The Supreme Court Gives Another Dirty Boost to the GOP

Bush's revamped Supreme Court dispensed another prize to the GOP today, but Linda Greenhouse of the Times misses a key point when she writes that their decision to uphold most of Texas' bitterly-challenged 2003 redistricting plan "was something of a vindication for [Tom] DeLay," its chief architect. But the Court's decision was not a "vindication," it was the long sought consolidation of a carefully planned power grab by the Right.

Characterizing today's decision as anything other than a political gift from a right-leaning Court to the GOP assumes a kind of political purity the Supreme Court has never possessed. Let's take a step back and note that the Times has written countless articles breaking down the political affiliations and ideological leanings of members and prospective members of the Court; the idea that presidents appoint those who they think will promote their political philosophy is nothing new, but for today's story, the Times chose to momentarily ignore the interdependence of politics and jurisprudence, and play it exactly as the Republicans want it played: that America's legal elite have blessed Texas' gerrymandering based on the clear light of legal reasoning, not party loyalty. (A follow-up story buries the reasons why today's decision will not benefit Democrats in other states; why its implications are limited strictly to what happened in Texas in 2003.)

The idea that members of the Supreme Court (or any high court) may be influenced by party preference is one of the many third rails of political journalism. It's fair game to try construct the ideological loyalties of members of the Supreme and Federal Courts, but to even suggest that these members could make rulings influenced by their affiliation with a particular political party is anathema. Because it cuts so quickly to the core of how we think about our political process, the notion is treated almost as conspiracy theory (witness most media's toothless treatment of the Supreme Court's decision that gave the presidency to Bush in 2000).

The rule against speculating on the party loyalties of jurists is a profoundly pro-establishment, "aren't we glad the system is pure" sort of guideline most journalists have willingly adopted. It helps corral into the political fringe those who suggest that the system is not, in fact, pure, that it is shot through with rot, and desecrated daily by swindlers and con artists like Tom Delay and Samuel Alito.

Only marginally better stories on the decision appear in the Post, one of which dumbly concludes with Delay's mouth-vomit that "[i]t's always worth it to stand up for the Constitution," while the other incorrectly leads with the speculation that the Court's decision will lead to similar redistricting fights throughout the country. But the Court's reasoning applies only to court-ordered redistricting, not redistricting approved by state legislatures. In most states with similar systems, Repubs and Dems share the governor's office and the legislature, making domination by one party impossible. For the Post to repeat the idea that this decision will help both parties obscures the fact that in this case, the Republicans flat out won.

Another Boorish Kennedy Prattles On About Democracy

Today’s story, according to the New York Times, isn't that the Republican Party may have conspired to disenfranchise thousands of voters in the 2004 presidential election; the real story is that a Kennedy (pause for sharp intake of breath) thinks the GOP stole the presidency, and that this Kennedy has had the temerity to go public. By embracing a theory the punditocracy dismissed within days after the election as conspiracy, Robert Kennedy Jr. is labeled "another Kennedy living dangerously."

Never mind the clumsy, scattershot anecdotes author Mark Leibovich prays will magically coalesce into a cohesive portrait; what is more frustrating is watching a story about a political figure making hay about a political issue dumped in the Fashion & Style section. Like wearing white shoes after Labor Day, accusing the ruling party of manipulating the electoral process, I suppose, is simply in bad form.

Content to reject the idea of foul play in Ohio by citing a single error-ridden story on Salon.com, Leibovich characterizes Kennedy Jr.'s activism as "a penchant for risk taking," and as much as dares him to follow in his father and uncle's footsteps by asking, "At what point is he tempting fate?"

Give. Me. A break.

Why the Silence about the Hill's New Spine?

Dana Milbank's column in the Post mentions it, but the news sections of both WaPo and the Times today fail to report on a significant Congressional Republican about-face: James Sensenbrenner's support for a Democratic proposal to compel the administration to release documents related to the NSA's domestic spying program. Sensenbrenner, the House Judiciary Committee chairman, in April characterized the Attorney General as "stonewalling" in response to his committe's inquiries into the program, and now he wants to finally do something about it. Newsworthy? Apparently not.

Charlie Savage of the Boston Globe reports today on Arlen Specter's plans to hold hearings on Bush's 750 unconstitutional signing statements, a potentially important development in the ongoing tragedy that is Congress-Administration relations, but the Times and the Post evidently disagree, as they have no stories on it. The Republican chairman of the Senate Judiciary Committee thinks "that the president is trying to expand his executive authority at the expense of Congress's constitutional prerogatives," calls the President's cherry-picking of laws "pretty flagrant," has scheduled public hearings to try to stop it, and that's not news? Maybe the Times and the Post are still steamed at getting professionally beat-down by all the good karma the Boston Globe made when they first reported on Bush's signing statements.

The American legal community, via its Bar Association, has assembled a blue ribbon task force to determine whether the president "has exceeded his constitutional authority and circumvented the system of checks and balances with the signing statements" (if these signing statements are as uncontroversial and as commonplace as the White House has claimed, why has the ABA never felt the need to study them before?), and still no comment from the Times or the Post. When independent, nonpartisan, voice-of-the-establishment professional organizations like the ABA feel the need to weigh in on whether the president is attacking the foundations of constitutional order in this country, something's wrong, and it's newsworthy.

The Pentagon Thinks You're Crazy

The Associated Press reported yesterday on the Pentagon's classification of homosexuality as a mental disorder, a feed carried by the San Francisco Gate and the Washington Post, among others. The New York Times, however, not only did zero original reporting on the subject, but the Grey Lady doesn't even include the AP report in the raw listing of all AP stories, although the Times does have space for AP items like "Beer Burglar's Snoring Leads Police to Him" and "Musician's Ashes Buried in Clarinet."

We Don't Need No Satellites, Says the Times

This just in: Beth Daley at the Boston Globe reveals the most serious attempt yet on the part of this administration to cripple global warming science, while Kenneth Chang looks at the same news and turns lemons into lemonade, characterizing NASA's cancellation or delay of climate-monitoring satellites as "progress in weather satellite effort." A program that was "billions of dollars over budget... is finally on a realistic track," Chang happily writes, in contrast to Daley's assessment that the cuts amount to a massive reduction in our ability to study the earth from space, and that

the earth science mission cancellations and delays take on greater significance, some scientists say, given recent allegations by a top NASA researcher and other government scientists that the Bush administration tried to silence their warnings about global warming.

In contrast to the Globe's story, which centers around the satellites' capability to expand our knowledge of earth and climate science, the Times merely notes that the orbiters "have military and civilian uses" and confines to the end of the article the observation that "[a] gap in weather data [caused by the loss of the satellites] would create problems for researchers tracking long-term climate trends."

Rather than spend money learning about the extent, origins, and dangers of global warming, President Bush would rather go to the moon. Literally-- he wants more Americans there by 2020. Maybe we can send him there sooner.

The Washington Post is so far silent on the subject.

Constitutional Crisis or Two Old Men Fighting?

The Times (here) and WaPo (here and here) for the most part have been happy to treat the letter from the chairman of the Senate Judiciary Committee to the Vice President as yet another act in Washington's political theater, but characterizing it as a product of personal pique, or merely as evidence of a split within the GOP, obscures the Constitutional implications of the episode. Carl Hulse and Jim Rutenberg of the Times, for example, describe the letter as a "remarkable display of the strains within the party" and call Specter's motivation for releasing it "a deal made by Mr. Cheney with the other Republicans on the committee."

I disagree. In making the letter public, Arlen Specter is not some freshman congressman looking for a easy headline, and he's not focused primarily on Cheney's manipulation of his Committee; he's been a major player in the Senate long enough to not get offended by behind-the-back politicking. No, the letter's thesis statement is that

the Administration's continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

And most coverage of the episode doesn't quote the really boffo passages: "There is no doubt that the NSA [domestic wiretapping] program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA Court" and that "this Administration... has failed to comply with the requirements of the National Security Act of 1947." A senior leader of the ruling party has publicly accused the executive branch of not only betraying its constitutional responsibilities, but of knowingly manipulating the political process in order to do so.

Those of us not living in caves, of course, have known this for quite awhile.

Also softpedaled are the letter's final, literally fantastic accusations (the papers also fail, excepting Dan Froomkin, to provide a link to the .pdf):

We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress's Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program. There is the recent Executive Branch search and seizure of Congressman Jefferson's office. There are recent and repeated assertions by the Department of Justice that it has the authority to criminally prosecute newspapers and reporters under highly questionable criminal statues.

Out of the whole letter, the one passage readers can reliably count on being excerpted is the bit about Specter passing Cheney twice on his way to the buffet table.

Treasonous Incompetence at the DOE

Leaving aside for a moment the question of why 1,500 employees of the nuclear weapons unit of the Department of Energy or their superiors were not notified until nine months after their identities were compromised due to theft, why must David Stout of the Times insist that rage at the incompetence of DOE administrators be confined to Democrats, when the first quotation of his own article contradicts him?

The Energy Department data leak, coming on the heels of a much larger data breach in the Department of Veterans Affairs, is sure to raise new alarms about government cybersecurity and may provide Democrats more grist to question the very competence of the Bush administration... Representative Joe Barton, the Texas Republican who heads the Energy and Commerce Committee, told Linton F. Brooks, the administrator of the nuclear-security unit, that he should resign. "And I mean like 5 o'clock this afternoon, if it's possible," Mr. Barton said. "I don't see how you could meet with the secretary every day the last seven or eight months and not inform him."

The Post's version of the story omits Barton's wonderful smackdown of Brooks.

Internet Must Have Ears, Court Rules

The most important shifts often happen in the most obscure places. In an AP story carried by the Washington Post and the Times, a divided D.C. Circuit Court defended the FCC's decision to require internet service providers to install or otherwise design methods for the government to listen to internet voice traffic. The White House wants to apply existing wiretap regulations to the internet, but they don't want to involve Congress or the public, so the Bush machine has colluded with FCC and a federal court to enlarge the FCC's enforcement authority through judicial and regulatory fiat.

The Communications Assistance for Law Enforcement Act (CALEA) was passed in 1994 to mandate that telephone companies actively collaborate with government to enable wiretapping on their networks. CALEA, however, applies only to "telecommunications carriers," not to "information services." But in 2004, the Department of Justice, the FBI, and the DEA filed a joint petition whining that "[t]he ability of federal, state, and local law enforcement to carry out critical electronic surveillance is being compromised today by providers who have failed to implement CALEA-compliant intercept capabilities." In other words, the government was frustrated that private industry was not performing the work of the FBI for them.

Basing their ruling on the existence of VoIP, the FCC and the D.C. Court have now effectively decided that broadband providers are now also "telecommunications carriers"-- that Comcast has the same obligation as AT&T to help the government listen to your calls. Interested readers are referred in particular to pages 15 and 16 of Court's decision, which uses a clever bit of sophistry to justify its decision to defer to the FCC's interpretation of CALEA, even though the petitioners employ what, in the D.C. Court's view is a better (and contrary) one.

On page 18, the Court goes so far as to argue that "[t]he fact that the [Federal Communications] Commission treated [telecommunications and information] components as an integrated service-offering under one statute does not preclude the Commission from reasonably treating those differentiable components differently under a different statute." The FCC, in other words, can pick and choose which parts of which laws it wants to apply, whenever it wants. How convenient!

Judge Edwards' dissent characterizes the FCC's interpretation as "directly at odds with the statutory language" and concludes that:

CALEA does not give the FCC unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement... What we see in this case is an agency attempting to squeeze authority from a statute that does not give it. The FCC’s interpretation completely nullifies the information services exception and manufactures broad new powers out of thin air.

As Judge Edwards notes, if the FCC wants more statutory authority, they need to ask us for it.

The Supreme Court's War on Journalism

I spoke not too long ago about the dividends the new Supreme Court is paying for the Bush administration and about Gonzales' long-term legal strategy regarding the Justice Department's War on Journalism, and unfortunately have more to report. In a little noticed story in the Washington Post yesterday, Charles Lane reports on a clever act of plausible deniability performed by John Roberts and his colleagues. Weighing in on the now-closed Wen Ho Lee case, the Court announced Monday that it would not hear any appeals regarding a previous decision by the D.C. Circuit Court which ruled that journalists involved in the Lee case had no legal right to protect their sources.

Being privately negotiated and concluded, the Lee case was over. SCOTUS was not obligated to make any ruling or comment, much less one fraught with so much significance regarding the Court's position on free speech. As the Post describes the smoking gun,

...the justices had met to consider the [journalists'] appeals last Thursday. They knew by then that settlement talks were underway and postponed a decision to allow time for negotiations... Indeed, a day before the court's conference, a court aide contacted Lee's attorney, Brian A. Sun, to check on the progress of settlement talks. Sun said that agreement was very close, according to lawyers knowledgeable about the case. Sun declined to comment. The court was informed of the settlement on Friday.

By deliberately waiting until the case was concluded before they made their announcement, the Supreme Court wanted to make clear where they stood on the subject of journalists' sources without getting into the bother and controversy of making an actual ruling. The Court clearly knew that the case was over, that it was being negotiated privately, and that they had no obligation to say anything. But they did.

In the same way that markets respond to stray remarks by the Fed Chief at a party, so should we be listening and responding to these whispered messages by the nation's highest court. Without making a formal ruling, without creating a paper trail or written justification of its thinking, the Court has now telegraphed to every single lower court in the country its position regarding the protection of journalists' sources. Make no mistake: this maneuver by the Court will without question affect the rulings of lower courts.

The New York Times makes no mention of the Court's announcement in their story on the Lee settlement.

Excessive Courtesy or Willful Blindness?

Howard Kurtz casts a bit of light today on the media's delayed response to the Haditha massacre, but fails to appreciate the depth of the insanity of the extreme right's response. For those of you just tuning in, here's an extremely abbreviated timeline:

1) In November of 2005, Marines in Haditha shot 24 unarmed men, women, and children, some of them in their beds.

2) In June of 2006, in defiance of known facts regarding the Haditha massacre and her own rapidly dwindling store of humanity, Michelle Malkin inaugurates the "Insurgents Use Children" campaign, complete with irrelevant slide shows of Palestinian children holding plastic rifles; Bill O'Reilly defends wartime murder by slandering dead U.S. soldiers in World War II; Chris Matthews defends both the Haditha murders and the coverup; and John Gibson puts on his historian hat: "If Iraqis know their own history, they know massacres have been committed in Iraq by warring parties for millennia piled on millennia. This is the part of the world that was in on the massacre game early..."

Though Howard Kurtz quietly alludes to some of this in today's column, I fear he doesn't see the danger of giving defenders of murderers the benefit of the doubt. Malkin, Gibson, and the rest of them are not sitting at the same rhetorical table as the rest of us; when it comes to shooting unarmed, noncombatant women and children, there is no room for "reasonable people to disagree." The bloodthirsty posturing of paid fanatics does not constitute respectable political discourse, and we weaken the entire structure of collaborative democracy when we pretend otherwise.

"A Solution in Search of a Problem"

Arlen Specter calls Bush's latest attempt to deface the Constitution a "solution in search of a problem," and in the wake of the Times' White House reporter Elizabeth Bumiller's assertion that:

Most reporters I know are not passionately political, left or right. Our real ideology is a love of conflict, meaning that we have a bias for stories about, yes, personality feuds, but also about disputes over policy. In the White House, as in conversations over the backyard fence, what goes wrong is news.

I repeat the question: where is the long, hard hitting article covering the dispute over policy within the White House regarding marriage rights? The Vice-President and the President are diametrically opposed on the President's goal to amend the Constitution, and the self-described conflict-loving press is nowhere.

The Post yesterday wrote about the denial of communion to Catholics who support equal rights for all, but included this whopper: "The dramatic episode capped several years of increasing acrimony over the Rainbow Sash Movement, an effort by gay Catholics to counter what they view as homophobia in the church."

With those simple words, "what they view as," we're now one step closer to losing our grip on the English language. The dictionary definition of homophobia is "discrimination against homosexuals." If denying communion to supporters of gay rights is not discrimination against homosexuals, and thus homophobia, nothing is. There's nothing subjective about it, and for the Post to pretend otherwise is at best incompetent.

Monday is National Hate and Fear Day

Still waiting to hear how the Times rewrites the AP feed, but so far, my expectations are low. In a story on Bush's speech pushing the Federal "We Hate Homos" Amendment, the Times reprints without challenge Tony Snow's lie that ''I'm not sure this is a big driver among voters," and incorrectly states that "Democrats say the amendment is a divisive bow to religious conservatives." It's not only Democrats, folks; it's any reasonable person who believes in personal freedom and the original promise of America. To cast opposition to Bush's horrid, hateful plan as driven by partisanship is insulting to those of us who decry it on the basis of our humanity. If a Democrat proposed this desperate, election-driven mauling of our Constitution, I'd fight it just as much. (The story also fails to mention that a strong majority of Americans consistently oppose the amendment.)

Apparently the Times can afford a front page, above-the-fold hack job on the Clintons' marriage, but they can't be bothered to highlight a high-level policy disagreement within the White House regarding an effort to amend the Constitution. By reserving mention of Cheney's opposition to Bush's plan to the story's last paragraph, and by not quoting Cheney directly on the subject, the Times dims the spotlight on what should be a very important story, particularly for a White House known for its single-minded unity.

Daniela Deane of WaPo is much more forthcoming:

Bush, whose opposition to marriage between gay partners helped power him to reelection in 2004, has been largely silent on the issue since his second term began. This week, though, as midterm elections approach and the president's poll numbers continue dropping, he is returning to a topic that galvanizes an important part of the Republican base.

The all-too brief Post story omits, however, any mention of the vice president's opposition to the amendment, and softpedals the hypocrisy of a president determined to banish Constitutional oversight of the Executive Branch simultaneously proposing a federal solution to a nonexistent problem.

Thanks for Not Hitting Me (So Much)

I'm starting to feel like I'm watching an abusive relationship. After listening for five and a half years to the rantings of a White House proudly obsessed with its own insularity, we're supposed to applaud when they start hiring people who show the slightest evidence of independent intelligence? Evidently the Washington Post, in a 1,200 word front-page piece by Peter Baker, says yes.

"My experience from my first day here is that debates are wide open, they're wide-ranging, and opinions, even those that disagree with the president, are aired, and people discuss them," [Tony Snow] told reporters when [Hank] Paulson was hired.

You mean, if you're a senior White House staffer or cabinet member, you can speak even those opinions that disagree with the president? How frightfully progressive.

Hiding Behind the White Elephant

What is most frustrating about coverage of the House's newfangled interest in protecting its Constitutional prerogatives is the Times' and the Post's refusal to name the elephant squatting in Speaker Hastert's office: the upcoming and ongoing investigations of many, many of his colleagues. In politics, if the timing smells bad, it usually is. So, why all the sound and fury now? Why didn't Hastert, Sensenbrenner, and Boehner raise their voices against any of Bush's 750 creepy signing statements, or against his refusal to take seriously Congress' advice and consent responsibilities in any number of critically important war and national security decisions?

The idea that Hastert and Sensenbrenner, with their angry bluster, are merely protecting their individual persons in anticipation of future raids, instead of the institution which they lead, is not at all far-fetched, but when the world's most important political papers ignore it, anyone who highlights the hypocrisy is preemptively marginalized. Columns by the Post's Dana Milbank, last Wednesday and the Friday before, have been the lone exceptions to this cone of silence. Among Times/WaPo's coverage, for example, Milbank's column is the only place where you can read Representative Van Hollen's reminder to his colleages of a "number of examples of overreaching by the executive branch where there's been a total lack of oversight by this Congress: the torture memorandum, detainees, enemy combatants, signing statements, domestic surveillance, data-mining operations." Adam Liptak's most recent analysis of the episode notes that "Congressional leaders may have overreached in describing the search as a flagrant violation of the Constitution," but declines to speculate on their motives for doing so beyond a single quote from a law professor: "Here the story that leaps out at you is that the Republicans are worried that they're next."

The story is not that Congress is nobly defending its independent status under the Constitution; the story is that they are selfishly crying constitutional-wolf years after the wolf has entered, devoured the coop, and left.

Blind Presidents Make Terrible Spies

It is of late a rare and thrilling pleasure to give the New York Times credit for providing a small ray of clarity regarding the Constitutional perfidy of the Gonzales Justice Department. Adam Liptak reports on comments by Mark Corallo, former spokesperson for Attorney General John Ashcroft, that Gonzales, in issuing subpeonas to the San Francisco Chronicle demanding sources for a story on steroid use in baseball, had not merely "acted improperly," as Liptak puts it, but had committed "the most reckless abuse of power I have seen in years."

Additional kudos go to Liptak for characterizing Gonzales' threats "that the Justice Department may move beyond subpoenas for journalists' sources, and pursue the criminal prosecution of reporters under espionage laws for publishing classified information" as parallel in importance to the legal community's reaction to it:

Mr. Corallo said the department's attitude toward news organizations "is starting to look like a policy shift, a policy shift for the worse."

Specialists in journalism and First Amendment law said that Mr. Corallo's statement was itself significant evidence of a shift.

"This illustrates in an unmistakable fashion," said Mark Feldstein, director of the journalism program at George Washington University, "that the Gonzales Justice Department has moved so far away from the mainstream of established legal opinion and case law when it comes to press freedom that even judicial conservatives are disturbed by it."

Who exactly is Mark Corallo? Some wooly-headed ACLU groupie? Considering that Corallos' PR firm represents Karl Rove and that Corallo served as the press secretary for the RNC during the 2000 campaign, probably not. More likely one of those crazy "United States Constitution" groupies.

Via a previous story regarding the House Intelligence Committee's hearing on security leaks to reporters, the Times asserts that it had published the December 2005 story on the NSA wiretapping program only "after thorough reporting and careful consultation with the Bush administration." Assuming this is accurate (and ignoring the moral implications of doing anything in "careful consultation" with the Bush administration), we have to wonder: did BushCo make clear in their talks with the Times that they would prosecute if the story was published? If they had, the Times would have had an entire year to prepare, and would likely not appear as blindsided by Gonzales' attacks as the rest of us. If, on the other hand, there was no such threat made, what made the Bushies so suddenly angry after the story was published? It wasn't, after all, a surprise. They had a full year to scoop the Times and get their own version of the story out. Is it because BushCo was actually surprised by the national outcry of rage? We knew they were tone deaf, but that kind of cluelessness constitutes an affliction of the soul.

Why pick a fight over steroids in baseball, rather than prosecute the wiretapping and secret prisons stories directly? Because they think they can make a stronger case when less explosive content is involved, and because they know San Francisco's Ninth Circuit will affirm the reporters' rights, meaning Gonzales can argue the case soon before Bush's brand new, ready-and-willing Supreme Court.