Washington: a city of denials, spin, and political calculations. The Nation's former DC editor David Corn spent 2002-2007 blogging on the policies, personalities and lies that spew out of the nation's capital. The complete archive appears below. Corn is now the DC editor at Mother Jones.
When you already have a fall guy, use him--especially if he's a dead man.
Could that be the legal strategy of I. Lewis Libby (a.k.a. Scooter), Vice President Dick Cheney's chief of staff, in the Plame/CIA leak case?
The news of the day in this scandal is that New York Times reporter Judith Miller, who was imprisoned for refusing to cooperate with special prosecutor Patrick Fitzgerald, is free. She and the Times cut a deal with Fitzgerald, after Miller had served 12 weeks for being in contempt of court. Under this arrangement, Miller agreed to testify before Fitzgerald's grand jury and to hand over edited version of her notes.
This is not much of a noble denouement to Miller's crusade for the First Amendment. Throughout this episode, she and her paper took what appeared to be an absolutist position against cooperating with subpoena-wielding prosecutors who yearn to poke around newsrooms--while other reporters accommodated Fitzgerald. Now Miller and the Times have also elected to cooperate. But what distinguishes her case is that it seems she went to jail because of a mistake.
Upon her release, Miller declared she had been imprisoned because "a journalist must respect a promise not to reveal the identity of a confidential source." She added, "I am leaving jail today because my source has now voluntarily and personally released me from my promise of confidentiality regarding our conversations relating to the Wilson-Plame matter." This source was Libby. But a lawyer for Libby, Joseph Tate, told The Washington Post on Friday that a year ago he had informed Floyd Abrams, an attorney for Miller, that Libby had waived confidentiality and that Miller was free to discuss her chats with Libby. (The New York Times account of this--which presumably was heavily lawyered--is rather convoluted; if you want to avoid a headache, stick to the Post piece.) Only a few weeks ago, Tate said, he was contacted by Robert Bennett, another Miller attorney, and was told that Miller had not accepted Libby's waiver and was in jail protecting Libby. Tate claimed he and Libby were "surprised to learn we had anything to do with her incarceration." The lawyers for Libby and Miller arranged a phone call between the two, in which Libby apparently assured Miller his year-old wavier was voluntary. Then she and the Times negotiated a deal with Fitzgerald.
This suggests that Miller ended up going to jail due to a miscommunication. Could she had avoided jail had the lawyers done a better job? Was she a martyr because of a mistake? Her position now is the same as the other reporters who are known to have cooperated with Fitzgerald: if the source waives protection, then a reporter can talk. Her crusade is over.
But back to the fall guy. The end of this sub-plot has caused Libby's team to leak his defense to the media. The Post quotes "a source familiar with Libby's account of his conversations with Miller." The odds are that source is Libby or his attorney. This super-secret source says that on July 8, 2003, Miller and Libby talked. This was six days before columnist Bob Novak disclosed the CIA identity of Valerie Wilson and two days after former Ambassador Joseph Wilson wrote an explosive Times op-ed disclosing that his trip to Niger in February 2002 had led him to conclude that President Bush had falsely claimed that Iraq had sought weapons-grade uranium in Africa. In this conversation, Miller asked Libby why Wilson had been sent on this mission by the CIA. (Miller, whose prewar reporting had promoted the administration's case that Iraq was loaded with WMDs, had a personal, as well as professional, interest in Wilson's tale.) Libby, according to this source, told Miller that the White House was, as the Post puts it, "working with the CIA to find out more about Wilson's trip and how he was selected." Libby noted he had heard that Wilson's wife had something to do with it but he did not know where she worked.
Four or five days later, according to the Libby-friendly source, Libby and Miller spoke again. Now Libby knew more. He told Miller that Wilson's wife worked at the CIA and had a role in sending Wilson to Niger. This source tells the Post that Libby did not know her name or that she was an undercover officer at the CIA. That latter point is crucial, for, under the Intelligence Identities Protection Act, Fitzgerald can only prosecute Libby if Libby disclosed information about a CIA officer whom he knew was a covert employee.
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There's no telling whether this source is being truthful. Karl Rove's attorney put out facts that crumbled as more information became public. But you don't have to look too far between the lines to discern Libby's cover story. It goes something like this: Wilson wrote his Times article. All hell broke loose. The White House asked, "Who authorized this trip?" Someone called the CIA for information. The CIA reported back that Wilson was contacted by the counter-proliferation office, where his wife Valerie was working. But--and here's the crucial "but"--the CIA did not tell the White House that Valerie was undercover. Thus, if any White House officials--say, Rove or Libby--repeated this information to reporters, then they may have been engaged in leaking classified and sensitive information to discredit a critic but they were not committing a crime. And who was at fault? George Tenet, the CIA director at the time.
How convenient. Tenet has already taken the fall for Bush's decision to launch the war in Iraq. He reportedly told Bush that the WMD case was a "slam-dunk." And subsequent investigations--from the Republican-controlled Senate intelligence committee and an independent commission that only looked at the intelligence community, not the White House--have excoriated Tenet's CIA for botching the WMD job. (Still, Bush saw fit to give Tenet a nice medal.)
Tenet is finished in Washington. (Paul Wolfowitz got a medal and was given the top job at the World Bank.) Is Libby looking to point to the dead body in the room and say, "It was him!"? If Libby or any other top White House aide wanted to know what had happened at the CIA regarding Wilson's trip to Niger, what would he or she have done? The obvious answer is that he or she would have called Tenet and demanded answers. And if Tenet--when he or an aide reported back--did not tell the White House Valerie Wilson was undercover, that would not be the White House's fault, right? In this scenario, the CIA outed Valerie Wilson.
Can such a defense fly? It will depend on what facts--or purported facts--Libby and the White House present to the prosecutor (or, if indictments ever come, to a jury). But a CIA-did-it defense might be in the making. And that has worked for this White House before.
All this speculation aside, the public record does show that both Rove and Libby spoke to several reporters (Novak, Miller and Time's Matt Cooper-- about Valerie Wilson and her CIA job. Wittingly or not, they disclosed classified information that derailed her career and that undermined her past and present work to thwart the proliferation of weapons of mass destruction. These leaks might have imperiled her contacts, previous operations, and one or more front groups used by her and her colleagues in their efforts to stop the spread of WMDs. (No damage assessment of the Plame leak has been made public.) At the least, contrition is warranted. But there has been none from the WHite House. And Bush's previous vow to dismiss anyone caught leaking classified information has been tossed into the waste bin, now that it is undeniable that Rove and Libby leaked classified information.
When Fitzgerald first pursued Miller and Cooper, it was easy to dismiss him as an overzealous prosecutor interested more in a vendetta than in making a case. But as the Cooper portion of this episode demonstrated, Fitzgerald was after information crucial to his investigation. From Cooper he obtained material that showed Rove had discussed the CIA identity of Wilson's wife with a reporter. Though Fitzgerald and Miller have clashed on non-Plame business previously, perhaps he has been seeking information just as critical from her.
For anyone following the matter, it's impossible not to guess about what's going on and what Fitzgerald will do. His grand jury expires at the end of October. He could impanel a new one and keep investigating. But all indications suggest he's close to done. One person who recently had contact with Fitzgerald and his attorneys says that they seem confident about whatever it is they are pursuing. The Miller matter was something of a sideshow that at times drew more attention than the central issue. Now that Miller has decided to follow the course of the other reporters, perhaps Fitzgerald will be ready to end his inquiry and render decisions about indictment. Throughout Washington, those who have closely observed this investigation express different hunches about whether there will be indictments, about whom will be indicted if there are indictments, about what laws will be invoked if there are indictments. There have been no leaks making one guess more probable than another. Those who care are all waiting for Fitzgerald.
Minutes after the news hit that a Texas grand jury had indicted House Majority Leader Tom DeLay on one count of criminal conspiracy in a case of alleged campaign money laundering, I was in a Washington power-lunch restaurant for a prearranged encounter with Eric Dezenhall, a former Reagan administration official who is one of the top crisis management experts in town (and a writer of entertaining novels on politics, the mob, and celebrity). As I sat down at the table, I said, "The obvious question is...." Dezenhall nodded. He knew. But before he could say anything, a message came in on his Blackberry from a reporter for a major newspaper: had Dezenhall yet been retained by DeLay? He had not. He usually does not handle political cases; he prefers corporations and celebrities. But as DeLay was preparing to step down temporarily as majority leader (as is required by a House rule the GOPers tried to eliminate earlier this year), Dezenhall was happy to think aloud about what a damage-control strategy for DeLay might entail.
"The first thing he must do," Dezenhall said, "is to realize that his objective is to get acquitted, not to look good. He must understand that damage control does not equal damage disappearance. He has to save what is save-able. He might not be able to save everything: his freedom; his political career, and his financial prospects. His life has changed; he has to focus on acquittal." At the same time, he added, DeLay has "to stick with his brand and fight back savagely." And will he depict himself as a martyr being crucified because of his devotion to the conservative cause? I asked. "What does he have to lose at this stage?" Dezenhall answered. "He has to dig in, stay in character and depict the indictment as unholy and agenda-driven. Show contrition? Nah, that's total horseshit."
Dezenhall also noted that from this day on, DeLay's target audience is the to-be-named-later jury that will hear the criminal case against him: "He and his advisers have to concentrate and what will work with a Texas jury. A media roadshow involving someone in a legal case never pays dividends. And DeLay is sufficiently divisive and that does not lend himself well to a careful TV interview. What does pay off is whipping up the preexisting prejudices of the the jury pool." While Dezenhall said that DeLay ought to "speak up within the confines of his brand," he noted that DeLay "is always vulnerable to coming off looking mean, and mean does not go well with juries." (Before DeLay became majority leader, Representative Curt Weldon, a GOP hawk, once observed, "We need someone who can go on national TV and present a good, positive image of the Republican Party and not a mean-spirited image.")
DeLay's team, Dezenhall continued, may also consider playing the leak game. With DeLay indicted on a conspiracy charge, it could be that Travis County DA Ronnie Earle flipped one of the coconspirators. There are several ways of establishing a conspiracy charge--say, obtaining memos or emails that lay out the conspiracy--but one clear way is by obtaining the testimony of one of the schemers. If Earle does have an insider spilling all, DeLay will need to undermine that witness--perhaps before any trial. This could lead to a "media game," Dezenhall said. "Things are leaked to get the person or people who were flipped. This will be done through leaks to the media. The point from DeLay's perspective is, don't love me, but hate him." Above all, Dezenhall added, DeLay has to proceed with the understanding that he "cannot get people to change their fundamental perception of him."
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Shortly after this conversation, it looked as if DeLay had been at the table with us. In a videotaped statement--which precluded questions from reporters--DeLay proclaimed that Earle was a "rogue district attorney," who had brought "one of the weakest and most baseless indictments in American history." DeLay claimed, "I have done nothing wrong." He noted that everyone of the "frivolous allegations" previously tossed at him by opponents had ben dismissed. That's not precisely true. The weak-kneed House Ethics Committee last year issued two reports that showed that DeLay had improperly pressured a fellow House Republican to vote for George W. Bush's Medicare legislation (offering to endorse the member's son in a congressional primary if the member voted the right way), had improperly (through his staff) asked the Federal Aviation Administration to find a plane with Democratic Texas legislators who had left the state to thwart a DeLay redistricting scheme, and had improperly held a golfing fundraiser with energy executives when energy legislation was pending in Congress. For all this, DeLay received a few taps on the wrist. The ethics committee noted that three fundraisers for a political action committee linked to DeLay and eight corporate donors to this PAC had been indicted for allegedly funneling illegal contributions to GOP state candidates. Now that DeLay has been indicted as well in this case, will the ethics committee undefer action?
Besides all this, DeLay has been implicated in other rule-bending or -breaking episodes. In 1999, the ethics committee privately chastised him for threatening an industry lobby group for daring to hire a Democrat. The Washington Post once quoted an unnamed lobbyist who claimed DeLay would not allow him to plead his client's case to the GOP leadership because he had not donated to Republicans. (Can you say "extortion"?) And, more notably, DeLay has been drawn into the net of the wide-ranging scandal involving Jack Abramoff, the indicted GOP lobbyist who allegedly bilked Indian tribes, who allegedly commited wire fraud (in a Florida casino deal that ended up with one of his minority partners being murdered allegedly by hit men), and who apparently picked up the tab for overseas trips with DeLay.
The Texas indictment--in which DeLay and his associates are accused of illegally running corporate contributions through the national Republican party in order to skirt the state ban on corporate donations to local candidates--is but one questionable episode in DeLay's history. But it is now the biggest and most direct threat to his future. Conviction could lead to a fine and imprisonment--and removal from the House. His lawyer quickly dismissed the indictment as a "skunk." And DeLay came out hammering. But, as Dezenhall pointed out, there is only so much DeLay can do. Spin cannot derail the criminal proceedings underway. A judge and a jury will have the last word on this indictment. The former exterminator who became arguably the most powerful man on Capitol Hill (see my piece on how he took control of NASA) is at the mercy of others whom--we assume--he cannot bully. And the damage to come may end up being beyond his control.
On September 26, the board of the Corporation for Public Broadcasting elected its new chairperson and vice-chairperson, and the eight-member board--which contains only two Democrats--selected two conservative Republican funders for these posts. Cheryl Halpern will succeed the embattled liberal-hunter Kenneth Tomlinson as chair. Gay Hart Gaines will be vice-chair. The board chose Gaines over an independent.
As press accounts have noted, Gaines, who was first appointed by George W. Bush to the CPB board in 2003, is an interior decorator by training. But she and her husband have contributed at least half a million dollars to GOP causes since 1998. Notably, Gaines was a charter member and chairman of GOPAC, a political action committee headed in the 1980s and 1990s by Newt Gingrich. During that period, GOPAC attracted much attention for dodgy practices (which drew a Federal Elections Commission investigation) and for its harsh partisan practices. So now it's an appropriate time to revisit one of GOPAC's most notorious actions.
In 1990, GOPAC, which worked with Republican candidates across the country, sent a memo titled "Language: A Key Mechanism of Control" to GOP contenders. The memo started,
As you know, one of the key points in the GOPAC [training] tapes is that "language matters." In the [GOPAC] video "We are a Majority," Language is listed as a key mechanism of control used by a majority party, along with Agenda, Rules, Attitude and Learning. As the tapes have been used in training sessions across the country and mailed to candidates we have heard a plaintive plea: "I wish I could speak like Newt."
That takes years of practice. But, we believe that you could have a significant impact on your campaign and the way you communicate if we help a little. That is why we have created this list of words and phrases.
The memo then provided two lists. One was a set of "Optimistic Positive Governing words and phrases to help describe" the GOP vision for the future; the other was a list of "Contrasting words to help you clearly define the policies and record of your opponent and the Democratic party."
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The positive words were hardly surprising; they included "caring," "freedom," "liberty," "moral," prosperity," and "strength. But the "contrasting words"--which GOPAC said should be applied to Democrats and their proposals--were rather hard-edged: "betray," "bizarre," "cheat," "corrupt," "destroy," "disgrace," "greedy," "incompetent," "intolerant," "radical," "shallow," "sick," and "traitors."
This is to say that Gay Hart Gaines, the number two on the CPB's board as of this week, was a leading official of an outfit that advised Republican candidates to brand Democrats "traitors." She now is in a position to search for bias in public radio and public television programming.
These days, it may seem that GOPAC was merely ahead of its time, given the harshness of the current political discourse. (After all, I wrote a book in which I applied one of GOPAC's "contrasting words" to George W. Bush: "lie.") But the GOPAC list was a clear attempt at putting propaganda ahead of substance. The memo did not tell GOP candidates to make sure they could back up their sharp assertions. The point was to turn name-calling into a strategic political tool. This was a (further) debasement of politics, and Gaines was apparently not put off by GOPAC's tactics. After the memo's existence was revealed by press reports, she did not leave GOPAC. In fact, three years later she became its chairperson.
Of course, advocates and party funders have the right to be as partisan (and rhetorically extreme) as they wish. But the CPB is an entity that is supposed to oversee journalistic endeavors. Should a supporter of party propagandists be in charge of overseeing the journalism of PBS and NPR? Only in Bushworld does this make sense. It often sounds melodramatic to claim that a given development is "Orwellian." But if that "contrasting word" is not merited in this case, then perhaps we ought to reach for an all-purpose term from Gaines' GOPAC list: "pathetic."
I interrupt the spirited debate raging in the comments section on whether we should care about the police records of Jeb Bush's children--and whether these Bush kids received preferential treatment due to their father's position--in order to post again today on the latest news regarding the Roberts nomination. If you want to join the fray on the previous column, click the link for that column at the bottom of this page.
What's a Democrat to do?
On September 20, Democratic Senate leader Harry Reid issued a passionate statement denouncing the nomination of John Roberts Jr. as chief justice of the Supreme Court. He said he would vote against Roberts, and he pointed to memos Roberts had written in the 1980s in which Roberts took hard-edged conservative stances on civil rights, privacy issues and other matters. Reid also cited the Bush administration's refusal to release memos Roberts had written when he served in the solicitor general's office during the first Bush administration. "We should only vote to confirm this nominee if we are absolutely positive that he is the right person" for the post, Reid said. His position was unambiguous.
On September 21, Senator Patrick Leahy, the ranking Democrat of the judiciary committee, declared that he would vote for Roberts. Leahy released a lengthy statement that could have justified either a nay or aye vote. He said he was "extremely disappointed by the lack of cooperation from the Administration....The Bush administration treated senators' requests for information with little respect. Instead, for the first time in my memory, they grafted exceptions from the Freedom of Information Act to limit their response to Senators' requests for information. They stonewalled entirely the narrowly tailored request for work papers from 16 significant cases John Roberts handled when he was the principal deputy to Kenneth Starr at the Solicitor General's office during the President's father's administration." Leahy also complained that Roberts "disserviced himself" by being tight-lipped about his judicial views during his confirmation hearings. And Leahy voiced concern about where Roberts would lead the court:
Judge Roberts's work in the Reagan and Bush Justice Departments as well as his formative period in the Reagan White House seem to have led him to a philosophy of significant deference to presidential authority.....Maybe this deference was a principal basis on which this President chose him....This is a fundamental question. We know that we are in a period in which the Executive has a complicit and compliant Republican Congress that refuses to serve as a check or balance. Without the courts to fulfill that constitutional role, excess will continue, and the balance will be tilted.
But Leahy put aside these and other concerns. Why? Because he believes "Roberts is a man of integrity." He explained:
I can only take him at his word that he does not have an ideological agenda. For me, a vote to confirm requires faith that the words he spoke to us have meaning. I can only take him at his word that he will steer the court to serve as an appropriate check on potential abuses of presidential power. I respect those who have come to different conclusions, and I readily acknowledge the unknowable at this moment, that perhaps they are right and I am wrong. Only time will tell.
"Only time will tell" is not much of a bone to toss to the Democratic base, which has organized against Roberts and yearns for a fight. Once again, the Democrats are splitting on an issue that its most ardent supporters care much about. Just like Iraq. Ted Kennedy (no surprise) is voting against Roberts. So is John Kerry. Max Baucus, a Montana Democrat, is voting for Bush's pick. Some progressive bloggers have tried to target Baucus, depicting him as a Democratic turncoat. Are they now going to do the same with Leahy, an otherwise reliable liberal? And can any Democrat who wants to run in 2008 vote to confirm Roberts? There is much anticipation regarding Hillary Clinton's vote. Perhaps Leahy has given her the cover she needs to vote for Roberts. Still, imagine the debate during the Democratic presidential primaries of 2008 if Roberts reaches the court and then weakens abortion rights. Candidates who voted for Roberts could expect to face harsh questions from candidates who opposed Roberts as well as from potential supporters and voters.
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Putting aside 2008, how much alienation can the Democratic Party afford now? If its troops--and key liberal fundrasiers--expected a fight on Roberts, they are in for a big disappointment. And such disappointment at the grassroots is not good for a party--especially as it heads into an election year. This is a similar to what has been happening within the party on Iraq. Most Democrats beyond the Beltway are fed up with the war, if the polls are to be believed. But they do not see the leadership of the party--such as there is any leadership of the party--reflecting their concern. In Washington, a handful of Democrats are calling for a withdrawal of some sort from Iraq, some Democrats are urging that the Bush administration fight a better and smarter war, and many (including congressional leaders) are not saying much at all.
Of course, there are real policy differences among Democrats. But on the Roberts nomination and the Iraq war, the GOP is in synch with its base: stay the course and pass Roberts. The Dems are squabbling among themselves, and that renders it more difficult for the party to present a coherent message that could stir its foot soldiers and/or to entice new recruits. The Republicans are engaged in their own intramural fight over federal spending and the reconstruction of New Orleans and the Gulf Coast. (When Tom DeLay recently declared that there was no more fat to cut in the federal budget, other conservative Republicans howled at such blasphemy.) And this fight may become ugly. But for now the Democrats are the ones who cannot agree on a bumpersticker.
The election of 2006 is a year away. But if the Democrats are going to try to turn it into a national election--that is, one with overarching themes that can play in various districts and states--they will eventually need a consensus pitch. Going national in this fashion is always a difficult task for a party; most elections are determined by local factors and the qualities of the particular candidates. But it's even tougher when the party has competing messages on the key issues of the moment.
With the challenges and obligations created by the Katrina disaster, some political commentators have declared that George W. Bush's presidency is done, suggesting his agenda has been washed aside. That may not be so. He and Karl Rove may yet figure out how to exploit the tragedy in New Orleans and the Gulf Coast to revive their Social Security plan, to sell more tax cuts for the well-to-do, and to justify their previously planned cuts in programs for low-income Americans. But if this is the end for a lame duck president, then perhaps it's time to look at Bush: The Next Generation. After all, we are already into the second generation of Bush presidencies, and bad news does come in threes.
I'm not going to bother with Jenna and Barbara Bush. They've received enough attention. (And who wants to revisit their icky "speech" at the GOP convention last year?) So let's turn the spotlight on the other Bush family in politics: the Jeb Bush clan--which just days ago had yet another brush with the law. Interestingly, every member of this family--with the exception of Jeb--has had legal trouble. In 1999, mother/wife Columba falsely stated on a Customs declaration form that she had bought only $500 in goods during a jaunt to Paris. Yet she had purchased $19,000 worth of merchandise while shopping in the City of Lights. Customs agents nabbed her, and she had to pay a $4100 fine (when the maximum penalty could have been a $19,000 fee). But we're looking at the younger Bushes.
* John Ellis Bush, aka Jebby, age 21. This past weekend, he was arrested by Texas Alcoholic Beverage Commission agents on Sixth Street in Austin, Texas. He was stopped when the agents suspected he was drunk. He then, it seems, did not cooperate with these public servants, for he was arrested on two charges: public intoxication and resisting arrest. In the scuffle, Jebby received a chin injury and was treated at a hospital. He was released on a $2,500 bond. (Question: given George W. Bush's DWI charge and Barbara's and Jenna's underage imbibing issues, is getting into legal trouble over alcohol considered a family rite of passage?)
This was not Jebby's first encounter with the police. Five years ago--a month before the 2000 election--he was caught by security guards while in the act with a 17-year-old female in a Jeep Cherokee parked in a Tallahassee mall. Both were naked from the waist down, except Jebby was wearing his socks. The security guards called in the cops. A police officer arrived on the scene and investigated a possible crime of "sexual misconduct." In the subsequent police report, the officer wrote, "I became aware of the political ties" of the suspect. He then "contacted the watch commander...to inform him of the incident." After one of the security guards talked to Jebby's father--who happened to be the governor of the state--this guard told the on-the-scene cop that he believed that his own supervisor would "pull" the preliminary report. The cop replied that he would still have to complete an incident report. And a report was written. Nothing happened after that. The incident did not become public until two days before the presidential election, when this police report was leaked to the local media and a London newspaper. (Only the London paper went with the story.) According to Artie Brown, one of the two security guards who nabbed Jebby that night, the young Bush spoke to his father after being caught and then remarked, "My dad will fix it."
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* Noelle, age 28. In January 2002, on the day when her uncle was to deliver his first State of the Union address, Noelle was arrested for allegedly trying to use a fraudulent prescription to obtain the anti-anxiety drug Xanax at a drug store. She was sent not to jail but to drug rehab. Did she receive any preferential treatment? Seven years earlier, a woman with the same name was busted for shoplifting at a mall in Arizona. If the governor's daughter did have a prior criminal record, she would have faced a stricter sentence than assignment to a drug rehabilitation facility. Then in September 2002, a fellow resident in Noelle's drug rehab center anonymously called the Orlando police and complained that the "governor's daughter" had been buying crack. Noelle received a ten-day jail sentence for crack possession. The following August, she was released from rehab and placed in the custody of her parents. Drug charges against her were dismissed.
* George P., 29. On December 31, 1994, George P. Bush, the much-hyped hunk of the Bush family and a fellow mentioned as a future prospect for politics, dropped by the Miami home of a former girlfriend. It was four in the morning and apparently he had not been invited. He broke into the house and began arguing with the woman's father. He then departed. But 15 to 20 minutes later, Bush, a Rice University student, was back. This time he drove his Ford Explorer over the front lawn, causing damage. The father contacted the police, and a Miami-Dade police officer called on George P. and his parents that night. But as the subsequent police report noted, George P. "was not arrested on the scene" because the woman's father did not want to press charges. The report also said that George P. and this woman broke up a year and a half earlier and that Bush "has been a problem ever since."
We all know that all families have their share of troubles. And, of course, it is always tough to grow up in a dynasty. (Al Gore's son was busted for speeding.) But what are the odds that in any family of prominence all three siblings will merit police reports? There is, however, good news for the children of Jeb and Columba Bush. Difficulty with the law was no career obstacle for their uncle, and it seems that with Bush family members there really is no such thing as a permanent record.
Research assistance was provided by Clarisse Profilet.
George W. Bush does not do the Big Speech thing well. How many times has a fretting White House dispatched Bush to deliver a Big Speech to rally popular support for the Iraq war? Four, five, more? I've lost count. And I seem to recall a Big Speech meant to revive his Social Security plan. None of those other Big Speeches did much for Bush or the flagging policy he was trying to advance. In fact, he hasn't succeeded with a Big Speech since the immediate post-9/11 period. Still, on Thursday night, it was time to try again--this time while standing in front of a podium in an empty Jackson Square in New Orleans. On this occasion, Bush's aim was not to shore up an initiative upon which the public had soured but to change the Hurricane Katrina narrative from what-went-wrong (a tale in which Bush and his aides played prominent roles) to what-we're-going-to-do (a brand new story in which Bush can recast himself as a hands-on leader, not a fly-over incompetent.)
Will this work? Can Bush pivot from being a president who presided over a post-disaster disaster and earned well-deserved criticism from across the ideological spectrum (neocon commentator Bill Kristol conceded Bush is not always "good on execution") to being a chief executive able to oversee the most massive reconstruction in American history in an effective and visionary manner? One speech is not going to bring about such a transformation. His administration's response to Katrina sparked outrage and disappointment that will not soon recede. My hunch is that many Americans are in a show-me mood. After Bush won the last election with less than 51 percent of the vote, this fellow claimed he had amassed political capital that he could spend as he saw fit. He was wrong. And his political capital--if recent polling is to be believed--seems to be, like his budgets, in deep deficit. That was before Hurricane Katrina, when the mess in Iraq and high gas prices were dominating the bad news. So Bush will not be getting off cheap with a moderately well-delivered speech in which he expressed noble sentiments and presented reasonably sounding--though generalized--proposals for assisting the victims of Hurricane Katrina and for rebuilding the Crescent City and other areas of the Gulf Coast.
There is, as he might say, much hard work to do. It remains to be seen if his administration--which, this tragedy has demonstrated, fancies cronyism over competence--can do a better job in NOLA than it has in Iraq. In Jackson Square, Bush declared, "We will do what it takes. We will stay as long as it takes." Where have we heard that before? There will be tough decisions and policy and political battles ahead. Can Bush rise above himself? In this speech, he offered broad strokes and grand promises of assistance and reconstruction. But he mentioned only three specifics, calling for setting up $5000 employment training funds for displaced workers, selling off federal property in the area to homesteaders, and creating a Gulf Opportunity Zone. This last idea is based on a policy hobbyhorse long favored by conservatives: create tax-free-zones free of regulations in hard-hit areas to encourage companies to set up shop there. Can this be done in a manner so that corporations don't end up dumping employees elsewhere and rushing to the GOZ to take advantage of depressed conditions there? With all money that will be heading toward New Orleans and the region--the estimated price tag for reconstruction appears to be several hundred billion dollars--won't there be enough incentive for businesses to flock to the region?
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Bush clearly has decided to throw money at what he called "one of the largest reconstruction efforts the world has ever known." But this enormous project will be managed by folks who don't like government. The Bush White House and Republicans in Congress were poised to cut tens of billions of dollars from Medicaid, student loan programs and food stamps prior to Katrina. But now Bush has committed himself to spending far more than that on reviving the Gulf Coast and NOLA. Can the Bush gang manage this task better than they have managed contracting in Iraq? Bush, sensitive to this point, noted that he would dispatch inspectors general to guard against fraud. (Good idea. Why not do the same in Iraq?) But he and his gang have not been so fastidious about the use of taxpayer funds elsewhere. Can he devise a system in which Halliburton and other mega-firms are not the big winners? Does he care to?
Or course, there was no mention of how to pay for this. That was in keeping with standard accounting practices in Bushland. He said about suspending--or, dare one say it, pushing back--the tax cuts he has handed to the wealthiest of Americans. He has placed his war in Iraq on the national credit card, further weakening the financial standing of the country. Will he do the same with New Orleans?
Bush did acknowledge that Katrina has revealed the fault lines of race and poverty in American society. How could he not? He conceded the federal government had not responded appropriately. Again, how could he not? He said he would review the government's performance, and he endorsed a congressional investigation (which, as of now, is to be controlled by Republicans). He offered no words of support for an independent and bipartisan investigation. Consequently, it seems that Republicans will be investigating Republicans. Perhaps Bush will put Dick Cheney in charge of his review.
Toward the end of the speech, Bush proclaimed, "I, as president, am responsible for the problem and the solution." But prior to his photo-op speech from Jackson Square, he had already proven the first part of that statement. He has much distance to go--to wade, to slog--to prove the latter.
Before the John Roberts confirmation hearings began, progressive opponents of Bush's pick to be chief justice were fretting that the media attention given to the Katrina mess would prevent Democrats from using the hearings to make a public case against Roberts. Now I'm thinking that maybe--in a way--it was good that the public is not seeing much of the Roberts hearings. The Democrats have not succeeded in depicting him as a danger to Americans. As I previously wrote, most of the Democratic members of the judiciary committee spent the first day of the hearings--the warm-up day--fixating on process questions, such as whether they had the right to ask Roberts questions about his views. (See the post below.) Day 2 was the supposed to be the main attraction: question time for Roberts. And it came as no surprise that a fellow who has argued dozens of cases before the Supreme Court was able to deftly handle the queries from the Dems. That's not to say that he always was right in his answers or bested his interrogator on debate points. But the Democrats landed few blows. They can huff that he did not answer questions about Roe while he did about Brown v. Board of Education. But Roberts--as was his mission--provided them little ammunition. He displayed a gentle and thoughtful manner. And appearances do matter. (Just ask Robert Bork if he wishes he had shaved off his less-than-stylish beard.) Roberts sounded reasonable, as he ducked critical matters or parried with Democrats.
Right off, Republican Senator Arlen Specter, the chairman of the committee, led Roberts through the critical issue of the hearings. He asked Roberts about Roe and the principle of stare decisis. Roberts quoted James Hamilton in the Federalist Papers that judges need to be "bound down by rules and precedents." He said all the right things about the importance of precedent and the value of stare decisis. He noted that precedent can only be overturned in limited cases. But he would not talk specifically about Roe, noting he feels "the need to stay away from the discussion of specific cases." Specter several times described Roe as well-established precedent, calling it a "super-duper" precedent. Roberts thoughtfully discussed the abstract notion of precedent. But he said nothing about how stare decisis might be applied to future cases involving abortion rights. This duet produced rhetoric useful to each participant. Specter trumpeted his support for abortion rights and argued that Roe should not be overturned. Roberts praised precedent as a guiding but not inviolable principle without making any commitments to protect Roe.
Then various Democrats took their turns. Senator Pat Leahy tussled with Roberts about a decades-old memo in which he seemed to suggest presidents--not Congress--can decide whether to wage war. Roberts claimed--politely--that Leahy was "vastly over-reading" the memo and added that he merely had been representing the position of his boss at the time, the president. Senator Ted Kennedy challenged Roberts on positions he had taken--or represented--on civil rights law when he worked for the Reagan administration. Roberts revived arguments the Reaganites had used to oppose certain remedies for discrimination. This produced much spirited much back and forth over legal matters years old. That's not to say this stuff is not important. But I doubt the debate over the Grove City decision would resonate with a general audience. Under the questioning of Senator Joseph Biden and other Democrats, Roberts did say that the Constitution contained a right to privacy. But he would not say whether such a right covered abortion. Biden cornered Roberts once or twice--but not in any fashion that would matter much beyond the committee room.
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Senator Russell Feingold inquired about an ethics matter. In April, Roberts, an appellate court judge, heard a case involving the Bush administration six days after he was interviewed by administration officials for a possible Supreme Court vacancy. Feingold asked why did he not recuse himself. Roberts refused to explain. At the hearings, Roberts opponents were telling reporters that Senator Dianne Feinstein was likely to cause the biggest sparks of the day by questioning Roberts on Roe. But she fared no better. As she pressed him, he continued to bob and weave in his artful and unflappable manner. At the end of the day, the Democrats had extracted little of political use. The Democratic Party did issue a press release headlined: "Roberts Watch--Day Two: A Day of Evasion, Obstruction and Distortion." Its examples were not unconvincing. But neither were they likely to change the course of the nomination.
There was probably not much the Democrats could have done. Roberts is a smart, savvy, and smooth attorney. The legal issues at hand do not translate well into soundbites. But I wonder what might have happened had one Democratic senator taken a less conventional approach to the legalistic questioning. Imagine if Feinstein had asked Roberts: "You indicated that Brown v. Board of Education was decided correctly. Would you tell us if you believe Roe v. Wade was decided correctly?" Roberts would have ducked and dodged, of course. But what if she asked the question again. Maybe once more. Then looked at the clock and said, "I have 28 minutes left. I am going to wait all that time for an answer because I think Americans should know whether the next chief justice of Supreme Court believes abortion rights ought to be protected or not." And then stared at him for 28 minutes. Would that have been a galvanizing moment? Who knows? But it sure would have made the point more strongly than any of the exchanges that occurred.
Good news on Roberts? In Tuesday's Washington Post, reporter Chuck Lane writes about a study compiled by a professor who studied all of Roberts' decisions in his two-year stint as a federal appeals court judge and found that he was four times more conservative than the average appeals court judge on civil rights and civil liberties cases, about average on criminal justice cases, and sort of liberal on cases involving economic and labor matters. Kenneth Manning, the University of Massachusetts professor who did this study, said, "The general read I got was of a non-activist stance--a general reluctance to go out of his way and rule against government regulators. If the EPA ruled against the chemical industry, the general tendency was to defer to the agency." I don't vouch for this study. But maybe Roberts is not as awful-awful as his foes fear. In any event, given how the hearings are going, wishing is a reasonable exercise.
When Senator Arlen Specter, the Republican chairman of the judiciary committee, opened the confirmation hearings for John Roberts Jr., George W. Bush's nominee for Supreme Court chief justice, he pointed out that this session was occurring in the ornate Senate Caucus Room, the site of some of the most famous hearings in the republic's history: "the Titanic, Teapot Dome, the Army-McCarthy, Watergate, Iran-contra." Did Specter notice these past episodes all involved scandal or disaster? But there was no sense of foreboding in the air. As Roberts sat and smiled in the crowded room before the committee--with Ed Gillespie, a former Enron lobbyist and GOP chairman recruited by the White House to assist in the nomination process, at Roberts' side--it was clear that Roberts needed only get through a few days without drooling or disrobing to win the number-one judicial post in the nation. Little would matter. Not Roberts' answers--or lack thereof--to questions regarding his judicial philosophy or his views on privacy rights, presidential authority, or congressional power. Thus, the verbiage of the first day of the Roberts hearings--in which all the senators and the nominee delivered opening remarks--was mostly an academic exercise. There were grand statements about rights, judicial power, and the American experiment. Roberts talked about "infinite possibilities" conveyed by the "endless fields" of his native Indiana and vowed to be a judicial umpire, not to "pitch or bat." But these scripted statements of little intrinsic value did outline the political stratagems of each side.
In his opening remarks, Specter raised several pointed topics. He whacked the Supreme Court for voting to undermine congressional prerogatives, recalling that the court ruled against the Americans with Disability Act in 2001 (on a 5-4 split) and then four years later ruled for it (on a 5-4 split). He criticized the court for invalidating portions of legislation designed to protect women against violence--a ruling in which the court claimed Congress' "method of reasoning" was defective. Specter declared he would not ask Roberts whether he would overrule Roe v. Wade, but he said he would ask whether Roberts believes the Constitution contains a right to privacy. But, of course, there was no implied threat: say the wrong thing, and I might vote against you. Specter did not even say he expected candid replies: "Senators have the right to ask whatever questions they choose, and you, Judge Roberts, have the right to answer as you see fit--or not answer." (Nod, nod, wink, wink?) In fact, most GOP senators defined the central issue of the hearing as how far committee members (meaning, Democrats) could go in grilling a judicial nominee. Democrats responded by saying that with so much at stake it was vital to press Roberts on a host of crucial subjects. Senator Patrick Leahy, the senior Democrat on the committee, devoted most of his remarks to the premise that an "open and honest public conversation with the nominee...is an important part of this process."
But process never gets a political side too far. (How many Americans are inspired by the Democrats' demand that Roberts shares his views on past Supreme Court decisions?) The critical question is whether Roberts is good or bad for the United States. Democrats spent too much time on countering the Republican strategy (questioning the questioning of judicial nominees) and not enough on dissecting what's already known about Roberts. Senator Ted Kennedy gave an impassioned speech on the importance of various individual rights. He only devoted one sentence to challenging Roberts' record: "There are real and serious reasons to be deeply concerned about Judge Roberts' record. Many of his past statements and writings raise questions about his commitment to equal opportunity and the bipartisan remedies we have adopted in the past."
In perhaps the only highlight of the day (for depressed Democrats), Senator Joseph Biden went further. He first enthusiastically derided constitutional literalism and defended the idea of a living and adaptable Constitution that recognizes a right to privacy and that permits the federal government to "act as a shield to protect the powerless against major economic interest" and to "stamp out discrimination." Then he declared, "Judge, if I looked only at what you've said and written in the past, I'd feel compelled to vote no. You dismissed the Constitution's protection of privacy as a 'so-called right,' you derided agencies like the Securities and Exchange Commission that combat corporate misconduct as 'constitutional anomalies,' and you dismissed 'gender discrimination' as merely a--and I quote--'perceived problem.'"
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Most of the Democrats used their handful of minutes to lay the foundation for their questions to come rather than to define Roberts as a poor choice. Senator Chuck Schumer, a New York Democrat, came close to accusing Roberts of being an ideologue but said that would be determined by how--and whether--Roberts answers Schumer's queries: "If you refuse to talk about already decided cases, the burden is on you...to figure out a way, in plain English, to help us determine whether you will be a conservative--but mainstream conservative--chief justice, or an ideologue....You told me that you are not an ideologue and that you share my 'aversion' to ideologues; yet you have been embraced by some of the most extreme ideologues in America, like the leader of Operation Rescue [an antiabortion outfit]. That gives rise to a question. What do they know that we don't know?"
The problem, said a former Democratic Senate aide, "is that Democrats feel responsible and actually want to get more information before expressing a position, and the Republicans have already made up their minds." But that's only a partial (if not self-serving) explanation. By all accounts, most Democratic senators have already made a decision on the preexisting record--the slate is not blank--and most have concluded that Roberts ought not to be confirmed. So why worry and speechify about all the process stuff instead of the main point? "The Democrats want to come out, talk about their ideals and look affirmative and not appear defensive," one leader of the Roberts opposition told me. "Some were even mad at Biden for so clearly saying that he found Roberts wanting."
With Republicans in lockstep on message--Roberts is a great pick and nominees should not be pushed too hard--the Democrats were establishing a hard task for themselves: beat the GOPers on the process fight (which few Americans give a damn about) and then trying to deploy strategic questions that will yield answers--or non-answers--that demonstrate Roberts warrants opposition. Why not frame the real debate--or attempt to do so--from the get-go? Would that be too confrontational for them? Not sufficiently senatorial? In any event, it was a miscalculation. True, the game was over before it began. But it seemed that the Democrats lost the chance to fight the best fight possible.
The Democrats cannot stop Roberts. Consequently, they can only have one political objective: to boost the number of no votes. This would allow them to claim their party is the one that cares about privacy rights. Moreover, a large no vote would signal the White House that the Democrats might be able to rough up--perhaps even stop--Bush's next Supreme Court pick if that nominee is a rightwing extremist (to use the term of choice). Bush, as is his way, probably would not pay much heed to such a signal. But the Democrats at least have to try--especially since their base supporters expect them to do all that is possible to beat back Bush's effort to steer the federal judiciary to the right.
As he kicked off the hearings, Specter said, "Now we face the biggest challenge of the year--and perhaps the biggest challenge of the decade." If only. With the Senate Republicans in love with Roberts and opposed to any serious grilling, there's not much challenge at hand. When the Democrats hurl tough questions at Roberts on Tuesday (and maybe Wednesday), it will only be for the record. In his opening statement, Specter noted that Roberts once wrote a memo in which he suggested that a justice's tenure should be limited to 15 years, given that life expectancy had become much longer than when the Constitution was drafted. Specter said he might question Roberts about this. Lets hope so. It seems a good time to consider that proposal.
In a perfect world--or, at least one not so imperfect--people who make the right call about important stuff would be rewarded and those who are wrong would not be. That's not how things work in Bushland. Remember those lovely medals George W. Bush handed to CIA chief George Tenet and then-Deputy Defense Secretary Paul Wolfowitz, even though both were responsible for tremendous miscalculations on Iraq? In recent days, there have been calls for the firing of Michael Brown, the FEMA director--who got his job because he was a college chum of George W. Bush's 2000 campaign manager. Like DHS Secretary Michael Chertoff, Brown screwed the pooch, and both in recent days have issued CYA statements rather than acknowledge responsibility. Yet Bush praised his FEMA guy last week, saying, "Brownie, you're doing a heckuva job."
Let's consider an obvious comparison: Michael Brown and James Lee Witt, who Bill Clinton appointed head of FEMA. As has been widely noted, before joining FEMA, Brown was a lawyer for the International Arabian Horse Association. Before Witt was tapped as FEMA chief, he had served for four years as director of the Arkansas Office of Emergency Services. Bush placed a crony--Brown was also an attorney for the Oklahoma Republican Party--in charge of FEMA (and permitted the agency's disaster work to be downgraded). Clinton gave the job to a fellow with years of experience in disaster management and maintained a close connection to Witt and FEMA, which then had Cabinet-level status.
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Brown, Chertoff and Bush were not prepared for this foreseen tragedy, but FEMA's lack of readiness was predicted. By Witt, it turns out. In March 2004, he testified at a hearing conducted by two House subcommittees. The issue at hand was DHS's plan to consolidate--that is, reduce the number of--FEMA's regional and field offices. Witt's comments were all-too perceptive. He practically predicted the mess to come in New Orleans. As you read his remarks--which I excerpt below--think about two things. First, disaster-management experts outside the administration were worried about FEMA long before Hurricane Katrina came howling. Second, the poor people of New Orleans might have been much better off had someone who knew about disaster relief been in charge during this tragedy. Here's a portion of Witt's testimony:
As you continue to examine DHS and its growth, I want you to know that I and many others in the emergency management community across the country are deeply concerned about the direction FEMA is headed. First, we are greatly concerned that the successful partnership that was built between local/state/federal partners and their ability to communicate, coordinate, train, prepare, and respond has been sharply eroded. Second, FEMA, having lost its status as an independent agency, is being buried beneath a massive bureaucracy whose main and seemingly only focus is fighting terrorism while an all hazards mission is getting lost in the shuffle.
I firmly believe that FEMA should be extracted from the DHS bureaucracy and reestablish it as an independent agency reporting directly to the President, but allowing for the Homeland Security Secretary to task FEMA to coordinate the Federal response following terrorist incidents. Third, the FEMA Director has lost Cabinet status and along with it the close relationship to the President and Cabinet Affairs. I believe we could not have been as responsive as we were during my tenure at FEMA had there had been several levels of Federal bureaucracy between myself and the White House. I am afraid communities across the country are starting to suffer the impact of having FEMA buried within a bureaucracy rather than functioning as a small but agile independent agency that coordinates Federal response effectively and efficiently after a disaster.
FEMA was assembled in 1979 in much the same way that the various agencies of DHS have been put together. Although the reorganization that brought the various agencies together under FEMA was on a much smaller and more manageable scale, it took our country close to 15 years to get it right. When FEMA was formed there were several cultures all being thrown together under one new roof. The dominant "top down" culture within early FEMA traced its roots to the days of civil defense. This culture was probably necessary for those types of national security oriented activities. As a State Director of Emergency Management, I was often on the receiving end of FEMA's "top down," rigid, and sometimes inflexible approach. It is for this reason that I was determined, as FEMA Director, to take the Agency in a new direction. I wanted to move towards becoming an organization where the needs of the stakeholders and employees were valued and heeded. DHS is struggling with growing pains similar to what FEMA struggled with for the first 15 years of its existence.
However, I continue to be concerned about the scope of the task that has been given to Under Secretary Hutchinson and Secretary Ridge. FEMA was an agency of 2,600 permanent employees and 4,000 disaster reservists and it took 15 years to get on the right track. The reorganization taking place with DHS is several scales above the FEMA reorganization and they are being asked to accomplish this massive effort in a world full of uncertainty regarding future terrorist activity and the certainty of future natural disasters. As you may know, I was not in favor of creating such a large Department all at once. I supported the creation of a Department of Homeland Security, but I do not think this was accomplished in the right way. I always thought we should start with the areas that needed the greatest and most immediate attention--specifically those activities involving the gathering, assimilation, and dissemination of terrorist intelligence to state and local officials. Also, I thought it made sense to engage in efforts to improve the security of our most vulnerable critical infrastructure and targeted industries. I felt that many of the pieces in place to manage the consequences of a disaster or terrorist attack were not broken and didn't need "fixing." I saw no need to reinvent the wheel on the consequence management side of emergency management--particularly when there were several other more pressing areas that needed to be addressed regarding counterterrorism efforts.
In an effort to build other Directorates within DHS that need more help, vital pieces of the Emergency Preparedness and Response Directorate--FEMA--are being moved or underfunded to prop up these other very critical areas. Programs--like the very successful Fire Grants--are being moved out of FEMA. And the Emergency Management Performance Grants (EMPG) which provide the backbone to our emergency management systems are being cut and significantly restructured in a very detrimental way. In fact some estimates suggest that the 25-percent cap on personnel costs within the EMPG could result in more than half of the country's 4,000-plus emergency managers losing their jobs. By throwing all of these disparate pieces together in the DHS stew, we have not only diluted the concentration on some of the most critical parts of our counterterrorism efforts, but we are allowing scarce resources to be directed away from consequence management. Our Nation's emergency management system has often been held up as an international model; however, this country's well-oiled emergency management infrastructure--that has been built over many years--is now in great jeopardy as DHS attempts to build capabilities in other areas of the Department.
Imagine if Witt--or anyone with such expertise--had been running FEMA in recent years. How many less deaths would there have been in New Orleans and Mississippi? That question cannot be answered. But it is clear that Bush, Chertoff and Brown let FEMA slide. And the cost for that is dead bodies floating in the dirty waters of New Orleans. Now there's a debate over what investigation will come in Katrina's wake. Senators Susan Collins and Joseph Lieberman--who led the effort to create the DHS that swallowed up FEMA--announced on Tuesday that their government affairs committee would conduct hearings. Tom DeLay, though, seemed to say he was not eager to see any House committees do the same. And Bush vowed that he would look into "what went wrong" but did not endorse the creation of an independent investigation. As the Bush administration and the Republican Congress dither over this, here's a suggestion: at least one investigation should be independent of the administration, and it should be led by James Lee Witt.
I posted the below on my blog: www.davidcorn.com. Please visit that site for other items on Hurricane Katrina and other matters.
I confess: I have a hard time saying William Rehnquist, rest in peace. Supreme Court Chief Justice Rehnquist, who died on Saturday night, spent much of his adult life trying to restrict the rights of American citizens and to empower further the already-powerful. He rose to prominence as a right-wing attorney who decried the Earl Warren court for being a hotbed of judicial activism (left-wing judicial activism, as he saw it). He then became, as a Supreme Court justice, a judicial activist of the right-wing sort, overturning laws made by Congress (that protected women against domestic violence, banned guns near school property, and prohibited discrimination against disabled workers) and steering the justices into Florida's vote-counting mess in 2000 (an act that only coincidentally--right?--led to George W. Bush's presidency). In that case--Bush v. Gore--Rehnquist, for some reason or another, placed aside his much heralded belief in state sovereignty, which led him on other occasions to grouse about limits on the abilities of states to execute criminals. When it came to states frying prisoners, he advocated a hands-off approach. In vote-counting, he was all for intervention.
But let's be clear: in recent years there has been no other Supreme Curt justice who had a personal history so loaded with racism--or, to be kinder than is warranted, tremendous insensitivity to racial discrimination--as did William Rehnquist. As a law clerk for Justice Robert Jackson in the early 1950s--when the Court was considering the historic Brown v. Board of Education school desegregation case--Rehnquist wrote a memo defending the infamous 1896 decision, Plessy v. Ferguson, which established the separate-but-equal doctrine. Rehnquist noted, "That decision was right and should be reaffirmed." In other words, he favored continuing discrimination and racial segregation. During his 1971 confirmation hearings, after he was nominated to serve as an associate justice on the Supreme Court, he said that memo merely reflected Jackson's view not his own. But few historians have bought that shaky explanation.
It's not hard to conclude that Rehnquist was on the wrong side of history and then lied about it--especially given actions he took later. In 1964, Rehnquist testified against a proposed ordinance in Phoenix that would ban racial discrimination in public housing. As The Washington Post notes in today's stories on his death, Rehnquist wrote at the time, "It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual liberty for a purpose such as this." In other words, people are not truly free if they are not free to discriminate. In his 1971 hearings, Rehnquist repudiated that stance. But did he really mean it? Twelve years later, he was the only justice to say that Bob Jones University--that hotbed of racial discrimination and religious bigotry--had a legal right to keep African-Americans off its campus.
"He Lived for The Law"--that's how AOL headlined the story on Rehnquist's death. But it's not that Rehnquist had a blind spot on race. He was an active proponent of discrimination. Yet this fellow--without truly making amends--became chief justice of the highest court of the land. Only in America.
What will George W. Bush do now? Elevate Antonin Scalia to chief justice? Appoint someone who's not already on the court to the job? Will he wait until after the hearings on John Roberts to name his pick? That would be good politics. It would be foolish to add any other factor to the Roberts confirmation process, which, from a White House perspective, is going rather well. In the aftermath of Hurricane Katrina, might Bush look to Edith Clement, a conservative federal appellate judge from New Orleans? Or how about Janice Rogers Brown, an African-American woman and sharecropper's daughter who is now a far-right California state judge (who seems to hate the federal government)? After all the recent talk about poor black people being shafted in New Orleans by the US government, Bush might enjoy standing in the Oval Office with Brown and talking about her personal story. [UPDATE: I know. Bush has tapped Roberts to replace Rehnquist as Supreme Court jefe. Some Dems are asking Bush to announce his choice for the Sandra Day O'Connor vacancy before they have to vote on Roberts, But it's unlikely the White House will yield to this request. The smart political move on Bush's part is to get Roberts confirmed and then pick a new fight.]
No doubt, Bush will make a selection that's better for him than the country--and he will announce his choice at a time and in a manner that best serves his administration. In the meantime, as Rehnquist's impact on America is considered, it ought not be forgotten--particularly at a time when we see how the poor of New Orleans have been neglected--that Rehnquist was at times all too willing to forget about the rights of those less fortunate than he.