Man Without Qualities

Friday, March 26, 2004

Daschle Descending V: Serving Up Richard Clarke's Baloney Really, Really Thin In South Dakota

A prior post noted that much of the usual Washington crowd has had a say on Richard Clarke's performance - with Tom Daschle being a very large exception, even though Senator Daschle was very active in the Democrat's prior "what-did-the-President-know-and-when-did-he-know-it" effort.

Now Senator Daschle has crept out of his election year bunker - but just a bit. Yesterday he criticized the Administration's counter to Mr. Clarke's testimony, saying that instead of "dealing with it factually, they've [the Administration] launched a shrill attack to destroy Mr. Clarke's credibility." As the New York Times reports:

The Senate Democratic leader, Tom Daschle, called on the White House to cease "character attacks'' on Richard A. Clarke, the former senior Bush aide who disparaged Mr. Bush's handling of the Qaeda threat in his testimony before the commission and in a new book. "I have a simple request for the president today: Please ask the people around you to stop the character attacks they are waging against Richard Clarke,'' Mr. Daschle said. "Ask them to stop their attempts to conceal information and confuse facts. Ask them to stop the long effort that has made the 9/11 commission's work more difficult than it should be.''

Yes, the Administration has taken the approach that what Mr. Clarke is saying is not true or factually correct, and that his financial interest in selling books and his ties to the Kerry campaign are fairly obvious reasons to discount his credibility as a witness. And, for example, the release of footage of a background session one gave a year or so ago that squarely contradicts one's current sworn statements and book will have a certain nasty erosive effect on the public's assessment of one's character and value as a witness. On the other hand, Mr. Clarke brings nothing new to the discussion except as a witness - since his criticisms are all warmed-over stuff first served months ago, including by Senator Daschle, but with few takers.

Relatively speaking, South Dakota had even fewer takers of the old stuff than the country as a whole. Hence, many of Senator Daschle's re-election problems. His statements yesterday seem an effort by Tom Daschle as $3,000-suit-beltway-sharpie to comply with his Senate Democratic leadership role without infuriating the South Dakota constituency of just-plain-Tom who's having a lot of trouble running for re-election. One imagines that his opponent, Mr. Thune, will find some way to point that out.


STILL MORE: As the election gets nearer and more troubling, Senator Daschle is serving up other thinly sliced baloney, too. In this case he's voting against a bill (the "Laci Peterson Bill") before voting for it. He did the same thing on the gun manufacturer immunity bill. Isn't that cute? Just like John Kerry, who is finding out that somehow that strategy doesn't work as well in a national political race. But it doesn't work every time, even in the Senate. But old habits are hard to change.
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Fair And Balanced

E-mailed from a friend:

The Pope is visiting Washington, D.C., and President Bush takes him out for an afternoon on the Potomac, sailing on a yacht. They're admiring the sights when, all of a sudden, the Pope's hat (zucchetto) blows off his head and out into the water. Secret Service guys start to launch a boat, but president Bush waves them off, saying, "Wait, wait. I'll take care of this. Don't worry."

Bush then steps off the yacht onto the surface of the water and walks out to the Holy Father's little hat, bends over and picks it up, then walks back to the yacht and climbs aboard.

He hands the hat to the Pope amid stunned silence.

The next morning, the headlines in New York Times, Boston Globe, Boston Herald, Buffalo News, Milwaukee Sentinel-Journal, Minneapolis Tribune, Denver Post, Albuquerque Journal, Los Angeles Times and San Francisco Chronicle proclaim:

"Bush Can't Swim."
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Who Thinks They Can Win This Way? III: The Passion Of The Apologists

Yes, Bob Kerrey's visage was priceless as he argued that the "background" footage of Richard Clarke flatly contradicting the critical elements of his book and his sworn testimony shouldn't have been released to the public. Perjury, anyone? For political reasons I don't think it will happen, but not because the perjury didn't happen. Poor Martha Stewart: she just supposedly wanted $50,000. Mr. Kerrey's pain as he offered this wan apology in the face of Mr. Clarke's disgrace was all the more exquisite because the former Senator has on many issues before the Commission taken his job seriously, unlike some of the other Democrats sitting near him.

The image of Kerrey Agonisties seems destined to be reproduced on the faces of many on the liberal/Democratic side. Consider Fed Kaplan's tortured effort in Slate. A helpful e-mailer provided this screed in the morning mail. I was just emerging from the paroxysm of laughter it induced when (via Henry Hanks) I noticed Rich Lowry's handy short-form fish-in-a-barrel fusillade at Kaplan that - despite its brevity - even includes a restatement of Kaplan's fish (er, I mean, "arguments"):

At least according to Fred Kaplan ... Clarke has been caught contradicting himself... [H]ow Kaplan would explain the discrepancy[?] ... He doesn't. Kaplan makes two points.

1) ... Clarke's prior testimony to the 9/11 commission ... didn't focus on the Iraq War. His book sounds different because it does focus on the war. ... This won't wash. Yes, there is a lot of Iraq in the book, but there is also a lot of argument about how Bush did, as Clarke has put it, "virtually nothing" about al Qaeda prior to 9/11. ...

2) Kaplan explains that Clarke had limited choices when he was asked to give that 2002 briefing. ... [I]t is theoretically possible for Clarke to give a generous version of the facts in 2002, then write a more complete and critical account once he becomes a private citizen. But this is manifestly not what Clarke has done. He has written a book arguing that Bush did virtually nothing, when we know from Clarke's briefing that it was the Bush team that began to change counterterrorism policy and move it in a more aggressive direction after it had been frozen in place since late 1998. Clarke defenders like Kaplan have to square the book with the briefing and none of them that I have seen have done it--and in my opinion, it can't be done.

Rich is transparently correct, as the obvious pain on Bob Kerrey's face manifested. One can almost pity Clarke apologists like Fred Kaplan for the agony they must feel when they write as he did in Slate.

Almost ... but then not.

MORE: No perjury prosecution? Perhaps I spoke too soon:

In a highly unusual move, key Republicans in Congress are seeking to declassify testimony that former White House terrorism adviser Richard Clarke gave in 2002 about the Sept. 11, 2001, terrorist attack, Senate Majority Leader Bill Frist said Friday.

Frist said the intent was to determine whether Clarke lied under oath — either in 2002 or this week — when he appeared before a bipartisan Sept. 11 commission and sharply criticized President Bush's handling of the war on terror.

"Until you have him under oath both times you don't know," Frist said.

One Republican aide, who spoke on condition of anonymity, said the request had come from House Speaker Dennis Hastert and Rep. Porter Goss, the chairman of the House intelligence committee.

Actually, while an oath is always nice to concentrate the witness's mind, Senator Frist may be quite wrong. The federal False Statements Act should already apply to Mr. Clarke's statements to the Commission - under oath or not. The False Statement Act applies to every matter within the jurisdiction of every executive, legislative and judicial agency of the U.S. government. Is the Commission an "agency?" A quibble. Under the Act, it is a crime for any person:

* To knowingly and willfully falsify, conceal or cover up by any trick, scheme or device any material fact.

* To make any materially false, fictitious, or fraudulent statement or representation.

* To make or use any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry.

Punishment for a violation may include fines and imprisonment for up to five years.

That the Republicans alone want to release Mr. Clarke's testimony suggests that they believe it will do neither Mr. Clarke nor the Democrats any good. Release it and let the voters decide. But charging Mr. Clarke with formal perjury or violation of the False Statements Act would probably be a big political mistake. It would look vindictive, especially if brought by the Department of Justice.

On the other hand, perhaps this is a good case for appointing one of those Special Counsels that the Democrats generally love so much - to investigate and, if necessary, indict, Mr. Clarke. That would only be fair to Martha.


"My challenge to the Bush administration would be, if (Clarke) is not believable and they have reason to show it, then prosecute him for perjury because he is under oath, Kerry told CBS's MarketWatch. "They have a perfect right to do that," said Kerry.

Perhaps Senator Kerry will next ask for appointment of a Special Prosecutor, thereby completing his effort to give the Administration complete cover in attacking every iota of Mr. Clarke's credibility. Sheesh.

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Thursday, March 25, 2004

Fox News Poll

After several days of the Bush administration being harshly criticized by a former staffer, as well as two weeks of heavy and hard-hitting advertising by both campaigns, this weekÂ’s Fox News poll shows no movement in the vote for president. Bush and Kerry each capture the support of 44 percent of voters in a head-to-head matchup, if the presidential election were held today. Earlier in the month the race was also tied at 44 percent each.

When independent candidate Ralph Nader is included he receives three percent, Bush 43 percent and Kerry 42 percent.

And what we've seen over the last few days was pretty much the Democrat's best shot.

POSTSCIPT: One might note that the Fox News Poll is conducted among registered voters, where the Rassmussen tracking poll - which most recently showed Bush trailing Kerry by 4% - is conducted among likely voters. It is worth asking how much faith one has in a pollster's determination of who is a "likely voter" eight months before an election, and it is more than strange that shifting from registered voters to likely voters in this case would favor John Kerry, whose "hard support" numbers are a lot lower by many counts than are Bush's. In the delicate phrasing of the Los Angeles Times article on the subject: Kerry's Task Now Is to Win Enthusiasm of Democrats:

[E]ven as he sets his sights on the fall contest against President Bush, Kerry faces a challenge within his own party, rallying Democrats who seem more passionate at this point about beating the Republican incumbent than backing the party's apparent nominee-to-be. "The early Kerry people are certainly enthusiastic about their guy," said David Rosen, a Democratic fundraiser in Chicago. "But the rest of the folks, the folks coming over and jumping on the bandwagon, I don't think they have this great enthusiasm yet for Kerry." Rosen is convinced that will change as the senator becomes better known. But for now, Rosen and others say Kerry is still a mystery to many fellow Democrats, who know little beyond the fact that he once served in Vietnam and won a succession of primaries to clinch the party's nomination in record time.

John Kerry's personal history is not, to my knowledge, full of evidence suggesting that he receives greater enthusiasm the better he is known - quite the contrary. But Mr. Rosen is entitled to his own enthusiams. For the moment, it is odd, to say the least, that a candidate who is not even known in his own party would be doing better among likely voters that he is among registered voters. That stronglysuggestss that Rassmussen tracking poll definition of likely voter is, shall we say, eccentric.
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Pathetic ... And Bound To Lose XVI: ClarkeKerry?

An astute reader e-mails:

Richard Clarke is deeply wired into the Kerry campaign, and not just through Rand Beers. His main contact is his good friend Jonathan Winer, who's been Kerry's chief political operative and investigator through Iran-Contra, BCCI, and all the way back to his days as Lt. Gov of Massachusetts. Jonathan's been identified publically as one of a handful of people running Kerry's "shadow state department" along with Beers. The LA Times yesterday had a story quoting Winer as saying he was talking regularly with Clarke while Clarke was still in the White House, and that Clarke was expressing his disgust with the Bushies. Oddly (or maybe not) Winer is described as a nonpartisan public servant, and isn't identified as a Kerry operative; indeed, he's been used by several publications as a character reference, so to speak, for stories lauding Clarke. Google "Jonathan Winer" and you'll find all sorts of interesting stuff. My own experience here is that Winer is such a useful and promiscuous source that most of the reporters in DC aren't inclined to embarass him by connecting him to Clarke, and mess up what's obviously a Kerry-inspired phony scandal.

Googling Jonathan Winer Kerry is also an interesting exercise.

MORE: Winermentions. Again, no mention of WinerKerry.

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Deliberation Day

Someone at OpinionJournal thinks that Deliberation Day is a bad idea, and I agree. I started composing a post outlining why I think it is such a bad idea and how the ideas that lead to it's proposal are intertwined with lots of other really bad ideas, and then I realized that Richard Posner had already done a lot of the work and said a lot of the things I would have said, only better:

The proposal by Professors Ackerman and Fishkin for a Deliberation Day, on which citizens lured by federal financial incentives would engage in collective deliberation over issues and candidates in the forthcoming national election, seems to me to misunderstand what modern political democracy is and should be. ... It was a genuine and in many respects progressive and attractive system of self-rule, but one utterly irrelevant to a vast and complex modern polity such as the United States or, for that matter, a small and complex polity such as Belgium.

Modern democracy, for reasons of efficiency and feasibility, is representative democracy, which involves a division between rulers and ruled. The rulers are officials who are drawn from—to be realistic—a governing class consisting of ambitious, determined, and charismatic seekers of power, and the role of the citizenry is to vote candidates for officialdom in and out of office on the basis of their perceived leadership qualities and policy preferences. The system exploits the division of labor and resembles the economic market, in which sellers and consumers constitute distinct classes. In the marketplace, the slogan “consumer sovereignty” signifies that the essentially negative power of the consumer—the power not to buy a particular product, a power to choose though not to create—constrains the behavior of sellers despite the vast gulf of knowledge and incentives that separates sellers and consumers. The same relationship exists between politicians and voters.

There is no Deliberation Day on which consumers engage in collective deliberation over competing brands of toasters or about whether to use microwave ovens instead. Consumers economize on their time by responding to alternative sales pitches and using their experience of particular sellers and products to guide their evaluation of the pitches. It is the same in the political marketplace. Voters are guided by their reactions to the presentation of issues and candidates in political campaigns and by their experience of living under particular officials and particular policies.

Arthur Lupia also has good observations.

One might also note that Judge Posner's thinking can be extended to explain why many (perhaps most) people simply should not vote at all, just as many investors should be satisfied with being "free riders" on an efficient securities market. The parallel is not perfect, of course, because the political market ("marketplace of ideas") is not nearly as transparent or efficient as the American public securities markets. But there is a lot of efficiency, and, to the extent the market place of ideas is inefficient, that can in some circumstances be reason to leave the voting (pricing) to the relative experts.

Something for many (but, obviously, not all) people to remember when the Goo-Goos come a-calling near election day: Support Democracy. Don't Vote. Fortunately, lots of them do remember. [MINOR UPDATE: These two last paragraphs are, obviously, not criticisms of Deliberation Day itself, and it is quite irrelevant to what is said here that A&F are well aware that political activity has low utility for most citizens. Further, the problem identified and addressed by classical portfolio theory is not that investing in public stocks is of low utility for most investors. The problem is that most investors cannot and should not try to make individualized investment decisions because other investor know so much more - so most investors should simply buy a market-weighted basket of securities and hold them. One cannot "solve" the portfolio creation problem by holding an "Investors Deliberation Day" and having everyone talk about stock investment issues. The stock markets are never-ending "Investors Deliberation Day" in which the people who are best at picking stocks do most of the talking - and everyone else just listens and takes the market price. To some (highly imperfect) extent the "marketplace of ideas" is like the stock market - and that suggests that many voters should do something other than trying to make personal individualized decisions about individual candidates. Staying home and letting more knowledgeable people vote is one possibility. Voting a straight party line is another. Following the advice of a trusted political analyst or friend is a third.]

I'm sure Jim Fishkin is well intentioned. But, actually, I think his (ex-?) wife, Shelley Fisher Fishkin, one of the world's great champions of Mark Twain and Huckleberry Finn, in particular, is more likely to leave the world a better place.

MORE: From Robert Prather, and, through his post, Steven Taylor and Chris Lawrence.

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Wednesday, March 24, 2004

Pathetic ... And Bound To Lose XV: Fast Forward With Another Berger Whopper

Although I did, it wasn't necessary to read the article to know which of Clinton aide's comments would be reported under the headline Aide: Clinton Approved Killing Bin Laden. It virtually had to be Sandy Berger, the same prevaricator who briefly surfaced to tender a bizarre assertion that the Clinton Administration had left an extensive "plan" to terminate al Qaida with the incoming Bushites. After making fools of TIME magazine and other naifs, Mr. Berger withdrew that assertion under oath before Congress. But now Mr. Berger is baaaaaaaack, in characteristic "say anything" mode, to squarely contradict George Tenet by asserting that Bill Clinton gave the CIA "every inch of authorization that it asked for" to carry out plans to kill Osama bin Laden.

Of course, Mr. Berger said nothing previously about any President Clinton's secret exception to the famous (and, to most of the left, sacred, post-Church commission) Ford presidential order barring assassination of foreign leaders, such as bin Laden. Mr. Berger was mute on the topic following 9-11 itself and its huge flare up of accusation of Clinton-administration intelligence failures. He said nothing about such an exception when he made his disgraced public claim that the Clintonites had left a "plan" to dispose of bin Laden or when President Bush expressly carved out a big exception to the Ford order. Nor has Bill Clinton made such an assertion, although he presumably consented to bin Laden being killed when Mr. Clinton had a few missiles launched at him at the height of the Lewinski scandal. In short, it looks like another Berger whopper.

All the signs are that this particular whopper will have a very short shelf-life. And that likely life span seems representative of the likely life span of the entire Democratic effort to re-write the history of 9-11, and in my opinion is indicative of why the Democratic strategy - including their reliance on the Richard Clarke performance - is most likely a very serious miscalculation. In short, it seems to me that the Democratic attempt to re-write the history of 9-11 will force all interested members of the public to reconstruct and review for themselves in fast-forward the history of this country's response to terrorism in recent years. That should mostly have the effect of reviving and focusing public recollections of, and respect for, the Bush administration and the President in particular. The dust kicked up by the efforts and testimony of Mr. Clarke and various Clinton administration functionaries - including the bizarre Sandy Berger - may take a little while to settle, but it will settle well before the election.

Already Democrats on the 9-11 Commission are having to contend with footage (helpfully provided by Fox News) of a previously non-public briefing by Mr. Clarke completely and essentially contradicting the most important to the assertions in his book and testimony. Does former Senator Kerrey understand how preposterous he sounds when he responds to this footage with a protest that it should have been kept from the public? Already Mr. Clarke's preposterous assertions that Ms. Rice was unaware of even the meaning of "al Qaida" or that she failed to grasp the need to address al Qaida have been conclusively demonstrated as false simply by her many public statements to the contrary and Mr. Clarke's own previously unreleased e-mail to her. Then there is the Clarke resignation letter praising the President's actions against terrorism. Already George Tenet has contradicted Mr. Clarke. All signs point to the current Democratic efforts as having a half life about as long as their prior, disastrous "what-did-the-President-know-and-when-did-he-know-it" effort.

My guess is that net result of the 9-11 Commission will be no particular shift in the public perception of Mr. Bush's handling of the war on terror, but with a considerably increased focus of the presidential campaign on national security and the war on terrorism.

Nothing could be worse for John Kerry's presidential prospects than that.

John Kerry is not alone. Much of the usual Washington crowd has paraded across the nation's television screens on this matter - with one, very large exception: Tom Daschle. Senator Daschle was very active in the Democrat's prior "what-did-the-President-know-and-when-did-he-know-it" effort, but he has been curiously quiet over the last few days. Perhaps Senator Daschle is being quiet because his prior efforts seem to be a major reason why he has moved very close to not being re-elected.

Is that good news for Democrats generally?

Dick Morris is generally correct in predicting a likely Bush blow-out - except he unsurprisingly gives too much credit to the campaign professionals and political ads. I believe the main reason for John Kerry's fall in the polls is John Kerry - and I think the current September 11 dust-up threatens to have the larger Congressional Democratic Party exposed to the same risk. Kausfiles' concern over the latest Rassmussen Poll showing Kerry with a slight lead is unwarranted. The later Quinnipiac Poll finds:

President Bush leads Democrat John Kerry 46 ? 40 percent among all voters, with 6 percent for independent candidate Ralph Nader. ... With Nader out of the race, Bush leads Kerry 46 ? 43 percent among all voters ....

MORE: Why Richard Clarke Is Good For Bush.

UPDATE: Mr. Clarke's reaction to questions about his 2002 briefing footage of which has now been released, as mentioned above is interesting:

Asked at the commission hearing Wednesday whether he intended to mislead journalists and their readers in 2002, Clarke said no.

"When you are special assistant to the president and you're asked to explain something that is potentially embarrassing to the administration, because the administration didn't do enough or didn't do it in a timely manner and is taking political heat for it, as was the case there, you have a choice," he said. One "choice that one has is to put the best face you can for the administration on the facts as they were, and that is what I did."

In other words, Mr. Clarke candidly admits that he lies - shifts the very essence of what he says to the public - to accord with his personal position and agenda at the moment of the telling. He even suggests that he considers that kind of lying (and that's exactly what it is) to be routine when you are special assistant to the president and you're asked to explain something that is potentially embarrassing to the administration. Richard Clarke's admission of casual, situation-driven prevarication, his book and his performance before this Commission, compared with his prior statements and records of his history, make him seem increasingly like Jayson Blair, the notorious New York Times liar. Indeed, much of Jack Shafer's review of Mr. Blair's opus could apply equally well to Mr. Clarke's opus with only minor adjustments for context:

Should you believe anything written by a serial liar? ... For a liar, Blair begins his book in honest fashion...: ''I told more than my share of lies and became as adept as anyone at getting away with it unquestioned and unscathed.'' ... But contrition is a dish served not at all in this memoir. From the heights of confession, Blair rappels down Mount Excuse, blaming everybody but himself for his offenses. ... Other villains appear, disappear and reappear like changing weather. ... He describes some of his Times colleagues as corrupt hacks and fabricators and asks, in so many words, is he much worse than they are? But the only Times reporter whose ethics Blair directly criticizes is Rick Bragg, the former Times star who was disciplined by the paper for claiming a solo dateline he didn't deserve. (So much for burning his masters' house down.) ... Other times, the source of Blair's troubles is found in whatever heartless Times editor he thinks is riding him ... And on a few occasions, Blair, an African-American, plays the race card ... Far from solving the Jayson Blair enigma, this sloppy, padded and dishonest work only adds to his growing word count of lies.

Richard Clarke is not African-American, although the woman he is attempting to diminish is. What card like that race card could Mr. Clarke still try to play?

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Under God? No, Under "God."

Is it true, as Linda Greenhouse claimed yesterday, that before the justices [of the United States Supreme Court] can decide whether those two words render the pledge unconstitutional, they have to answer a factual question that is inextricably entwined with the legal one: what exactly does it mean to pledge allegiance to "one nation under God"?

Of course not. In fact, that is one question the Court should - and, in my view, under the Constitution, must - entirely avoid unless the Court is planning on stepping into some Article III equivalent of the Shoes of the Fisherman. To answer what exactly does it mean to pledge allegiance to "one nation under God" in any meaningful sense would require the Court - or anyone else so bold - to explicitly or implicity answer the question: "what is God?" If the Court has any lingering survival instincts, the justices will wholly decline Ms. Greenhouse's invitation to the ontological dance.

"God" means many things to many people, and Congress did not adopt any one of those meanings in inserting "under God" into the Pledge of Allegiance. "God" can, of course, refer to some powerful anthropromorphic entity or an old man in the clouds or something that would be more at home in a modern church, synagogue or mosque.

But "God" doesn't have to mean any of those things. Albert Einstein said "I believe in Spinoza's God, who reveals Himself in the harmony of all being." It is not quite clear what Einstein meant by this, but whatever else he may have intended Einstein was clearly refuting the idea of a "personal" God, in the Judeo-Christian-Islamic tradition.

But Einstein still said he believed in "God." In fact, in Spinoza's "God." But Einstein may have been more of a theist than Spinoza was himself.

It is sometimes said that to Spinoza, "God" was quite simply the integrated sum of all natural law. Of course, any such formulation must do his thinking great violence, but for present purposes one need only note it would be possible for someone asked to recite the Pledge of Allegiance to adopt this pseudo-Spinoza definition of "God," in which case this part of the Pledge is nothing more an assertion that the pledgor is affirming allegiance to a nation formed in harmony with all natural law.

The phrase also serves as a reminder that the Declaration of Independence and the Constitution both rest historically on presumptions of natural law and their ultimate integration into something called "God" or "the Creator."

Did Spinoza's views make him an "atheist?" Well, the spiritual leaders of his 17th Century jewish community thought so, and told him so, and made it hurt. So what? No doubt those leaders would have viewed most of the 18th Century deists who had a hand in the creation of this country as "atheists" because they denied the ongoing interference of the Creator with the laws of the universe - including Thomas Jefferson, he of that felicitous "endowed by their Creator" phrasing.

This is not a hard case. It is amazing that this case has had to go to the Supreme Court, and it is surprising that the Court has even held oral arguments. It is amazing that the sorry lot comprising the 9th Circuit has been allowed to continue to create such juvenile messes. But it will be even more amazing if Justice Scalia's absence makes any difference in this case's resolution. So far, only Justice Souter seems to be enough of a partisan nincompoop to consider accepting Ms. Greenhouse's silly invitation. [Minor Update: And, of course, there is always Justice Stevens, The Eternal Fruitcake of the Narcissistic Mind. I can't wait to see what Justice Bowtie has to say on this one!]


"If you look at the logic of the cases writ large, take their logical principles and try to apply them in the abstract, then Newdow wins, because the pledge seems to endorse religion in some measure," said Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles. "The rationale [for the pledge] is pretty clear -- it's the 'no extirpation' rationale. . . . But the question is, how do you translate that into a legal rule? And the answer is, it'll be quite a challenge for the court to do."

But Eugene Volokh, a professor of constitutional law at the University of California at Los Angeles, couldn't be more off track. As noted above, the rationale for the Constitutionality of the Pledge phrase "under God" does not have to be the "no extirpation" rationale. The Court could observe that Congress has not adopted any meaning of "God" - and therefore has made no religious endorsement with the amended Pledge. In effect, the ambiguity of "God" makes the Pledge phrase like the "winter festival" displays in city parks that the Court has held withstand Constitutional scrutiny - with the more traditional meaning of "God" playing the role of the creche side by side with the secular "natural law" elf-displays. And there are other justifications, too. Curious. Very curious. He was way off track on intelligent design, and the 9th Cir. Davis recall case, and the Eldred copyright case, too - although nothing in those cases was hard, either. Something odd going on here? Maybe it has something to do with the differences between looking at the logic of the cases writ large, tak[ing] their logical principles and try[ing] to apply them in the abstract - which seems to be what Prof. Volokh likes to do, whatever that means - and applying the Court's existing fairly contrued case law in the light of history and good sense.

In my experience, legal academics advocating activities such as "looking at the logic of the cases writ large" are generally just expressing in a hi-falutin manner the fact that they're mostly just doing their own thing - and trying to get as far away as possible from existing fairly contrued case law, history and good sense.


Justice Stephen G. Breyer ventured that the phrase may refer to a "supreme being," not a particular god. "It's generic [and] comprehensive," he suggested, not directly affirming one religious view or one god.

Newdow would not budge. "I don't think you can say 'under God' means no God," he responded.

But, of course, Justice Breyer is quite right - and Mr. Newdow is wrong. As Spinoza demonstrated.

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Tuesday, March 23, 2004

Who Knew?

Question: "Is it OK to pee in my wetsuit?"

Answer: "Urinating in your wetsuit is just about the best way to get eaten by a shark. Sharks, as we all know, cannot resist the aroma of human urine."

This advice would seem to have application outside of wetsuit use.
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Little Vacation Lies

John Kerry almost certainly implicitly lied when he said last Sunday that he has asked to be sent copies of Richard Clarke's book that accuses the Bush administration of manipulating America into war with Iraq with dangerous consequences, among other nasty election-year things. It was almost certainly a lie because Senator Kerry has almost certainly had access to that book for a very long time - and the media should be asking the Senator, his advisors, Mr. Clarke and the book's publisher about that.

The matter is significant because Mr. Clarke's making his book available to Senator Kerry or his advisors in advance would be further evidence of Mr. Clarke's bias, unreliability as a witness and election-year motivations, which are all fairly apparent anyway.

Clarke is a close friend of former counterterrorism official Rand Beers, a key adviser to Sen. John F. Kerry, and now teaches a course with Beers at Harvard.

So we are implicitly asked by Senator Kerry to believe that Mr. Clarke gave no advance copies of his book to his good friend and current co-teacher Mr. Beers, or that Mr. Beers did not pass on a copy of the book to the Senator.

Could any sophisticated person believe that without asking the obvious people, including the Senator, his advisors, Mr. Clarke and the book's publisher? I don't think so.

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Monday, March 22, 2004

What Different Public Explanation?

A front page Wall Street Journal article on 9-11 leads with the following:

Shortly after a passenger jet crashed into the Pentagon on Sept. 11, 2001, Air Force Gen. Richard Myers raced back to the military headquarters from a meeting on Capitol Hill. The four-star general, acting head of the Joint Chiefs of Staff that day, went directly to the Pentagon's command center. With smoke spreading into the cavernous room, he ordered the officer in charge, Maj. Gen. W. Montague Winfield, to raise the military's alert status to Defcon III, the highest state of readiness since the 1973 Arab-Israeli war.

That account is based on interviews with Gen. Winfield and a former White House official. In the months after Sept. 11, President Bush had a different public explanation about who put the military on high alert. The president said publicly at least twice that he gave the order. During a town-hall meeting in Orlando on Dec. 4, 2001, Mr. Bush said that after the attacks, "one of the first acts I did was to put our military on alert." ....

Regarding Mr. Bush's statements that he had ordered troops to a higher alert status himself, Mr. Bartlett said the president provided a "description that the public could understand" and spoke in "broad strokes." Gen. Myers and the Pentagon declined to comment.

Contrary to the Journal's spin, there seems to be absolutely no inconsistency whatsoever between these two accounts. Wouldn't one expect the President and the acting head of the Joint Chiefs of Staff to independently give orders putting the military on high alert on the facts of September 11? Wouldn't it be strange if they had not?

Why is it in the least surprising to the Journal that both the President and the acting head of the Joint Chiefs of Staff would - perhaps quite independently of each other - have given orders putting the military on high alert? Why would it be surprising that the President's order might have been delayed in reaching General Myers - or that the President's order might have been met with a response that the military had already been put on high alert?

The President was in Florida on 9-11, General Myers was in Washington, D.C. at a Capitol Hill meeting. If the President gave such orders, as he surely did, he may well have told someone in Florida to place the military on high alert, and the orders would have been normally sent to someone at the Pentagon, where things were at the time more than a bit confused following the attack on that very building. In any event, General Myers wasn't then located at the Pentagon. When General Myers got back from his Capitol Hill meeting there was no need for him to wait to give orders putting the military on high alert, which he surely did, even if the President's orders hadn't yet reached him. Maybe he did that and was told a few moments later that the President had ordered the same thing. So what? What the heck is the problem supposed to be here? And many of the other "inconsistencies" that the article identifies as the focus of September 11 Commission efforts have the same loopy qualities as the Journal's lead non-issue.

If this is the kind of silly thing the September 11 Commission is wasting its time investigating, it should be shut down immediately.

What's especially bizarre about this Journal account is that nobody is quoted as denying that either or both of the President and the General gave such orders. Indeed, the Journal's account seems quite consistent with the President personally calling the General in his Capitol Hill meeting and ordering the General to order the high alert, whereupon the General returned to the Pentagon and issued such orders. I'm not suggesting that there is evidence that was the course of detailed events, but the Journal's account is fully consistent with such a course.

Maybe there is more to the story. Maybe the inconsistency was in some other paragraph that the Journal somehow dropped. But what appears in this article makes no sense at all.

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