BeldarBlog

Beldar on Noonan on Rather

I have long been an unabashed fan of Peggy Noonan's skills as a speechwriter and a political columnist. The woman is sometimes a fuddy-duddy, as I suspect she'd be the first to admit. But she can do more than just turn a nice phrase. At its worst, her prose is still very readable and distinctively voiced; at its best, her prose absolutely sings, and angels gladly harmonize.

From 1981-1984, Ms. Noonan worked for Dan Rather, whom she describes in an op-ed column in today's Wall Street Journal as "a great boss." In this and many other respects, her column is respectful, sympathetic, sometimes even flattering, to Mr. Rather. It's almost certainly the most positive assessment of Dan Rather that's likely to be written by a prominent pundit of the right, and it's worthwhile reading.

Because in this column, as almost always in Ms. Noonan's writing, she allows her first-hand experiences to not only tint but fully color her opinions — and because, I think, Peggy Noonan is fundamentally a very kind and decent person — she therefore gives Mr. Rather the benefit of quite a few doubts. She paints Mr. Rather as a product of his times, which saw the rise and fall of TV network news as an oligopolistic shaper and maker of American public opinion. She ascribes blame to the eastern liberal elites, whose approval and recognition Mr. Rather coveted and who made political liberalism a prerequisite for his and his peers' career advancement. She analogizes Mr. Rather to Richard Nixon — well, that's one well-meant bit that bites rather than soothes, I'm sure, from Mr. Rather's perspective. And she emphasizes the need to weigh the accomplishments of his entire career on the way to, and then while he broadcast from, the network anchor's chair.

But Ms. Noonan's column also expresses ambivalence — both in the text of what she says, and in the shouting subtext of what she leaves unsaid. "Life is complicated," she begins her column, "people are complicated, and most of us are a jumble of virtues, flaws and contradictions." Of Mr. Rather's willingness, eagerness, to swallow whole the mindset his media bosses demanded as the price of his success, she acknowledges that her portrait is "not very nice but I think it is true." And she concludes with:

People are complicated, careers are complicated, motives are complicated. Dan Rather did some great work on stories that demanded physical courage. He loved the news, and often made it look like the most noble of enterprises. He had guts and fortitude. Those stories he covered that touched on politics were unfortunately and consistently marred by liberal political bias, and in this he was like too many in his profession. But this is changing. The old hegemony has given way. The old dominance is over. Good thing. Great thing. Onward.

This is very gracious and generous. It reflects well on Ms. Noonan. But it's far, far better than Dan Rather deserves.

The Ra^thergate forged documents scandal was not just an aberration as part of a long and otherwise distinguished career. It was simply the capstone of a long series of incredibly biased and dishonest incidents. This one was deliberately timed and intended by Mr. Rather and his co-conspirators, upstream and down, to change the outcome of a crucial presidential election. Mr. Rather and CBS News ignored — nay, brazenly flouted, and then tried to cover up their breach of — practically every fundamental written principle of journalistic ethics. Was he alone is this conspiracy? Of course not. Does that in any way excuse him? Of course it does not.

Dan Rather and his cohorts didn't just make a mistake. They didn't just have a lapse. They didn't just let their biases color their reporting. They didn't just make an error in judgment. Instead, they conspired together with should-be felons, with forgers, to pass off as genuine, as truthful "news," a set of bogus documents that defamed the record and the integrity of the President — and in so doing, they fundamentally betrayed the entire reason for their profession's existence. They actively hid the fact that their own hired experts were telling them — before the first broadcast — that the documents were fakes. Then they tried to demonize those (including me and my fellow bloggers) who'd helped expose their ploy, and to justify their lies as "fake but accurate."

If I tried to win a case, to earn a fee, to gain glory in the legal profession by poisoning the judge before whom my client and I were appearing — and if I were caught at it, red-handed in the way Mr. Rather and CBS News were caught — then my long and somewhat distinguished career as a trial lawyer would not just be tarnished. It would be forfeited, and deservedly so. For the rest of my life, the only law books I'd see would be those handed to me between the bars of my cell, with a big stamp on the spine reading "Property of the Texas Dep't of Corrections Law Lib'y."

Dan Rather didn't try to poison a judge, but he tried to poison an election. He tried to murder the truth. He got caught, and he's shown no remorse. If that's not the journalistic equivalent of a capital crime, I don't know what is.

Mr. Rather continues to insist that his departure from the CBS News anchor's chair is coincidental. CBS News' internal investigation, the results of which were ostensibly to be withheld until after the election, is still presumably pending. Justice delayed is justice denied.

And in the meantime, Dan Rather will continue to draw a seven-figure paycheck. As the "Sixty Minutes" second-hand ticks to the close of each hour, his treacherous face will still be on camera, and when they cut to commercial at each broadcast's end, Mr. Rather will pull a fine handkerchief from one of those expensive London-made pinstripe suits that Ms. Noonan's column tells us he learned to wear, and he'll wipe his brow and say to himself: "I got away with it."

I lack Peggy Noonan's graciousness and generosity. Grace is a gift from God that follows repentance and penance, and I'm content to let God decide in due course whether Mr. Rather has earned it. For now, I still want to see Dan Rather brought to earthly justice — political and commercial justice, at least. And I lack Peggy Noonan's eloquence to express just how deeply I despise CBS News for continuing to shelter him, and itself, from that justice.

Price of passivity

Alas. My employer is pleased that I've been a more diligent lawyer since the election, but no doubt due to my less frequent posting since then, BeldarBlog's rank in TTLB's blogospheric ecosystem has slipped to "Marauding Marsupial" from "Large Mammal." I'm de-evolving! But there are clients with needs to be met, and Beldar has bills to pay and Christmas presents to buy for the little Coneheads — even if as a blogger I'm on my way back to an insignificant microbe.

Thanks to those of you who continue to drop by to encourage my longwinded ramblings!

Dubya at the diner

Try to imagine John F. Kerry in this picture. Any imaginable version would definitely call for a snarky caption.

Reuters' caption: "U.S. President George W. Bush shakes hands with diners at the Coffee Station restaurant near Bush's 1,600 acre ranch in Crawford, Texas, November 26, 2004. President Bush, first lady Laura Bush and the first lady's mother Jenna Welch enjoyed a post-Thanksgiving lunch at the small restaurant before returning to his ranch."

Note the "hat-hair" — Dubya's been wearin' his Stetson, but hung it up upon entering (probably on a deer-antlers hatrack). Grandson of a senator, son of a President, Yale College and Harvard Business School — but this is a man who's entirely comfortable, entirely at ease, meetin' and greetin' in a roadside diner. He wouldn't turn up his nose at a couple of scoops of cherry cobler served in an orange Melmac bowl, either. That his napkin was paper, and came from a stainless-steel dispenser next to the catsup bottle (note: Heinz), wouldn't bother this man a bit.

I know that drives my blue-state countrymen nuts. But it makes me feel like I understand this man, and that he understands me.

This past summer, I wished I'd had my digital camera with me while I was lunching at Otto's Bar-B-Que in Houston.  Poppy Bush was two tables away, surrounded by guys with radio earpieces and wearing windbreakers with bulges under 'em — eatin' sauce-drenched beef ribs with his fingers.  (Lotsa paper napkins came out of his stainless-steel tabletop dispenser that day.)

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Update (Sun Nov 27 @ 12:50pm): I have to admit that this photo of Dubya would be fair game for a snarky caption. Reuters' caption: "U.S. President George W. Bush walks to an APEC leaders group photo with Russian President Putin (R) in Los Naranjos courtyard in Santiago, November 21, 2004." Putin looks considerably more embarrassed.

Sorta brings to mind the photo of Calvin Coolidge wearing an Indian headdress:

Swift Boats of 2004

This is just cool:

Reuters' caption: "U.S. Marines and Iraqi Special Forces backed by members of Britain's Queen's Dragoon Guards launch a river boat raid on a suspected insurgent area, south of Baghdad, November 28, 2004."

In favor of "going nuclear" to end Senate filibusters on judicial nominees

Howard Bashman's How Appealing links to this provocative article in yesterday's Austin American-Statesman headlined "Senate Republicans threaten to go 'nuclear' to end judicial filibusters":

Senate Republicans, boldly confident after their Nov. 2 electoral success, are preparing to end months of frustrating delays over President Bush's judicial picks by hitting Democrats with their ultimate legislative weapon.

But the Republican threat to neuter long-cherished filibuster rules by steamrolling Democrats is risky — so potentially destructive that Capitol Hill calls it the "nuclear option." Democratic retaliation would be swift and long-lasting, raising the prospect of escalating clashes in a body that prides itself on gentility and cool judgment.

Even so, Republican leaders are signaling their intent to go nuclear in word and deed.

"We're going to use every tool we possibly can," said Senate Majority Leader Bill Frist, R-Tenn., who also unveiled a kinder, gentler phrase for the potential rules change: the "constitutional option."

"Republicans are loaded for bear, spoiling for a confrontation with Senate Democrats on judicial appointments," said Norm Ornstein, an expert on Congress for the conservative-leaning American Enterprise Institute. "For a lot of conservatives, this has really become an issue that leaves them passionate."

Democrats, with a new leader after the election defeat of Majority Leader Tom Daschle, D-S.D., have yet to form a filibuster strategy for the 109th Congress, which convenes in January. But early indications show continued passion for blocking nominees considered too conservative, including Texas Supreme Court Justice Priscilla Owen.

"I think they would be making a huge mistake to try to mess with the rules," said Sen. Harry Reid, D-Nev., who will replace Daschle as minority leader. "My position is this: 203 federal judges were approved — 203. Ten were turned down. Does that require any kind of a nuclear option? I would certainly think not."

Thus does Sen. Reid inherit the mantle of disinformation from Sen. Daschle.  Ten nominees weren't "turned down" — rather, they were refused an up-or-down vote that most or all of them would have won on the Senate floor under the majority-vote standard of the Constitution. So what is the "nuclear option," exactly?

The nuclear option would be a last resort if other measures fail, said Sen. John Cornyn, R-Texas, who will likely play a central role in the debate as a member of the Judiciary Committee and chairman of the Constitution subcommittee.

Cornyn argues that judicial filibusters unconstitutionally require a 60-vote supermajority to approve nominees, not the simple majority mandated in the Constitution.

Democrats "must stop not only for the good of the Senate but out of respect to the president, who received almost 60 million votes on November 2, and out of respect for the Constitution itself," Cornyn said. "No group of senators has the right, no minority has the right to tyrannize the majority of the Senate."

The nuclear option would begin with Frist taking the Senate floor to seek a ruling from the presiding officer, likely to be Vice President Dick Cheney in his role as Senate president, to determine whether judicial filibusters violate the Constitution.

Cheney's affirmative response would initiate a vote on changing the filibuster rule, which also would be subject to a filibuster unless Cheney overrules the Senate parliamentarian on whether normal debate rules apply. Then, only 51 votes would be needed for approval.

Another option includes changing Senate guidelines to disallow judicial filibusters, which also would require the Senate president to declare that normal filibuster rules do not apply, so 51 votes could prevail. Changing Senate rules should occur early in the session to gain legitimacy, some Republicans say, making this option potentially less appealing.

Either way, it would be pure power politics, leaving Democrats unable to respond. Other Senate rules, however, would give the minority party plenty of opportunity to express its anger [by jamming normal Senate processes on other legislation] in the months, and years, to follow.

So is this a good thing or not? Before considering that question, there are a couple of important points to consider, one of which this otherwise pretty good article doesn't sufficiently emphasize, and the other of which it doesn't mention at all:

• First, the point not mentioned: This constitutional drama, if it comes about, will almost certainly take place entirely within the United States Senate — without the meaningful involvement of the judicial branch. If the opponents of the "nuclear option" lose in the Senate, they'll surely bring a court challenge in federal district court. But that challenge will almost certainly be doomed to a swift procedural demise — a dismissal in the district court, affirmed in the court of appeals, and either cert denied or affirmed in the Supreme Court — on grounds that the internal functioning of the Senate is a "nonjusticiable political question" in which the federal courts will defer to the constitutional interpretation of the coequal branch of government as the superior maker and interpreter of its own rules.


• Second, the point insufficiently emphasized: The "nuclear option," if exercised, doesn't mean the complete end of the Senate's traditional filibuster practice. Rather, it would represent a constitutional response to the past term's historically unique use of the filibuster to categorically block an up-or-down Senate vote on a large handful of the President's judicial nominees. And its rationale — that this use of the filibuster to prevent the Senate from carrying out its constitutionally-mandated advice-and-consent procedure on such nominees is an unconstitutional application of the Senate's internal voting rules on extended debate and cloture to close that debate — does not extend to "garden variety" legislation, even very important and controversial legislation (e.g., on civil rights or abortion rights). The Senate precedent that would be established by the exercise of the "nuclear option" would be limited to judicial nominees.

There's no provision in the Constitution for filibusters, nor, indeed, for the long-standing Senate tradition of (relatively) unlimited debate. It's a tradition, not something that has the force of constitutional law, and it's been modified and restricted in the past — for example, by changes in Senate rules on the number of votes needed to "invoke cloture" (i.e., suspend debate and thus end a filibuster). The federal courts have, should, and will, give the Senate a large degree of independence in writing its own rules, changing them, and interpreting them — recognizing that how the Senate goes about interpreting and performing its own constitutional duties is something for it to decide, without intervention from the executive branch (or than through the Vice President's constitutional role of presiding over the Senate) or the judicial branch.

It is true that in historic practice, the Senate — as the "more deliberative" legislative chamber — has functioned as the political saucer to cool the political hot coffee of the House. That tradition has been an institutional check on the passage of controversial legislation. Whether one views that as a good thing or a bad thing oftentimes depends on one's views on the legislation at issue. But even if one believes that maintaining this institutional check is a desirable and important thing, that's not a good argument against the "nuclear option" with respect to the President's judicial nominees. The Constitution doesn't oblige the Senate, either expressly or impliedly, to bring every proposed bill to an up-or-down floor vote. But I believe that the Constitution's intent is that the Senate has an affirmative duty — and until this past term, the Senate's history has recognized that duty — to actually render its "advice and consent" on the President's judicial nominees.

The Democrats who've obstructed the President's judicial nominees have used the filibuster rules to impose, in effect, an extra-constitutional requirement that the President secure the support of 60 senators to even get an up-or-down floor vote on his judicial nominees. That, in my view, is the radical change that threatens the constitutional process — not the proposed "nuclear option." Sen. Dick Durbin (D-IL)'s recent explanation makes clear just how small a group of Democratic senators claim the right to frustrate the Constitution:

Unless and until every Democrat on the Judiciary Committee votes against a nominee there is no discussion of using a filibuster. What (former Minority Leader) Tom Daschle did and (Minority Leader) Harry Reid is likely to do is to take these issues to the full Democratic caucus and it makes a decision.

If a nominee has one or more Democrat voting for him, then it will not go to a caucus and there is a free vote. It (a filibustered nominee) happened to us 10 times in the last four years, that's out of more than 200 nominations.

In other words, every judicial nominee who's opposed by all of the Democrats on the Judiciary Committee will be filibustered, and that handful of senators will almost certainly ensure that each such nominee will never get an up-or-down vote on the Senate floor. The Democrats on the Judiciary Committee are essentially given a veto over a power delegated by the Constitution to the President, when the Constitution clearly intends that such a veto only be exerciseable by a majority vote of the entire Senate.

It's been given a rhetorically overblown nickname — chosen to suggest that it will blow the Senate apart in some sort of cataclysmic event.  But the only substantive result of having the Vice President rule "constitutionally out of order" the attempt to use the "normal" filibuster-and-cloture rules to block up-or-down floor votes on the President's judicial nominees will be that the Senate will do its constitutional duty: The Senate will indeed render its advice on — and will either consent to or (presumably, still, in some cases) refuse its consent for — the President's judicial nominees.

Yes, I recognize that someday the shoe may be on the other foot, and that then, to my political dismay, it may be a liberal Democratic President submitting judicial activist nominees for consideration by a less-than-60-member-majority of Democratic senators.  But the requirement that a judicial nominee gather an affirmative majority of Senators voting is still a significant institutional check on the President's power — and it's the precise check written into the Constitution, no more and no less.

On balance, I think that the (nonjudicial) precedent that would be set by the so-called "nuclear option" is one that would promote the intended and traditional functioning of our constitutional representative democracy. It isn't revolutionary in itself. Rather, it will lift the revolutionary stranglehold that's currently being used to to confer disproportionate power on a minority of obstructionist, hyperpartisan senators in an attempt to control the composition of the judicial branch in a counter-constitutional manner.

U14

Am I the only person who's sick to death of hearing and seeing the Apple iPod TV commercials in which U2 launches into some rousing song by counting off "Uno, dos, tres, catorce"?

One, two, three, fourteen?  Is there some meaning there I'm missing?  Or is this just really inane?  I suspect the latter.