Posted 8:19 AM by Robert

Rove Apparently Clear III

As noted in prior posts (here and here), special prosecutor Patrick Fitzgerald has not been acting at all like a federal prosecutor intending or likely to indict Karl Rove. Yet much of the mainstream media has found ways to misconstrue virtually every scrap of information into a sign that Mr. Rove likely to be indicted. Now the mainstream media has decided that Mr. Rove won't be indicted "today," but will "remain under investigation." The same people tell us that Scooter Libby will be indicted today.

Perhaps. Mr. Fitzgerald's visible actions with respect to Mr. Libby have been more ambiguous than those respecting Mr. Rove. For example, there are no reports that Mr. Libby testified for hours before the grand jury late in the case without benefit of pre-testimonial target letter or the equivalent, as did Mr. Rove. But neither have Mr. Fitzgerald's apparent Libby-centric actions been intensely suggestive of in intent to indict that man, either. The reporters writing these articles claim special knowledge, so perhaps Mr. Libby's lawyer has been chattering to them, although it's hard to see why he would do that.

Not much time will tell. We are reportedly to know within the next few minutes.

Posted 9:38 AM by Robert

Driving Them Off With Kindness

It is curious that those who say they seriously wish to restrict the inflow of illegal (or "undocumented") workers into the United Staes spend so little time on the most economically obvious approach: If illegal workers' cost advantage over native workers were removed, then there would be no incentive to hire illegal workers.

It is equally curious that the breach is being filled by those purporting to "protect" the illegals. A prior post noted that California courts have held that illegal workers are entitled to sue their employers for back pay to the extentn their actual pay is less than minimun wage. Most illegals are paid far more than minimun wage, so the effect of that decision will be trivial. The going rate for the Home Depot parking lot guys in Los Angeles is $10 per hour, for example.

But those who say they oppose the presence and employment of illegal immigants continue to oppose measures that would reduce their cost advantages. And those who would protect illegal workers continue in their ceaseless quest to drive them out of the United States (or at least California) by showering them with unalienable and expensive rights, including workers compensation and medical care:

Illegal immigrants hurt on the job are entitled to workers' compensation benefits, a state appeals court panel has ruled, upholding California's policy of granting workplace rights to undocumented employees. Torrance coffee roaster Farmer Bros. Co. had sought to deny workers' comp benefits to an injured employee who was in the country illegally. The company argued that federal immigration laws superseded the state's system for treating victims of workplace injuries.

But the 2nd District Court of Appeal in Los Angeles, in a ruling published late Monday, said federal immigration statutes didn't preempt state laws governing workers' comp insurance, minimum wage guarantees and occupational health and safety protections.

"California law has expressly declared immigration status irrelevant to the issue of liability to pay compensation to an injured worker," the court ruled, upholding an earlier decision by the state Workers' Compensation Appeals Board against Farmer Bros.

Experts said the unanimous ruling by the three-judge panel was the first time an appeals court in California had specifically upheld the right of illegal immigrants to receive medical care and disability benefits for on-the-job injuries.

A finding in favor of Farmer Bros. would have been "devastating" and "would have put hundreds of thousands of workers at real risk," said Merle Rabine, a commissioner on the workers' comp appeals board, which had previously ruled that illegal immigrants were entitled to benefits.

An estimated 2.6 million illegal immigrants live in California, according to the state Department of Finance. ....

Advocates for tougher immigration control criticized the ruling and called for the federal government to get tough in penalizing employers who hire illegal immigrants.

"We can't reward people for breaking the law," said Andy Ramirez, a spokesman for Friends of the Border Patrol, a Covina-based group that sends members to patrol the U.S. border with Mexico.

"Employers of illegal aliens should be charged and prosecuted to the full extent of the law," he said.

Ah, yes, Mr. Ramirez. Whatever you say.

Posted 9:03 AM by Robert

Condi For Senate

There has been a great deal of misplaced enthusiasm for Condi Rice running for president, especially in 2008 against Hillary Clinton. Such arguments push for the elevation of Ms. Rice to the highest elected office in the land, despite her never having held any elected office whatsoever, have even been observed issuing from the lips and pens of some of those finding Harriet Miers' lack of judicial experience to foreclose her current nomination to the Supreme Court. Go figure.

Ms. Rice might well turn out to be a formidable campaigner and elected official. She should start below the very top level, but there is no reason to start at anyone's idea of the "bottom" (a state assembly seat is not in her future). So how about trying for a U.S. Senate seat now held by one of those California Democrats? At least in the case of Senator Boxer, Condi would have the advantage of not being utterly nutty. That's a characteristic her opponent has in abundance:

Life Imitates Literature
Interview by DEBORAH SOLOMON

Q: What are we to make of the fact that you, a Democratic senator from the Bay Area, have just written a novel about a Democratic senator from the Bay Area who appears to be the most decent person in all of Washington?

The Senator: I worked on this book for seven years. I just want to tell people what my world is like. Show them the great parts of it, the terrible parts of it, the toughness, the idealism, the corruption, all of this.

But how can you say that "A Time to Run," your first novel, represents the world of Washington politics when the Democratic characters are portrayed as saints, the Republicans as snakes?

Let the reader judge. I come to the book with a point of view. But my characters, I believe they're multidimensional.

What about Greg, who becomes an operative for a wealthy Republican businessman and tries to destroy the career of a Democratic congressman who was his friend in college? Do you think Democrats are just more virtuous than Republicans?

As individuals? No. But as parties, I think the Democrats have virtuous goals.

The senator in your novel, by a nice coincidence, is trying to block the nomination of a conservative nominee to the Supreme Court. What do you make of Harriet Miers?

She doesn't bring stellar experience to the job. That's a fact. That's not a disqualifier in my mind. What is a disqualifier is if I can't find out what the heck she will do. With her we have a blank slate. We need to demand information.

I am surprised to hear you say that you don't care about qualifications. Aren't we supposedly looking for a brilliant legal mind to fill the post?

Does he or she have to be the smartest person in America? That's not my bar. Other people have that bar. If the nominee went to a good school - that's not my bar.

You voted against Judge Roberts, and I am wondering if there are any conservatives you could ever vote for.

Sure. I sent two recommendations to the president. One was Ron George, the chief justice of the California Supreme Court, and the other was Kate Werdegar, an associate justice. Two Republicans.

Did President Bush answer your letter?

No. He did not. It didn't come across my desk, let me put it that way.

Do you frequently write to the president?

About once a month. I sent a letter to him right after Katrina and said that the National Guard troops from Louisiana and Mississippi should be pulled out of Iraq and brought home.

Why do you think so many people insist that Democrats have no ideas?

It's hard at this stage because we don't really have a soap box. We don't run anything, not the Senate, not the House, not the White House. Zero, zippo. We fight for the microphone when we can, and we will have the microphone as we get closer to the midterm elections in 2006.

Do you live with any other senators in Washington?

I have a house, and let me tell you the joy of my life. I share it with my daughter and my grandson. And I found out today that my grandson got elected as class representative of the fifth grade.

I hope you're not advising him to enter politics.

No. It's so hard right now, and if you love someone to the core of your stomach, then you don't tell them to go into politics. Which doesn't mean they won't do it.

Your daughter was married to Hillary Clinton's kid brother, Tony Rodham. Does that make Hillary a relative of yours?

We share a bond, because she is my grandson's aunt. My grandson is the only person that we know of in the history of this country who has both a grandmother and an aunt in the U.S. Senate.

It seems as if you're one of the few senators who aren't considering a bid for the presidency in 2008.

No. Someone has to stay in the Senate. And the Senate is not chopped liver.

Posted 8:13 PM by Robert

Companion Pieces

A little while ago a friend of ours, a senior member of one of the wealthiest and best connected families in Jordan, sent me this report, which he viewed as a bad sign of what is happening in Iraq:

Jordan's property boom has been attracting new investors and start ups both locally and from further afield recently, with the kingdom's political stability, reforms in foreign ownership and bank initiatives catching property buyers' eyes. At the same time, more negative factors are also feeding the boom, as an increase in Iraqis fleeing their war-torn country has sent real estate prices through the roof. Recent claims in the sector suggest that Iraqi purchases of Jordanian real estate may have gone up by as much as 170% in the last 12 months.

Now, with the Iraq constitution tentatively accepted, we have this interesting companion item, which I have forwarded to our friend for comment:

A five-bedroom river-view house sold three years ago for $45,000. Two years ago it sold again, this time for $80,000. It sold a third time in August. The latest price tag? $300,000. It's not in Charlotte or Kansas City or Philadelphia; it's in Baghdad. The market here is booming. ... Still, despite steadily increasing levels of violence, a great deal of money flows into Iraq, enough that property values have increased close to 1,000 percent in the past three years in parts of town.

Posted 1:02 PM by Robert

Bad Religion

A history of vigorous personal religious belief no more demonstrates that a judicial candidate will support sound Constitutional interpretation than a history of valiant personal military service demonstrates that a political candidate will support sound defense and national security policy.

With the disaster of Anthony Kennedy before him, one hopes that the president did not rely on the illusion of the former in choosing Ms. Miers - and in any event that the administration will cease all references to her religion to advance her appointment to the Supreme Court.

John Kerry argued the latter, again playing this long established liberal Democratic ruse on the electorate, and foundered badly. He deserved it.

Posted 12:33 PM by Robert

Sailing To Washington II

A prior post took note of the dramatic shifts in Robert Bork's Constitutional philosophies over the years, especially in the areas of First Amendment and "substantive due process" rights.

A dramatic example of a brilliant legal mind (and Robert Bork is surely that) whose well thought out Constitutional philosophy changed dramatically while its possessor possessed a seat on the Supreme Court is Justice Oliver Wendell Holmes. His 1915 Fox v. Washington concerned an editor sent to prison for an editorial titled ''The Nude and the Prudes." The editorial criticized ''opponents of nude swimming," which violated a Washington State law making it a crime ''to encourage or advocate disrespect for law." The Supreme Court, speaking through Holmes, upheld the conviction because the ''article encourages and incites" -- albeit ''by indirection but unmistakably" -- a persistence in what ''we must assume would be a breach of the state laws against indecent exposure."

Addressing criticism of Fox, Holmes later famously told Judge Learned Hand that a state should be as free to protect itself against dangerous opinions as against the spread of smallpox: ''Free speech stands no differently than freedom from vaccination." Well, he held a worked-out Constitutional philosophy.

But not a philosophy that lasted - and we're better off for that. In a series of opinions starting in 1919, only four years after Fox, Holmes launched the the Supreme Court on to its current, vastly more activist, First Amendment journey. It has been said that Holmes virtually invented modern First Amendment protection of free speech.

Frankfurter? Bork? Holmes? All had elaborately worked out Constitutional philosophies. Each stunned supporters and opponents with directions subsequently taken.

Details. Details.

Postscript: There are those who view Justice Holmes' First Amendment voyage as beginning with his honoring the social Darwinian winners in the legislature, and ending with his honoring the social Darwinian winners in the marketplace of ideas. In substance, that is perhaps not much of a voyage. That is also a rather harsh view of the good Justice, but it may be a correct one. In any event, it is a view that certainly highlights just how much the effects of his views changed over time - even if substance of his Constitutional philoosophy changed less. That a smallish shift in the substance of a justice's Constitutional philosophy could result in such dramatic differences in effect should give a good deal of pause to those who emphasize the significance of Constituional philosophy. Perhaps such people would answer that such a sensitivity makes it is all the more important to get someone with the "right" Constitutional philosophy on the Court. But since Constitutional philosophy seems to be inherently a rather unstable variable - at least if Messrs. Frankfurter, Bork and Holmes are any indication - perhaps a better approach is to seek other attributes of a judicial candidate as indicating future performance on the Court.

In fact, the intense criticism of Ms. Miers' personality, focus on procedure and formal social structures and decision making style found in some criticisms of her candidacy suggests that her critics may already be doing exactly that.

Posted 10:00 AM by Robert

Valediction, A Little In Advance

Remember Herr Doktorprofessor Paul Von Krugman? He's been laid so long in his TimesSelect tomb that some of the very young are said to confuse Herr Doktorprofessor with Professor Poopypants. Alarming. Merger of the memory of the real Vlad the Impaler with long existing middle European vampire folk legends eventually created Dracula. Could such a future lie in store for Herr Doktorprofessor's memory? Que sera, sera! But whatever his future may be, his present seems a definite gloaming, as the most recent list of "most e-mailed" from the Times indicates, a list he once strode as a colossus - as an emperor:

1. As Young Adults Drink to Win, Marketers Join In.

2. Meet the Life Hackers.

3. Item: Sisters Think Parents Did O.K.

4. At Public Universities, Warnings of Privatization

5. Chasing Ground

6. Op-Ed Columnist: It's Bush-Cheney, Not Rove-Libby

7. The Miller Case: A Notebook, a Cause, a Jail Cell and a Deal

8. Op-Ed Contributor: God Is in the Rules

9. Stem Cell Test Tried on Mice Saves Embryo

10. Classes in Chinese Grow as the Language Rides a Wave of Popularity

11. Power Companies Enter the High-Speed Internet Market

12. The Coroner: For Trumpet-Playing Coroner, Hurricane Provides Swan Song

13. Op-Ed Contributors: Recipe for Destruction

14. Op-Ed Contributor: Beethoven's Paper Trail

15. News Analysis: Administration's Tone Signals a Longer, Broader Iraq Conflict

16. Long Island Journal: Confronting Bullies Who Wound With Words

17. Poet, 79, Wins Prize and New Audience

18. The Short of It

19. Op-Ed Columnist: Mind Over Muscle

20. The Hidden Cost of Documentaries

21. Belgrade Rocks

22. Program Disorder: At Clinic, Hurdles to Clear Before Medicaid Care

23. A Personal Account: My Four Hours Testifying in the Federal Grand Jury Room

24. Restoring Slumberland

25. Op-Ed Columnist: The Big Squeeze By PAUL KRUGMAN If large corporations continue to cut wages, America's already-eroding working middle class may wash away completely. Something must be done.

Little, gentle, wandering soul,
My body's guest and friend,
To what far places are you borne?
Naked, cold and pale.
As the warmth and joy of life
You loved so slips away.

Posted 8:05 PM by Robert

Sailing To Washington

O sages standing in God's holy fire
As in the gold mosaic of a wall,
Come from the holy fire, perne in a gyre,
And be the singing-masters of my soul.
Consume my heart away; sick with desire
And fastened to a dying animal
It knows not what it is; and gather me
Into the artifice of eternity.

Once out of nature I shall never take
My bodily form from any natural thing,
But such a form as Grecian goldsmiths make
Of hammered gold and gold enamelling
To keep a drowsy Emperor awake;
Or set upon a golden bough to sing
To lords and ladies of Byzantium
Of what is past, or passing, or to come.

Sailing to Byzantium - William Butler Yeats

Many conservative lords, ladies and sages of Washington (including many actually located in that city) despair of Harriet Miers' scant record, as expressed in this National Review editorial:

We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes.

There seem to be two related concerns: It is said that we don't know what Ms. Miers now is, and, even if she is acceptable now, her lack of a well developed "Constitutional philosophy" means that we cannot know what she will become. Ms. Miers' critics sometimes seem seriously confused between the two. For example, this National Review editorial absurdly argues that Justice Blackmun "was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed." In fact, Justice Blackmun was famously dominated by Warren Burger (could there be worse evidence of Blackmun's intellectual frailty than this) for many of Blackmun's first years on the Court, to the point where the two were known as the "Minnesota Twins." It was only in his later years that the "twins" diverged. Or are we suppose to believe that Warren Burger was also "transformed?" (On the other hand, the editorial's concern that Ms. Miers' personality suggests that she is at risk of becoming a justice in the mold of Sandra Day O'Connor may be better placed - I haven't settled that point in my own mind.)

Looming over all, like T.J. Eckleberg loomed over the Valley of the Ashes, is the brooding omnipresence of Robert Bork. Practically every conservative criticism of Harriet Miers cries out, sometimes explicitly, sometimes in secret harmonies: This is so disappointing! We could have had a Robert Bork! Indeed, Mr. Bork himself, not content to watch silently while disaster looms as Dr. Eckleberg did, stated that the Miers' nomination was "a disaster on every level," and, lest anyone mistake him for understated, further explained:

[S]o far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. ... There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked.

But set aside for the moment questions about what Ms. Miers - or any candidate - is at the time of elevation to the Court. Assume for the purpose of the argument that it can be firmly established that Ms. Miers is now a conservative in all relevant terms. (This may be a non-trivial assumption in Ms. Miers' case. The National Review argues, for example: There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not. ) Is it right that one can obtain a significantly better grasp of what a candidate will become once on the Court for a while where the candidate has a well developed Constitutional philosophy that can be reviewed? That seems to be what Robert Bork is suggesting. Such an assumption also seems to animate David Frum. And there are many others.

But I'm not so sure. One thing one knows is likely true about someone who is brilliant and has worked out an entire personal consistent Constitutional philosophy is that such a person likes to constantly tinker with their own thinking on the Constitution. So why shouldn't one expect that such a person will continue to tinker and change his or her thinking about the Constitution more than other people? For example, think "brilliant judge and academic legal thinker" and pretty quickly you're probably thinking "Richard Posner." But Richard Posner would be the first to tell you that his thinking about the law has changed vastly over the years - and the propensity of his thinking to change seems not to have been inhibited by any particular philosophy that possessed it at any particular point in time.

But perhaps the most spectacular example of someone whose very elaborate and worked out Constitutional philosophies did not inhibit his subsequent changes at all may well be Robert Bork. As late as 1968, for example, Robert Bork celebrated Griswold v. Connecticut. In that year Mr. Bork wrote in Fortune magazine that Griswold showed that the "idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated." His 1968 Fortune article completely rejected the need - even the possibility - of finding the "original meaning" of the Constitution. In "The Supreme Court Needs A New Philosophy," in the December 1968 edition of Fortune (pp 140-141), Mr. Bork put it this way:

[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court.

That hardly seems like the Robert Bork we know today. But Mr. Bork's evolutionary path was not linear or simple. In 1968 he wrote that the First Amendment protected not only political but non-political speech, and a lot more:

[N]on-political speech too, of course, is entitled to some degree of constitutional protection. Brandeis cited other values of speech that are not unique to the political variety. For both speaker and hearer, speech may be a source of enjoyment, of self-fulfillment, of personal development. It is often mundane or vulgar or self-serving, but it may be exalted, inspired by the highest motives. It may affect attitudes that ultimately impinge on the political process. All this has implications that, though generally overlooked, seem inescapable. For in these respects nonpolitical speech does not differ from nonverbal behavior, whether it customarily bears the label "sexual," "economic," "artistic," or some other. One could argue, then, that all human behavior should be entitled to the same level of constitutional consideration, the same judicial scrutiny of governmental regulation, that is currently afforded to nonpolitical speech.

"All human behavior?" Really? Sex? And drugs? And rock-and-roll? From such sweeping comments, it seems as though in 1968 at least Mr. Bork thought Mr. Bork had a well worked out Constitutional philosophy - and one that allowed for plenty of left-wing (or libertarian) judicial activism.

It didn't last three years. In 1971, he published a famous article "Neutral Principles and some First Amendment Problems" in the Indiana Law Journal, which argued that the First Amendment only covered political speech, narrowly defined. In that article Mr. Bork also openly admitted that he had reversed his position on Griswold. Where in 1968 he had written that Griswold was "a salutary demonstration of the Court's ability to protect fundamental human values," his 1971 article said of Griswold: "[A]t the time [that is, 1968] I thought, quite erroneously, that new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights." Mr. Bork also wrote in the 1971 article that Griswold was "an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it."

By the time of his confirmation hearings in 1987, Mr. Bork was still characterizing Griswold is illegitimate - and, as far as I know, that has not changed. But somewhere during the 1970's Mr. Bork's view of the First Amendment widened again, and he expressly repudiated the claim he had made in his 1971 article that the First Amendment applied only to political speech. Indeed, it is almost impossible to overstate the dimensions of the swings in Mr. Bork's understanding of the First Amendment. In 1968, he indicates that it not only protects non-political speech, but all human activity. Three years later, the Amendment protects only political speech - with a narrow definition. A few years after that, the scope of the Amendment's protection has widened considerably.

I do not intend to criticize any aspect of Robert Bork, or the evolution of his thinking, or any aspect of his thinking. But it is clear that his possession of a whole set of various Constitutional philosophies has never encumbered his ability to change them - in very serious and surprising ways. No Constitutional philosophy of Robert Bork has ever been sufficient to gather him into the artifice of eternity. Of what is past, or passing, we can and should investigate and question. But, contrary to many of Harriet Miers' finer critics, I'm not convinced that a candidate's worked out Constitutional philosophy gives us a substantially and incrementally surer understanding of what is to come.

MORE

Posted 8:47 AM by Robert

So What's New With Judith? II

It seems that I was closer to the truth of the whole Judith Miller affair than I had dared to hope.

Man Without Qualities (October 2, 2005):

Perhaps, just before the last flickering of institutional memory went out, somebody at the Times - maybe Mr. Bill Keller - woke up to a thought along the lines of:

"Gee, since nobody gives a rat's ass anymore about that Plum affair... (or is it Plume? ... Flame? ... Flambe? ... well, whatever - I'll look it up on Google when I get to the office), maybe there's no point in leaving old what's-her-name, our 1st Amendment heroine (note to self: Google) locked in Fitzgerald's iron mask? Must ask Pinch."

New York Times (October 16, 2005):

In a notebook belonging to Judith Miller, a reporter for The New York Times, amid notations about Iraq and nuclear weapons, appear two small words: "Valerie Flame." .... And when the prosecutor in the case asked her to explain how "Valerie Flame" appeared in the same notebook she used in interviewing Mr. Libby, Ms. Miller said she "didn't think" she heard it from [Libby]. "I said I believed the information came from another source, whom I could not recall," she wrote on Friday, recounting her testimony for an article that appears today.

Yes, as the Times article relates, there has been great frustration in the Gray Lady newsroom over having been scooped again and again on stories relating to Ms. Miller. By the Washington Post. By TIME. By the Man Without Qualities.

Sad, that.

Posted 10:34 AM by Robert

Strange Doings At The Poles And 43d Street

Steven Milloy locates more junk science (this time with a new twist) at the New York Times:

If you look at the temperature trends for the Arctic region since 1880, it appears that the Arctic generally warmed somewhat until about 1938. From 1938 until about 1966, the Arctic cooled to about its 1918 temperature level. Then, between 1966 and 2003, the Arctic warmed up to just shy of its 1938 temperature. But in 2004, the Arctic temperature again spiked downward.

Now if the 1880-1938 warming trend had continued up until this day, there certainly would be some significant warming in the Arctic region to talk about. From 1918 to 1938, alone, the Arctic warmed by 2.5 degrees Centigrade. But the actual temperature trend is much different, showing that there’s been hardly any overall temperature change in the Arctic since 1938. ....

And even when the Arctic re-warmed between 1966 and 2003, the warming occurred much less aggressively (about 50 percent less) than the 1918-1938 warming and at about the same rate as the period 1880-1938, despite much higher greenhouse gas levels in the 1966-2003 time frame. ...

Over the last 30 years, atmospheric levels of carbon dioxide increased by about 15 percent, from about 328 parts per million to about 372 parts per million. But the Antarctic temperature trend for that period indicates a slight cooling. This observation contrasts sharply with the relatively steep Antarctic warming observed from 1949 to 1974, which was accompanied by a much more modest increase in greenhouse gas concentrations.

Posted 9:14 AM by Robert

Not The Getty Villa

What is going on at the New York Times?

This is the Getty Villa. And this is the Getty Villa. And this is the Getty Villa.

But this is NOT the Getty Villa. It is the Villa De Leon, which everyone who knows anything at all about the Los Angeles area is aware is the private home that clueless tourists often mistake for the Getty Villa.

Clueless tourists, including the New York Times, which has been misidentifying a picture of the Villa De Leon as the Getty Villa in an article on the Getty. The article is about as insightful as the picture.

The two villas do not even closely resemble each other. The Getty Villa has no round turret (very prominent on the Villa De Leon). And while the Villa De Leon is a Palladian (that is, Venetian) style mansion, the Getty Villa is a copy of the Villa of the Papyri, a 1st Century Roman structure from the buried city of Herculaneum.

Details. Details.

Posted 5:22 PM by Robert

Rove Apparently Clear II

As noted in a prior post, the mainstream media have been drawing all the wrong conclusions from the circumstances surrounding Karl Rove's fourth visit appearance before Mr. Fitzgerald's grand jury. Indeed, only this morning the New York Times took front-page space to report breathlessly that some at the White House had "the jitters" over Mr. Rove's future. Baloney - at least with respect to anyone who really knows anything.

Now ordinary Department of Justice procedures seem to be catching up with events, and even the Times has had to replace its silly "jitters' screed with something that must be much more disappointing for the Gray Lady:

Mr. Rove's lawyer, Robert D. Luskin, told reporters that Mr. Fitzgerald "has not advised Mr. Rove that he is a target of the investigation and affirmed that he has made no decision concerning charges." Mr. Luskin went on to say that the prosecutor "has indicated that he does not anticipate the need for Mr. Rove's further cooperation."

The job of an investigating prosecutor is not to pop surprise indictments out of the grand jury. Department of Justice guidelines are very clear on the matter: if Mr. Rove were a "target" of this investigation he should have been told of that before testifying. As the Department of Justice grand jury guidelines put it:

It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation. ... A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. ... ...[T]he Department of Justice continues its longstanding policy to advise witnesses who are known "targets" of the investigation that their conduct is being investigated for possible violation of Federal criminal law.

What is happening to Mr. Rove is a very positive sign for him personally, despite the most fervent hopes and wishes of his agitated detractors.

Of course, other people might be at risk, including, perhaps reporters - and perhaps even a public corporation or publisher.

Posted 3:59 PM by Robert

Yale v Harvard (And The New York Times)

The New York Times reports:

Harvard University announced today that it had hired Mohamed A. El-Erian....[,who] succeeds Jack R. Meyer, the hugely successful fund manager for Harvard, who stepped down Sept. 30 ... When Mr. Meyer took over the Harvard fund in 1990, it was worth $5 billion, and in June of this year, it was valued at $25.9 billion, with growth far outpacing any other university fund. In fiscal year 2005, the fund achieved a total return of 19.2 percent, Harvard officials said today.

With growth far outpacing any other university fund? Is that right? Well, the Yale Daily News has a completely different story:

Yale posted a 22.3 percent return on its endowment during the past fiscal year, beating all of the peer institutions that have reported their returns thus far as it grew to $15.2 billion. Though Harvard's endowment is larger overall, totaling $25.9 billion at year's end, it earned only a 19.2 percent return on its endowment during that period. .... During the past decade, Yale's endowment grew at an average rate of 17.4 percent, compared to Harvard's average annual return of 16.1 percent ...

But the really pathetic thing here is that the state of reliability of the New York Times has declined to the point where one really doesn't hesitate to assume that the student-run newspaper in New Haven has got the right story.

Perhaps the reader is concerned that the time periods don't exactly match? After all, Mr. Meyer has been running the Harvard Fund for more than 10 years, so maybe his big lead was racked up between 1990 and 1995? No. Here's what Fortune magazine reports:

When it comes to running money, though, [David F. Swensen, who runs Yale University's $15 billion endowment] and Meyer are much more closely matched. Swensen, 51, has managed Yale's endowment for two decades and built one of the most spectacular investment records on the planet—up 16.1% a year (while the S&P 500 index gained 12.3%). "Yale has the best returns of any endowment anywhere," he is quick to tell you. Meyer, 60, can't argue with that. Since he got the job at Harvard in 1990—thanks in part to a glowing recommendation from Swensen—he has trailed his Connecticut rival 15% annually to 15.5% (vs. 10.6% for the S&P 500, through June 30, 2004).

Fortune reports Swensen outperformed Meyer from 1990 to 2004 on average, and the YDN reports Swensen outperformed Meyer by 22.3% to 19.2% in FY2005.

So Swensen (Yale) has obviously outperformed Meyer (Harvard) on average from 1990 (when Meyer took the job) to date.

There may be others besides Yale that outperformed Harvard during Mr. Meyer's tenure, I haven't checked that.

Posted 8:21 AM by Robert

The Molecules of Style

David Gelernter today is celebrating Strunk and White's "The Elements of Style" in OpinionJournal, and defending that book from some who love it badly. I like "The Elements of Style," but it can also drive me to distraction. Professor Gelernter says, "If the English language is one of the finest homes ever devised for the human spirit, "Elements" is the best guided house tour we've got." Well, no. Maybe that sentence is true if one adds to it the phrase "... for those whose writing should resemble that found in the better New York literary magazines of the twentieth century."

That's not a small category of writing. Most business letters and memoranda are included and, obviously, most newsmedia writing. But the only purpose of a writing guide is to help a writer to achieve the effect the writer desires to have on the intended reader. In other words, a style guide facilitates an intimate relationship, even in business or public writing. "The Elements of Style" is often a clinical third person in that bed.

For example, Professor Gelernter correctly notes that E.B. White and his versions of "The Elements of Style" defended the use of the traditional "he" against gender neutral constructs such as "he or she," and that White didn't care about thereby giving offense. That's fine for a writer in a sparkling, min-century literary magazine. But a writer very seldom desires to offend his or her reader even for what E.B. White considers a good cause. And it is a fact that many people - especially, but not only, women - will be offended by the traditional construct. Or, worse, the reader will view the writer as clueless. I conclude that most writing should employ the awkward gender neutral constructs - although I strongly disagree with the social attitudes that lead to that conclusion.

"The Elements of Style" is not just dangerous when in contact with modern political and social developments. Applied as it was intended to be, "The Elements of Style" produces a document that is efficient, realistic and friendly, with apparent clarity: a clean, well-lighted prose. That's a good thing - except when it isn't.

In "A Street Car Named Desire" Mitch confronts Blanch Dubois (William's alter ego) for managing to be with him only in poor light, which Blanch does because she has misrepresented her age. Mitch tears off a paper lantern that she had placed over a light bulb. Blanch famously screams, "I don't want realism. I want magic, MAGIC! Magic is what I try to give to people. I do misrepresent things to them. I don't tell the truth. I tell what OUGHT to be the truth. And if that's sinful, let me be damned for it. Don't turn the light on!"

Clarity is not always the point, even for beginning writers and in the most public writing, even where the reader craves clarity. When obscurity is the effect the writer intends to produce on the reader, "The Elements of Style" fails badly. It is likely that most writers and successful people want to be obscure much of the time. ("Don't worry Jim, if that question comes up, I'll just confuse them.")

Yes, it is probably the case that most employers prefer clarity in employee writing, although that desire probably wanes considerably when it comes to memoranda opposing counsel may later desire to see in high-stakes litigation. Conversely, a subordinate is often well served by providing something clear and crisp to superiors on-the-go. But not always. A subordinate will sometimes prefer not to have his or her thoughts easily called to account - that is, prefer more "magic." In those cases, "The Elements of Style" can seem more like an addendum to a corporate employee handbook (which it often is) than an aid to the writer.

My reservations with "The Elements of Style" do not end with its sometimes poor fit with writer strategies. It's implied criticism of great stylists, from whom even the beginner has much to learn, is loathsome. Yes, E. B. White admitted that the rules of "The Elements of Style" should not be applied rigidly or "inappropriately." But these are defensive tautologies, and the book may as well include a disclaimer like: "This book says it is not to be used to create bad results, so this book can never be said to have produced bad results." Hooey. That kind of disclaimer wouldn't spare the manufacturer of a metal step ladder from liability, and it doesn't undo the fact that this book strongly tends to produce that clean, well-lighted prose and a comfort like that of a nice diner in a dark neighborhood.

Setting aside all the supposed, generally meaningless exceptions ("you can try to write like Shakespeare when you can write as well as Shakespeare"), consider for a moment what would become Portia's lines from "The Merchant of Venice:"

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power, The attribute to awe and majesty, Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway; It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.

Put through "The Elements of Style" meat grinder, this becomes something like:

"Even kings should give their mercy generously, and so should you. God says so."

It's not that "The Elements of Style" is completely inconsistent with literary writing. But that book is far more consistent with a charming story about a girl and her spider and pig than it is to, say, "Tristam Shandy."

Posted 6:32 AM by Robert

Another Looming Miers Disaster II

It is nothing short of astonishing that anyone could view this post as a "defense" of the Harriet Miers nomination, or as arguing that she should be confirmed, still less that the Man Without Qualities is a "supporter" of that nomination.

Yet, there it is and is and is.

As this blog has noted in connection with the Miers nomination several times: While I have not made up my mind on Harriet Miers, I do find many of the arguments advanced by the critics of the nomination to be curious and, in the case of the arguments discussed in my prior post linked above, nasty, personal and highly counterproductive. That post points out possible consequences of such nasty and personal attacks on this woman or anyone: Personal alienation from her critics fostering alienation from the principles held by those critics.

Most people would be pretty hard put to spend a pleasant dinner with someone who called her nomination "scandalous" and "a joke" and worse. As for such personal alienation fostering message drift, I don't know if Harriet Miers is prone to that or not. But I do think that (1) it is likely she will be confirmed, regardless of what her critics say, (2) personal and nasty attacks are not helpful, and do not clarify the problem of getting her nomination in focus, and (3) whatever her propensity to message drift may be, personal and nasty attacks from the right will maximize it - which is perverse.

Would Charles Krauthammer test a new bullet-proof vest by having his wife shoot him in the chest with a 45? If he were true to the tenor of his column, the answer would have to be"yes."

Nor have I suggested that Clarence Thomas might have been prone to message drift absent the personal and nasty attacks on him from the left - but those attacks spared us whatever risk there may have been. What, exactly, do Ms. Miers critics point to prior to Justice Thomas' appointment that proved to their satisfaction that he was immune to what David Frum refers to as "transformation" by anger, abuse, sweet inducements and blandishments? Absolutely nothing sensible. Mr. Frum, for example, argues that "it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence." Nothing in the record proved Clarence Thomas to fit that description prior to his nomination to the degree Ms. Miers' critics are now demanding. By the standards now advanced by many of Harriet Miers' critics, the nomination of Clarence Thomas should have been summarily rejected. And if conservatives had savagely criticized his nomination, called it a "scandal" and a "joke," pointedly ignored his considerable talents and personally attacked him, I would not want to wager how he (or anyone experiencing such things) might have reacted. But he is now on track to becoming one of the greats.

It is worth noting that Ms. Miers' critics do not argue that she is unsound, only that there is an unacceptable risk that she is unsound. The savage, demeaning and personal attacks on Ms. Miers greatly increase whatever risks may exist - and would increase those risks for any candidate whatsoever. And anyone arguing to the contrary just doesn't pay enough attention to human nature.

I very much worry about how firm "convictions" are if they are swayed by personal grievances (or charm). And I am concerned (although not convinced) that Ms. Miers may be of that sort. I have repeatedly noted that I have not made up my mind whether she is a good choice, or even an acceptable choice. But I certainly do not agree with those critics who seem to have reached the conclusion that if she isn't ideal, then it's OK to throw the kitchen sink at her. It's nothing short of hilarious (in a dark way, but still hilarious) that the agitation among her critics has reached the point where criticism of even the most counterproductive, distracting, overheated and plainly fallacious arguments against her is seen as a "defense" and "support" of her nomination.

Posted 8:07 PM by Robert

Anthony Kennedy, And The Judge He Is Today

Was Anthony Kennedy a "stealth candidate?" Was he "transformed" after he joined the Court?

Solid Brendan Miniter (writing in OpinionJournal) says that Justice Kennedy was a "stealth candidate":

The shortcoming of stealth candidates has long been apparent. Anthony Kennedy, whom President Reagan nominated after Judge Bork's defeat, hasn't moved the court to the right.

Talented and perceptive David Frum comments:

There have just been too many instances of seeming conservatives being sent to the high Court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence. The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.

But regardless of whether one views Justice Kennedy as a disaster, is it correct that he was a "stealth candidate" or that he was "transformed" on the Court?

In my opinion, Anthony Kennedy was anything but a "stealth" candidate. According to his biography, he joined the Ninth Circuit U.S. Court of Appeals in 1975 - where he took what is often called a "narrow case-by-case approach" without broad conclusions and principles. In other words, his opinions were a complete mess, just as many of his opinions have been on the Supreme Court. He taught constitutional law at McGeorge - which almost certainly left indications of his more personal views, had anyone cared to investigate them thoroughly. At the time, many of his liberal Ninth Circuit "opponents" said they admired Judge Kennedy's Ninth Circuit opinions and proclaimed him "pragmatic and fair-minded." He was for many years a major player on the Sacramento social circuit and a "networker." Many "knew" him, and "everyone" liked him (dear God, Roberts!). He was appointed to the Supreme Court in 1988 - with unanimous Senate vote. So even the most liberal Senators voted for him.

One big problem with calling Kennedy a "stealth" candidate is that it implies that a full 13 years as a federal appellate judge, a stint as an academic constitutional law teacher, admiration by paleo-liberals Ninth Circuit judges, approval by the most liberal Democrats in the Senate, and the existence of a wide circle of friends familiar with his personality, legal views and politics just wasn't enough to indicate what kind of justice he would become. Really? Then what the heck is supposed to be enough? And who the heck is going to make the case for Justice Kennedy lacking "highest intellectual and personal excellence?" Not me.

I think Kennedy's likely propensities were apparent from well before he joined the Supreme Court, notwithstanding his highest intellectual and personal excellence. He was Ed Meese's friend at least as far back as 1966. It would be interesting to know just how open ended and thorough White House vetting actually was, but the true nature of such matters seem to be closed to history.

Nor does David Frum's claim that Anthony Kennedy was "transformed" by anger, abuse, sweet little inducements and blandishments make any sense at all. Such a "transformation" would have to have been completed in record time. Webster V. Reproductive Health Services, which affirmed the central holdings of Roe v. Wade and was quite clearly a product of the judge Anthony Kennedy is today, was decided July 3, 1989, where the Senate unanimously confirmed Kennedy on February 3, 1988 and he took the oaths of office a few days later. That means Mr. Frum's posited "transformation" was complete in less than a year and a half - the paint was probably still wet on the walls of Anthony Kennedy's new offices in the shiny white building at the base of Capitol Hill. Those must have been some jim-crackin' angers, abuses, sweet inducements and blandishments to work that fast. Perhaps Mr. Frum has a "transformation" in mind like something out of Invasion of the Body Snatchers (take your pick of the version), with Justice Stevens, perhaps, placing a quasi-liberal pod outside the new justice's door while he took his first in-office nap.

No. Anthony Kennedy was no "stealth candidate." Nor was he "transformed" by anger, abuse, sweet inducements and blandishments. There are no pod people. Something else went seriously wrong. For those interested in finding out what went wrong, the right place to start looking is Ed Meese and the long-ago vetting of Anthony Kennedy. But making up fancy, tart myths and names to explain the mistake that is Anthony Kennedy doesn't help answer the question of whether Harriet Miers should sit on that Court - a question I have still not answered in my own mind.

UPDATE: John Fund points out that there seems to have been a breakdown in the White House vetting process that produced the nomination of Harriet Miers. The whole disturbing column is worth reading. Some excerpts:

Not only did the vetting fail to anticipate skepticism about her lack of experience in constitutional law or the firestorm of criticism from conservatives, but it left the White House scrambling to provide reporters with even the most basic information about the closed-mouthed nominee. Almost every news story seemed to catch the White House off guard and unprepared. ....

A real vetting process involves sitting down with potential nominees and grilling them with hard-charging and probing questions that go beyond the existing paper trail--or, in the case of Harriet Miers, the lack of a paper trail. .... Even though several highly regarded female lawyers were on Mr. Bush's short list, President Bush and Mr. Card discussed the idea of adding Ms. Miers. Mr. Card was enthusiastic about the idea. The New York Times reported that he "then directed Ms. Miers' deputy . . . to vet her behind her back."

For about two weeks, [William K. Kelley, the deputy White House counsel who had been appointed to his post only the month before] conducted a vetting he has described to friends as thorough. It wasn't. A former Justice Department official calls it "barely adequate for a nominee to a federal appeals court." One Texas lawyer called by the White House was struck by the fact "that the people who were calling about someone from Texas and serving a Texas president knew so little about Texas." (Mr. Kelley didn't return my telephone calls.)

It is unlikely that the vetting fully explored issues surrounding Ms. Miers that are sure to figure in her confirmation hearings, such as her work as Mr. Bush's personal lawyer. Another issue will involve Ms. Miers's tenure as head of the Texas Lottery Commission ....

The failure to complete and act on a standard, thorough vetting of Kennedy, Souter and O'Connor probably explains their later performances on the Court a lot more than calling them "stealth candidates" or any insidious post-appointment "transformation" - by anger, abuse, sweet inducements and blandishments or otherwise. A bad vetting process doesn't in itself mean a bad candidate - as Mr. Fund notes with respect to Dick Cheney, whose own bad vetting for Vice President worked out fine. But a bad vetting does mean that the president doesn't have all the data he could have in evaluating the nominee, and greatly increases the odds that things will go seriously wrong.

My guess is that the vetting of Anthony Kennedy was abbreviated at the direction of Ed Meese. I also guess that the vetting of Sandra Day O'Connor was abbreviated in reliance on William Rehnquist, although obviously Mr. Rehnquist was not in a position to direct the White House to cut short her vetting. As for Souter, I am told he simply out and out lied to his prime vetter, Lee Liberman Otis, whose career has been severely impaired by the consequences. Was it nice of Justice Souter to lie his way to the top while damaging Lee Liberman Otis so much? No. Did Souter tell his friend Sununu what he was planning to do to Ms. Liberman? Sununu is said to be too arrogant to talk about the disaster. As Daddy Warbucks famously said, you don't have to worry about how you treat people on the way up if you're never coming down. Lifetime tenure assured Justice Souter - and every successful Supreme Court nominee - that he was never coming down. That makes the vetting process for Supreme Court justices even more important. Trust but verify. So it's very strange that the basic process seems to have been curtailed in the case of Harriet Miers, and probably with respect to several other Republican candidates now on the Court.

As far as I can tell, the Clintons didn't cut short their vetting. So perhaps it's not surprising that the two justices appointed by Bill Clinton haven't disappointed the Democrats at all. Sure Justices Breyer and Ginsburg seem to be mostly visionless technocrats. But they're also safe, liberal votes who don't get fooled or seduced.

Posted 7:01 PM by Robert

Political Lunacy

A presidential panel sets out to provide the perfect paradigm. It's the only realistic explanation. There is simply no other way one can explain recommendations like this:

President George W. Bush's tax advisory panel, rejecting a fundamental overhaul, agreed to recommend limiting tax breaks for homeowners and employer- provided health-care benefits to help pay for repealing the alternative minimum tax.

The panel, meeting in Washington today, agreed the current $1 million cap on deductible mortgage interest should be reduced, possibly to about $350,000, and that the deduction should yield no more than a 25 percent tax savings, down from a top savings now of about 35 percent.

Of course, there is always the outside chance that the panel is bored, and just wants to see the spectacle of all those over-extended homeowners plunged into newly-tightened bankruptcy - and ultimately, foreclosure on those many homes! One could certainly achieve that result quickly by making mortgage payments more burdensome by reducing the tax benefits of home ownership. And it might be fun for some people to watch the lending-institution and mortgage-securitization-market collapse, and likely general economic Armageddon. But it seems like rather expensive entertainment.

Of course, there is talk of a "transition period" that would supposedly allow existing homeowners to keep their benefits ... it's just when they (or their foreclosing lenders) try to re-sell their homes that the roof would fall in.

And as for reducing the tax benefits of healthcare plans? It makes some economic sense ... but politically? Well, snowballs ... hell ... that kind of thing. Mohit Ghose, vice president of public affairs at America's Health Insurance Plans was understated: "Voters are sending a very clear message that they do not support changing the tax status of employer-sponsored or employer- provided health care.'' You might say.

Panel Vice Chairman John Breaux, a Democrat and former senator from Louisiana, said he realized both proposals may lack "political appeal" in Congress. "Our job is to make bold proposals without regard of the politics." Maybe. Or maybe Mr. Breaux wants to make the rest of the country resemble the current state of the southern portions of his home state.

Or perhaps the panel just didn't want to repeal the Alternative Minimum Tax in the first place?

Why didn't the panel just propose to pay for the repeal of the AMT by closing the Washington Monument and similar venues? It would have been more likely and realistic.

Posted 6:24 PM by Robert

Double Whammy

Don Luskin correctly characterizes this "awesome posting from EU Rota" noting that the OECD Factbook indicates that US governments spend more per capita on health care than almost any European country, with the lowest tax wedge. As Rota and the OECD factbook show, the comparison is even more telling if one considers private healthcare expenditures in addition to government expenditures.

But, of course, that's the spending side. One of the canards pushed on the public in the early Clintonian era (ca 1992-1994) was the assertion that American money bought less healthcare dollar-for-dollar than European money. That assertion foundered on the rocks of studies such as the one reported in an article titled "Getting more for their dollar: a comparison of the NHS with California's Kaiser Permanente" by Richard G A Feachem, Neelam K Sekhri, Karen L White, that appeared in the journal British Medical Journal a few years back, and found:

The widely held beliefs that the [British National Helth Service] NHS is efficient and that poor performance in certain areas is largely explained by underinvestment are not supported by this analysis. Kaiser achieved better performance at roughly the same cost as the NHS because of integration throughout the system, efficient management of hospital use, the benefits of competition, and greater investment in information technology.

Obviously, not all US medical care is provided by Kaiser and not all European healthcare is provided by the NHS. But Kaiser is a pretty representative American HMO, the NHS is a pretty representative European national healthcare system - and Kaiser and the NHS are the two systems that the Clintonian propogandists chose to compare when it suited their purposes. The study therefore strongly suggests that the American medical system may well be more efficient than its European competitors on a dollar-per-dollar basis. One can now add to that likelihood that the US is also expending more of those dollars in the first place - as EU Rota notes from the Factbook figures.

More dollars. Probably more medical care per dollar. Sweet.

Posted 9:33 AM by Robert

Which Way, Anthony?

I have still not made up my mind about Harriet Miers, but I continue to be surprised by some of the arguments and assertions being made in connection with her nomination. Consider these three examples, each written by a very sensible conservative with presumably nearly-adjoining offices:

John Fund (writing in OpinionJournal):

From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Brendan Miniter (writing in OpinionJournal):

The shortcoming of stealth candidates has long been apparent. Anthony Kennedy, whom President Reagan nominated after Judge Bork's defeat, hasn't moved the court to the right.

James Taranto (writing in OpinionJournal):

As this chart shows, Thomas and Scalia were in full agreement in only 68% of cases in the 2004-05 term; the two justices who most often agreed fully, William Rehnquist and Anthony Kennedy, did so 77% of the time.

Justice Kennedy replaced Lewis Powell on the Court. Powell is a justice universally described as voting to the left of Justice Rehnquist. Unquestionably conservative William Rehnquist and Anthony Kennedy voted the same way more any other other pair of justices - a full 77% of the time.

Yet we are to conclude that Anthony Kennedy hasn't moved the Court to the right and should be viewed for purposes of the Miers nomination analysis mostly as having often disappointed conservatives? Yes, Anthony Kennedy has sometimes performed badly, especially recently. And he has at least from Webster been much too sensitive to media considerations.

But 77% is still a very big percentage.

Posted 10:58 PM by Robert

Which Way, Harriet?

Many of the concerns about Harriet Miers are based on the assumption that an articulated and coherent constitutional vision - which Ms. Miers is said not to possess - offers better assurances against what might be called "message drift" than generally "conservative" constitutional views. David Frum believes that Ms. Miers will remain a conservative justice for a while, "But then the Bushies will have gone home, and she will develop new friends, and then the inevitable tug to the left may prove irresistible." Such message drift marked (I would say "marred") the tenures of Justices Blackmun and O'Connor, for example.

There is surely something to this thought, but it has its limitations, as a review of the career of Justice Frankfurter indicates. Frankfurter was not exactly without intimate familiarity with the constitution before his appointment, and he was a famous liberal. But things didn't really turn out that way:

Despite his liberal political leanings, Frankfurter became the court's most outspoken advocate of judicial restraint, the view that courts should not interpret the fundamental law, the constitution, in such a way as to impose sharp limits upon the authority of the legislative and executive branches. In this philosophy, Frankfurter was heavily influenced by his close friend and mentor Oliver Wendell Holmes, Jr., who had taken a firm stand during his tenure on the bench against the doctrine of "economic due process". Frankfurter often cited Holmes in his opinions. In practice this meant that he was in general willing to uphold the actions of those branches against constitutional challenges so long as they did not "shock the conscience". Later in his career, this philosophy frequently put him on the dissenting side of ground-breaking decisions of the Warren court.

On the Court, Felix Frankfurter, noted liberal, became Felix Frankfurter, noted restrainer and conservative. To some extent his growing apparent "conservativism" was the result of changing times and a changed Court. But there was more to it than that. More than a few of his fellow liberals were shocked at what happened to Justice Frankfurter in his years on the Court.

For the sake of clarity, I have not yet made up my mind about Harriet Miers' nomination, and the above comments are not intended to persuade anyone that she should be confirmed. At this point, I am interested in weighing the various arguments made for or against her - including the limitations of those arguments.

Posted 5:08 PM by Robert

Final Chapter In The Fall Of The House Of Eisner: The Last Of Michael

A few days ago, Walt Disney Company, as a securities "Registrant," filed a fairly routine Report of Form 8-K/A with the Securities and Exchange Commission detailing the terms of its engagement of Robert Iger as its Chief Executive Officer. At the very end of that filing, almost as an afterthought, appears this bit of Plain English:

In addition, on September 30, 2005, Michael D. Eisner tendered his resignation from the Board of Directors of the Registrant, effective immediately. Mr. Eisner's status as Chief Executive Officer of the Registrant ended at the conclusion of the Registrant's fiscal year on October 1, 2005, and he no longer provides any services for the Registrant.

And so it ended. One of the most storied - and, ultimately, troubled - relationships in the history of the American entertainment industry was done. The language conveying Mr. Eisner's termination to the SEC records was brief, sanitary, cold, final - one could almost hear the FLUSH! He was gone.

What happened? It wasn't supposed to be that way. According to Forbes:

The statement comes on the back of Michael Eisner resigning from the board of directors last Friday--surprising, since he'd been expected to stay there until next year. And although he's entitled to, the ex-CEO will apparently not serve as a consultant to the company; perhaps symbolically conveying that his influence is well and truly history.

Not only was Mr. Eisner entitled to stay as a consultant, he was expected to stay as a consultant.

Word from inside Disney is that Mr. Eisner's decision to sever all ties with the company turned on questions of office draperies and the like. Multi-billion dollar companies sometimes choose to express themselves in their dealings with their former CEO's and Chairs (and then-current director and still largest insider individual stockholder, by far) through indirect means not all that unlike the means commonly employed by grumpy spouses ... or children. It seems that negotiations between Mr. Eisner and Disney broke down as the company objected to his choice of the office he was to occupy as a consultant, to his support staff, to the cost of decorating the office - and, yes, to the draperies he wished to install. There was a row. Eventually, Mr. Eisner got the idea that the company wasn't really all that happy to have him around in any capacity, and wasn't about to make him comfortable or treat him well. Since remaining as a consultant would have subjected him to a rather burdensome "non-compete" agreement, and the company was making it rather clear through trivial, humiliating negotiation points that he wasn't welcome anyway, he decided to quit. This way, Mr. Eisner keeps his options open: He could even become the voice of a competing TV mouse.

It all ended not with a bang, but with a squeak.

Posted 5:06 PM by Robert

Another Looming Miers Disaster

From Washington, James Taranto reports: "Having spent last evening communing here with some 1,000 conservatives at National Review's 50th anniversary dinner, we see a political disaster in the making." He may be right. He's very smart. And he's there.

But having reviewed the increasingly personal, nasty and ill tempered criticism of Harriet Miers (including that of Charles Krauthammer, who ridiculed the nomination as "a joke" - and worse), I see another disaster in the making of quite a different kind: I see a likely intense alienation of a Supreme Court justice from the movement conservatives, thereby fostering drift by that justice away from conservative values generally.

Personal feelings matter. The liberals who so savagely and personally attacked Clarence Thomas did the conservative movement a great favor: They sealed off any reasonable chance that Justice Thomas might be led to views more like those of his critics through the back door of personal relationships. Those doors can accommodate much traffic. Justice Brennan, for example (whose credentials at the time of his appointment certainly did not tower over those of Ms. Miers) became one of the most influential people who ever served on that Court largely by the artifice of personal charm. Harry Blackmun had retreated from many conservative values through those back doors, once he was offered shelter on the other side from the increasingly personal and hostile critics of his Roe v. Wade decision. But Justice Thomas' critics made sure that he would never make that trip. Thank you, movement liberals, for making quite sure that Clarence Thomas was immune to personal charm of the Brennan variety from the first day he first put on those robes.

Is it really going to be a good thing for conservatives to have a new Supreme Court justice who feels that she only made her way onto the Court by opposing conservatives, and that the Democrats and liberals were really not all that bad? Do conservatives really want to start Ms. Miers down the Blackmun-trod path before she even writes a single decision?

Is that what Mr. Krauthammer wants? More generally, do Mr. Krauthammer and his ilk really live on this earth? You wouldn't know it by me.

Critics of the Miers nomination have a perfect right to speak their minds. But they would do themselves, the conservative movement and the nation a big favor by toning down the tenor and personal nature of the attacks.

MORE: Duane Oyen has observations well worth considering.

UPDATE

Posted 1:06 PM by Robert

Well Above Average

Is there good reason to think that Harriet Miers will make a good Supreme Court justice?

Of course there is. And it's really not that difficult a syllogism if one keeps an open mind:

First, Ms. Miers has been nominated to fill the seat of Sandra Day O'Connor, who is retiring having garnered a nearly universal reputation of having been a pretty average justice. No luminary, but not that bad.

Second, by any reasonable standard of comparison, Ms. Miers is far more qualified and generally capable than was Ms. O'Connor at the time of her appointment.

Third, since Sandra Day O'Connor was about average, and Harriet Miers is far more qualified and accomplished than was Ms. O'Connor at the time of her appointment in 1981, there is good reason to believe that Ms. Miers will be at least well above average in her service on the Court.

Ms. Miers critics may think that they know of a better pick - and perhaps they are right. But it is clearly wrong to claim that there is not good reason to think that Harriet Miers will make a good - even well above average - justice.

And that conviction should grow the more one looks at the facts and the details of the comparison. Sandra Day O'Connor attended Stanford University for college and law school during the late 1940's and early 1950's - a time when Stanford (especially the law school) did not have the full reputation for excellence that it has acquired more recently. O'Connor served as an Arizona assistant attorney general from 1965 to 1969, was appointed to the Arizona Senate, in 1974 was elected a state trial judge, and was appointed to the Arizona Court of Appeals in 1979. Big deal. Can anyone argue that up to this point in her career Ms. O'Connor had performed with brilliance? No.

Then, a mere eighteen months later, President Reagan appointed her to the Court in 1981. She was a long time friend - today some would say "crony" - of Justice Rehnquist. Her name never would have come under serious consideration but for that friendship.

In comparison, Ms. Miers received both her undergraduate and law degrees from Southern Methodist University - a perfectly good school whose top students were then quite as good as those of Stanford at the time Ms. O'Connor attended that institution. So I give Ms. O'Connor and Ms. Miers roughly equal standing in the area of early education - for all that matters (which is not much).

What is by far more important than her early education is what Harriet Miers made of it. There is no real question that Ms. Miers is brilliant - and her critics suggestions to the contrary are nothing short of disgraceful. She is obviously brilliant in many ways. She was successful as Co-Managing Partner at Locke Liddell & Sapp - a major law firm - from 1998-2000. In 1992 she became president of the Texas State Bar, in 1985 she became president of the Dallas Bar Association, and she has been a long-time major player in the American Bar Association. She was a very successful trial lawyer with lots of tough, major clients and hard cases. She has been Counsel to the President for a while, and there have been no problems with her performance in that office. (It's actually hilarious to consider how few of her critics - especially those in academe and the media - could perform that job - or any of her jobs - as credibly as she did.) She was the president's Deputy Chief of Staff, and prior to that she was Assistant to the President and Staff Secretary. Her career leaves no reasonable doubt that Harriet Miers is brilliant in many matters pertaining to the law and public service. That brilliance is not of a sort that her critics fully value as a credential for the Court. That is their right. But those who challenge her level of accomplishment, intelligence or general competence are grossly wrong. And those things matter.

And they especially matter in comparing Ms. Miers to the justice she is replacing. No reasonable person could doubt that Harriet Miers has far better credentials, and displays many more signs of ability to perform on the Court, than did Sandra Day O'Connor in 1981.

Yet Sandra Day O'Connor turned out about average.

Anyone care to differ on that?

Posted 12:24 AM by Robert

Bad Reporting, Or Responsible Journalism?

Suppose two major newspapers - one in Los Angeles and one in Washington, D.C. - learn of a supposed plot to blow up the Library Tower in Los Angeles. Suppose further that the newspapers have reason to believe that the report of the plot was bogus.

Does the reader think something like that might explain something like this?

Would it be less responsible for a Los Angeles paper to publish what it believes likely to be a bogus report about a plot to do something really bad in Los Angeles than it would be for a paper in Washington to do so? The bad, real-world consequences of the Los Angeles paper publishing a bogus report about its home town would seem to be worse than if an out-of-town paper did so. Does that matter?

Of course, publishing big, bad, suspected-bogus reports about local events (and non-events!) would spice up the copy! Policies favoring that kind of thing would sort of move the whole paper towards being one, big gossip column - wouldn't they?

Just asking.

Posted 11:49 PM by Robert

What's In A Plame?

According to this report from Reuters this May 6, 2003 Nicholas Kristof column may have been the trigger for a meeting between Scooter Libby and Judith Miller at the St. Regis Hotel on June 12, 2003 - before Joe Wilson's notorious New York Times item appeared on July 7. The key Kristof passage seems to be this:

I'm told by a person involved in the Niger caper that more than a year ago the vice president's office asked for an investigation of the uranium deal, so a former U.S. ambassador to Africa was dispatched to Niger. In February 2002, according to someone present at the meetings, that envoy reported to the C.I.A. and State Department that the information was unequivocally wrong and that the documents had been forged.

According to Reuters, Ms. Miller discovered her notes from this meeting after she testified before the grand jury. She has now turned the notes over to prosecutor Fitzgerald and is to meet him again next Tuesday.

Kristof's column supposedly contained the first public mention of Wilson's mission in Niger, and Libby supposedly wanted to dispel Wilson's assertion (was Wilson Kristof's nameless source?) that he was sent to Niger at the urging of the vice president.

It certainly would explain why the prosecutor is having some key witnesses give repeat performances before the grand jury. But the Reuters suggestion that this earlier meeting is suggestive of a "conspiracy" seems weak at this point - especially since we don't know what is in those notes. And the whole story makes a rather jarring read compared to prior assertions by administration critics that the alleged administration anti-Wilson actions were prompted by his July article.

Posted 10:06 AM by Robert

What's In A Name?

It amazes me that Volokhyries (and others) are worrying over this report:

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" - which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.

As a preliminary matter, look closely at this passage. The word "admire" does not appear in it. The phrase actually used was "favorite." So why the heck do the Volohkyries keep chattering on about whether or not it is a good thing that Ms. Miers said she "admires" Warren Burger? (Kathryn Lopez says Ms. Miers used the word "admires" in her NRO report describing the Miers/Leahy exchange, but only said that she "admires" Burger's administrative skills - not his jurisprudence.) What does "favorite" mean? Harriet Miers probably knew Warren Burger personally. Maybe Burger flirted with her - she's dated a member of the Texas Supreme Court for years, so maybe she likes the type. In any event, she is not recorded as having been asked which justices she "admired."

And why do the Volohkyries suggest that almost nobody calls a former Chief Justice by his first name with no indication that they have done any research into what people actually did or do call him? Harriet Miers has had a long career as a senior player in a major law firm and both the American and Texas Bar Associations. She is therefore easily in a position to think of Warren Burger as "Warren." Would anyone be surprised to find that she thinks of the president as "George?"

In fact, I have my own story on this non-issue. Warren Burger was very active in organizing celebrations for the 200thanniversaryy of the Constitution. In that capacity he worked with some people in private legal practice in New York who I know rather well. They all called him "Warren" when they spoke to him or about him, in or out of his presence - even the junior legal associates. They all called the former Chief Justice by that name because in that context he insisted on it.

Did Warren Burger have senior people in bar associations and major law firm, such as Ms. Miers, call him by his first name? Beats me. But I could answer that question with a few phone calls if I really cared about it. The Volohkyries seem to care. The Washington Post seems to care, and provided the original report - a report in which the word "admire" does not appear even once. Why don't they make some calls?

The entire exercise in Volohkyrie-driven hand wringing is just absurd. Regardless of what Ms. Miers' political affiliations may have been in the past, enough is known about her views now that nobody can seriously propose that Earl Warren is today Harriet Miers favorite justice or that she ever intended to say such a thing to Patrick Leahy because she pays a lot of attention to detail and she is not stupid. People who seriously suggest the likelihood of such things should loosen their tinfoil hats and spend more time in the Grassy Knoll, their natural grazing grounds.

Posted 6:34 AM by Robert

A Fantasy Land Called "Third Way"

The Washington Post and the New York Times both report that William Galston and Elaine Kamarck think Democrats need to be "centrists" of some kind (they're not exactly sure what kind, apparently) in order to win the presidency.

No doubt Democrats will one day - perhaps as early as 2008 - win back the presidency. A presidential election is generally mostly determined by the national economy, and that economy swings in cycles. Eventually the Democrats, if they survive, will catch a wave and be sitting on top of the world - or at least 1600 Pennsylvania Avenue.

But the Galston/Kamarck reports come complete with very predictable, and numerous, suggestions that Democrats must take the Third Way because that's what Bill Clinton did, and he was the last Democrat to "do it."

Fine. History is what it is.

But, as Henry Ford famously pointed out, history is bunk. What is missing in the Galston/Kamarack reports is any mention of the fact that Bill Clinton failed to get a majority of the popular vote in either 1992 or 1996, or that Clinton won in 1992 because Ross Perot launched a personal vendetta against the incumbent Republican and the economy had been in a slump, or that Clinton won in 1996 because the economy was in a boom that had already begun when he took office in 1992 (O, that business cycle), or that Clintonian "centrism" caused the Democrats to completely lose Congress in 1994, or that Clintonian "centrism" has lately been failing to win many elections even when its tried (Georgia's ejection of Max Cleland), or that ...

Well, you get the idea.