Tuesday, May 31, 2005

Supreme Court Reverses Arthur Andersen Conviction

The Supreme Court unanimously reversed the conviction of the CPA firm, Arthur Anderson, on charges related to the Enron scandal. Andersen was convicted of obstruction of justice for destroying documents related to its audits of Enron and to what Anderson's personnel knew of the accounting fraud. The grounds for reversal concerned the jury instructions. The critical part of the jury instructions concerned the definition of "corruptly persuades":
To "persuade" is to engage in any non-coercive attempt to induce another person to engage in certain conduct. The word "corruptly" means having an improper purpose. An improper purpose, for this case, is an intent to subvert, undermine, or impede the fact-finding ability of an official proceeding.


The Supreme Court found that the trial court erred by excluding "dishonestly" and adding "impede" in the instrustions.

These changes,” wrote the chief justice, “were significant. “[D]ishonest[y]” was no longer necessary to a finding of guilt, and it was enough for [Andersen] to have simply “impede[d]” the Government’s factfinding ability. “Impede” has broader connotations than “subvert” or even “undermine,” and many of these connotations do not incorporate any “corrupt[ness]” at all.

All organizations with record retention policies can breathe a little easier after the Court's ruling today.

I heard one news report that included the fact that the reversal of the conviction does not mean that Andersen is innocent. It is strange that this thought does not seem to make into news reports of reversals of convictions of individuals who commit murder.

Monday, May 30, 2005

Memorial Day

Today is Memorial Day. Originally established as a holiday to remember those who died in the Civil War, Memorial Day is a day to remember all those in all our wars who have sacrificed their lives for America. We who enjoy the benefits of living in America owe so much to those who died fighting for America.

Please take a moment this Memorial Day to remember and to appreciate the sacrifice of those who have made possible the freedoms and the good life that we enjoy in America.

Sunday, May 29, 2005

France Votes "No"

The French election result is in. Instapundit says, France has voted "no" on the proposed EU constitution. The BBC puts the "no" vote at nearly 56%. The French fear of markets and love of socialist benefits appears to have played a mahor role in the rejection.

See Jay Reding for some likely effects of the vote.

Election Day in France and Lebanon

The people of France are voting today on ratification of the proposed constitution for the European Union. A "no" vote is expected.

The people of Lebanon are voting to day on who will be in the first national government since Syria withdrew its troops. Cross your fingers for Lebanon. They deserve better than they have had lately.

Senate Compromise: Did Democrats Break Commitment Before Ink Was Dry?

This past Monday evening, the group of 14 senators signed a compromise deal on filibusters of judicial nominees. The deal did not specifically address the fate of 2 controversial nominees, Brett Kavanaugh and William Haynes, whose nominations were still pending in committee. An unconfirmed report spread that the group of 14 had an unwritten agreement to kill the nominations of Kavanaugh and Haynes. Some of the Republican signatories to the deal have denied any such unwritten agreement.

Now, we have a report on the fate of these 2 nominees (via PoliPundit):

In the privacy of his Capitol office last Monday night, Sen. Harry Reid, D-Nev., asked for commitments from six Democrats fresh from the talks. Would they pledge to support filibusters against Brett Kavanaugh and William Haynes, two nominees not specifically covered by the pact with Republicans?

Some of the Democrats agreed. At least one, Sen. Ben Nelson of Nebraska, declined.

Details of Reid's attempt to kill the two nominations within minutes of the agreement, as well as other events during this tumultuous time, were obtained by The Associated Press in interviews with senators and aides in both parties. They spoke on condition of anonymity, citing confidentiality pledges.


If this report is true, some of the Democrat signatories, but not including Sen. Nelson (D-Neb.), are operating in bad faith and broke their commitment to support future filibusters only in "extraordinary circumstances". The truth of this report will become apparent when the nominations of Kavanaugh and Haynes are reported out of committee to the full Senate. If some of the Democrat signatories do support a filibuster of either of these nominees, I hope the Republican signatories have enough backbone to support a rule change to end filibusters of judicial nominees.

Saturday, May 28, 2005

Democrats Refuse to Join Medicaid Committee

In Washington's newly discovered spirit of bipartanship, Senate and House Democrats are refusing to participate on an advisory Medicaid Committee. The purpose of the committee is to recommend ways to modernize Medicaid so that the program can provide high-quality health care in a financially sustainable way. The Democrats object to being nonvoting members (same as Republicans) and to finding ways to cut Medicaid spending. For further information, see here, here, and here.

Friday, May 27, 2005

Lebanon: Hezbollah Defies U.N. Resolution

In September 2004, the U.N. adopted a resolution demanding that Syria withdraw all its forces from Lebanon and that all militias in Lebanon disarm. Syria pulled out the last of its forces in April.

This week, Hezbollah has announced that it will defy the U.N. resolution and will fight to keep its arms. Hezbollah has Iran's support. According to Hezbollah chief Sheikh Hassan Nasrallah, "... if anyone, anyone, thinks of disarming the resistance we will fight them ... ."

Iran Foreign Minister Kamal Kharrazi claims that the government of Lebanon has said that Hezbollah is not a group subject to the U.N. resolution. Mr. Kharrazi neglects to mention that the government of Lebanon has been a puppet of Syria, which also has backed Hezbollah, and does not speak for the people of Lebanon. The long-suffering people of Lebanon want freedom and peace and do not deserve Hezbollah's militant defiance.

Does anyone want to bet that the U.N. will do nothing other than talk and pass more resolutions?

Iraqi Street Justice for Terrorists

Iraqi citizens have lost patience, not to mention sympathy, with terrorists. See how Iraqis handled 2 terrorists who were captured before they could carry out their mission (from Hammorabi via Gateway Pundit):

Few hours ago the Iraqi civilians in the centre of Baghdad near Haifa Street captured two terrorists before they carry on their crime.

This is not the first time that the Iraqis capture terrorists before the cockroaches commit their filth but this time the people perseverance with postponing justice by the government has finished and they decided to carry out immediate justice.

After capturing the terrorists the brave civilians impose the justice the criminals deserve. They hanged them in the street and made them a lesson and warning for the others.
The Iraqis themselves harbor no illusions and recognize the terrorists for what they are. The Iraqis are fed up. So, when the locals capture terrorists, the Iraqis mete out street justice on the spot.

The Iraqis do not believe that the terrorists are insurgents or freedom fighters. The terrorists are the deadly enemy of the Iraqi people. The people of Iraq know this. As this incident shows, the Iraqi people want to capture the terrorists, to kill them, and to defeat them.

When will Michael Moore and the American radical left recognize this reality?

Thursday, May 26, 2005

Irresponsible Senate Democrats - Part 2

My post Monday on Irresponsible Senate Democrats drew a thoughtful comment from Seth Chalmers. He takes the other side. Although the Senate compromise has made the filibuster a less immediate matter, I still must take issue with a couple of the points he advocates.

First, on a side issue to the main question of whether the Senate Democrats were behaving responsibly or not when they filibustered several of Pres. Bush's judicial nominees, Mr. Chalmers says that "the Constitution does not specify that [the Senate] must [give advice and consent] through an up-or-down vote, majority or otherwise." In fact, the Constitution does require a simple majority, but not more, to consent to the appointment of a judicial nominee. See my post on What the Constitution Requires for Judicial Appointments. When the Constitution requires a supermajority, as it does for treaties, it expressly says so. The absence of a supermajority requirement for Senate advice and consent on judicial nominees shows clearly that a simple majority of the Senate is all that is ever required.

The main point of the original post was that the Senate Democrats are acting irresponsibly when they refuse to allow a vote on judicial nominees. Mr. Chalmers suggests that the Senate could act some way other than through a vote. If so, the filibuster would lose its significance. For example, while the Democrats were filibustering, all (or at least 51) of the Republicans could sign a document to give advice and consent to the appointment of the judicial nominee. A court case on the authority of the judge so appointed would surely follow after the judge's first decision. Can you confidently predict the outcome? Who wants to take that chance?

Anyone who thinks the Senate Democrats were acting responsibly when they filibustered judicial nominees should consider other situations in which the Senate alone has the constitutional authority to perform. Imagine that a terrorist gets through security and blows up the Supreme Court while in session, killing all 9 justices. When Pres. Bush appoints 9 conservative Republicans, the Senate Democrats filibuster all 9. The Supreme Court positions remain vacant for years. Would that be responsible?

Imagine that the electoral college does not produce a winner in 2008. The House of Representatives is unable to select a president from among the top 3. Meanwhile, the Senate Democrats, still in the minority, filibuster to prevent the Republicans from selecting the Republican for Vice President, who would become President on January 20 until the House finally puts together a majority of states for one candidate. Would the Senate Democrats be acting respomsibly?

Whenever the Senate has constitutionally mandated duty, the minority is not acting responsibly if they block the Senate from performing its duty.

Tuesday, May 24, 2005

Senate Compromise - Unwritten Agreement to Dump Two More?

As noted in an earlier update, an unwritten part of the compromise agreement, which has not been confirmed, will deny confirmation to 2 nominees not named in the deal, Brett M. Kavanaugh and William J. Haynes. If the unwritten agreement exists, the Democrats have succeeded in blocking 7 of President Bush's nominees to the appellate bench: Miguel Estrada, Charles Pickering, Carolyn Kuhl, Henry Saad, William Myers, William Haynes, and Brett Kavanaugh. Only 3 of the filibustered nominees survived.

I need reminding. What was the purpose of electing more Republican senators?

Does it look to you that the Republican signatories bargained well? Would you want any of them to bargain on behalf of the U.S. on an important matter? And yes, I am suggesting that John McCain would be a weak and ineffective negotiator as President.

Senate Compromise - Overview

I have had overnight to consider the Senate compromise and its likely effects. Overall, the compromise seems to give the Democrats most of what they consider essential and the Republicans have only a hope of coming out even.

The Democrats preserve their right under Senate rules to filibuster President Bush's judicial nominees, at least through 2006. The 2 sides split the baby with respect to pending nominees. As to future nominees, the Republicans gain up-or-down votes without a filibuster, except in "extraordinary circumstances" as defined by each member using "his or her own discretion and judgment".

The "extraordinary circumstances" loophole is bigger than it appears at first glance. Is a Supreme Court nomination an extraordinary circumstance? Is there an extraordinary circumstance if President Bush nominates Miguel Estrada again? In the final analysis, only each Democrat signatory will know what "extraordinary circumstances" when the nominations come to the floor of the Senate in the context of whatever the political environment may then be.

Thus, the ultimate outcome of the compromise hinges entirely on whether the Democrat signatories will find "extraordinary circumstances" regarding a future nominee. I suspect that the group of 14 senators has discussed at some length the meaning of "extraordinary circumstances". They may have a list of potential Supreme Court nominees whose nomination would not constitute "extraordinary circumstances". If the Democrat signatories do not find "extraordinary circumstances" exist for future nominees, the Republican signatories will have achieved a nearly even deal, but hope is all they have for now.

Did the Republicans gain anything they could not have if they voted to end judicial filibusters? The answer depends on what the outcome of such a vote would be. If the vote would have eliminated the filibuster weapon, the answer is that the Republican senators gained only not having to make a hard vote and not subjecting the Senate to even greater Democrat obstruction in the Senate. Frankly, neither of these is worth much. If the vote to eliminate the filibuster would have failed, then the Republicans do gain a lot, especially up-or-down votes without filibusters.

Overall, the Democrats, even the nonsignatories, are happy with the compromise because they achieve their most important objective, preserving the filibuster of judicial nominees. The Republicans must realize that, at best, they achieve a mixed result with no guarantee that they will achieve their most important objective, obtaining up-or-down votes on nominees without filibusters.

UPDATE: Although not yet confirmed, Bench Memos, the New York Times, and ConfirmThem report that, by an unwritten part of the compromise agreement, 2 nominees not named in the deal, Brett M. Kavanaugh and William J. Haynes, will not be confirmed, by action either at the committee level or on the floor. If true, this means the Republican signatories dumped 4 of 7 current nominees who would probably be confirmed by a majority vote of the full Senate.

Senate Compromise - Advice and Consent

The signatories to the compromise try to limit the President's discretion to make judicial nominations. The text of the agreement says,
We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

First, the senators misconstrue, perhaps deliberately, the "advice and consent" clause. It reads, "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." Using oridnary construction of the English language, the "advice and consent" clause modifies only "shall appoint" and does not modify "shall nominate". The President, whether this President or any past or future President, has the power to nominate whomever he pleases without consulting the Senate. That is, the Constitution vests the power of nomination solely in the President, but the Constitution limits the President's power of appointment by requiring the advice and consent of the Senate.

Second, the senators misread history if they believe that "the early practices of our government" included "consult[ing] with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration". This recommended practice would be a departure from current and historical practice.

Third, this part of the agreement seems to give the Democrats something they no doubt crave--a provision they can cite as a bipartisan slap at President Bush. That is, all the current rancor was caused by President Bush, not by the Democrats who were defending the country against extremist judicial nominees.

Finally, the President did not agree to this provision. Neither President Bush nor his successor, whether Republican or Democrat, will agree to this limitation on the President's prerogative to choose judicial nominees.

Senate Compromise - Rules Changes

The compromise agreement provides that the signatories "commit to oppose the rules changes in the 109th Congress". This means no rules changes through 2006. In effect, the Democrats achieve their primary objective to preserve the option to filibuster judicial nominations.

If the Democrats claim "extraordinary circumstances" to filibuster a future nominee, things will get interesting. I think the Republicans have set themselves up for a possible fall. Though the "extraordinary circumstances" language provides lots of wiggle room for the Democrat signatories to support a filibuster, the "commit" and "continuing commitments" phrases give very little wiggle room for the Republican signatories to support a rules change. The Democrats can always claim "extraordinary circumstances", which, like beauty, is in the eye of the beholder; but the Republicans will not so easily be able to justify support for a rules change.

Senate Compromise - Future Nominees

Under the compromise, future nominees will receive a vote (that is, no filibuster) except "under extraordinary circumstances". The key term "extraordinary circumstances" is not defined. The agreement only says that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist".

The failure to define the key term makes this compromise an agreement to agree in the future. The reservation of "discretion and judgment" by each signatory reinforces that conclusion. As the President makes nominations, each of the 14 senators will make an individual determination of whether there are "extraordinary circumstances". There are no parmameters, boundaries, or factors to guide each senator in making the determination.

If any part of the agreement will cause the compromise to blow up, this is it. If 2 Democrats decide there are "extraordinary circumstances", a filibuster will ensue. What will the Republican signatories do? If they sit on their hands and do nothing, they will have received very little in return for their signatures on this compromise. If they move to cut off debate, we will be back to where we are now, but with recriminations flying over who is to blame.

This section of the agreement shows how eager the signatories were to reach a compromise and to avoid a vote on the so-called nuclear option.

Senate Compromise - Pending Nominees

The compromise specifically addresses 5 pending nominees. Of the pending nominees, the Senate will vote on 3, "Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit)".

Two other pending nominees, "William Myers (9th Circuit) and Henry Saad (6th Circuit)", will not likely receive a vote. Regarding Myers and Saad, the deal only says that no one makes any agreement to vote one way or the other on cutting off debate. The effect is that the Democrats will filibuster Myers and Saad without end and will thus block them from ever receiving a vote.

The deal implies that no other nominations are pending and will be treated as future nominees.

Monday, May 23, 2005

Compromise on Judicial Filibusters - Text of the Deal

A group of 14 senators, 7 Democrats and 7 Republicans, has reached a compromise on judicial filibusters. The text of the deal follows:

MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.

I will analyze the deal in later posts, taking one subpart at a time.

No Compromise Will Work

A group of 6 or 7 Dmocrats and 6 or 7 Republicans is trying to reach a compromise on judical filibusters. A compromise that is acceptable to Democrats must include no rule change. A compromise that is acceptable to Republicans must include an agreement not to filibuster nominees who are not extreme. There appears to be some small room for a compromise.

However, any compromise will be fool's gold because no compromise is likely to work to the satisfaction of both parties. If the Republicans agree not to change the filibuster rule, the Democrats will filibuster some nominee later on the ground that he is extreme or otherwise unsuitable for the bench. If the nominee is for the Supreme Court, you can rest assured that the Democrats will filibuster any conservative nominee. If the Democrats give up the right to filibuster judicial nominees in all except truly (to Republicans) extraordinary circumstances, the Democrats will not be able to block any nominees, assuming Pres. Bush does a good job of vetting nominees.

Thus, a compromise can only delay the inevitable showdown on judicial filibusters. If the senators of both parties today consider the rule change a politically hazardous vote, what will they think of it closer to election day? What will they think of it when the nomination is for the Supreme Court and the rule change is front paghe news?

UPDATE: Of course, while I was writing this piece, a compromise has been reached. I still have reservations about whether the deal can work satisfoactorily for both parties.

Irresponsible Senate Democrats

The U.S. Constitution makes the reasonable assumptions that the individuals serving in the Senate (or in the House of Representatives or as President) will perform the duties of the office and will act responsibly. The voters make the same assumptions when they elect individuals to office. However, once an individual is in office, he can refuse to perform his duties responsibly, and usually nothing can be done about it.

The Constitution gives the Senate the task of giving advice and consent on the President's judicial nominees. What happens when the Senate, because of its filibuster rules, fails to act? The Constitution gives no answer. The President can not call out the National Guard to force the Senate to vote on a nominee. (If he did, can you even imagine the fallout from such an act?) The federal courts can not order the Senate to vote on a nominee. (Separation of powers and political question issues would preclude any lawfully acting court from intervening.)

Clearly, the Senate is left to its own devices in performing its constitutional duties in a responsible way. The Senate, and only the Senate, has the constitutional duty to advise and consent on judicial nominees by majority vote. The Senate can only carry out this duty if it takes a vote on the nomination. The Senate can vote against a nominee, thereby denying consent; or the Senates can vote for a nominee, thereby giving consent. The failure to vote at all is a failure to act responsibly in performing the constitutional duty of advice and consent.

That is the situation we have come to for the first time since 1789, when the Constitution took effect. The Senate has, since 2003, allowed a willful minority, the Democrats, to use the filibuster to block the Senate from voting at all on at least 10 nominees who would be confirmed by the majority. This is a failure to perform a constitutional duty, an irresponsible act. The Senate, and only the Senate, has the power to change its rules so that responsibility prevails.

It is a shame that it has come to this. However, in the real world, which includes the Senate, there will always be people who will abuse the rules. When abuse of the rules prevents the Senate from performing its constitutional duties, the rules must be changed.

The Democrats have been abusing the filibuster rule since 2003 in order to satisfy certain of their interest groups. Their partisanship is hardly noble. Since the Democrats refuse to behave responsibly, the time has come for the Senate as a whole to change the filibuster rule so that the Senate may perform its constitutional duty.

Friday, May 20, 2005

Poll: Americans Support Filibuster Rule Change

Good news on the public's views regarding the filibuster of judicial nominees. According to a Rasmussen poll,

By 49%-23%, Americans believe every judicial nominee should receive a vote.

By 57%-25%, Americans believe the Senate should change its rules.

By 55%-25%, Americans believe that, if the Senate changes its rules, Democrats should not shut down the Senate.

(hat tip to Alexander K. McClure at Polipundit)

These results are highly encouraging. The clear majority of Americans favor the Republican position to change the rules if necessary to allow votes on judicial nominees. The clear majority of Americans oppose any Democrat retaliation for the rule change. Senate Republicans now know that they have great public suport to proceed to a vote on changing the Senate rules to prohibit filibusters of judicial nominees.

If I were a Democrat in the Senate, I would move my focus to the individual nominees. By 44%-39%, Americans trust Senate Democrat more than President Bush on judicial nominees. The current focus of Democrats to block a vote on so many judicial nominees works to their disadvantage because it goes strongly against the public's sense of fair play.

But, since I am a Republican, I encourage the Democrats to deny up-or-down votes, to filibuster nominees, to oppose rules changes to allow up-or-down votes, and to shut down the Senate if the Senate changes its rules. Yes, go for it hard and publicly. That should help the Republicans to gain a seat or two in the 2006 elections and maybe even after that.

Are you paying attention Sen. Dorgan (D-N.D.), Sen. Nelson (D-Fla.), Sen. Landrieu (D-La.), Sen. Salazar (D-Colo.), Minority Leader Sen. Reid (D-Nev.)?

More importantly, are you paying attention Sen. McCain (R-Ariz.), Sen. Snowe (R-Me.), Sen. Collins (R-Me.), Sen. Hagel (R-Neb.), Sen. Chafee (R-R.I.), Sen. Warner (Va.), Sen. Lugar (R-Ind.),and Sen. Specter (R-Pa.)?

Bottom line: Do it, and do it now!

One Reporter Admits Media Bias

In an interview with Hugh Hewitt, Terry Moran, White House reporter for ABC News, admitted some of the mainstream media's bias:

... There is, Hugh, I agree with you, a deep anti-military bias in the media. One that begins from the premise that the military must be lying, and that American projection of power around the world must be wrong. I think that that is a hangover from Vietnam, and I think it's very dangerous. That's different from the media doing it's job of challenging the exercise of power without fear or favor.
Hewitt asked this question about Moran's employer, ABC:
[I]t's been 118 days since John Kerry promised Tim Russert he would sign the SF-180 form. I went to the ABC News website during the break, there is not one story on that promise, or its abrogation. Why is that?
Moran responded:
Well, it's not huge news, I'd say, but I don't make the decisions for ABC News. You know, it just doesn't seem to me to be something that the majority of the country's really clamoring for.
Then there was this this exchange about the anti-Bush and pro-Democrat tilt of the White House reporters:

Hewitt: Are there members of the White House Press Corps, Terry, who actually hate Bush?

Moran: I would say the answer to that is yes.

Hewitt: And what percentage of them, do you think that amounts to?

Moran: Uh, small, I would say, but some big fish.

Hewitt: What's your guess about the percentage of the White House Press Corps that voted for Kerry?

Moran: Oh, very high. Very, very high.

Hewitt: 95%?

Moran: Huh?

Hewitt: 95%?

Moran: No, I don't think that high. But I would certainly say, you know, it's hard for me, but I'd guess it's in ... upwards of 70, maybe higher. You know, it's hard for me to say, but I would say very, very high.
Lastly, there was this exchange on Rathergate:

Hewitt: Now, I get the last question here. Do you think the documents in the CBS scandal were fake?

Moran: Absolutely.

Hewitt: Then why has CBS refused to admit as much?

Moran: I have no idea. ...
There you have it. The mainstream media is anti-military, anti-Bush, and pro-Democrat, and even an ABC News reporter knows the documents in the CBS scandal were fake.

Read the whole interview.

Thursday, May 19, 2005

Short History of Events Leading to "Nuclear Option"

How did the Senate get to the point that Republicans must change the filibuster rule to stop the Democrats from blocking numerous judicial nominees? A brief summary of events:

Democrats in 2002 had controlled the Senate and the Judiciary Committee and had rejected the nomination of Charles W. Pickering, Jr. of Mississippi. The 2002 elections put Republicans back in the majority. In 2003, Bush renominated Pickering for the appellate bench, making Democrats furious. Unable to reject Pickering's nomination on an up-or-down vote, Democrats decided to filibuster Pickering.

Democrats next decided to filibuster the nomination of Miguel Estrada.

When Democrats also decided to filibuster the nomination of Miguel Estrada, Sen. Stevens (R-Alaska) raised the possibility among his Republican colleagues of having the presiding officer rule that the Democrats could not filibuster a judicial nominee. Republican support for Stevens's plan increased when they discovered Democrat staff memos talking of several more filibusters. Sen. Frist (R-Tenn.), the then-new Majority Leader, hesitated to take the step of changing the filibuster rule. In any event, Frist lacked the votes to change the rule. Frist told conservative groups that he would move to change the filibuster rule if Republicans gained 2 seats in the next elections in 2004.

In the 2004 elections, Pres. Bush won re-election, the Republicans gained 4 Senate seats, and Sen. Daschle (D-S.D.), the leader of the Democrats in their efforts to block judicial nominees, lost his bid for re-election in a race focusing on his obstruction tactics. Instead of taking Daschle's defeat as a sign from voters to retreat, the Democrats, now led by Sen. Reid (D-Nev.), decided to continue to filibuster several of Bush's judicial nominees to the appellate courts. Both camps had committed themselves to their positions, leaving little room for compromise.

Read a more complete story. (hat tip to Viking Pundit)

Democrats Who Wanted up-or-down Votes on Judges

Quotes from Democrat Senators when they opposed the filibuster: (hat tip to Bench Memos)

Biden (Del.), March 19, 1997: “I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor.”

Boxer (Cal.), May 14, 1997: “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.”

Daschle (S.D.), October 28, 1999: “[I]t is wrong not to have a vote on the Senate floor.” (Congressional Record)

Durbin (Ill.), September 28, 1998: “We should meet our responsibility. I think that responsibility requires us to act in a timely fashion on nominees sent before us. ... Vote the person up or down.”

Feinstein (Cal.), October 4, 1999: “Our institutional integrity requires an up-or-down vote.” (Congressional Record)

Harkin (Ia.), June 22, 1995: "[O]nce and for all, put behind us this filibuster procedure on nominations." (Congressional Record)

Kennedy (Mass.), February 3, 1998: “We owe it to Americans across the country to give these nominees a vote.”

Kohl (Wis.), September 21, 1999: “These nominees, who have to put their lives on hold waiting for us to act, deserve an ‘up or down’ vote.” (Congressional Record)

Leahy (Vt.), June 18, 1998: “I have stated over and over again … that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.” (Congressional Record)

Levin (Mich.), June 21, 1995: "If a bipartisan majority of the U.S. Senate is prepared to vote to confirm the President's appointment, that vote should occur." (Congressional Record)

Reid (Nev.), June 9, 2001: “[W]e should have up-or-down votes in the committee and on the floor.” (on CNN’s “Evans, Novak, Hunt & Shields”)

Schumer (N.Y.), March 7, 2000: “[W]e are charged with voting on the nominees. The Constitution does not say if the Congress is controlled by a different party than the President there shall be no judges chosen.” (Congressional Record)

(Go read all the quotes.)

Remember these quotes the next time that one of these Senators speaks in favor of the filibuster of judicial nominees.

Democrats Once Proposed to End All Filibusters

In 1995, senior Democrats introduced a proposal to eliminate all filibusters, not only the filibuster of judicial nominees. The proposal received the votes of 19 Democrats, including Senators Harkin (Ia.), Kennedy (Mass.), Kerry (Mass.), and Lieberman (Conn.).

Remember that the next time you hear a Democrat defending the filibuster of judicial nominees.

Filibuster Exceptions Contained in 26 Laws

Sean Rushton did some research and found that at least 26 laws abolish the filibuster for certain matters. For example:

(1) The Congressional Budget and Impoundment Control Act of 1974 prohibits the filibuster of a federal budget resolution.

(2) The War Powers Resolution prohinits the filibuster of a resolution authorizing the use of force.

(3) The Bipartisan Trade Promotion Authority Act of 2002 prohibits the filibuster of international trade agreements.

(4) the Nuclear Waste Policy Act of 1982 prohibits the filibuster of legislation under the Nuclear Waste Policy Act of 1982.

Some matters are too important to be blocked by a filibuster. Remember that when you hear the Democrats claiming that the filibuster is untouchable.

Democrats Retreat on Total Senate Committee Shutdown

Yesterday, Democrats refused to allow Senate committee meetings to proceed. The Senate Foreign Relations Committee had scheduled hearings on Iran's nuclear plans, which is a national-security issue.

This morning, no doubt sensing a public relations disaster in the making, Democrats exercised a little common sense and are allowing the hearings to go forward. A victory for common sense and the good guys.

Times Omits Mention of Senate Committee Shutdown

I just read the New York Times online article on the Senate's fight over judicial filibusters. The article does not mention that the Democrats on the first day of debate shut down the Senate committees.

Does this omission indicate that the Democrats' action will be viewed unfavorably by the public and therefore will not be mentioned by the Times? Is this another example of bias in the mainstreeam media?

Wednesday, May 18, 2005

Senate Showdown Has Begun

The battle over Senate judicial filibusters has been joined. The debate has begun.

Democrats are the first to escalate the battle. According to ConfirmThem, They refused to consent to Senate committee meetings. In other words, Senate committees may not meet regarding legislation and other business. The Democrats are carrying out their threat to shut down the Senate.

Newsweek Double Standard

The mainstream media (MSM) have one strict, unforgiving standard for the Bush administration and a different loose, understanding standard for Newsweek and the rest of the MSM.

As everyone knows by now, Newsweek printed a story that interrogators at Guantanamo flushed a Koran down a toilet. As a result of the story, Muslims rioted in several locations, and at least 16 people died.

Newsweek displayed a lack of cultural awareness when it printed the story. Newsweek did not anticipate such a strong reaction by many Muslims. Of course, the MSM completely forgives Newsweek for its being understandably blindsided by the Muslims' reaction that could not conceivably have been anticipated. On the other hand, Newsweek and other MSM have castigated the Bush administration when Iraqis and Afghans reacted negatively (as should have been expected, per the MSM) to U.S. military and governmental actions.

Newsweek relied on a usually reliable source and 2 failures by government officials to deny the story. (The source backtracked after the furor broke out, and the failures to deny were most definitely not confirmations of the story.) Of course, the MSM supports Newsweek's understandable reliance on its proper journalistic practices. The MSM even attacks (see here and here) the Bush administration for giving false information to Newsweek and for pressuring Newsweek to retract the story. In other words , when the MSM errs, it must be the fault of the Bush administration.

In contrast, when the Bush administration, along with everyone else on the planet, discovered after the Iraq war that Saddam did not have any WMD, its reliance on the CIA and the intelligence services of Britain, France, Germany, and other nations was misplaced, and the mistake demonstrated that the Bush administration was lying about Iraq's WMD to justify its desire to go to war with Iraq.

The entire episode of the Newsweek story and the MSM spin on it reminds us that the MSM are horribly one-sided and biased. The standard of conduct depends wholly on who the actor is. The Bush administration is held to an impossibly high standard, with no room for mistakes or misjudgments even in uncertain and highly charged situations requiring rapid decisions. But, if Newsweek, CBS, the New York Times, and the rest of the MSM get a story wrong, even if the error is egregious and causes deaths, that is not an indictment of their journalism practices and their thoroughly ingrained bias, but is justifiable to get the fake but accurate story out to beat a deadline.

Tuesday, May 17, 2005

Should DemocratsThink About 2009?

Just a thought. In voting on the judicial filibusters, will Senators Kerry (D-Mass.) and Clinton (D-N.Y.) consider what will happen in 2009, when one of them (or another Democrat) may be the President nominating judges?

As I said, it is just a thought. But, if Kerry or Clinton wins in 2008 after backing judicial filibusters now, what chance will any of their judicial nominees for the appellate bench have?

Be careful what you wish for (now), you may get it (in 2009).

Dean: Trial for Terrorists but Not for Republicans

Howard Dean, Democratic party chairman, reveals his grasp of the severity of the threats to this country. Alas (for him), he has been caught by bulldogpundit.

Showing a solid understanding of the disparity in threats to the U.S., Dean applies different standards of justice to Osama Bin Laden and Tom DeLay. Guess which one deserves a fair and impartial trial and which one deserves to go straight to jail without passing "Go"?

For Bin Laden:
"I've resisted pronouncing a sentence before guilt is found," Dean said. "I still have this old-fashioned notion that even with people like Osama, who is very likely to be found guilty, we should do our best not to, in positions of executive power, not to prejudge jury trials. So I'm sure that is the correct sentiment of most Americans, but I do think if you're running for president, or if you are president, it's best to say that the full range of penalties should be available. But it's not so great to prejudge the judicial system."
For DeLay:
"[G]o back to Houston where he can serve his jail sentence"
Sigh! Where does one even begin to explain to Dean the difference between Bin Laden and DeLay? On the other hand, maybe Dean sees the Republicans as a greater threat to the U.S. than Al Qaeda is. Maybe Dean's attitude explains why so many Democrats seem to have their priorities backwards.

Senate Showdown Near

The nomination of Priscilla Owen will likely be brought to the floor of the Senate tomorrow. The Owen nomination will probably be filibustered by Democrats. A vote, which might first be a test vote, may come as early as tomorrow or perhaps not until next week. Poor Country Boy Blog has several links.

Where the Dead Vote in Philadelphia

Where do they vote in Philadelphia? Check out this news item (via Polipundit):

[R]esidents of the 18th Division of the Twenty-Ninth Ward will be voting in a “Vacant Funeral Home". It has long been rumored that the dead vote in Philadelphia, but this is apparently the first time they've ever been given their own polling place.
I wonder if the "residents" find it convenient to vote at a "Funeral Home".

I'm just having a little fun with a news item that has a humorous aspect. Dead people don't cast votes in Philadelphia, do they?

Monday, May 16, 2005

Newsweek - The No-Retraction Retraction

Newsweek's story that Guantanamo interrogators flushed a Koran down a toilet turns out not to be true. Publication of the story resulted in riots and deaths in the Muslim world. Newsweek has finally and formally admitted a mistake and has retracted the story. Newsweek's editor released the following statement this evening: “Based on what we know now, we are retracting our original story that an internal military investigation had uncovered Koran abuse at Guantanamo Bay.”

In Newsweek's first admission of error, Newsweek states,
Their information came from a knowledgeable U.S. government source, and before deciding whether to publish it we approached two separate Defense Department officials for comment. One declined to give us a response; the other challenged another aspect of the story but did not dispute the Qur’an charge.

If I understand Newsweek's statement correctly, a fact is confirmed when one government official declines to respond and another does not address the fact. Newsweek needs a lesson in elementary logic and journalism. A failure to deny a fact is not confirmation of the fact. Disputing another fact without addressing the fact in question is not confirmation of the fact.

In spite of the apparent retraction, Newsweek's editor later told the New York Times in an interview, "We’re not retracting anything. We don’t know what the ultimate facts are.”

Maybe it would have been better (and would have spared a few lives) if Newsweek had originally said to itself, "We’re not printing anything. We don’t know what the ultimate facts are.”

Newsweek apparently believes that the standard to retract a false story is higher than the standard to print the same false story. How abusrd!

Newsweek would not have leaped so fast to print this story if it did not put Guantanamo and the Bush administration in a bad light. The bias in the MSM is extreme and colors every element of its news reporting, from selecting stories to reporting facts.

The editor and the reporters involved in this abysmal journalistic effort deserve to be fired. Does anyone believe that Newsweek will fire anyone over this?

Sunday, May 15, 2005

Newsweek Admits It Made Mistake

Newsweek earlier this month stated that interrogators at Guantanamo put the Koran in the toilet. Now it admits that this statement was an error. Newsweek relied on one source, which supposedly has been reliable in the past. Of course, basic journalism requires at least two independent sources for a story.

As a result of the Newsweek story, riots have broken out across the Muslim world, 16 people have been killed, and several Muslim clerics have declared jihad on the U.S. It appears that Newsweek jumped too quickly to put a black mark on the Guantanamo interrogations. I do hope the Newsweek reporter and editor are fired for this huge and unforgiveable error.

Saturday, May 14, 2005

Did CBS Do It Again?

CBS ran a news story this week claiming that Ken Starr said in an interview with Gloria Borger that the Republican effort to end the Democrat filibuster of judicial nominees was "a radical, radical departure from our history and from our traditions, and it amounts to an assault on the judicial branch of government". However, Starr has since said that he was referring to the filibuster itself and not the effort to end the filibuster. According to Starr,
The 'radical departure' snippet was specifically addressed -- although this is not evidenced whatever from the clip -- to the practice of invoking judicial philosophy as a grounds for voting against a qualified nominee of integrity and experience. ... I did indeed suggest, and have suggested elsewhere, that caution and prudence be exercised (Burkean that I am) in shifting/modifying rules (that's the second snippet), but I likewise made clear that the 'filibuster' represents an entirely new use (and misuse) of a venerable tradition....


Starr requested that CBS release its video tape for his review, but CBS refuses. Letting everyone see the video tape of the 20-minute interview would clarify exactly what Starr said and what the context was. CBS's refusal to release the video tape leads reasonable people to conclude that CBS has pulled another "Rather".

Monday, May 09, 2005

Judicial Nomination Anniversary

Today is the fourth anniversary of Pres. Bush's nomination of Priscilla Owen and Miguel Estrada for the appellate bench. Estrada gave up, but Owen's nomination is still alive. (Hat tip to Beltway Buzz on NRO)

Four years without a vote has to be a record. Isn't it time to have a vote on Owen?

Back in the Saddle

Posting has been slow to non-existent over the last 3 weeks due to vacation, flu (which took forever to go away), and DSL/phone line problems. Now, the universe appears to be inlalignment again, and posting is ready to resume.