"Trust Me"

What a generous offer....

The White House says it will make Karl Rove and former counsel Harriet Miers available to testify — but not under oath — about the dismissal of eight U.S. attorneys in 2006.

How could anybody look that gift horse in the mouth....

If Only Nixon Had Thought Of This....

According to USNews.com,

But in a little-noticed white paper submitted by Attorney General Alberto Gonzales to Congress on January 19 justifying the legality of the NSA eavesdropping, Justice Department lawyers made a tacit case that President Bush also has the inherent authority to order [warrantless] physical searches. ... The memo cites congressional testimony of Jamie Gorelick, a former deputy attorney general in the Clinton administration, in 1994 stating that the Justice Department "believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

(Note to Gonzales: Ditch the weasel words, stop trying to pass the buck or hide behind the opinions of others, show some backbone and state what you believe the law to be.)

In any event, I'm still trying to find the "except if you're the President" clause in the Fourth Amendment. (And isn't it terrifically activist to read a "foreign policy exception" into such plain language?)

The Weakened Standard, II

Yesterday I observed that William Kristol seems to believe that President Bush is incompetent. His latest editorial suggests that Bush is weak and stupid (or is there another way to read this):

Would any of his aides have the nerve to tell him that as Supreme Court jurists go, Gonzales would be mediocre--and not a solid bet to move the court in a constitutionalist direction? Would any of them have the nerve to explain to the president that a Gonzales nomination would utterly demoralize many of his supporters, who are sticking with him and his party, through troubles in Iraq and screw-ups with Katrina, precisely because they want a few important things out of a Bush presidency--and one of these is a more conservative court? Would any of them tell the president that risking a core item in the conservative agenda for the sake of either friendship, diversity, or short-term political spin, would be substantively wrong, and politically disastrous?

Maybe. And maybe Bush doesn't need all these reminders.

That last sentence seems designed to provide him with some plausible deniability if he is confronted with the obvious implications of his rhetorical questions. But "maybe"? Leaving aside Kristol's assessment of Gonzales, which appears driven by ideology as opposed to evidence, Bush is well aware of what his supporters expect (and demand) for the Supreme Court. With friends like Kristol....

Bush's larger problem is probably not that he will forget to appoint a "conservative", but finding another Roberts - somebody whose philosophies he believes will satisfy both his politically conservative base, while simultaneously satisfying religious "conservatives" who expect his nominees to overturn Roe v Wade, to permit greater state subsidy of religious organizations and a greater role for religion in the public sphere, and to suppress, using Scalia's preferred phrasing, "the so-called homosexual agenda."

Changing the Balance

Robert Novak, anticipating Rehnquist's imminent retirement, informs us,

That would enable Bush to play this game: Name one justice no less conservative than Rehnquist, and name Gonzales, whose past record suggests he would replicate retiring Justice Sandra Day O'Connor on abortion and possibly other social issues. Thus, the present ideological orientation of the court would be unchanged, which would suit the left just fine.

Well, not really. But maintaining the ideological status quo would probably be the sort of bitter pill the left would quickly swallow, given the alternative. But, as Novak obviously knows, Bush's problem is most certainly not how to please the political left.

If a Rehnquist vacancy now is thrown into the mix, will Bush be tempted to temporize by naming one conservative and one non-conservative? If he nominates conservative Justice Antonin Scalia as chief justice and thus creates a third confirmation, will he think he has escaped by saying he has named two conservatives? No such maneuvers will make Gonzales acceptable to the Bush base.

Consequently, Bush's USA Today interview has been a source of intense anxiety on the right. Typically, the president did not defend Gonzales on his merits but with outrage that anybody would dare criticize his friend. That reflects a general schoolboy attitude that is losing the president support from fellow Republicans and conservatives.

I find it interesting that in this hypothetical scenario (in which Bush names "one conservative and one non-conservative") Gonzales is somehow transformed into a "non-conservative". That, to me, highlights the depravity of our present political classifications (or, should I say, stereotypes) - you can only be a true conservative these days, it seems, if you adhere to the philosophies of the religious right - even if you are otherwise contemptuous of everything traditionally associated with political conservatism. Otherwise, you're at best a "paleo-conservative" or, worse, a RINO (Republican In Name Only).

If Bush gets the opportunity to appoint two justices, and he doesn't make appointments which leave the religious right satisfied that Roe will be gutted or overruled, he will create an interesting conundrum for the Republican Party - a party which got about 30% of its votes in the last election due to high voter turnout and high voter loyalty among the religious right. If, in appreciable numbers, they stay home or vote for a third party candidate in the 2006 or 2008 elections, the post-election maps may be considerably more blue than the Republicans would like.

Oh, sure, you can make the same argument that Gore made in 1999 - a Republican counterpart to "a vote for Nader is a vote for Bush." But if you voted for Bush on the belief that he would deliver the Supreme Court and saw him deliberately pass on the opportunity to fulfill that implied promise, how inspired would you be to vote for a Republican candidate who in all likelihood will be more secular and more centrist than Bush?