We Love You Pooh Bear

Today marks the 50th anniversary of the death of A.A. Milne, author of the popular Winnie the Pooh books. Wonderful books - worth re-reading even for adults.

"The third-rate mind is only happy when it is thinking with the majority. The second-rate mind is only happy when it is thinking with the minority. the first-rate mind is only happy when it is thinking."
- A.A. Milne

More Politicized Justice

Lot of feedback about this post on the Department of Justice.

A couple of the folks mentioned in the piece have accused it of being inaccurate, but they've not cited any inaccuracies.* One made the accusation on this list, (you can scroll through and find the various posts), another did so in a private email. I asked the latter to actually identify any inaccuracies, but though he took the time to respond again, he chose not to identify any. Another person makes the odd critique that the former DOJ employees listed in the post are "at the bottom of the list" for "ideological fervor" among those at Justice - I'm not sure that that proves what he thinks it proves.

Meanwhile, this guy is freaking out. Some are mad that I list contributions by one former DOJ official who has never been publicly critical of the agency since leaving.** But I don't attack that individual or any other. I merely point out that there are a lot more politics going on at Justice than some like to admit. It doesn't matter that the person may not have worked on the case at issue - indeed, I avoid saying that any particular case (or indeed any case) was based on politics. I'm just saying that the claims of some that DOJ career civil servants are somehow above politics and therefore their critiques are entitled to unique credibility is itself suspect.

All of these guys responding say how amusing they find the post, but if you ask me they seem less amused than outraged. I think their outrage is misplaced but you can read their posts and judge for yourself.

*I have noted that one person mentioned, Joe Rich, claims that the FEC database showing him contributing to the group Americans Coming Together is inaccurate (he does not claim that the Lonely Centrist cited it incorrectly).

**Does this show the problem with mandatory disclosure of campaign contributions? Or does it show that it is a good thing? Is my use of disclosure what it was intended to be used for? Does it have anything to do with preventing corruption of political candidates, or fostering political equality? It always comes back to campaign finance, doesn't it?

"Clean Elections" and the Will of Voters

The Supreme Court of Arizona has upheld the removal from office of David Burnell Smith. Smith's crime? He spent $6000 more than allowed in his primary campaign last year. Smith won election in 2004 in a breeze, topping his primary opponent by nearly a 3-2 margin, then winning in the general election by a margin of better than 3 to 2. (see p. 14). So now a state representative, elected in a landslide, is going to be removed from office for spending $6000 over the state's arbitrary limit. This is democracy? This is returning power to the people?

If I were an Arizona voter, I would be furious. But then again, it serves them right for voting in the so called "clean elections" system. And it serves Smith right for taking the money.

More on Politicizing Justice

Shortly after my last post, my attention was drawn by the Skeptic to an exchange on the Election Law listerve. (look under today's date, Jan. 27). Some poor guy named David Becker is, in a series of three posts, beside himself about my controversial post on the political inclinations of some folks at the Department of Justice's Voting Rights Section. Mr. Becker, it turns out, is another former DOJ Voting Rights attorney (and much more impressive, he is a former Jeopardy champion and Who Wants to be a Millionaire contestant, too). When going down the ex-Voting Rights Section roster, him I missed.

Anyway, in his little tantrums I think he shows himself to be another guy with some pretty strong political opinions that most people would consider show a pretty strong ideology, and one that is not friendly to the Bush Adminstration. You can read and decide. But mainly, Becker is just outraged that the Centerman has put this information out there. He calls this "character assassination."

Again, I don't think so. As I pointed out here, I bring up these facts - which apparently make some people quite uncomfortable - because it is the critics of the political appointees at DOJ who have made the backgrounds of these individuals an issue. They have claimed that their criticism of the Bush administration is especially trenchant and deserving of respect because they are particularly non-partisan and non-ideological. Having chosen this course to bolster the credibility of their arguments, it is only fair that factors be brought out suggesting that perhaps they are not so uniquely non-partisan and non-ideological.

Mr. Becker also makes another line of argument I think wrong, and I will quote him at length:

The key point is that the "Centrist's" post does nothing to assess the
true nature of someone's objectivity, particularly when he cites one
campaign contribution to a notably centrist Democrat as evidence of bias. Simply having contributed on rare occasions to a particular candidate says nothing about alleged bias. I myself have donated to Democrats on rare occasions, but when the Georgia Democrats filed a lawsuit seeking to have their pro-Democrat redistricting precleared in 2001, as lead counsel I led the successful challenge to that plan (at least in the trial court), siding with Republicans who also sought to prevent the plan from taking effect. To simply seek to tar individuals based on small amounts of money they had contributed on rare occasions to particular political candidates is nothing short of character assassination, which has no place in this debate. I challenge the "Centrist" to find one instance, just one, in any of these fine lawyers' careers where in their professional capacities they
took biased positions in favor of ANY political party, let alone the
Democrats. The fact is, he cannot - indeed, I'd venture to say that each of these individuals was engaged in litigation and other policies that more often than not went against the interests of the local, state, or national Democratic party.

Mr. Becker here interprets the evidence more narrowly than others might. It is not partisanship that is at issue so much as ideology. It is well known within these circles that in the 1990s Republican political operatives joined together with liberal activists - who otherwise routinely support the Democratic Party and its candidates - in an interpretation of the Voting Rights Act that tended to favor Republican candidates, even as it stood for an interpretation of the VRA that most all conservatives despised (and, I would suggest, most Americans disagreed with). Showing a pattern of supporting Democratic candidates is consistent with the notion that these allegedly non-ideological, non-partisan career civil servants in fact, in many cases, have political views and agendas, that they lean left; and that this may be a reason to think that they are less pure than they are claiming.

Similarly, Becker notes that many of the people mentioned were not involved in the recent Texas redistricting case. Again, he is too narrow. Most of these folks in fact left DOJ before the DOJ case, as the Centerman noted. But the criticism of Bush hasn't focused just on the Texas case. Rather, these folks offer a more comprehensive critique of the Bush political appointees. But what this evidence suggests is that, generally, there are and have been a lot of folks in DOJ with what appear to be liberal and/or partisan political leanings. Contrary to Becker's assertion, the Centerman doesn't try to "stifle criticism," but rather to see that the criticism of the administration does not attempt to insulate itself by claiming a purity that may, in fact, not be there.

And, of course, Becker goes crazy about the fact that the Centerman remains anonymous, suggesting that the Centerman ought to expose himself to public scrutiny. But again, unlike some of these critics of the Bush appointees at DOJ, I ask you for no special deference because of my background. Thus, my background remains irrelevant. Take the arguments and evidence that appear here, not only on this issue but others, on the merits. When you add it all up - for example, as Mr. Becker says, you might consider that many of these ex-DOJ folks worked under Reagan without quitting - you might decide that they do deserve special respect for their opinions. But let's at least get all the evidence out there. That's all I've done.

And it seems to me that has helped advance the debate a bit.

Politicization at DOJ, Professor Hasen, and the Anonymous Blog

For Rick Hasen, it seems to be very important to learn the Centerman's background, so that he can pigeonhole the Centerman as actually being a "conservative." See his posts here and here. Today he's upset about my post on the possible politicization of civil servants in the Department of Justice.

I appreciate Professor Hasen's link to the post. But his reaction is interesting. Hasen writes:

It would be nice to be able to look at the career path of the Lonely Centrist as well to ferret out any potential bias. But we can't, because he or she chooses to blog anonymously

.
He goes on to suggest that this is somehow dishonorable:

To paraphrase Justice Scalia from his dissent in McIntyre, "I can imagine no reason why an anonymous [blog post] is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the
anonymity."

Let's start with the anonymity.

First, what bias needs to be "ferreted out?" My post on the disgruntled employees criticizing Justice does nothing more than report facts about some of the former employees at the Department of Justice who have left the agency. As Hasen notes, I specifically do not accuse them of having been wrong in their judgments about the law. Rather, I simply recite facts to suggest that they may not be so unbiased as they claim to be. As for me, I have never claimed to be unbiased. People can judge my writings for what they are. In other words, if Hasen knew more about the Centerman, would any of the facts in that post be different?

Professor Hasen has this urge to brand me as a "conservative," as noted in the above links. Fine, if that floats your boat, call me conservative. As I've said, when I'm around people who call themselves conservative, I don't usually feel like one of them. Now, let's debate whether or not we are putting too much stock in the alleged nonpartisanship of the folks at the Department of Justice. I've thrown out some facts, and suggested that they indicate that the Civil Rights Division may be a bit more ideological and partisan than it has claimed. Argue against that position.

Second, an anonymous smear piece might be dishonorable, but who is smeared by the Centerman? I don't spread rumors about any of the people formerly at Justice. I present a few bits of evidence - which Hasen doesn't claim are inaccurate - so others can draw conclusions about a claim that the disgruntled former employees have made.* Specifically, that claim is that their views should be given respect because they are especially non-ideological and non-partisan. Thus they have invited scrutiny. Giving facts about their background is certainly better than an argument that relies on "are too,"/"are not" assertions.

I don't think that Madison, Hamilton, and Jay were being dishonorable, or seeking to avoid accountability, when they wrote the Federalist Papers unders pseudonyms; or that such other anonymous writers who wrote in opposition, men such as Richard Henry Lee, James Winthrop, and Robert Yates, were dishonorable. I think they had good reasons to protect their anonymity, including the simple desire to force others to address their arguments, rather than engage in ad hominem attacks. The Supreme Court, of course, has recognized the value of anonymous speech - Justice Scalia was dissenting. We protect anonymity in many contexts, including voting. As a professor, Mr. Hasen probably grades anonymously. Why? So that he must deal with the work before him on its own merits.

I blog anonymously because I want these posts to be taken on their own merit; because I want to be free of possible retaliation from people in positions of power; and because I just want to.

So, you don't like my post? Take it apart. Make the case that we should be, as I put it earlier, "dewey-eyed" about "the impartial civil servants of the Voting Rights Section."

Which brings us to the merits of the post itself.

First, let me stress again that I voice no opinion about whether the recommendations of the career staff, overruled by political appointees, were right or wrong as a matter of law. I voice no opinion about their critiques of the Bush Administration. But many people have attempted to bolster the force of these former employees' arguments by claiming that their backgrounds give them particular credibility. Should others just accept that? Or should they be prepared to scrutinize those backgrounds?

Those who are being critical of the Department of Justice's political leadership want it both ways. These former employees say that the political appointees are politicizing a formerly non-political department. Rather than (or perhaps in addition to) defending their view on legal grounds, they (and some others advancing their arguments) essentially assert, "You must believe us and give special weight to our comments, because we are non-ideological and non-partisan. We have worked under past Republican administrations. We are career officials. So clearly we are right, and the political appointees wrong." I merely offer some evidence to be skeptical of their claim of complete impartiality. I think that doing so contributes to the debate. I would like to see knowledgeable persons debate the merits of their arguments, but these former employees and their allies seem intent on cutting off that debate by assertions of superior impartiality. They have chosen to base some of their argument on their alleged special status. The rest of us are not required to take that on faith.

The Centerman, on this blog, has never tried to base his credibility on his background. Many, such as Professor Hasen in one of the links above, have concluded that I know a lot about election law. He concluded that from my arguments and comments, not my background, and I am pleased that my arguments and comments have given me some credibility.

Though I have chosen not to do so in this blog, it is also legitimate to cite factors in one's background that one believes gives arguments special credibility. But if you are going to base the credibility of your arguments on your allegedly impartial background, rather than the merits of the arguments you raise, you invite scrutiny of that background.

No harm in that.

*Joe Rich, one of the former DOJ employees involved, comments at the Hasen link above that he has never made one of the contributions I cited, a contribution to the liberal group Americans Coming Together. If you go to the FEC web site and search individual names for Joe Rich, you will find that contribution listed, with the person's occupation listed as Attorney at the Department of Justice. Rich says that this is an error on the FEC's part. Wouldn't be the first time.

A Smart Choice

Democrats made a smart choice when they selected Tim Kaine to give their rebuttal to the President's State of the Union Address. The loony left is going nuts, but Kaine is an excellent choice.

First, he's a good, old-fashioned ethnic Democrat, and looks the part. That's the type of voter the Democrats have been losing;

Second, he is really quite liberal (more than his predecessor as Virginia Governor, Democrat Mark Warner), but opposes gay marriage and is happy to talk about religion; in other words, for many Americans, Kaine demonstrates that one can be liberal without being doctrinaire on every issue or relentlessly secular;

He insists he will give a moderate speech. Right now the Democrats need a public face other than Teddy Kennedy and left wing bloggers. I think many Americans are looking for a Democrat who does not seem so over-the-top anti-Bush; someone who seems constructive and serious;

He supports staying in Iraq, as most Americans do;

He has shown he can make this formula work, winning the governorship in Virginia last fall.

Good choice.

It's a Loophole! It's a Loophole!

It's a loophole!

Are you a lobbyist? Would you like to curry favor with a powerful Senator who may be the next president? Well, here's something that may generate some ideas. Be creative.

Ed and the Granny

No, it's not a new TV sitcom.

The Skeptic flags this little column about Granny D. When last seen (at least by us here at TLC), the Good Granny was explaining why the September 11th attacks occured - because of our failure to pass campaign finance reform.

"Our central question --the question that will determine the security of our cities in the future-- is this: can those American values be expressed by the American government? Can we be more a government of our people? Can we get the greedy, short-sighted interests out from between us and our elected representatives?...

[U]ntil we clean up our government, we will all be the targets of
rising international rage, and our children and grandchildren are not
safe."

So there you go. I guess that's just one more case in which McCain-Feingold failed - the war on terrorism goes on.

Anyway, Granny D, now 96 was in Wisconsin to tout more reform (Sort of an admission that McCain-Feingold didn't work), at something called "the People's Legislature," an oddity indeed since none of the "people" were elected, but merely self-appointed. Kind of like those old Communist "People's Republics," if I may be so bold. The organizer was Ed Garvey, a former Democratic candidate for Wisconsin governor. Garvey had some interesting comments too:

No one gives you $1,000 just because they like you, Garvey pointed out. "Have you ever had anyone give you $1,000?" he asked.
"It's because they want something."

Poor Ed. I guess people don't like him as much as they like me. I've had people give me $1000 because they like me, and all they wanted in return was to help me be successful. These were called college scholarships. Some of these people I've never heard from again. Others stayed in touch, providing ongoing encouragement, without ever asking anything more than that I do my best.

Indeed, the same is true in campaign finance. The vast majority of donors, including $1000 donors, never ask for any favors. And oh, Ed - I've also given $1000 at a shot, to worthy causes, and never asked for anything more.

Shut Up!

An excellent piece on the partisan perils of campaign finance reform and more by Brian Anderson today in Opinion Journal.

Anderson approaches it from the right - how the political left is attempting to silence the right through campaign finance reform, reinstatement of the "fairness doctrine" in TV and radio, and the like.

But a gentleman of the left could write largely the same column, using different examples - Republican efforts to silence Democratic "527" groups would be exhibit A.

Of course, some might say that this is all fine. Republicans and Democrats, right and left, will use the law to try to silence their opponents, and it will roughly balance out in the political system. Meanwhile, we'll gain all kinds of benefits as a society from having silenced some speech (sounds really silly when you put it that way, but that is the basic position of so-called campaign finance "reformers.") But what if it doesn't balance out? What if one side, using the tools of governance, is able to gain a permanent advantage by silencing its opponents? And is that really how a democracy is supposed to work? Is that really self- governance? Not debating issues, but trying to shut the other side up? Is that really likely to lead to good policy results?

Of course not. But it is the road John "Keating Five" McCain and his colleagues have chosen.

Clegg and Thernstrom on Politicized Justice

Three conservatives, Abigail Thernstrom, a noted author on Voting Rights and currently a member of the U.S. Commission on Civil Rights, Roger Clegg of the Center for Equal Opportunity, and Edward Blum of AEI, chime in on the question of politicization in the Department of Justice Voting Rights Section with a column in National Review On Line. My earlier comments are here. Thernstrom, Blum and Clegg go after the merits of the career staff legal recommendations in the Texas case.

"Reformers" Really are Funny

The Washington Post is up with their coverage of Monday's Supreme Court decision in Wisconsin Right to Life v. FEC. Their verdict: "Campaign Finance Law May Have A Loophole."

It is kind of funny - at least it would be if these guys weren't so serious.

A Rare Win for Free Speech in Campaign Finance

In a very brief, per curiam opinion, the Supreme Court today announced a decision in Wisconsin Right to Life v. Federal Election Commission. (My take on the oral argument, with a brief description of the case, is here.) The Skeptic has republished the full decision.

Not too much should be read into the case - all the Court decides is that the odious 60 day pre-election ban on corporate, non-profit, and union broadcast ads is open to at least some as applied challenge. It remands to the district court to consider the challenge.

BUT... it is also possible to make too little of the case. During the 1990s, so-called "reform" advocates lost case after case, in the district, appellate, and Supreme courts. That changed in 2000, with Nixon v. Shrink Missouri Government PAC. Since then, the so-called "reformers" have won every round at the Supreme Court. It has been 10 years since the pro-freedom forces won anything of significance in this arena - since Colorado Federal Republican Campaign Committee v. FEC (Colorado I) in 1996. Since then four major cases have gone the other way in the Supreme Court - Nixon, Colorado Federal Republican Campaign Committee v. FEC (Colorado II), FEC v. Beaumont, and of course McConnell v. FEC. If nothing else, this will provide cheer, succor, and morale for the pro-freedom forces. And while one doesn't want to make too much of it, with a new Justice soon to replace Sandra Day O'Connor, and another pro-regulatory Justice, Stevens, ailing, one wonders if the tide of pro-"reform" rulings in the Supreme Court has crested.

P.S. A friend sends me an email asking if the "reformers" will feel properly "rebuked" at having their position - that no as applied challenges are allowed - rejected by the Court. It's a reference to how the "reformers" have, showing a bit of pettiness, characterized past judicial decisions that went their way, as "rebukes" to the losing side. My guess is that the answer to his question is "no."

Politicizing Justice

The Washington Post has an article today alleging that the Bush administration has politicized the Voting Section of the Department of Justice. The Post reports that:

The section also has lost about a third of its three dozen lawyers over the past nine months. Those who remain have been barred from offering recommendations in major voting-rights cases and have little input in the section's decisions on hiring and policy. "If the Department of Justice and the Civil Rights Division is viewed as political, there is no doubt that credibility is lost," former voting-section chief Joe Rich said at a recent panel discussion in Washington. He added: "The voting section is always subject
to political pressure and tension. But I never thought it would come to this."

The obvious theme is that evil Bush people are distorting the law, over the valiant objections of impartial, disinterested career civil servants.

But let's look at the record at SectionVoting Rights - let's see who has departed, and where they have gone (this is not a complete list):

1. Let's start with the above quoted Joseph D. Rich, a member of the Division for 37 years, and former head of the Section. In 1997, one Joseph D. Rich, a lawyer who identified his home as Washington, D.C., and his employer as the Department of Justice, contributed $500 to Democrat Bob Rush's campaign for Congress. In 2004, DOJ Attorney Joseph Rich contributed $455 to the left-wing activist group, Americans Coming Together.**[Note, Jan. 27: In comments to this post at Rick Hasen's Election Law Blog, Mr. Rich claims that he has never contributed to ACT, and that the FEC's database is in error. He does not dispute that the database shows him making the contibution. If the Centerman relied on faulty data from the FEC, we are sorry.] Rich now works for the Lawyers Committee for Civil Rights Under Law, a left wing group that opposes Sam Alito's nomination to the Supreme Court (the American Bar Association gave him its highest rating, so the LCCRUL's opposition appears to be purely political. It's report reads more or less the same as anything put out by People for the American Way and other far left groups.) According to an earlier article in the Post, the LCCRUL includes "a number of former Justice lawyers."

2. Also quoted in the article is William Yeomans. In August of 2004, Yeomans sent $250 to the Democratic National Committee. Yeomans left DOJ to work for the American Constitution Society. Like the Lawyers' Committee for Civil Rights Under Law, there is nothing wrong at all about working for the ACS. But it, too, clearly tilts left, describing itself as "one of the nation's leading progressive legal organizations." It is no more a bastion of dispassionate analysis than is the Federalist Society, the conservative organization it was formed to counter.

3. Another critic of the "politicization" of DOJ's voting rights section, noted in this earlier Post piece, is Richard Ugelow. Ugelow left the Voting Division in 2004. In 2004, he contributed $500 to John Kerry and another $500 to Eva Bacal, a Democrat running for Congress in Arizona.

4. In the November Post article that quotes Ugelow, former DOJ attorney Stephen Pershing is also quoted. His only reported federal political contribution was made in 1999, to Bill Bradley, for $250. He was working in the Division at that time. Pershing now heads the Center for Constitutional Litigation, another liberal group which made its first splash earlier this year fighting tort reform.

5. Mark Posner left Justice in 2003. He had previously been a Visiting Fellow at the Center for Law and Public Interest in Los Angeles, another liberal legal group.

6. Stephen Mulroy left DOJ in 2000 to become a professor at Memphis State. He has published arguing that the "Butterfly Ballot" in Florida's 2000 election was illegal, a position even Gore chose not to argue in court. Substantial Noncompliance and Reasonable Doubt: How the Florida Courts Got it Wrong in the Butterfly Ballot Case, 14 Stanford Law and Policy Review (2003).

7. Gerald Hebert left DOJ's Voting Rights Section back in 1994. Hebert is now Executive Director of the Campaign Legal Center, a group that lobbies for more campaign finance regulation. Hebert, an old friend of Lani Guinier, has also surfaced recently representing the Texas Democratic Party in challenging redistricting in that state. Gerry's bio indicates that he spent two years working for the Lawyers' Committee for Civil Rights Under Law.

8. Jon Greenbaum spent 7 years in the Voting Rights Section before joining the Lawyers Committee for Civil Rights Under Law.

9. Tricia Jefferson joined LCCRUL after leaving the Voting Rights Section. Tricia contributed $250 to Wesley Clark's presidential campaign. Like all the others in this list, there is no record of any contribution to a Republican.

10. And then there is the case of Johnson v. Miller, 864 F. Supp. 1354 (S.D. Georgia 1994). In an extraordinary opinion, the Court castigated the Voting Rights Section for effectively allowing themselves to serve as an arm of liberal lobbying groups, and making clear that it believed that DOJ career civil servants then lied to the Court (in the excerpt below, Ms. Wilde is the attorney for the ACLU and the Georgia Black Caucus):

During the redistricting process, Ms. Wilde was in constant contact with both Keith Borders and Thomas Armstrong, the DOJ line attorneys overseeing preclearance of Georgia's redistricting efforts. See Tr. IV, at 39, 231. There were countless communications, including notes, maps, and charts, by phone, mail and facsimile, between Wilde and the DOJ team; those transactions signified
close cooperation between Wilde and DOJ during the preclearance process. The Court was presented with a sampling of these communiques, and we find them disturbing.

It is obvious from a review of the materials that Ms. Wilde's relationship with the DOJ Voting Section was informal and familiar; the dynamics were that of peers working together, not of
an advocate submitting proposals to higher authorities. See, e.g., Pltf.Exh. 57H, 57I. DOJ was more accessible-and amenable-to the opinions of the ACLU than to those of the Attorney General of the State of Georgia. See Pltf.Exh. 52, 54, 57, 57A-M, 165; Tr. V, at 3-4. It is clear from our proceedings that Ms. Wilde discussed with DOJ lawyers the smallest details of her plan, constantly sending
revisions, updates, and data throughout the period from October, 1991 to April, 1992; she occasionally sent documents to DOJ lawyers “per your request.” Ms. Wilde worked with DOJ in other ways: During the reapportionment process for Georgia's House districts, DOJ attorney Nancy Sardison told Mark Cohen, the Senior Assistant Attorney General for Georgia, to meet with Ms. Wilde to revise
a majority-black House district. Mr. Cohen had presumptuously thought the district satisfactory, but was dutifully informed by Ms. Sardison that Ms. Wilde was “still having some problems with it.” Tr. V, at 3.

Contrary to Mr. Armstrong's claims at trial, the max-black
proposal was not merely “one of the alternatives [DOJ] considered,” and Ms. Wilde was not simply one of various advocates. Her work was of particular importance to DOJ lawyers, whose criteria for and opinions of Georgia's submissions were greatly influenced by Ms. Wilde and her agenda.Alas, it is true that none of the DOJ
attorneys testifying at trial admitted to the influence of Ms. Wilde and her max-black plan on their preclearance deliberations. This Court finds it distressing that Messrs. Borders and Armstrong lacked any significant memory of important elements of the 1991-92 preclearance saga. Both of them-especially Mr. Borders-intimately involved with the redistricting for months, just “don't recall” basic details of either important meetings or the preclearance process. See, e.g., Tr. IV, at 8-51; 145-150. Those in far more peripheral roles had no great difficulty remembering the events central to our inquiry. Frankly, based on the factual record and trial testimony, the Court finds Borders' and Armstrong's professed amnesia less than credible. Luckily, the surrounding evidence speaks quite clearly.

The Court finds it particularly difficult to believe that Borders simply
“doesn't remember” why the Voting Section would have told the General Assembly to extend the Eleventh District all the way down to Chatham County.

None of this is to say that these folks are wrong on the merits in the current dispute. But let's not have a bunch of dewey-eyed odes to the impartial civil servants of the Voting Rights Section.

A Tiny Milestone for a Tiny Blog

Shortly after 11:oo p.m. Sunday night the Lonely Centrist blog received its 2000th visitor - a hefty average of about 330 per month. Look out Markos Moulitsas and Glen Reynolds. Of course, it would help if I published more regularly - we get some decent numbers when I do. January looks to be our best month since August, back when I was diligent about posting. Thanks for that to a nice interview by Going to the Matt, and links this month from the Skeptic, Bob Bauer, and Rick Hasen.

Our audience may be small, but is a quality one - why, visitor 2000 was signing in from Harvard University, no less. Thanks to Rick Hasen's Election Law blog, whose link brought him here.

Dan Gerstein on the Democrats' Problem

Dan Gerstien, former Communications Director to Sen. Joe Lieberman (D-Ct), has some interesting observations on the Democrats' plight - and failure to provide a serious alternative to the Republicans, in the Wall Street Journal. His thoughts are in line with the frustration I've recently expressed, and noted from John DiIulio as well.

Money quotes:

[T]he heart of the problem with our party and its angry activist base [is] not so much that we're living in a parallel universe, but that we have dueling conceptions of what's mainstream, especially on abortion and other values-based issues, and our side is losing. We think that if we simply call someone conservative, anti-choice and anti-civil rights, that's enough to scare people to our side. But that tired dogma won't hunt in today's electorate, which is far more independent-thinking and complex in its views on values than our side presumes....

We do badly need leaders with courage--the courage, that is, to push our party (to borrow a phrase) to move on, to accept that we can't win with the same lame ideological arguments in post-9/11 America, and that we must develop an alternative affirmative agenda that shows we can keep the country safer, make the economy stronger, and govern straighter than the ethically challenged Republicans.

Death of a Tyrant

Today marks the anniversary of the death of Vladimir Illych Lenin, founder of the USSR, perhaps the greatest mass murder machine of the murderous 20th century. Lenin died on this day in 1924;

And Conviction of a Tyrant's Spy

Meanwhile, on this date in 1950, Alger Hiss was convicted of spying for the Soviet Union. The reference to this event in my morning paper's "Daily Almanac" was interesting, noting merely, "Hiss, who always maintained his innocence, served less than four years in prison." While I was growing up, the Hiss case was always a cause celebre for certain leftists, who took it as proof of the how evil and hysterical anti-communism could be. Of course, once the Soviet Union fell apart and we gained access to Soviety archives, it was confirmed once and for all that Hiss had been, in fact, a Soviet spy. That's not the impression you'd get from the Almanac, though, is it?

Some legends - like the legend that Hiss was framed - die hard.

John J. DiIulio on the Lonely Center

Yesterday I expressed my ongoing frustation with the Democratic Party and its failure to present a particularly viable alternative to the GOP.

This week's Chronicle of Higher Education has an excellent article by John J. DiIulio, a Democrat who was the first Director of President Bush's faith based initiative, titled, "Are Conservative Republicans Now America's Permanent Ruling Class?" Unfortunately, it is by subscription only. But it's an excellent analysis of where we are, and touches on some of my points of frustration. A couple excerpts:

According to the Washington chattering class, Bush and the Republicans' governing majority are suddenly but surely in decline. Many among the selfsame talking heads who were only recently talking Republican realignment, conservative hegemony, and Bush's lasting Reagan-like legacy, are now talking conservative crack-up, the lame-duck president's political meltdown, and the Democrats' winning back the House in 2006.

***

There is only one problem with this latest conventional political wisdom. It is, like the conventional political wisdom that immediately preceded it, almost completely wrong in virtually every respect.

***

Conservative Republicans, beset by deep ideological divisions,
are not even close to becoming the country's permanent ruling class. Neither the post-Reagan Republican Party in general, nor the present Bush White House in particular, ever actually rode so high politically.Just the same, neither the GOP nor the president is in any definite long-term political trouble. Conservative Republicans, even without permanent-majority clout, are still more potent politically than liberal Democrats, and likely to remain so. Centrist and
neoprogressive Democrats could credibly compete for power with conservative Republicans, but they must first pry their party's presidential nomination process and key leadership posts from the old-left hands that still primarily control them.

Not even the New Democrats have ever really reached out to the
culturally conservative and anti-abortion Democrats who have been defecting to the Republican Party since the Reagan years.

DiIulio goes on to discuss the divisions between small government "libertarian" Republicans, and "big government" conservatives, including the so-called "neo-cons." But he also reports incisively on another cleavage in the GOP:

Libertarians aside, the GOP's most interesting but least well-understood intraparty political schism is among its religious conservatives. On the one side are what some political scientists term the party's religious purists. Essentially the purists want to push for policies that challenge constitutional church-state limits and to nominate as federal judges those whom only an activist opposed to abortion or gay rights could love. On the other side are its religious pragmatists. Essentially the pragmatists want government to be more
faith-friendly while remaining pluralistic; and, though they are mostly for restricting abortions and against same-sex marriage, they want traditional family values to be promoted less through pitched battles over federal judgeships and more through bipartisan "fatherhood" or "healthy marriage" initiatives and the like.

He then spends too much time discussing the theories of Jacob Hacker and Paul Pierson, a couple of liberal sociologists with a recent book. But he comes back with two important observations. The first is something most partisans know but hate to admit:

In truth, too many leaders and activists in both parties are way
"off center." It takes at least two to do the ideological polarization tango.

The second is less known but very important:

The most partisan and ideological Republicans — and Democrats —
in Congress are not the elected members themselves but their respective culture-war-mongering, inside-the-Beltway staff members.

He ends with a few predictions - I hope you can find a copy of the article to read them. They are not overly promising for either party.

And oh, my favorite line in this lengthy article:

The center is a lonely place to be in Washington...

Democrats! AARRRGH!

Gosh, the Democratic Party is frustrating these days. We so need a responsible alternative to the GOP.

And yet today, here come Hillary Clinton - until now one of the more sensible Democrats on national security - excoriating the Bush administration for "outsourcing" negotiations with Iran on it nuclear system. Of course, by that she means that the Administration deferred to our European allies and let the Europeans work the diplomatic front. Does anyone doubt that had Bush done otherwise, Hillary would be complaining that Bush was "going it alone." It is so hard to take the Democrats seriously when they keep taking such opportunistice stands.

Then, of course, there's Senate Minority Leader Harry Reid. At one time, Reid was considered a moderate, but since becoming minority leader, he has been increasingly rigid and shrill. Today it was reported that he has told Democrats to avoid any bipartisan lobbying reform bill, so that the Democrats can simply use the "ethics" issue as a blunt club in the fall elections.

I wonder how many votes the Republicans get from people who would go over to the Democrats at the drop of a hat, if there was even a modicum of responsibility there.

A few thoughts on Wisconsin Right to Life v. FEC

So earlier this week the Supreme Court heard oral argument in Wisconsin Right to Life v. Federal Election Commission. The question is whether or not citizen's groups have any right to run ads that mention a member of congress within 60 days of a general election, and thirty days of a primary election. Wisconsin Right to Life (WRTL) wanted to run ads urging Wisconsin voters to contact Senators Herb Kohl and Russ Feingold to ask them to oppose judicial nomination filibusters, an issue then before the Senate. The ads included no praise or criticism of either Senator, and did not state either Senator's position in the issue. But because Feingold was a candidate for re-election the ads were banned. WRTL claims that American citizens ought to be able to comment on ongoing congressional activity.

The government was perpetually disingenuous, and the threat to free speech pretty clear.

1. Back when McConnell v. FEC was up, the government, per then Deputy Solicitor General Paul Clement, argued that the Court should uphold the 60 day ban on ads against a facial challenge, because as applied challenges would still be available. This week, the government, per Solicitor General Paul Clement, argued that the Court should not entertain as applied challenges to the ad ban. I guess being promoted can alter your views. Chief Justice Roberts quite correctly described this as a "bait and switch."

2. Clement argued that the ad would have been permitted had WRTL not mentioned candidate Feingold by name. Right. It also would have been permitted if it had urged Americans to buy condoms, burn flags, or support terrorism, or if it had been an ad for a strip club, or to attend a march for the Ku Klux Klan, or to buy an illegal radar detector. But "call Senator Feingold and Senator Kohl at the numbers on your screen, and tell them to oppose judicial filibusters"? Well, we've got to draw the line somewhere. I am at a complete loss as to how anyone who supports this stuff can be upset that the government has tapped a small number of phone calls between U.S. residents and suspected terrorists overseas, but that's another issue - and I don't mean to endorse warrantless wiretaps.

3. Clement also argued that the ads could have been funded by WRTL's PAC, which some of the Court seemed to find persuasive. So this is the point we've reached - if you want to urge your neighbors to call your congressman about a pending legislative issue, form a PAC. Makes us long for the days when PACs were the great Satan of Reform.

Pathetic conceptually, but also in practice. In this case, as in other recent campaign finance cases, the justices seem oblivious to the difficulties of just "forming a PAC." For example, a small minority will be unlikely to have as big a PAC as a large group - yet it is just that small minority, because it is small, that needs to speak, that needs the intensity of large contributions. And what if you don't have a PAC? What if you represent "Citizens for a Better Wisconsin," an incorporated non-profit that hasn't started a PAC, and then all of a sudden, 60 days before an election, Congress starts undertaking some legislation that is detrimental to your group or its aims - say it introduces the "Bipartisan Destroy Wisconsin Bill of 2006." It takes time to start a PAC, and even more to raise money for it in small amounts. In short, the PAC option favors large and established interests over smaller interests and newcomers to the process.

3. Clement also argued that a bright line is needed, because otherwise it is tough to know whether or not ads are intended to influence elections, or issues. Well, here's a bright line - no ads that mention a political candidate, ever. Does that work for you? In Buckley v. Valeo, the Court understood the problem, and so ruled that you can say pretty much anything short of "vote for, vote against." It was sort of a compromise. Not great, but at least it left lots of room for citizens to speak out about their government. Here's what happens when you compromise with tyranny - tyranny comes back for more.

4. Poor Justice Breyer seemed peeved that he should even have to be there. You could almost hear him thinking, "Why can't people just shut up. That's what active liberty is all about. If your fellow citizens want you to shut up, then shut up, and quit bothering we judges with these claims of 'rights.'" Well, sorry Justice, but it's your job. We know you don't intend to do it, but the tradeoff is that you at least have to go through the motions.

Breyer also asked why the FEC wasn't regulating 527 groups. Besides the fact that that issue wasn't before the Court, the McCain-Feingold law, and the FECA it amends, don't regulate 527s at all unless they are "political committees," a defined term under the law that does not encompass all 527s. (In fact, most 527s are already regulated by the FEC, something most people have trouble understanding). In Colorado Republican Federal Campaign Committee v. FEC, a 2001 case, Breyer, showed at oral argument that he did not understand the earmarking provisions of federal election law, that say that if a person gives to a party with instructions that the funds go to a specific candidate, it counts as a contribution to the candidate. In McConnell v. FEC, Breyer demonstrated that he did not understand PAC solicitation rules, that a PAC can't just solicit anybody in the general public. Now this. Is it really too much to ask that a Justice of the U.S. Supreme Court try to understand the law in the cases before the Court?

5. Justice Ginsberg wanted to know why WRTL didn't run the ads after the election. Two points: 1) should the government determine when a group can run ads with a legit purpose; and 2) back before the election, when WRTL was told it couldn't run ads, how did anyone know their plans for after the election. In other words, is Justice Ginsberg suggesting that the way to handle these cases is to wait until the law is irrelevant, and then decide if you could have run the ads back when the law was relevant, though the question is now irrelevant? Now there's a legal standard for you.


Some links to reports:
Tony Mauro, for the First Amendment Center http://www.firstamendmentcenter.org/analysis.aspx?id=16325
The Associated Press coverage
The Pittsburg Post
The Always Insightful Bob Bauer
And the most entertaining report, from the Skeptic.

Ted Kennedy: Embarrassment and Boor

Boy did Ted Kennedy come across poorly in his petty attempt to bully Arlen Specter at today's Alito hearing. See here for video, here for transcript.

He was equally bad in his embarrassing effort to tar Alito as a racist, which drew an eloquent rebuke from Lindsey Graham. More Kennedy video here.

An embarrassment and a boor. But then, reporting that Senator Kennedy has become an embarrassment and a boor is sort of like reporting the fall of the Berlin wall as late breaking news.

"Settled" Law

Listening to the Alito hearings today, I found it intererting as Dick Durban and Dianne Feinstein (and maybe others - I didn't hear them, though) kept trying to get Alito to say that Roe v. Wade is "settled law." For his part, Alito patiently replied, over and over, that precedent was a very important factor, but it was not the be all, end all of analysis.

But my question is this: Does anyone seriously think that Roe v. Wade is "settled law?" Is there a major constitutional question which is more unsettled? I mean, the whole reason this is such an issue is because the law is so unsettled, isn't it? The Democrats, for example, have tried to question Alito about some 20 year old comments in which he expressed some skepticism about the Court's one person/one vote cases (see my earlier post on that subject). But those get no traction. Why? Because that is settled law. Nobody is seriously suggesting that one person/one vote will be overruled any time in the future, and there is no serious constituency for that.

Brown v. Board of Education - now there is settled law. Roe, on the other hand, is wildly divisive among the population. Later precedents upholding it have tended to be by narrow 6-3 or 5-4 votes. Many, if not most legal scholars who support the result, such as Laurence Tribe, the late John Hart Ely, and even Justice Ruth Bader Ginsberg have been highly critical of the reasoning in Roe. Other serious legal scholars have written, and continue to write, that the case should be overruled.

A good decision that should be upheld? No comment. A bad decision, but one which now has in support the considerations of stare decisis? Perhaps. But settled law? No way.

Michael Munger on BCRA: Not a Success

Here.

The Alito Hearings - Wait, don't leave yet!

If you are like most Americans, you are probably already bored to death with the Alito hearings. Nevertheless, I was listening today on the drive into work, a longer than expected trip due to an accident. I don't know that I would have much to say about these hearings, but I'll try to add a wee bit of wisdom, ...

First, it's no secret that judicial confirmation hearings have become something of a farce. Why is that? A key reason is the press, which does nothing to help the public understand the issues, and so encourages both sides to play cute. Democrats can twist and distort precedents, and Republican nominees, knowing that that will be the case, and that the press will not even try to straighten the record, then try to say as little as possible, no matter how silly they sometimes sound.

Take this headline from Reuters: "Democrats Fear Alito May Ban Abortion." It is somewhat unfair to tar reporters with what the headline writers write, but let us be clear - no one is seriously suggesting at this time that the Supreme Court ban abortion. The most the Court can do is overrule Roe's holding of a constitutional right to an abortion, thus sending the issue back to the states, where legislatures of different states would no doubt adopt a variety of differing regimes. (I am aware of a theory that would hold that abortion violates the rights of the fetus, thus violating the 14th Amendment, but really, that is not in play).

Why must abortion be played so coyly? No Republican nominee can claim to want to overrule Roe v. Wade, because the decision is popular with the public. But no Democrat can afford to present the issue honestly, because the public doesn't really favor Roe, but rather favors what it thinks Roe says. Most Americans are unaware that Roe constitutionalizes a legal regime far more permissive than that in most European nations; most Americans are unaware that as a practical matter, Roe allows any abortion at any time for any reason. In fact, while most Americans favor some right to an abortion in some circumstances, most Americans at least favor some trimming back - majorities favor parental notification laws, cooling off periods, bans on "partial birth" abortions, and no government funding of abortions. I doubt very much if most Americans understand that repeal of Roe would not ban abortions.

Headlines and articles such as that above do nothing to create understanding of Roe and what is at stake, making it hard for the participants in the debate to have a serious discussion.

One Step Closer to Fame

Thanks to Matt Johnston of Going to the Matt for posting this interview with the Centerman.

Today's Must Read Interview!
- The New York Times

Why is this no surprise?

See this post from Redstate (which relies heavily on this post from the archives of Michelle Malkin). The gist:

As the so-called "Abramoff scandal" becomes the media's cause du jour, Democrats are becoming quite fond of telling us that 65% of the money went to Republicans. One reasonable question is whether this indicates that Republicans are more corrupt than Democrats, or that Indian tribes adjust their giving according to who is in power. ...

In the 1996 election cycle, a Center for Responsive Politics report notes, Indian gaming interests gave over $1.5 million in soft money to national party committees. According to National Journal, six of the top 10 soft money donors among interest groups nationwide in 1999-2000 were Native American tribes. The No. 3-ranked Seminole Tribe of Florida donated $325,000, 85 percent of which went to the Democrats. After making the donations, the Seminoles gained approval for electronic gambling machines. The No. 5-ranked Mashantucket Pequot Tribe, operators of the gargantuan Foxwoods Casino in Connecticut, donated $319,000, 83 percent to the Democrats.

But that's not the best part. There was one Republican on whom the tribes lavished great attention: Final tallies are not in yet, but analysts say the top individual recipient of Indian gaming money during election 2000 was none other than anti-soft money crusader Sen. John McCain, R-Ariz., who sits on the Senate Committee of Indian Affairs.

And now, in response to the Abramoff scandal, much tied in to Tribal contributions, Senator McCain has introduced a bill to regulate not just the Jack Abramoffs of the world, but “any attempt to influence the general public, or segments thereof, to engage in lobbying contacts whether or not those contacts were made on behalf of a client.”

Feel the straight talk sweeping over you.

One Miner Found Alive

Death is always sad, and when men are lost in their prime it seems especially sad.

This morning, much of America woke to headlines that 12 miners had been found alive, and just one dead, after a mine accident near Buckhannon, West Virginia. Three hours later, we learned the numbers were reversed - 12 dead, just one alive - a 27 year old father of two. Family members were taken from tremendous joy and relief to tremendous pain and grief.

Quite naturally, the originally incorrect news added to their grief and anguish.
I am watching CNN this afternoon, and listening as the press eggs on these family members and other citizens of the town in their anger at the incorrect news. Who was responsible - not for the mine catastrophe, but for first releasing incorrect news?! The press seems besides itself, and many of the family members and neighbors they now interview equally seem more outraged by this fact than by the deaths themselves.

How despicable and sad is the press. And what a sad commentary it is on our society when the question of whether the news was immediately correct overshadows the deaths of 12 men, and the miraculous rescue of one. Why, in these circumstances, must we hold authorities and others to a standard of perfection we would never demand of ourselves? I would like to think that put in the position of the survivors, I would have little interest in the public release of news, at least compared to the pain of the loss itself. Now the "news" story is overshadowing the underlying tragedy, and it is sad event, and a symptom of a greater societal illness.

We have become a very angry society indeed.

Follow-up: I'm watching the press conference now on this. My gosh, the American press is a disgrace. What a bunch of insensitive, stupid, intellectual lightweights.

Yes, you too can be a lobbyist! In fact, you may already be one!

Sorry, more process issues.

The latest brilliancy from the professional "reform" lobby in Washington is "lobbying reform." But by that, they exclude themselves.*

Senator McCain's new bill now regulates as "lobbying," “any attempt to influence the general public, or segments thereof, to engage in lobbying contacts whether or not those contacts were made on behalf of a client.” As the Skeptic points out, this means things like ads that urge the public to, "call your congressman."

Can one get around the law? Here's my sample "circumvention" ad:

[Ad begins with average citizens complaining that Congress is not responsive to their needs. Cut to narrator]:

"Sometimes it seems like no one in Washington ever listens. But now insider Washington politicians want to make it harder for you even to talk to them. Hard to believe, but Senate Bill 2128 would limit efforts to "influence the general public" to call their congressman. Yet Senator McCain, and your congressman, Rep. Zookenfizz, support silencing you with this law. Are you tired of politicians trying to silence you?"

Now, let's stop right there. Have I tried to "influence the general public to engage in lobbying contacts"? What if I deny it? Isn't this a pure intent crime. Maybe my intention is to get them to vote people out of office (of course, that's limited, too, but more than 60 days out from an election I can probably run the above ad without any problems). Or will the definition of trying to "influence the general public to engage in lobbying contacts" merely be the flip side of McCain-Feingold - by definition, if it is not regulated by McCain-Feingold, then it must be regulated by Senator McCain's lobbying bill?

You know, it's crazy, but I still find lots of otherwise knowledgeable people who refuse to believe that Senator McCain really wants to limit your political activity.

*They exclude themselves by limiting the regulation of grassroots lobbying to that done by lobbyists - i.e. people paid to do so. They exclude themselves from that definition, although it is hard to see why, since people pay them money precisely to change public opinion on these issues.