B After The Fact

Monday, October 31, 2005

So Far Justice Has Been Successfully Obstructed

"Put Your Hand On My Head Baby,
Do I Have A Temperature?
I See People Who Are Supposed To Know Better,
Just Standing Around Like Furniture."

Bob Dylan

So far, the difference between Libby's Indictment for Obstruction of Justice, and the Watergate Indictments, or the Clinton Impeachment, or even Martha Stewart's stock fraud, is that in those cases the people obstructing justice did not do a good job with their obstruction. The truth came out pretty quickly.

We wondered why the Nixon White House, or Bill Clinton, or Martha Stewart would lie about such small matters.

Here, if the indictment is to be believed, Scooter Libby not only obstructed justice, but so far his obstruction of justice has succeeded. The obstruction remains. We only have a slight clue as to what really happened.

People who say that the cover-up was worse than the crime -- or that there was no crime to cover up --- are pretending to know something they don't know.

I take the position that an enormous crime has been committed against the CIA in particular, and the security apparatus of this nation in general, and so far, Scooter Libby, a professional at his craft, has thwarted the professional prosecutors at their craft. And given the shaky nature of the facts that emerged last Friday, my position is as good as the Rushies and the Foxies.

We do not know - when - if ever -- the true story will emerge.

Sunday, October 30, 2005

The Intent of the Framers -- Part III -- Roe v Wade and Terri Schiavo

I seem to keep coming back to the following point --- I believe that even a conservative Supreme Court will leave Roe v Wade stand until it can find a way to hold that abortion is illegal as a Constitutional matter. It can then hold that decisions regarding abortions never should have been, and therefore cannot now be, a matter of State law (or to close the circle, a matter of Congressional legislation).

The Supreme Court will never return the jurisprudence on abortion to the legal status of 1970, as if Roe had never happened.

In my analysis, the overturning of Roe would be handled the same way that the Supreme Court tried to in Dred Scott -- by attempting to ensure that the old establshed decision makers (Congress on slavery, and the States on abortion) were not allowed to make new decisions. That is why the two conversations are related. (See Part 2 -- below)

Anyway, the best way for a conservative court to overturn Roe would be to show that the termination of the fetus violates the 14th Amendment rights of the fetus. Since I agree that jurisprudence surrounding the 14th Amendment has always been a complete mess, I don't really think that it would be a long leap for the Supreme Court to state that a fetus is a person under the 14th Amendment, etc. (Although obviously it would be a huge leap politically.)

On that day, I think we will find a lot of the "intent of the Framers" types and the entire "religious right" much more tolerant of finding additional rights in the Constitution. And the folks on the left will feel somewhat differently, too.

Not to open up that old can of worms again, but we had a little sampling of all that earlier this year, when every person in the Bible Belt expected and demanded that the Supreme Court invent what seemed to me to be new fundamental Federal rights for both . Terri Schiavo and her parents.

I am surprised that Terri Schiavo's name did not come up more in the recent stuff on Harriet Miers. Maybe it didn't come up because Harriet Miers was basicially a family dispute amongst conservatives. When the next Supreme Court justice is nominated, Luttig or Alito or McConnell, I hope that Terri Schiavo's name comes up in talking about the fact that judicial activism is always in the eye of the beholder.

The Intent of The Framers -- Part II -- Dred Scott

The Supreme Court in Dred Scott said that Congress had no right to ban slavery in the territories that were not yet states. (In the case of Dred Scott it was Wisconsin, but as a political matter, Wisconsin was really a stand-in for Kansas and Nebraska and New Mexico. Nebraska and New Mexico both being much larger then than now.)

Until Dred Scott, Congress assumed that it had the power to regulate slavery in the territories before they became states, and exercised that power from the Northwest Ordinance in 1787 through to the Kansas-Nebraska Act in 1854. Congress, and everybody else, knew that its use of this power would pre-determine which way the newly admitted state would decide the slavery issue. That is why the Dred Scott court was so determined to limit Congressional power.

Commenting on the implications of Dred Scott was the topic of much of Abraham Lincoln's political activities in those days. Lincoln's "House Divided" speech, for example, talks about the conspiracy to rebuild the house. Lincoln imagined a Dred Scott II type of decision that would require every state to accept slavery. That was a pretty paranoid charge. Still, Lincoln gained a lot of support by saying those things. The Supreme Court's silence, and what it might do next, also came up a lot in the Lincoln - Douglas debates.

And Lincoln's Cooper Union speech was an attempt, through statistical analysis, to show that the 39 men who were both at the Constitutional Convention and who served in Congress, firmly believed in the right of Congress to limit slavery in the territories and were not in favor of slavery as anything other than a short-term resolution. Lincoln would refer to it as "putting slavery on the road to ultimate extinction" According to Lincoln, back in the time of the Framers, even the Southern Framers were in favor of limiting slavery.

B Before The Fact --- The Bush Supreme Court --- No Women Need Apply

In a post from September , I made the following observation regarding the sorrow some of the right wingers felt when Antonin Scalia was passed over for John Roberts

"The ascension of Antonin Scalia to Chief Justice, by the way, is not the answer for the movement conservative. It has to be a younger person, not simply because you never know when Scalia will die (what if Hillary is President, then?), but anyone with an adult living memory of World War II or Martin Luther King is simply not, in a pinch, going to prove conservative enough for these people. And, by the way, anyone with an adult living memory of being a woman, or a non-Caucasian, is in a pinch, going to fail the movement conservatives as well."

The Intent of the Framers -- Part I -- Marbury v Madison and the Civil War Amendments

When originalists say that the Supreme Court should interpret the Constitution solely by the intent of the Framers, and the Supreme Court should have no more power than a Surrogates Court, one of the points some of the originalists are trying to make is that MARBURY v MADISON (1801 -- one of the key cases regarding Judicial Review) itself was wrongly decided

Problem with that, of course, is that MARBURY v MADISON itself was a battle between 2 groups of people, both groups being present at the creation, both groups of "originalists".

In MARBURY, the side favoring strong central government with strong judicial review won. The side that said they favored a weaker government with less judicial review (the side that had control of the Executive and the Congress for most of the next 60 years) could have taken steps to limit the Supreme Court, but chose not to.

One moral I take from the story is that the Framers said a lot of different things, and that an activist Supreme Court was useful to generation of the Framers, and the generation after them.

For myself, just about the only thing I can clearly glean from the original Constitution is that the Framers tolerated some form of slavery, and may or may not have favored equal protection amongst the States. In the world view of the Southern Framers (who are the only Framers who seem to count to some of these modern-day originalists), Equal Protection for people was ludicrous.

About the only thing I can glean about the 13th, 14th and 15th Amendments (Abolition of Slavery, Equal Protection and the Right to Vote) is that the Southern Framers would have opposed them (as did Southerners at the time of passage), and that the Amendments only passed into the Constitution after the Civil War because the South was still out of the Union. I am sure Strom Thurmond, and maybe Robert Bork and Trent Lott, would agree that the poor South was coerced into accepting the Civil War Amendments as an unfair cost of readmission into the Union.

Does that mean that originalist nominees to the Supreme Court in 2005 should oppose the Civil War Amendments as well? Can even a Constitutional Amendment be unconstitutional if it does too much violence to the original intent of the Framers?

Sunday, October 23, 2005

B Before The Fact -- Valerie Plame Edition

Before Fitzgerald indicts everybody or nobody --

1. Leaking Valerie Plame's identity as a CIA employee, directly or indirectly, using the name "Flame" or "Mrs. Joseph Wilson" or whatever, is not politics as usual, and is not the criminalization of the political process.

It is more on the continuum towards treason.

There is no record of the White House, or the Vice President, or any of their top advisors, either acting on behalf of their boss or free-lancing, ever outing anyone at the CIA, intentionally or accidentally, for any reason --- ever.

Not the top covert spy, not anyone like Valerie Plame, who may or may not have been truly under cover, not the person running the CIA candy store. No record. None. Nada. It is not politics as usual.

It is completely unique.

Bill Kristol, who runs the Weekly Standard, and who either knows better or knows something he shouldn't know, has now run his mouth off about the criminalization of politics for two weeks in a row.

We're way through the Looking Glass with this "criminalization of politics". Kafka would be pleased, too.

This is not the criminalization of politics. This is politics stops at the waters edge. This is no Democrat sitting on the defense committee or the intelligence committee, no matter how liberal, breaching security during this administraiton. This is no Republican on the defense committee or the intelligence committee, no matter how conservative, breaching security during the Clinton administration.

This is not the criminalization of politics. This isn't politics. This isn't even defending your padrone. If you are defending the person who pays you, you better be defending the taxpayers, who have the right to think that the money they spend to set up covert operations isn't being used on some sorority-level freeze-out.

This isn't some Red vs Blue color war. This is the genuine, people are dying article.

2. I read the Weekly Standard on the criminalization of politics, I read Sullivan and Rush on the turf war between State and Defense. I read, again in the Weekly Standard, about how the CIA actions may have assisted the special prosecutor in his work.

Don't be fooled by the smoke -- especially the bile coming out of Rush's mouth.

Only Tom DeLay has any right to kick about partisanship. And his problems are based in state politics -- not goings on in D.C.

The people at State are conservative Republicans, the people at the CIA are conservative Republicans, the Special Prosecutor is a conservative Republican, the people going after Bill Frist at the SEC are Republicans. The people going after Abramoff are Republicans.

Brent Scowcroft apparently will go after W- tomorrow in the New Yorker. For those of you who don't go back that far, it's been at least 25 years since Brent Scowcroft has done anything without Bush 41's permission. Now Brent is going to go after Bush 43 in the New Yorker. Maybe Bush 43 can talk to his other Father about that one too.

This is not like Clinton where Republicans are going after Democrats.

These are real conservative Republicans who believe in the rule of law going after so-called conservative Republicans who only believe in themselves.

Rush and the Foxies and the Bushies want you to believe that this is just like Clinton. It isn't.

This is where old friends start to eat each other alive. It carries much more moral weight.

3. According to Judith Miller's had-to-be-fictional account of her testimony in front of the grand jury, she told the special prosecutor that she could not remember who gave her the name "Valerie Flame". Either she didn't really say that to the special prosecutor or the special prosecutor already had the information and didn't need it from Judy Miller as well.

I don't want to hear anyone at Fox or at the New York Post tell me that I am reading a liberal newspaper anymore. Judy Miller sat in jail for 80 days so that she could give Scooter Libby the last possible word in front of the grand jury. To be sure that all of Scooter Libby's stories were in order. Let's see Brit Hume skip a night in bed to help anyone in this Administration. Let's see Rush skip a snack.

Today, the Week in Review of the so-called-most-liberal paper in the history of the world said that, well, you know, there is classified information that's really classified, and there is classified information that isn't really classified, and we should be, hey, you know, um, like sensitive to the needs of politicians and newspapermen, yadda yadda yadda.

I think we should be sensitive to the needs of those who think that the words in statutes might have real meanings, and the special prosecutors who are working under those assumptions as well.

4. I believe that this special prosecutor has the guts to close up shop and go home without issuing a report. That he has the guts to leave us all with our mouths agape if he truly feels that he does not have a set of facts that can lead to a conviction.

I agree with those who believe that it is wrong for a special prosecutor (like both Walsh and Starr) to publish a set of facts, without bringing charges, just to make people look bad. This isn't France.

On the other hand, if the special prosecutor believes that his only conviction is perjury or obstruction of justice, I believe he has the obligation to go forward with the lesser, less sexy "on a technicality" charges.

When the special prosecutor is dealing with perjury and obstruction, he is also saying that he is still not sure if, after burning through millions of dollars of taxpayer money, he is getting the straight story.

That ought to be worth jail time to somebody.

5. Balkinization reminds us that the pardon power can be exercised at any time, at any point, in the criminal process. Even at the end of this week. Balkinization's focus is that Poppy pardoned Weinberger, et. al., in Iran-Contra crisis. According to Professor Balkin, Poppy was most interested in -- surprise --protecting the Bush -- to avoid having to testify.

Professor Balkin did not say this, but I will -- if Karl Rove is indicted, he will not be fired. If Karl Rove is convicted, he will not be fired. The President will pardon Rove as soon as he can feel he can take the political heat.

And if Rowe is convicted, and the President feels he can never pardon Rove, then Rove will continue to function as chief political advisor, in fact, if not in name --- as if nothing had happened, is happening, will ever happen, to impede this President -- this man who would be king -- from doing whatever he feels like doing.

Friday, October 21, 2005

I Used To Care ... But Things Have Changed

I guess I'll be rooting for the White Sox. If I can stay awake. I sleep through a lot of baseball, since I'm older, but not fatter (but fat enough) than I used to be.

But the Astros offense for some reason puts me to sleep ALL THE TIME. I don't know why.

I wrote a piece last December that I called "Suppose They Gave A Drug Scandal And Nobody Came" where I said (in relevant part)

"Roger Clemens, over the age of 40, wins another Cy Young award. You can draw false conclusions from this sort of thing --- but --- here's a fellow who had several incidents of something that is, hey -- exactly like 'roid rage, on the World Wide telly-vision during the most recent World Series he got to. Everybody said that pitchers are throwing broken bats at players all the time. No one said boo. Clemens retired after the 2003 season --- and this is I know, a complete coincidence --- in advance of what looked for a minute or two to be the implementation of a strict drug testing system. The drug testing system turned out to be two tests one week apart (and I wonder whether Bonds and Clemens tested early in the year or late. It turned out that Roger did not have to travel with the Astros on the road (the better to watch his boys play high school football, the better to control his diet and supplement use --- or maybe just a coincidence). At that point, Roger agreed to sign. Now the 2005 drug testing regimen is up in the air, and, Cy Young or no Cy Young, and I am sure, a complete coincidence, Roger is unclear as to whether he "wants to put his family through" the ordeal of another 8-figure paycheck ...

Why isn't there any heat on Bill Romanowski?"

And yet I enjoyed watching Clemens pitch this summer, since he was no longer a Yankee or a Red Sox.

I stand by the implications of my December rant, but I find, like virtually every one else who isn't Senator McCain, that I don't really care. 4 months in jail for Victor Conte 4 months in prison for one of Barry's trainers.

I wish I could remember who I stole this from ... what is remarkable about Clemens this year is that he is the living embodiment of the old sentiment of "If I knew then what I know now, and had the body I had 20 years ago .. What I couldn't do."

Friday, October 14, 2005

Pinter Wins The Nobel Prize

I don't know a lot of Pinter, and whenever I have to sit in an audience and watch Pinter,

I don't know what to think.

I have seen a lot of Pinter with a lot of pregnant pauses,

but I don't think Pinter requires a lot of pregnant pauses.

You see less of it now that Mamet based a career basically by being Pinter on speed.

But Pinter does require some pauses. And some of those pauses need to be


The best Pinter I've seen is the Pinter I've done myself.

I played Goldberg in The Birthday Party in a commercial production in Tribeca.

Directed lots of scenes from Old Times.

I don't say its the best Pinter because I'm the best theatre artist, although I was a damned great Goldberg, and I will never be better at anything, even if I win an Oscar someday.

However, most of the people who came to see me do The Birthday Party thought that the play was incomprehensible. I'm not surprised.

The thing is that when you have a chance to say the lines,

or to marinate in the relationships



how hard it is

as a human being

to connect with

another human being


to get


out of your mouth

and get them right.

And you can know that intellectually. And you can watch actors do Pinter and you can get it viscerally.

But if you're not an actor, and you can get someone to sit in a chair with you, and read some Pinter back and forth, as adults, you'll get a little taste of that.

And you'll learn something that I'm not sure can be learned any other way.

Which is why the best Pinter I've seen.

Is the Pinter I've done myself.

Saturday, October 08, 2005

A Quote From Daniel Webster

"They do not remember that the doctrines and the miracles of Jesus Christ have, in eighteen hundred years, converted only a small portion of the human race; and among the nations that are converted to Christianity, they forget how many vices and crimes, public and private, still prevail, and that many of them, public crimes especially, which are so clearly offences against the Christian religion, pass without exciting particular indignation. Thus wars are waged, and unjust wars. I do not deny that there may be just wars. There certainly are; but it was the remark of an eminent person, not many years ago, on the other side of the Atlantic, that it is one of the greatest reproaches to human nature that wars are sometimes just."

Senator Daniel Webster
(Whig -- Massachusetts)
March 7, 1850
(On the floor of the Senate)

Thursday, October 06, 2005

Bush Is A Bush



The weird thought that keeps going through my head about Harriet Miers, based on nothing but my vivid imagination, is that the reason W- knows her so well, and the reason he keeps her so close at hand, is that Hariet Miers is George's AA sponsor.

(I use the term loosely, because I don't think W- is in a 12-step progam. W- insists that he got himself sober as part of his conversion, and I actually believe that. However he sobered up, someone has to be serving in some sort of "sponsor" role for him. And I betcha it's Harriet.)


Why does anyone assume that a Supreme Court that was compelled to overturn Roe v Wade would just go back to the way things were, and return the decision making to the states?

Why go through the bother to take all the political heat of overturning Roe v Wade if abortion would just become legal in Vermont the next day?

On the day that Roe v Wade is overturned, it says here, the Court will find that the fundamental 14th Amendment right of the fetus means that abortion is illegal as a matter of Constitutional Law, and the individual states cannot be allowed to find otherwise.

The pre-1970 understanding of abortion as a states rights issue will be found to be just the primitive misunderstanding of simpler times.

Maybe they'll find it in a penumbra -- the fetus's right to privacy in the womb may not be disturbed


I think the top ten reasons that Harriet Miers was nominated by Boy George.

10 -- I assume she'll vote to overturn, or at least severely limit, Roe v Wade.

9,8,7,6,5,4,3,2,1 -- Executive Privilege. When the time comes and it will, to get Presidential information or documents or testimony on any number of things -- Valerie Plame, Abu Gharib, Gitmo, WMDs, Halliburton, the relationship to Tom DeLay -- don't expect any Paula Jones decision directing the President to testify about where his pimples are.

President and Vice President not above the law? Very quaint.

People like our old friend R--- thought it was time to remove the gloves and show the world that conservatives rule. Get your basic back to the Stone Ager (original intent -- South Carolina style.) R--- felt they had the votes. Maybe they did, maybe they didn't. But we won't get the chance to find out just yet.

I don't think Bush is interested in making larger points about political philosophies -- about movement conservatism or God or anything else.

Bush is not a Republican, or an old-school Conservative, or a movement Conservative, or a religious nut job. Bush is a Bush. The point of the government is to enhance and enrich himself and the people in his circle. Everyone else can find their own countries to run.

It's nice to see the Republicans fight amongst themselves for a change.


Let me clarify my point on Bush and the religious right. I don't think that Bush's religious conversion (or however he characterizes it) is insincere. I don't think that policy choices he makes based on his faith are insincere. However, the key factor in those choices is not his sense of service to the people of this country, or even simply to his political or religious base. It is not out of his love for his country, or out of his devotion to his faith. What drives his political choices is a desire to preserve the family business, and make it prosper. That is what I mean when I say that Bush is a Bush.

Bush has a divine right theory of himself. To some degree, he sees his election by the people as a reflecton of God's will. He sees himself as only the equal of other such "elects." This is why Bush's one public statement of apology for any harm that might have been done to anyone at Abu Gharib was made to the King of Jordan. It is one of the reasons why Bush has been more comfortable dealing with Bill Clinton than one would otherwise think. At one point God chose Bill Clinton, too.

By the way, why isn't Harriet Miers intellectually qualified to be on the Supreme Court? How does everyone know she has no intellectual heft? What difference does it make, anyway? How much intellectual heft, seriously, did Clarence Thomas have when he came onto the bench? How much has he needed since? I disagree with virtually everything Thomas says, but he has made himself clear, and that's really all that matters.

Will a coalition of moderate Republlcans and moderate Democrats provide the votes that W- needs to get this person confirmed? Will the liberal Democrats and the conservative Republicans vote her down?

Which "devil" will the holier-than-thou "movement conservatives" make their deal with?

Nerd Note -- Do you think that any of these "nomination" plays --- like The Best Man, or Advise and Consent --- have the permutations going on that this Miers nomination does?


Clarence Thomas was not the best choice to be on the Supreme Court, but he was qualified. He had a career where he thought about some of these issues somewhat, and had a clear point of view. Harriet Miers is not the best choice, or the most qualified, but she's qualified enough. She has a client who is very much involved in constitutional law issues. It stands to reason that he may have discussed some of these with her.

You don't need to know the highlights of the 1987-88 term, like Chief Justice Roberts seems to. The Justices pick it up as they need it, and they have clerks and all other kinds of help.

I am way in front of Michael Moore on my "family business" theory of George W. I've been saying that ever since I laid eyes on that "rhymes-with-witch" who runs the place --- way back in the late '70s.

When W- answered that question about looking to the "higher" Father, he was responding to a question about why W would go into Iraq when Bush 41 didn't go into Iraq in 1991, and did not want to go in 2003. But they should have asked W- how Babs felt about it. Betcha W isn't looking to a Heaven when old Barbara gets to huffin' and puffin'.

I suspect, as you say, that the religious right and the movement conservatives will have no choice but to support Harriet Miers. But for these people, it is not enough that Miers will vote with them all of the time. They wanted a clear triumphant moment NOW. Something akin to the thrill they felt, and the shudder everyone else felt, when Ashcroft became the Attorney General. Bush has deprived them of that moment. And even if the religious right and the movement conservatives all support Miers, they will exact their revenge on Boy George somewhere down the line. Don't know how or when, but they will.


Jack Balkin says this better than I do . That is why he is a con-law Professor at Yale and I ... am not.


Andrew Sullivan on Ian Fishback and his role in trying to determine exactly how widespread the Abu Gharib mindset really is. It says a lot about me both good and bad -- but don't you think they should just let poor Lyndie English go home?


If what is printed about you in your own newspaper is even slightly accurate, you should be Dick Cheney's first choice for the Supreme Court. I mean if loyalty is going to be prized as a value before all. You sit in jail until they can determine what you are going to say and when you are going to say it in a way most favorable for the cover-up. I said in a previous post that I wasn't sure if the special prosecutor was in this to indict or to carry water. But it looks like its going to be the latter. And I am going to be so so happy to be wrong if someone other than Judith Miller (and of course those CIA-operatives whose cover got blown) gets into any trouble over this whole Plamegate scandal.