specific cases, such as Lemon versus Kurtzman, which established a standard for church-State cases, even though there is a motion for rehearing pending before the court in that very case.

Before the hearings, I was disturbed to learn that Judge Souter had asserted that there was no need to examine the racial composition of New Hampshire's State government work force because he knew without checking that there was no discrimination in any department. And his statement that the rights of less-educated citizens somehow harmfully diluted the votes of the better educated betrayed a serious confusion about democracy's virtues. But by speaking in detail about these statements and committing himself to sustaining the precedents that outlaw discrimination in hiring and literacy tests for voting, Judge Souter offered assurance that the complacency and the elitism implied by his earlier statements would not inform his judicial thinking. Had Judge Souter not made clear that he appreciated at least the legal precedents regarding civil rights, I would not hesitate to urge the Senate to reject his nomination. But the method of analysis that he committed himself to in the Judiciary Committee hearings I have no reason to doubt will be his method if he sits on the Court. The point is, Mr. President, where he was not silent, I am prepared to take Judge Souter at his word.

There was one area, however, about which Judge Souter refused to describe his method, principles, or even his basic instincts. And that area happens to be the one that is of deepest concern to millions of Americans and the one on which the Court will almost certainly set a permanent direction for the Nation in the next few years. It is the question of a right to privacy.

Judge Souter said only one thing about the right to privacy--that married couples possessed such a right as described in the Griswold decision. Does this right belong to individuals or does it somehow inhere in the institution of marriage? Judge Souter would not answer. Does this right apply only to the purchase of contraceptives, as in Griswold, or does it extend to other deeply personal choices about reproduction? Judge Souter would not answer.

All of us know that, given the balance on the Supreme Court, we are being asked to give Judge Souter virtually sole authority over whether the Court will continue to recognize a right to privacy from the State's presence in our personal lives. All of us also know that one of the inseparable aspects of a right to privacy is the right for a woman to choose whether or not to have an abortion. Indeed when the question of the right to privacy was raised in the Judiciary Committee, Judge Souter appeared to presume that it was nothing more than a euphemism for the right to a safe and legal abortion. We further know that Judge Souter is the nominee of a President who made a clear political commitment to his party and to the American electorate that he would seek to wipe out that right. Is Judge Souter the agent by which George Bush seeks to keep his campaign pledge to make abortion illegal, or is he the agent by which George Bush seeks to break that pledge? Mr. President, the answer remains unclear.

What is clear is that the most immediate consequence of the Court's rejecting the right to privacy would be to deny millions of women the right to choose and to return us to the day when illegal, back-alley abortions put the lives of thousands of women at risk. That is a chance I am not willing to take.

I would also remind my colleagues that the right to privacy is no more a euphemism for abortion than the right to free speech is a euphemism for a particular statement. The right to privacy is a basic promise of American life, one that we will all intuitively want to see protected, particularly as advances in technology give the State vast new powers to intrude into the most private recesses of our lives. Without some notion of the right to privacy, judges will have an inadequate method by which to decide these cases fairly and humanely. Because the right to privacy will be the fulcrum of the relationship between the individual and the State as we approach the 21st century, we cannot entrust it to a jurist who, while he says he believes it exists, cannot make clear where it is found, what it means, and to whom it applies.

Mr. President, these are the fundamental issues for our time and for the future. To confirm a nominee who refuses to discuss them is to surrender our obligation to offer thoughtful advice and knowledgeable consent on the nomination of Justices who will hold awesome power over our lives. I will not do that and I will vote against the nomination of Judge David Souter .

(I took this version from the Congressional Record; the version in the Post may have been changed slightly.)

[UPDATE: Obviously, updated to reflect Roberts nomination.]

Beware of Texans Bearing Friends

If you can recall back to the days before 14 Senators defused the Nuclear Option, one of the big issues was whether a filibuster of a judicial nomination was "unprecedented." And the key factual question was whether LBJ's nomination of Abe Fortas to move up to chief justice had been filibustered in 1968.

Of course it had, as David Greenberg proved, and various attempts to show that it wasn't really a filibuster were laughable. (They said it wasn't a partisan filibuster -- true, Southern right-wingers were still Democrats back then -- or that it didn't last that long, or that there wasn't proof that Fortas had majority support at the outset, or that it was irrelevant because Fortas had been confirmed as an associate justice and the filibuster blocked his promotion, not his appointment.)

In the end, the right-wing argument for writing the Fortas filibuster out of history came down to this: He was a really, really bad guy. If you believe that, I always thought it should support the case for the filibuster. After all, sometimes a president might nominate a really, really bad guy and his allies in the Senate might be willing to go along with it, unless a truth-telling minority stands in the way.

In fact, Fortas was not a really really bad guy. Among other things, he had been Clarence Gideon's lawyer in the pro bono case that established our right to legal representation. He did exercise what we would now call poor judgement in accepting payments from a foundation run by a dubious character, but that was not known at the time of the filibuster.

But he did come to a sad end, and his reputation is not what it should be. It is not the financial shenanigans that stained Fortas's reputation, but the fact that he could not make himself independent from his career patron, LBJ. As Laura Kalman's biography of Fortas showed, the far more disturbing aspect of his tenure on the Court was that he continued to provide personal and political advice to the president while sitting on the court. This deeply compromises the independence of the Court.

Yesterday's news that Bush was asking conservatives to back off from attacking Alberto Gonzales -- "my friend" -- and the clear indication that Bush strongly wants to appoint Gonzales to the Court, should bring Fortas to mind. In fact, when is the last time a president appointed someone to the Court with whom he had such a close personal relationship? Clinton hardly knew Breyer or Ginsburg; Reagan hardly knew Bork or O'Connor and probably not Kennedy, etc. The last is certainly Fortas.

(I mentioned this question to a distinguished attorney friend who I ran into on the subway this morning, and he immediately reeled off the names of three Truman appointees who were congressional cronies, one of whom I'd never heard of, but agreed that Fortas, like Gonzalez, was highly unusual in the degree to which his career was intertwined with the president's. And unlike Fortas, Gonzalez's entire career is dependent on the president.)

When LBJ tried to move Fortas up to Chief Justice, he tried to appoint a Texas protege, Rep. Homer Thornberry -- who I think held LBJ's old seat in the House -- to replace him on the Court.

So I guess it's a Texas thing.

And this is a reminder that, above all else, independence is an essential characteristic of any judge and a Supreme Court justice in particular.  The torture memos are bad in themselves, but they are also evidence that when Gonzalez had an opportunity to exercise some independence, by saying that there are values more important than giving the executive branch a shaky legal rationale to do what it wants to do, he did not exercise it.

There should be three concerns with a Supreme Court nomination: Ideology (is the nominee, who will be a conservative, within the conservative mainstream or beyond it); qualifications; and independence. That means independence from the president certainly, but it also means independence from some of the other political forces that will try to shape these nominations to their liking. Let's not forget about the third.

A Modified, Limited Defense of "Ideas"

It should come as no surprise that I liked Jonathan Chait's article on the poverty of the idea that "Democrats Need Ideas." In particular, I appreciated his challenge to the commonplace notion that what conservatives possess is some thing called "Ideas" and that to succeed we need to come up with "Ideas" too. As Jon points out, not only do we have plenty of ideas, but what the right calls "Ideas" is really something very different.

I made some similar points last week on TPMCafe, which I hope everyone is reading and enjoying, with particular attention to the fact that many Republican ideas are slogans without substance, or with substance that contradicts the slogans, while liberal ideas are more likely to be serious, substantive, meaningful, but lack a slogan.

Still, I have been guilty at times of professing the "we need ideas" gospel, and in a certain way there is some truth to it. The other day I came across something that I wrote right after the election, a long memo on progressive think tanks. I can't make the whole document public, but rereading my introduction, I thought it made the argument in favor of ideas in a provocative way. I'm not sure

Once again, we find ourselves in the aftermath of an election in which progressive ideas lost ground to the forces of reaction on all fronts. The central insight of Bill Galston and Elaine Kamarck's 1989 essay, ?The Politics of Evasion,? suddenly reveals itself to be as true as it was 15 years ago, in the aftermath of the first Bush victory: Progressives ?have focused on fundraising and technology, media and momentum, personality and tactics? instead of developing a powerful set of ideas, and a message that sells those ideas. The old ideas that shaped liberalism ? the social safety net, a strong government role in health care and economic security, regulatory protection of the environment ? have been discredited by the right and progressives defend them too half-heartedly to form an agenda. The next generation framework for progress is not yet born. The recklessness of the radical right forces Democrats to take responsibility without enthusiasm for ?conservative? goals such as reducing the deficit and restraint in foreign policy, rather than the inspiring aspirations of social justice and peaceful global leadership. And so liberal and moderate politicians are caught in a trap.

Ideas are a way out of that trap. Elections are moments of testing. Not so much by their results as by their content, they show in a harsh light the state of the body of ideas that progressives are offering. And for at least a second consecutive election, no serious new economic program was put on the table. No alternative approach to education was offered, beyond a promise to fully fund ?No Child Left Behind.? No coherent approach to terrorism or global engagement was put forward.

Ideas ? specifically, ideas about policy ? will play two roles in the revitalization of a progressive alternative. The first is to give content and substance to a movement. It is often suggested that this is to be a single, coherent message -- ?comprehensive? and ?consistent? are words often used when this argument is made ? but it should be noted that the right uses different themes with different constituencies ? economic ideas with a suburban constituency and ?values? themes with a religious constituency. There is room for some pluralism of ideas and themes, so that the next four years does not have to become a showdown over the one true church.

The second role that ideas can play is short-term and instrumental. An alternative vision of Social Security's future, for example, that captures some of the dynamism promised by privatization would help derail the push toward privatization and reach the constituency ? younger workers ? to whom privatization might otherwise be appealing. An alternative approach to environmental regulation can bring together environmentalists and organized labor, and also (in theory) avoid generating fatal hostility from business.

Ideas of this kind do not function on their own, but fit into an overall ecosystem of progressive activity that includes media outlets and strong grassroots organizing. But such infrastructure without ideas to fuel it can do very little on its own.

I'm not sure I can still believe this and also believe that Chait is right and that my earlier comments were right. But I think I can, keeping in mind Chait's point that what people mean by "ideas" are often different things. I think we still need a structure for our ideas and some clear ways of putting them forward (a Clinton era line, "If you work, you shouldn't be poor," always seemed to me the best example of such a line, a slogan but with real, substantive meaning.)

Why Oh Why Doesn't the New Yorker Have Fact-Checkers?

The New Yorker has a nice Talk of the Town piece by Rick Hertzberg about the battle for ownership of the Washington Nationals, and the shameless attempt by congressional Republicans to villainize one ownership group, which includes George Soros as a minor partner, in order to boost one that includes GOP fixer Fred Malek. Malek's resume includes helping George W. Bush acquire the appearance of a real job in his late 40s as a part owner of the Texas Rangers, but he will always be best known as the functionary who, when President Nixon became convinced that Jews in the Bureau of Labor Statistics were manipulating the unemployment figures, dutifully carried out a presidential order to go count the Jews.

Hertzberg gives a little history of the cellar-dwelling Washington Senators of old, and notes that in 1971, the Senators moved to the hyphen in Dallas-Fort Worth and became the Texas Rangers. But there's a significant error of omission, unusual in a magazine famous for its fact-checking: that wasn't the original Senators, but an expansion team created in 1961 that played in Washington for just ten years. The "real" Washington Senators had moved to Minnesota in 1960 and become the Twins.

[UPDATE: I originally said the team moved to Houston, which was an error. Where are my fact-checkers?]

There's a reason that's relevant: In 1978, Twins' owner Calvin Griffith told a Minnesota group why he moved the team there: "It was when we found out you only had 15,000 blacks here. ...We came here because you?ve got good, hardworking white people here."

So perhaps it is Malek, with his people-counting skills, who actually fits best in the ownership tradition of Washington baseball teams.