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Spun Silly

By Howard Kurtz
Washington Post Staff Writer
Thursday, July 21, 2005 8:39 AM

Did the Bush team put out misinformation on that crazy Tuesday to steer reporters away from John Roberts?

We can't answer the question definitively because the journalists involved have a Matt Cooper problem -- they promised their sources anonymity, regardless of motive. But I can tell you that some of them are ticked and feeling misled.

It all could be very innocent -- the typical Beltway gossip game where reporters trade information with supposedly wired sources who don't really know but like to give the impression that they do. Then the media types blurt what they've gleaned on television and online and -- d'oh ! -- look silly when they're wrong.

Why would the Bushies have bothered? The deafening buzz that the president had picked Edith Clement for the high court had a bunch of reporters preparing pieces on her instead of researching the legal record of the not-much-buzzed-about John Roberts. Plus, the head fake preserved the element of surprise for Bush's prime-time announcement.

Consider: The reporters in question relied on outside Republican advisers who work closely with the White House. These advisers, at least one of whom is said to feel used, were saying it was Clement. But the administration had asked Roberts to return from London for a possible announcement the day before , on Monday. Maybe the president was just keeping his options open. But at some point Tuesday Clement got an official call saying her services would not be required -- and Bush offered Roberts the job at 12:35 -- yet the it's-Clement-chatter continued until late in the afternoon. All this may have been terribly unfair to her.

An alternate theory is that Bush, for some reason, changed his mind that day, leaving the advisers leaning the wrong way. However you slice it, the administration had a good rollout.

By the way, that french-fry case I mentioned yesterday is getting a lot of play on TV, probably because it's simple and people want to know how Roberts could approve of the Washington Metro's harassment of a 12-year-old girl.

We'll get to the media assessment of Roberts's chances in a moment, but first, a my report from the paper on the liberal blogosphere:

At1:27 a.m. yesterday, the Guerilla Women of Tennessee weighed in on President Bush's Supreme Court nominee.

"John Roberts: Married to Anti-Choice Org VP," the group's Web site blared. Another site, A Liberal Dose , asked: "Why does John G. Roberts Hate Our Soldiers?"

And Feministing.com made no attempt at subtlety: "Why John Roberts Sucks."

The lightning-quick attacks came after 50 top liberal bloggers joined in a 45-minute conference call Tuesday night. "On the left, we've always talked about the need to have an echo chamber," says John Aravosis, a Washington lawyer and gay activist who writes at Americablog.com . "We believe the right has a whole media network, from talk radio to Fox News to Matt Drudge. The left doesn't have that because the left doesn't play well with others."

This is the first Supreme Court nomination of the Internet age, meaning that liberal and conservative opinion-mongers are already blanketing cyberspace with arguments, facts, taunts, polemics, gossip and electronic links to raw data, hoping to rally the faithful and influence the mainstream media coverage.

The conference call was arranged by BlogPAC , a political action committee that got some of its members on the phone with Sen. Ted Kennedy on the day that Sandra Day O'Connor announced she was leaving the court. The group has also held calls with Senate Minority Leader Harry Reid, Sen. Russell Feingold and the liberal organizations involved in the nomination battle, including MoveOn, Alliance for Justice, NARAL and People for the American Way.

Kennedy "reached out to them directly to convey the impact that this decision will have on hundreds of millions of Americans, whose last line of defense for their freedoms and liberties is the Supreme Court," says Laura Capps, the senator's spokeswoman.

Such coordination seems to defy the image of bloggers as iconoclastic lone rangers, pounding the keyboards in their bedrooms and basements without regard to interest-group politics. Bloggers, after all, come from all walks of life, building a following on the strength of their words and ability to draw attention from other Web diarists. They have also proven to be a formidable fundraising force, raising $80,000 on Tuesday for a Democratic candidate in a special House election in Ohio.

The purpose of Tuesday night's call was "to agree on where we want to work as a swarm and divide that from where we want to work individually," says Bob Brigham, a San Francisco political activist who runs BlogPAC, whose founders include Aravosis and Markos Moulitsas, who runs the popular site Daily Kos . A swarm, in online lingo, is when legions of bloggers jump on the same issue, as when conservative Web sites attacked Dan Rather's CBS on President Bush's National Guard record.

"We dumped a ton of opposition research on Roberts" after the call, Brigham says. The bloggers also agreed during that discussion to keep hammering on Karl Rove and the CIA leak story.On the Roberts nomination, though, not all left-wing bloggers are marching in lockstep. Moulitsas wrote that while Roberts has only two years of judicial experience, "I'm willing to hear the guy out. We're not going to get a Ginsburg, but I'd be happy with an O'Connor-style moderate conservative. For all we know (and for all the religious-right knows), Roberts might be that sort of guy."

Jeralyn Merritt, a Denver defense lawyer who writes the TalkLeft blog, told readers that "it's too soon to start opposing Judge John G. Roberts. Most of us knew nothing about him. . . . I don't think it helps that liberal groups are coming out swinging so soon."

Joshua Micah Marshall, who holds a doctorate in history from Brown University and recently moved from Washington to New York, launched a Supreme Court section yesterday on a spinoff of his Talking Points Memo site.

The first entry was from Yale law professor Robert Gordon , who said of Roberts: "He enjoys the kind of respect Kenneth Starr had before embarking on his anti-Clinton crusade, as a safe, sound man, not an ideological zealot like Edith Jones or wacko like Janice Rogers Brown. These qualities are going to make Roberts's confirmation easier. They are also what make him dangerous."

Marshall says liberal bloggers would probably play a bigger role in galvanizing the opposition had Bush picked a more incendiary nominee. "There will be less fireworks than there might have been if it was a more controversial person," he says. "We're trying to get people who have expertise and are interested in writing in this new medium. I have no particular expertise on jurisprudence."

Conservative bloggers, of course, have been out in force as well. Forty-five minutes after Bush's announcement, National Review Editor Rich Lowry posted this reaction: "Roberts is brilliant and solid. He has a good temperament and he's very likable. There's no downside. . . . And Bush has kept his promise to nominate someone in the mold of Scalia and Thomas."

Says Glenn Reynolds, the conservative University of Tennessee law professor better known as Instapundit : "Bloggers are going to be very big on cutting through the slogans to the facts and holding people up against the statements they've made in the past. They're going to make it hard for Democrats and Republicans who took a different position on Clinton nominees than they have on Bush nominees."

But there has been a lack of enthusiasm among some bloggers on the right. "As someone whose professional life has almost entirely taken place 'inside the Beltway,' Roberts has been far removed from the day-to-day concerns of 'fly-over' America," wrote RedState.com . " . . . The nomination of Roberts serves to increase the disillusionment of these traditionalists with Bush's performance in his second term."

One strength of the blogosphere -- its real-time ability to vacuum up thousands of facts -- has been on display with the Roberts nomination. SwingStateProject.com posted excerpts of a 1997 court ruling in which Roberts, representing a pork producer in a clean water case, was accused of making a misleading argument, according to the Web site. The Liberal Dose site (which featured a doctored photo of Roberts making an obscene gesture) pointed to 2004 ruling joined by Judge Roberts that threw out an award of nearly $1 billion to 17 Americans who said they were abused while imprisoned in Iraq during the Gulf War.

Aravosis, who helped expose the X-rated past of conservative White House reporter Jeff Gannon, wasted little time. He wrote Tuesday night that Roberts "sounds like a partisan hack" and posted statements from Democratic Chairman Howard Dean, Planned Parenthood, NARAL, the Human Rights Campaign and People for the American Way.

But Aravosis sees no prospect of his blogging colleagues sticking to a set of talking points. "It's like herding cats," he says. "You can get 40 cats in a room, but you can't herd them."

All right. The Democrats aren't exactly breathing fire, as the Los Angeles Times reports:

"Senate Democrats, who had spent weeks preparing for a full-scale fight with President Bush over a nomination to the Supreme Court, instead found themselves today weighing whether or how to do battle over his choice of John G. Roberts Jr., who appears to be more conservative than they would like, but less ideological than they feared.

"Sen. Harry Reid of Nevada, the Democratic leader, set the tone, taking pains to describe Roberts as an accomplished lawyer and 'very nice man,' but withholding judgment on whether he deserves to serve for the rest of his life as one of the country's nine most powerful judges. . . .

"That 'wait and see' response appeared to startle some Republicans, who had predicted that Democrats would launch an immediate campaign against the president's choice."

Nor was the New York Times signaling a knock-down, drag-out fight:

"Republicans and Democrats sparred over how much information Judge Roberts should provide during his confirmation hearings. The White House insisted the nominee could refuse to answer questions, while Democrats pressed for access to legal memorandums Judge Roberts wrote when he worked in the solicitor general's office. . . .

"Women's organizations, seeking to spotlight Judge Roberts's role as the lawyer for Operation Rescue, an anti-abortion group, staged a protest. But even as dozens of women marched and chanted and waved 'Keep Abortion Legal' placards in the sweltering heat, Kim Gandy, the president of the National Organization for Women, seemed to concede her group had an uphill fight."

It's all about the documents, says the Chicago Tribune :

"Confronted with a Supreme Court nominee they believe to be deeply conservative -- but with little evidence to prove it -- Senate Democrats have begun laying the groundwork for a battle with the Bush administration over access to documents and memos that John Roberts Jr. wrote while working in two Republican administrations."

The Boston Globe has one of those "troubling record" stories that no one had time to research on Tuesday:

"The federalist legal philosophy embraced by Supreme Court nominee John G. Roberts Jr. could pose an obstacle to enforcement of environmental laws, limiting the federal government's power to protect endangered species and fragile ecosystems.

"Environmental groups yesterday expressed concern about Roberts's dissent in the 2003 case of a rare toad whose habitat in California was threatened by development. As a federal appeals court judge, Roberts contended that the toad was not protected by federal law because it lives only in California, and the federal government can only regulate matters involving more than one state."

Fred Barnes likes the Roberts pick -- but not that much:

"In choosing among judicial conservatives, there are safe picks and risky picks. With Roberts, Bush took the safe route. Related to this, there are cautious judicial conservatives and bold judicial conservatives. The president tilted to the cautious side in naming Roberts.

"How safe was the pick? The answer is very. This is partly because of his impressive credentials as a brilliant legal scholar and man of solid temperament and character. More important, he's already been tested in the Senate and passed muster. In 2003, his nomination to the U.S. Court of Appeals for the District of Columbia sailed through the Senate Judiciary Committee on a 16-3 vote. He cleared the full Senate on a voice vote. If you are committed to choosing a genuine judicial conservative, it doesn't get much safer than Roberts. . . .

"More than any decision in Bush's second term, conservatives around the country have been focused on what he'd do when faced with a Supreme Court vacancy. Their hope was for a demonstrably conservative nominee with a streak of daring. In Roberts, they didn't get one, at least from all appearances. He's an establishment conservative, respected as a private attorney and admired as a judge. Audacious he is not. On the other hand, there's little concern that he might drift sharply to the left as Justice David Souter, nominated by the elder President Bush, has."

New Republic man Ryan Lizza also approves, sort of -- and wonders how the president got there:

"Why did George W. Bush make such a seemingly responsible choice? There is little in the history of Bush's decision-making that would have predicted the president would settle on someone like John Roberts for the Supreme Court.

"Most of Bush's normal instincts were somehow kept in check. He did not, as had been predicted for years, resort to cronyism and appoint his old friend, the mediocre Texas attorney Alberto Gonzales, whose chief qualification was supposedly the one Bush prizes above all, loyalty. Bush did not even give in to his much cultivated anti-elitist and anti-Washington impulses. He is clearly no Nixon, who labored obsessively to find a nominee from the south or west and someone who would 'stick it' to the Ivy League. Roberts was born in Indiana but is a creature of Cambridge (Harvard College, Harvard Law) and Washington (Hogan & Hartson, the Justice Department).

"Bush did not even pick someone with a particularly compelling life story. . . .

"The Democrats' strategy of unified opposition and obstruction may finally have chastened the White House. Democrats have recently made life miserable for Bush. They have killed Social Security and ground the rest of Bush's domestic agenda to a halt. They have eaten up weeks of valuable time in the Senate with their opposition to lower court nominees. They killed John Bolton's nomination to be ambassador to the United Nations. Democrats have been warned by Republicans that their obstructionism will cost them at the polls, but it may have forced Bush into choosing a more conciliatory nominee. If O'Connor had resigned immediately after Bush's reelection one has to imagine that Bush would have picked a more mischievous jurist. So while conservatives are hailing the Roberts pick, it may actually be a sign of Bush's current weakness."

The Note adds this insider detail:

"The factor we think most likely to ensure Judge Roberts' confirmation: that the Washington establishment, and the media establishment, know him and like him. Do not underestimate how hard it will be for Democrats to tar a potential nominee who has given working Washington journalists his cell phone number and who is generally seen as a mensch."

Jeff Jarvis has an ordinary-guy reaction:

"The most striking thing about John Roberts -- so far -- is how damned young he looks. To make their legal legacies last longer, presidents will be drafting justices the way they draft basketball players, out of high school. Better yet: Junior high, when they're still virgins and haven't inhaled and haven't written anything embarrassing except for that poetry they had to do in English class."

Finally, the Los Angeles Times has become the biggest American newspaper to be led by a black editor. Here's my dispatch, free of charge.

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