BeldarBlog

Funniest line I've read tonight

Jay Nordlinger, in the Nov. 29th edition of National Review (subscription version):

On Election Day — before the results were known — a Harvard graduate student yelled joyously in a hallway, "I love America! I love democracy!" Someone shushed him, saying, "Enough of your homophobic views!"

Carts, horses, and Senate Judiciary Committee chairmen

I have a due, but not undue, appreciation of lawyers and judges — having been one of the former for twenty-four years, and having spent my first of those twenty-four years working as a law clerk to one of the latter and the rest of my career arguing before others.  Among my core principles — not just as a lawyer, but as a citizen-student of, and participant in, our democratic republic — is that judges' duties do not include "taking up the slack" whenever they perceive legislators to have been insufficiently progressive or enlightened. Give me instead the judge who has the wisdom and courage to say, "That may be a wise and good idea, counsel, but it's not my job to implement it. You're in the wrong forum, and you need to seek relief elsewhere if you're to get it."

Abortion is an issue that I've not blogged about very much. I'm in that odd group of people in the middle who are highly critical of Roe v. Wade and its progeny as a matter of constitutional law, but who — despite being sympathetic and respectful of those on either end of the spectrum on this issue — are not absolutely against all abortions as a matter of social and ethical policy. The reason I haven't blogged much about the subject in detail, and don't intend to, is that I don't feel that I have much to add to the debate beyond some very subjective, and somewhat muddled, personal views that I'm frankly not inclined to spread on the internet.

But while I respect the intensity of the passion of folks on both sides of the political debate about abortion, I'm frustrated when they use the issue — and try to enlist the passions of those who agree with them — on broader issues with more sweeping ramifications. I mean no disrespect to the single-issue voters on either side of the abortion issue. But I respectfully and firmly submit that how we, as a nation, go about selecting and confirming judges to hold lifetime appointments on our federal courts is by definition a broader issue with more sweeping ramifications, because abortion cases are only a tiny fraction of the cases — by volume or by significance — that federal courts must decide every day, every year.

During the year that I clerked on the Fifth Circuit, my judge handled (and I was privileged to assist her on) hundreds of cases — many involving life or death issues, others involving tens and hundreds of millions of dollars, and others involving important cutting-edge precedents in every conceivable area of the law. What we were doing, just one step removed from the Supreme Court and subject only to its (or the en banc Fifth Circuit's) rare review, was extremely important — to us, to the litigants before us, to the litigants and citizens who'd be affected by the precedents we set, and hence to the nation. But we didn't have a single abortion case that year in our chambers.

So as I've previously written (at less length, although there are some fabulous comments on that post arguing both sides), I'm disappointed that the debate over whether Pennsylvania Senator Arlen Specter should assume the chairmanship of the Senate Judiciary Committee has focused so much on his own views about abortion and on how judges who are before that committee might approach the legal issues on abortion. And thus, I'm frankly disappointed to read that Texas Senator and Judiciary Committee member John Cornyn — whose own service as a state-court trial and supreme court judge, and as a state attorney-general, give him ample cause to know better — may be falling into that rhetorical and political quagmire:

A conservative member of the Senate Judiciary Committee said he could support Sen. Arlen Specter (R-Pa.) as chairman of the committee if Specter issued a public statement saying he would not try to block a Supreme Court nominee who opposes abortion rights.

Sen. John Cornyn (R-Tex.) said Specter assured him in a conversation Tuesday he would push for swift up-or-down votes on nominees without regard to their positions on abortion. Cornyn indicated he was satisfied by Specter's comments but wanted them expressed in an official statement.

Asked if he thought Specter would get the chairmanship, Cornyn said, "Today, yes, I do."

Cornyn also said Specter is seeking a meeting with Republicans on the judiciary panel next week to resolve doubts prompted by his comments last week suggesting that the Senate was unlikely to confirm nominees who would overturn the 1973 Supreme Court decision legalizing abortion nationwide. Conservatives have flooded the Senate with protests, urging Republicans to reject Specter as chairman.

Now, it's possible that Sen. Cornyn sees the big picture, and that the WaPo reporter or editors — as would be typical of members of the press — picked the abortion issue as their lede and main focus even though Sen. Cornyn may have intended not to emphasize it. But the chairmanship of the Senate Judiciary Committee is important for many, many reasons having nothing whatsoever to do with abortion.

My own reasons for opposing Sen. Specter for that important position have nothing to do with abortion. They have everything to do with the fact that based on his statements and his record, I simply don't trust the man to ably and consistently and enthusiastically and loyally support the President in his commitment to appoint federal judges who believe that their duties do not include "taking up the slack" whenever they perceive legislators to be insufficiently progressive or enlightened. I don't believe the chairmanship is Sen. Specter's entitlement. The Senate's rules no longer require that he get it based on seniority, and the residual custom and presumption can and should be overcome in appropriate circumstances, which I believe exist here. I don't believe he's earned it as a reward; to the contrary, his conspicuous lethargy in supporting the President's reelection, after the President had supported him in a hotly contested primary, argues that he's entitled to no such reward. And I think that the risks of opposing him for the position, as argued by my esteemed friend Hugh Hewitt and others, don't justify the risks he poses if he gets the position.

To ensure democratic accountability in our republic, we need judges who understand what their role is — and what it isn't. As important as the abortion debate may be — as a matter of constitutional law, public policy, morality, ethics, and religion — it's not the only thing, or the most important thing, at stake here. Focus on the horse and where it's headed; the cart and its various contents, both precious and common, will follow, and can be adjusted appropriately as needed afterwards.

CBS' apologies and efforts to make amends

Commendably, Glenn Reynolds is using both his MSNBC column and InstaPundit to keep the heat on CBS News to complete and announce the results of its long-silent investigation of Ra^thergate. Meantime, he and PunditGuy note that CBS has apologized for preempting the closing minutes of a recent episode of "CSI:NY" with the news of Yasser Arafat's startling death. According to Reuters,

CBS, owned by Viacom Inc., said it has scheduled a repeat of the episode for Friday so viewers who missed the ending can see the entire broadcast.

I suppose that's one way of making amends. Which leads one to wonder:  Will CBS interrupt its regular programming with the results of the Rathergate investigation?  I bet there would be huge ratings for a live, exclusive telecast of Dan Rather cleaning out his desk, trudging with an armload of boxes down through the hallways and elevators of Black Rock, and trying to hail a cab.  (Work in some special effects — something like that trucks-and-cold-gutter-slush scene from the new "Bridget Jones" movie promos ... yeah, that's the ticket!)

And while we're on the general subject of "fake but accurate":  Shouldn't the crack CSI:NY forensic team — which clearly outranks CBS News in Viacom's pecking order — be assigned to figure out Arafat's mysterious cause of death?

Or better yet — shouldn't they be dispatched to help Dick Thornburgh and Louis D. Boccardi get to the bottom of Rathergate? Lots of us are hoping that that particular "episode" will ultimately involve a whole series of [career] fatalities — even though the political candidacy it was designed by its culprits to slay survived and fully recovered.  And those guys are pros — they get every case solved by the closing credits, within the hour.  Messrs. Thornburgh and Boccardi, by contrast, seem to be having problems meeting their announced schedule.

In fact, I think they ought to make this a joint effort — Thornburgh and Boccardi should be joined by the full teams from CSI:NY, CSI:Miami, and CSI:Las Vegas. (Have I left any out? Is there a "CSI:Abilene"?) Otherwise, this might end up being solved on "Cold Case," which would be a genuine miscarriage of justice.

Another misleading Reuters headline

"Arafat Makes Final Journey Home to West Bank," reads the headline. But as I understand his religion, or my own, it's merely the shell of the man once known as "Yassar Arafat" which has made that journey. That which made him a man had already completed its journey to face the judgment of Allah or God.  The process of judgment for him must have been an awe-full and awful one — quite dissimilar to Arafat's earthbound funeral proceedings (which, as I heard them just now in a tape-recorded BBC reporter's piece on NPR, involved lots of mob screaming and gunfire into the air).

I suppose Reuters should be commended for managing to avoid use of internal scare quotes in this direct quote:

Palestinians named a collective leadership comprised mainly of veteran moderates in Arafat's circle, reviving world hopes of a return to peacemaking that Israel had ruled out as long as the man it called "a master terrorist" was in charge.

World hopes indeed, in which I certainly share: May the next funeral of a Palestinian leader, whenever it comes, be characterized by calmer reflection on the career of a genuine  peacemaker, someone who's shown the courage to stand up against violence and terrorism, and to seize the peace and the statehood that's there for the taking, if only hatred can be sufficiently subdued.

Ex-CBS News correspondent Eric Engberg compares blogs to CB radio and to ticks on a dog

I was fully prepared to lather myself up into a full-blown rant over ex-CBS News correspondent Eric Engberg's provocative op-ed entitled "Blogging As Typing, Not Journalism."  But after re-reading his piece a couple of times, I'm only half lathered, and half bemused. Mr. Engberg is a self-described "retired mainstream media ('MSM') journalist — and thus a double-dinosaur." His op-ed certainly shows that even old-media dinosaurs can snark it up with the best bloggers, however, and it's a lively read. His lede:

As the election campaign unfolded, operators of some of the internet’s politics-oriented blogs, no doubt high on the perfume of many "hits" and their own developing sense of community, envisioned a future when they would diminish then replace the traditional media as the nation’s primary source of political news and commentary....

Big plans and big claims are to be expected from folks — pajama-clad or not — who are dabbling with new technology and new modalities of public expression.... But I worked on a school paper when I was a kid and I owned a CB radio when I lived in Texas. And what I saw in the blogosphere on Nov. 2 was more reminiscent of that school paper or a "Breaker, breaker 19" gabfest on CB than anything approaching journalism.

Let's give Mr. Engberg a pass on his CB faux pas — any self-respecting Texas CB user would know that's supposed to be "Breaker one-nine," but perhaps he's the victim of an editor who over-zealously applied some stylebook rules and accidentally garbled the CB jargon.  Ditto for Mr. Engberg's op-ed's headline — "keyboarding" being the current word I think he was looking for, as my sixteen-year-old son recently corrected me when I asked him whether he was benefiting much from his "typing class."

*******

I must, however, give Mr. Engberg credit for picking an easy target of blogospheric hubris (Andrew Sullivan) for quotes to set up his straw man, and then for choosing an excellent factual example (election coverage and, in particular, the promulgation of badly misleading exit poll leaks) to knock the strawman back down.  I don't know of any serious person, however, much less a serious and respected blogger — including Andrew Sullivan (whom I think Mr. Engberg has quoted out of context) — who expects bloggers to wholly "replace the traditional media as the nation’s primary source of political news."  Diminish, yes; augment and supplement, absolutely.  But not replace.  That's just rhetorical overkill.

As a trial lawyer, my particular profession gives me a considerably more potent set of tools to develop factual information than Mr. Engberg or his mainstream media colleagues can even dream of — chief among them the ability to subpoena witnesses, compel their production of documentary and other types of evidence, and cross-examine them in front of a videographer and court reporter, on penalty of going to jail for contempt of court if they refuse to cooperate, or to prison for perjury if they deliberately lie. But although my professional experience and training certainly aid and influence my blogging substance and style, nevertheless, when I'm blogging, I'm pursuing an avocation, a hobby. As a blogger, I'm keenly aware not only that I have to leave the pointy parts of my professional toolbox behind, but also that I lack the access that politicians and other newsmakers routinely — eagerly — grant to professional journalists. BeldarBlog can (and did) rant and rave and thunder about Sen. Kerry's stonewalling on his military records; Sen. Kerry can (and did) ignore me. And since I must doff my pajamas and pursue my day job from time to time, and lack the financial and logistical resources to hang around "the action" (wherever that may be for a given story), I'm pretty much dependent on other sources — sometimes other bloggers, sometimes a non-media knowledgeable professional, but yes, mostly members of the mainstream media — to gather the facts and quotes that can't be found online.

But there are abundant recent examples of bloggers offering news analysis who themselves have "PhD-style expertise" that professional journalists lack. The lawyer-bloggers —  including yours truly —  who helped expose CBS News' Rathergate fraud, for example, deal with document authentication (and other experts in that particular field), chain of custody, and bias on a day-to-day basis. Other bloggers brought their own substantial technical expertise on computer fonts and printing to bear as well. I respectfully submit that in writing an op-ed about the just-past election season without ever mentioning that tawdry episode, Mr. Engberg has shown that he has brontosaurus-sized testicles — and mole-like vision. 

Likewise, when it comes to doing "background" factual research, savvy bloggers using Google (and for some of us, Lexis/Nexis and other online databases) have found quotes and other pertinent facts that mainstream media reporters flat out missed and sometimes — for example, in the cases of Sen. Kerry's "Christmas in Cambodia" seared memories, or his Belodeau Eulogy (both from the Congressional Record) — shamefully continued to largely ignore.

Commentary, of course, is another matter altogether, and Mr. Engberg badly errs in lumping both it and news analysis in with news reporting. It's not a coincidence that Glenn Reynolds' blog is called "InstaPundit" instead of "InstaReporter." And the election season just past has proved in spades that new media (blogs, talk radio, cable TV) have already dramatically "diminish[ed] ... the traditional media as the nation’s primary source of political ... commentary." Walter Cronkite could almost single-handedly prompt a reshaping of American public opinion about the Vietnam War when he changed, and expressed, his own opinion after the Tet Offensive. But no mainstream media source — nor all of them put together — will ever have that much practical power again. If Mr. Engberg doesn't recognize that, he's not just a "double-dinosaur," or even a fossil — he's the Piltdown Man.

*******

I agree with quite a bit of what Mr. Engberg wrote about the blogosphere's propagation of misleading exit poll data. He writes, for example, that

[w]hile out on the campaign trail covering candidates, my own network’s political unit would not even give me exit poll information on election days because it was thought to be too tricky for a common reporter to comprehend. If you are standing in the main election night studio when your network’s polling experts start discussing the significance of a particular state poll, you the reporter will hear about three words out of one hundred that you will understand. These polls occur in the realm of statistics and probability. They require PhD-style expertise to understand. The people who analyze them for news organizations, like the legendary Warren Mitofsky and Martin Plissner at CBS News — have trade associations like doctors do to certify their work.

But as he himself points out (while seeming to miss the point), the folks at Slate.com who contributed to the spread of misleading exit poll information on Nov. 2 actually are professional journalists. And it's a safe bet that the ultimate sources of the raw exit poll data leaked to the amateur bloggers Mr. Engberg criticized are almost certainly also professional journalists. Mr. Engberg retired two years ago; it's a pity, then, that he's already forgotten the absolute dog's breakfast his own network and the rest of the mainstream media made of their over-reliance on exit poll data in the 2000 election, when their premature and inaccurate projections and flip-flops almost certainly influenced hundreds of thousands of votes. Apparently Mr. Engberg has retired now to a subterranean bunker in lovely Palmetto, Florida, and he's forgotten all about the shattered glass house (a/k/a Black Rock) from which he previously plied his profession.

*******

Thus, I can't take too much serious offense at Mr. Engberg's snarky hyperbole when he concludes:

The public is now assaulted by news and pretend-news from many directions, thanks to the now infamous "information superhighway." But the ability to transmit words, we learned during the Citizens Band radio fad of the 70’s, does not mean that any knowledge is being passed along. One of the verdicts rendered by election night 2004 is that, given their lack of expertise, standards and, yes, humility, the chances of the bloggers replacing mainstream journalism are about as good as the parasite replacing the dog it fastens on.

My CB radio actually did pass along quite a bit of useful knowledge back in the 1970s — mostly about speed trap locations — and I never imagined that I was Edward R. Murrow when I used it. Nor do I mistake myself for Dan Rather now that I'm blogging. I'd actually much rather be compared to a flea or a tick, and my own loyal and well-tempered dog deserves better than being compared to Dan Rather.

Opposing Specter for Judiciary

I've just finished Hugh Hewitt's If It's Not Close, They Can't Cheat.  I wish I'd finished it before the November 2nd election, but I heartily recommend the book to anyone — including Democrats! — who's interested in politics.  Hugh's prose is crisp, concise, and lively — in other words, he doesn't write in a style that would immediately lead you to conclude that he's a lawyer or a policy wonk.  A comparatively small part of the book is specific to the election just past, and in particular his Chapter 12, entitled "Parties Can't Govern Without Majorities or Pluralities of Seats," contains little-appreciated wisdom for the ages:

Americans generally have very firm opinions on everything and want what they want to be "just so."

Unfortunate this demand for particularity doesn't work at all when applied to politics. In fact, insistence on personal taste is disastrous for political parties. There are only two real choices in America — Republican or Democrat. To demand more is to be disappointed before you begin, and to hand a victory to the set of choices most repellent to you.

Hugh explains the overwhelming importance of having one's own party in majority status, from which position it can choose the members and in particular the leaders of key House and Senate committees. Because of this, Hugh argues that as a general rule, one should almost always support the politicians of one's own party — even those who frequently desert its ranks on particular votes and issues — because

[i]t is an individual who governs as president, but it is the party with a majority that legislates. It is simply foolish to condemn as unsuitable any denominated member of a party of grounds of issue divergence.

Speaking of two particular Republican senators who've been challenged within their own party as insufficiently conservative, Hugh writes:

Neither [Pennsylvania's Arlen] Specter nor [Arizona's John] McCain is a weak incumbent in general elections. Conservative purists should not only leave both men alone; they should enthusiastically support their reelection efforts....

Please absorb this basic fact about American politics: majorities, not individuals, govern. Without an understanding of this, the GOP's return to near permanent minority status — and the powerlessness it includes — is all but guaranteed.

I entirely agree with Hugh's book on this general point, and thus was pleased to see both Senators Specter and McCain cruise to easy re-elections last Tuesday. But does this principle of supporting party-over-particulars also extend to the majority party's selection of key committee chairmanships in the House and Senate? This week, Hugh offers the following thoughts on his blog:

I see that there is a blog swarm forming around the expected assumption of the chairmanship of the Senate's Committee on the Judiciary by Pennsylvania's Arlen Specter. The opposition to Specter seems headquartered at [NRO's in-house blog,] The Corner. Many friends post at The Corner, so I paused, considered their arguments, and thought it through. On reflection, it seems to me a very bad idea to try and topple Senator Specter from what in the ordinary course of events would be his Chairmanship. I hope my colleagues on the center-right that embrace pro-life politics will reconsider.

For probably any other Senate or House committee, I would agree that it would be unduly destructive — an example of devouring one's own young — to undercut particular legislators of one's own party to prevent them from ascending to a chairmanship that seniority would otherwise prescribe. But I must respectfully disagree with Hugh as to Sen. Specter and the chairmanship of the Senate Judiciary Committee.

My own opposition to Sen. Specter's Judiciary chairmanship isn't based on his pro-choice views. Rather, it's based on my perception of Sen. Specter as not being a reliable "team player" in general. Dubya expended substantial political capital and showed remarkable party loyalty in supporting Sen. Specter in a tough primary fight; I think he was wise to do so, on grounds that if Sen. Specter had lost in the primary, his successor candidate might well have lost in the general election, handing that seat over to the Democrats. But in marked contrast to other Republicans like Rudy Giuliani and Arnold Schwarzenegger, Sen. Specter refused to risk any of his own political capital on behalf of President Bush's re-election — and in a battleground state that Dubya lost by only two percent, and might well have won had Sen. Specter campaigned aggressively for him.

John J. Miller makes a compelling and fact-specific case that Sen. Specter's only true and reliable allegiance is to Arlen Specter.  But the chairman of the next Judiciary Committee has to be the sharp point of the President's spear in getting his judicial nominees confirmed. He needs to be not just a dutiful warrior for President and party, but an enthusiastic and creative one — both in his public pronouncements and in his backroom arm-twisting. The Democrats will again field their "first team" to oppose Dubya's nominees — a team that has positively tied the President's plans in knots, and that may still have the practical power to continue doing so if not more skillfully opposed than they have been. And not just the occasional important piece of legislation is affected by this committee chairmanship, but the long-term trend and fate of an entire branch of our government.

The Republican Party simply can't afford to have this key position in the hands of someone whose loyalty to party and President is intermittent at best.  It's not a question of the Republicans devouring one of its young, but rather of giving an unruly and untrustworthy rebel a bit of a "time out."

My candidate for the chairmanship?  Texas' John Cornyn, whose own background includes distinguished service as both a trial and appellate judge and a state attorney general.  Arizona's Jon Kyl would also suit me fine.