Every day brings a new flood of stories about the Supreme battle shaping up, an Armageddon-like affair that will be ugly and bloody and change the course of American history, possibly forever.
All that may be true, along with the interest groups gearing up to beat each other's brains out with televised ads and brutal attacks.
But there's one odd little omission here: We don't know who Bush is going to pick! So the media are in the awkward position of covering a huge story about TK. That, for the uninitiated, is journalese for "to come," meaning a detail in a story that the writer will supply later.
Instead we have these lists of "the contenders," judges and lawyers who are "said" to be in contention, "expected" to be in the mix, and on and on--this from the very people who told us a Rehnquist resignation was imminent and were clueless that O'Connor would be the one stepping down. (Except for Bill Kristol, who gets bragging rights for a year on his this-is-just-speculation scoop.)
So it's just assumed that whoever Bush picks will be loved by the right and hated by the left (unless it's Gonzales, who seems to have detractors on both sides), just as it was assumed that the 80-year-old chief justice had one foot out the door. It's probably a safe assumption, but who knows? And will the rest of the country be as gripped by a Bork-style judicial confirmation fight as everyone in D.C. seems to be? Will everyone else see this as conservatives on the cusp of "the control of all levers of the federal government," as The Washington Post | http://www.washingtonpost.com/wp-dyn/content/article/2005/07/02/AR2005070201312.html put it?
Or, as the Boston Globe | http://www.boston.com/news/nation/washington/articles/2005/07/06/sides_prepare_for_a_pricey_high_court_campaign/ frames the story: "Many are calling it the 'presidential election of 2005,' a fund-raising effort to wage a White House-style campaign for and against President Bush's pending Supreme Court nominee."
Press blogger Jay Rosen | http://journalism.nyu.edu/pubzone/weblogs/pressthink/2005/07/02/sprm_crt.html also finds the coverage a bit surreal:
"In the last election, 121 million votes were cast, and each one of those people could (in theory) be influenced by a media campaign. On the coming nomination, 100 United States Senators vote. Can they be influenced in the same way? The press is saying: yeah, they can. But it cannot be so.
"Reading the news coverage of Justice Sandra Day O'Connor's retirement, I noticed something strange about one theme in it. Almost every article told us how 'the armies of ideological activists from both sides,' (Richard W. Stevenson, New York Times) having anticipated this moment for years, were ready for their biggest battle ever, a kind of apotheosis of the culture wars. . . .
"The strange thing is that in all this talk of war and the epic showdown ahead no one tries to explain exactly how the Web ads sent to 8.7 million Americans in Progress for America's data banks, or the e-mail alerts to 800,000 activists sent within 15 minutes of the announcement by the abortion rights group Naral Pro-Choice America, or the TV ads MoveOn began running in five states yesterday (all reported in today's coverage) were supposed to make any difference at all in the eventual outcome. . . .
"The only mention I found of this was a lonely sentence at the end of the Washington Post's coverage of the big screaming battle ahead: 'All the time and money spent on campaigns may have little influence on the outcome, said several senators, because they and their colleagues see a Supreme Court vote as a deeply personal and principled decision.'
"Like I said, strange."
There may be no nominee, but the New York Times | http://nytimes.com/2005/07/06/politics/politicsspecial1/06scotus.html?ei=5094&en=a948e894edf57715&hp=&ex=1120708800&adxnnl=1&partner=homepage&adxnnlx=1120622687-VS2HWvxLPey9b907Hx7EHg reports there is plenty of GOP strategizing:
"The White House and the Senate Republican leadership are pushing back against pressure from some of their conservative allies about the coming Supreme Court nomination, urging them to stop attacking Attorney General Alberto R. Gonzales as a potential nominee and to tone down their talk of a culture war.
"In a series of conference calls on Tuesday and over the last several days, Republican Senate aides encouraged conservative groups to avoid emphasizing the searing cultural issues that social conservatives see at the heart of the court fight, subjects like abortion, public support for religion and same-sex marriage, participants said.
"Instead, these participants, who insisted on anonymity to avoid exclusion from future calls, said the aides - including Barbara Ledeen of the Senate Republican Conference and Eric Ueland, chief of staff to Senator Bill Frist, the majority leader - emphasized themes that had been tested in polls, including a need for a fair and dignified confirmation process."
The Wall Street Journal offers this nugget about Alberto G: "Behind the scenes, a senior administration official said criticism from conservatives wouldn't pose a significant obstacle to Mr. Gonzales's prospects for nomination. And the opposition on the right actually might help the attorney general's chances of winning confirmation because it may make him appear more acceptable to those in the middle of the political spectrum."
Fred Barnes | http://www.weeklystandard.com/Content/Public/Articles/000/000/005/787hntte.asp sees a fork in the road for Bush, citing "the two directions he must choose between in selecting a nominee to replace Sandra Day O'Connor on the Supreme Court. The first--the Scalia direction--would be to pick a respected conservative jurist and thus move the ideological tilt of the court to the right. The second would be to choose Attorney General Alberto Gonzales or another Hispanic, a step unlikely to change the court's current ideological posture.
"The first would be in sync with the thrust of Bush's presidency. As Bush and his aides never tire of telling everyone, he came to the White House to do big things and achieve important changes. And transforming the Supreme Court into a more conservative body and shrinking the role of unelected judges in American life is one of his major goals.
"Bush also prides himself on not doing the easy or politically popular thing. He could have sought minor adjustments in Social Security to improve its solvency, but he chose to promote total reform. After routing al Qaeda terrorists in Afghanistan, he could have stopped and gone no further, preserving his high poll rating. Instead he deposed Saddam Hussein in Iraq.
"Nominating a full-blown judicial conservative--there are plenty to choose from--would surely provoke a bitter confirmation struggle in the Senate. He might even lose the fight. But all of Bush's accomplishments have come over the strong opposition of Democrats or have drawn sharp criticism from them. This includes tax cuts, education reform, creation of a Homeland Security Department, and Iraq. Bush's motto, if he had one, should be no pain, no gain."
Ann Althouse | http://althouse.blogspot.com/2005/07/quick-summary-of-current-state-of.html deconstructs the rhetoric:
"Okay, it didn't take long, looking at news articles and listening to Sunday TV newstalk to see the theme each party has got going on the O'Connor replacement.
"DEMOCRATS: O'Connor was a moderate and ought to be replaced by a moderate. We Democrats can't say more than that until we see who the nominee is, at which point we will need plenty of time to do our research. (And you should get the point that this will take forever and include a filibuster if Bush doesn't get the message and choose a moderate.)
"REPUBLICANS: Bush will do an exquisitely careful, thoughtful job in choosing a nominee, who, being so carefully, thoughtfully chosen, will deserve the utmost respect, which must be expressed in the form of a quick 'up-or-down vote.' Tempted to tune out until we actually hear who the nominee is? Or do we have to worry that the terms of the fight are being importantly 'framed' right now?. . . .
"I agree that O'Connor was a moderate, within the spectrum of opinion that currently reigns in constitutional interpretation -- reigns in the courts, I hasten to say, not in the academy, of course.
"It's a contestable point whether a Justice ought to be replaced by someone as much like her (or him) as possible. I think we should notice and fight over whether a different sort of Justice is filling a vacancy, but there's no general principle here. Past Presidents have often taken advantage of vacancies to shift the Court. The President has the power of appointment under the Constitution, and the President has reached his position of power through a democratic process that today very much includes debate about the direction the Supreme Court should take. The real question is whether this Court, now, should be shifted, not whether it is legitimate in the abstract to shift the Court.
"I don't think the failure to choose a moderate can, in itself, be portrayed as the sort of 'extraordinary circumstances' that justify a filibuster under the terms of the recent filibuster compromise."
The nation's David Corn | http://www.thenation.com/blogs/capitalgames?bid=3&pid=4234 examines from the liberal side:
"The Democrats and progressives may be placed in the position of having to oppose an experienced jurist whose opinions they do not like on policy grounds. They should fight such a nominee vigorously, and they should be upfront about their reasons. Rather than label that person an 'extremist,' they ought to argue that the Senate ought not to confirm a nominee who is likely to vote to curtail or eliminate abortion rights, to favor corporate polluters over consumers, or to restrict the federal government's ability to advance social justice.
"The 'extremist' strategy, I fear, is worn out and ineffective. It worked for Robert Bork, thanks to his too-honest writings and wacky beard. But most of the far-right jurists on the list of potential nominees will be able to appear before a Senate committee, not drool, answer questions about their opinions politely, and come across as intelligent and somewhat reasonable people, not extremist monsters plotting to lead America into a Time of Darkness. So progressives, beware, the E-word is probably not your friend."
Bill Kristol | http://www.weeklystandard.com/Content/Public/Articles/000/000/005/785iwcii.asp of the aforementioned O'Connor scoop, who worked in the first Bush White House during the Clarence Thomas battle, has some thoughts on tactics:
"On October 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.
"The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.
"But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift."
Any judge whom Kristol doesn't agree with is opposed to the constitution? Aren't most legal disputes about interpreting the 200-year-old document?
"Now, with one of the two swing votes on the Supreme Court stepping down, George W. Bush has a chance to begin to make constitutional history, as he is certainly attempting to do in foreign policy and, to a lesser degree, in economic policy.
"There are two pieces of good news to keep in mind as President Bush ponders his choice. The first is that, by contrast with the situation in 1987, the Senate has a Republican majority. The second is that President Bush can choose from among many, many well-qualified conservative constitutionalists."
I never thought that Time Inc. caving on Matt Cooper's notes would get him off the hook in the Plame case--I've been asked to testify in cases just to verify that I wrote an article published under my byline--and I was right:
"A special prosecutor investigating who revealed the identity of a covert CIA operative said today the testimony of a Time magazine correspondent was still essential to the investigation, and that reporter Matthew Cooper should be jailed if he continues to refuse to reveal his sources," says the Los Angeles Times | http://www.latimes.com/news/nationworld/nation/la-070505reporters_lat,0,1353641.story?coll=la-home-headlines.
"Special prosecutor Patrick Fitzgerald said the decision last week by Cooper's employer, Time Inc., to separately turn over information about his sources did not relieve Cooper from having to testify before a federal grand jury investigating the case of operative Valerie Plame. . . .
"Fitzgerald also said that Cooper and New York Times reporter Judith Miller should be jailed -- rather than confined at home, as each has requested -- in the event that contempt citations against them are upheld. 'Forced vacation at a comfortable home is not a compelling form of coercion,' Fitzgerald said."
Doesn't sound like much of a vacation to me.
Like there aren't enough people in this racket, Wonkette | http://wonkette.com indulges in some media analysis:
"Peter Beinart, the editor of The New Republic, is taking some heat from the right side of the blogosphere for daring to pooh-pooh the morale-boosting visit of some pro-war commentators to Iraq. Quoted by Fox News, Beinart called the visit 'pathetic' and declared, 'They have no idea what journalism is, and to pretend they are journalists is laughable. . . . You do not achieve victory by not facing reality.'
"First of all, we agree the whole TNR-getting-to-decide-who's-a-journalist thing is pretty funny. (From the team that brought you Stephen Glass!) Second, going to Iraq is actually the definition of facing reality. Of course, Fox also reports that the team will not be leaving the Green Zone and that they will report 'what we are told,' so it's kind of 'reality lite.' But who are we to get in the way of sending more right-wing radio hosts and bloggers to Iraq? Ideally, we'd like to send them all. In uniform, if possible."
Finally, The Post's ombudsman had chided the paper internally for being slow to recognize the local phenomenon that is the Washington Nationals. Apparently that's no longer a problem, according to Media Bistro's Fishbowl DC | http://mediabistro.com/fishbowldc/, which "raises the question of what happens when the entire paper is given over to boosterism?"
Yesterday, "the Business section of the Post appears to be the only one that didn't get the memo. Every other section fronts a piece on how AWESOME the Nationals are and how everybody who's anybody loves them:
"A Section: 'Nationals at RFK Stadium Is Summer's Hottest Ticket' (Thomas Boswell)
"B Section (Metro): 'Nats Fans Need A Taste of What O's Fans Have' (Marc Fisher)
"C Section (Style): 'A Torrid Romance: At RFK and All Over Town, Fans Are Falling Head Over Heels for the Nationals' (Lonnae O'Neal Parker)
"D Section (Business): Nothing.
"E Section (Sports): 'Feel-Good Story Continues to Unfold' (William Gildea)."
Hey, it was a holiday weekend. Besides, Fisher criticized the Nats for having lousy stadium food. That's pretty tough stuff, no?