The irony of her potshots at Barack Obama's character has hardly gone unnoticed. Nor has the idiocy of her Dec. 2 press release breathlessly revealing that “in kindergarten, Senator Obama wrote an essay titled 'I Want to Become President.' ” This, the Clinton release explained, gives the lie to Obama's claim that he is “not running to fulfill some long-held plans” to become president. Hillary was not, it appears, joking.

At a campaign stop the same day, Clinton added: “I have been, for months, on the receiving end of rather consistent attacks. Well, now the fun part starts.” Indeed.

I will not excavate Clinton's own kindergarten confessions. Nor will I compare the honesty quotient of her campaign-trail spin with the dreadful drivel dutifully uttered by Obama and other candidates to pander to their fevered primary electorates.

Instead, let's take a trip down memory lane – from the tawdriness of the 1992 presidential campaign through the mendacity of the ensuing years – to revisit a sampling of why so many of us came to think that Hillary's first instinct when in an embarrassing spot is to lie.

Gennifer and Monica. Former lounge singer Gennifer Flowers surfaced in early 1992 with claims – corroborated by tapes of phone calls – that she had had a long affair with then-Arkansas Gov. Bill Clinton, who had arranged a state job for her. Bill Clinton told the media, falsely, that the woman's “story is untrue.”

Although well aware of her husband's philandering history, Hillary backed his squishy denials, famously asserting on “60 Minutes” that she was not “some little woman standing by her man like Tammy Wynette.” More deceptively, she suggested to ABC's Sam Donaldson that Bill's contacts with Flowers were just an example of how he loved to “help people who are in trouble” and “listen to their problems.”

Hillary's words uncannily foreshadowed her insistence six years later to “a White House aide that Bill had 'ministered' to [Monica] Lewinsky because she was a troubled young woman,” Sally Bedell Smith writes in her fine new book about the Clintons, “For Love of Politics.” Hillary has continued to insist that she believed what she said about Lewinsky. But friends and former aides have told Smith and others that she knew her husband was lying all along.

Travelgate. The first Clinton scandal after Bill became president started in May 1993, when Chief of Staff Mack McLarty fired the seven employees in the White House office that arranges travel for the press corps. The White House cited gross financial mismanagement. (The charge was never substantiated.) The sudden firings created a media uproar, especially when the dismissed employees were quickly replaced by friends and relatives of the Clintons.

Hillary later told the General Accounting Office, in a document prepared by her attorney, that she had no role in the decision to fire the employees, did not know the “origin of the decision” and “did not direct that any action be taken by anyone” other than keeping her informed.

But her statements were contradicted by evidence, including a long-concealed memo to McLarty and a written chronology prepared by White House aide David Watkins that came to light years later. Hillary, Watkins wrote, had said that “we need those people out and we need our people in” and had made it clear that “there would be hell to pay” unless she got “immediate action.” Another aide wrote that Hillary intimate Susan Thomases had said, “Hillary wants these people fired.”

While saying that no provable crime had been committed, Robert Ray, who had succeeded Kenneth Starr as independent counsel, reported in October 2000 that Hillary's statements had been “factually false” and that there was “overwhelming evidence that she in fact did have a role in the decision to fire the employees.”

Cattle futures. The New York Times revealed in March 1994 that in 1978, just before her husband became governor, Hillary had made a $100,000 profit on a $1,000 investment in highly speculative cattle-futures contracts in only nine months. Hillary's first explanation (through aides) of this extraordinary windfall was that she had made the investment after “reading The Wall Street Journal” and placed all the trades herself after seeking advice from “numerous people.” It was so preposterous that she soon had to abandon it. Eventually, she had to admit that longtime Clinton friend James Blair had executed 30 of her 32 trades directly with an Arkansas broker.

In an April 1994 press conference, Hillary denied knowing of “any favorable treatment” by Blair. But the astronomical odds against any financial novice making a 10,000 percent profit without the game being rigged led many to believe that Blair, the outside counsel to Arkansas-based poultry giant Tyson Foods, must have put only profitable trades in Hillary's account and absorbed her losses. The heavily regulated Tyson needed friends in high places, and Bill Clinton helped it pass a 1983 state law raising weight limits on chicken trucks.

Removal of Vince Foster documents. During the same press conference, Hillary was asked why her then-chief of staff, Maggie Williams, had been involved in removing documents from the office of Deputy White House Counsel Vince Foster after his suicide. Foster had been a partner of Hillary's at the Rose Law Firm in Little Rock, Ark. “I don't know that she did remove any documents,” Hillary said. But it was reported three months later that Hillary had instructed Williams to remove the Foster documents to the White House residence. Then they were turned over to Clinton attorney Bob Barnett.

Castle Grande. In the summer of 1995, the Resolution Trust Corp. reported that Hillary had been one of 11 Rose Law Firm lawyers who had done work in the mid-1980s on an Arkansas real estate development, widely known as Castle Grande, promoted by James McDougal and Seth Ward. McDougal headed a troubled thrift, Madison Guaranty Savings & Loan, and had given Hillary legal business as a favor to Bill. McDougal and his wife, Susan, were the Clintons' partners in their Whitewater real estate investment. Ward was father-in-law to Webb Hubbell, another former Rose Law Firm partner, who was briefly Clinton's associate attorney general in 1993. Later, Hubbell went to prison for fraud, as did James McDougal.

Castle Grande was a sewer of sham transactions that some used to funnel cash into Madison Guaranty. Castle Grande's ultimate collapse contributed to that of the thrift, which cost taxpayers millions. Hillary told federal investigators that she knew nothing about Castle Grande. When it turned out that more than 30 of her 60 hours of legal work for Madison Guaranty involved Castle Grande, she said she had known the project under a different name. A 1996 Federal Deposit Insurance Corp. report said she had drafted documents that Castle Grande used to “deceive federal bank examiners.”

Prosecutors later came to believe that Hillary had padded her bills; she “wasn't guilty of [knowingly] facilitating nefarious transactions – she was guilty of doing less work than she took credit for,” Jeff Gerth and Don Van Natta Jr. explain in their 2007 biography, “Her Way.” Hillary herself never took refuge in this explanation.

Billing records. Hillary's billing records for Castle Grande were in a 116-page, 5-inch-thick computer printout that came to light under mysterious circumstances on Jan. 4, 1996 – 19 months after Starr's investigators had subpoenaed it and amid prosecutorial pressure on Clinton aides who had been strikingly forgetful. For most of that time, Hillary claimed the billing records had vanished. But a longtime Hillary assistant named Carolyn Huber later admitted coming across the printout in August 1995 on a table in a storage area next to Hillary's office; Huber said she had put it into a box in her own office, without realizing for five more months that these were the subpoenaed billing records.

This implausible tale, on top of other deceptions, prompted New York Times columnist William Safire to write on Jan. 8, 1996, that “our first lady … is a congenital liar.”

The next day, the White House press secretary said that the president wanted to punch Safire in the nose for insulting his wife. Five days later, the president invited Monica Lewinsky to the Oval Office for what turned out to be one of their 10 oral-sex sessions. Two years and 13 days after that, Hillary was on the “Today” show suggesting that her husband's Lewinsky affair was a lie concocted by “this vast right-wing conspiracy.”

The post Honesty Hillary’s Glass House appeared first on Stuart Taylor, Jr..

Legal merits aside, congressional Democrats face an uphill battle in seeking to defeat the executive privilege claim.

The administration deserves to lose because the contradictory, misleading, and sometimes false congressional testimonies of Attorney General Alberto Gonzales and other officials about the firings (among other matters) have the smell of cover-up about them. Their evasions have given a tincture of plausibility to what initially seemed to be far-fetched suspicions that the firings were driven by an administration scheme to abuse its prosecutorial powers to hurt Democratic candidates. This is not the best time for the compulsively secretive George W. Bush to hide behind the same executive privilege that the Watergate cover-up made famous, while implausibly claiming to be doing it for the benefit of future presidents.

“Presidents who really care about executive privilege and secrecy don't make the claims about confidentiality and evading legal rules wantonly and libidinously,” asserts Neal Katyal, a Georgetown law professor who served in the Clinton Justice Department and later criticized President Bill Clinton for misusing executive privilege to shield himself.

The congressional Democrats deserve to lose because they have so far made no serious proposal to pass new legislation or to do anything else – besides beat their chests in righteous rage – that shows a genuine need for whatever information they might obtain about the firings by demanding White House documents and the testimony of White House Chief of Staff Joshua Bolten, former White House Counsel Harriet Miers and political aide Sara Taylor.

But the Democrats could change this equation by showing that their subpoenas have a legislative goal that transcends embarrassing President Bush.

One small step in this direction would be for the Democrats to propose a law making it a crime to do in the future what they suggest the administration may have done in the past: to bring or solicit the bringing (or the timing) of a criminal prosecution for the purpose of partisan advantage. An inquiry into whether such a law is needed might justify forcing full disclosure of all evidence bearing on whether any U.S. attorneys were fired for resisting political pressure to prosecute Democrats.

(It would be a stretch to call such conduct a crime under current law, unless the politically motivated prosecutions were aimed at demonstrably innocent defendants.)

Such a legislative proposal would also show that the Democrats were willing to risk enshrining in the criminal law a neutral principle that could come back to haunt the next Democratic administration if it plays political games with its prosecutorial power.

A more dramatic way for House Democrats to show seriousness would be to push their innuendoes that Gonzales has lied to Congress to the logical conclusion of initiating a formal inquiry into whether he has committed impeachable offenses. Such an inquiry would show a need to obtain all relevant evidence by overriding executive privilege.

I am not accusing Gonzales of impeachable offenses. Have his multiple misleading and sometimes false statements to Congress been deliberate lies? Or mere manifestations of the cloddish inability to play big league ball that has long been Gonzales' trademark? Darned if I know. That's why I've argued not for impeaching Gonzales but for censuring him. To be sure, that column predated exposure of the misleading nature of Gonzales' April 27, 2005, statement to Congress that “there has not been one verified case of civil liberties abuse” under the USA Patriot Act. Still, he seems less a Nixonian villain than a nice man in the wrong job.

But if congressional Democrats really think that Gonzales has given deliberately false testimony – which would be both a crime and an impeachable offense – they should say so, and act accordingly.

A formal impeachment inquiry would also carry a risk for congressional Democrats: If they fell short of proving Gonzales a liar, they would be punished at the polls, especially by Hispanic voters. Democrats may, however, have little chance of persuading the courts to take their side unless they can show that theirs is a serious legislative inquiry, not mere political grandstanding.

(After this column went to press, the White House predictably announced that Bush would likely block any efforts by congressional Democrats to have the Justice Department pursue a criminal prosecution for contempt of Congress. Critics of Bush attacked this as a “dangerous new theory of executive privilege,” as The New York Times predictably editorialized. The Times and other critics did not mention the fact that the Bush position was consistent with Justice Department legal opinions under President Clinton as well as President Ronald Reagan. Nor did they mention that Congress has other options for enforcing its subpoenas, including a civil lawsuit against the subpoenaed officials and ex-officials.)

The sparse judicial precedents on executive privilege would provide the courts with reasonable grounds for upholding, rejecting or punting on the Bush privilege claim. Given the range of choices, some judges would no doubt be guided by their personal views on the scope of executive power, or even by partisan political leanings. But an open-minded judge would likely be unimpressed by subpoenas intended solely to embarrass Bush.

“The doctrine of executive privilege remains a constitutional wilderness, and courts have done little to sort out the problem,” Cass Sunstein, a prominent University of Chicago law professor with links to congressional Democrats, wrote in a July 12 Boston Globe op-ed. “Because the law is so wide open, both President Bush and the congressional Democrats have made plausible arguments.”

The definitive Supreme Court decision, United States v. Nixon in 1974, held that the Constitution implicitly protects the president from compelled disclosure of his communications with close advisers lest they be fearful of speaking frankly. But the justices also ruled that executive privilege is not absolute, except perhaps when military, diplomatic or national security secrets are involved, and could be overridden by “weighty and legitimate competing interests,” in the words of the Nixon decision. The justices ruled against President Richard Nixon because the evidence sought was “demonstrably relevant” to a pending criminal trial. The court has never refereed a presidential fight with Congress over executive privilege.

The U.S. Court of Appeals for the District of Columbia Circuit has extended executive privilege to tussles with Congress. It also has said the privilege provides some protection for White House and other executive branch communications that do not include the president personally. But there are no clear rules on how much force executive privilege retains as the communications become more distant from the president, or on how weighty the congressional need must be to prevail.

In the current fight, these are the best Bush arguments.

There is no criminal investigation into the firings, no serious allegation (yet) of criminal or impeachable conduct, and no very strong legislative purpose behind the subpoenas. So the House and Senate Judiciary committees have so far failed to show that the information sought is “critical” to their functions, as required by a leading appellate court decision.

Decisions to fire political appointees (including U.S. attorneys) are an exclusive presidential prerogative and inherently political.

White House staffers' communications rank fairly high on the executive privilege scale (though not as high as communications with the president).

The administration has already provided thousands of documents and dozens of hours of testimony from Gonzales and other Justice Department officials, while offering to allow informal, unsworn, untranscribed interviews of Bolten, Miers and Taylor about matters other than internal White House discussions.

The courts are well aware that whenever Congress is controlled by political adversaries of the president, it will be tempted to abuse its “oversight” powers to make political hay and – in the process – distract the subpoenaed officials from doing their jobs, even to the point of paralysis.

And these are the congressional Democrats' best retorts – so far.

The circumstances suggest a White House effort to cover up evidence of conduct that was sleazy, or worse. And any such cover-up would escape full exposure if the privilege claim succeeds.

The Nixon decision does Bush little good because his aides have said they did not advise the president at all on the firings and that he played no role.

This executive privilege claim has nothing to do with sensitive diplomatic or national security matters. (In this respect, Bush will be on somewhat stronger ground if and when he challenges congressional subpoenas about his now-suspended warrantless electronic surveillance program.)

The Bush claim is especially weak insofar as it extends to White House communications with outsiders, including members of Congress.

Legal merits aside, congressional Democrats face an uphill battle in seeking to defeat the executive privilege claim. The House and/or Senate could cite Bolten, Miers and Taylor for contempt of Congress. But the Gonzales Justice Department would clearly refuse to bring a contempt prosecution. Congress could also file a civil lawsuit asking the courts to require testimony and disclosure of documents. But the appeals, which would go to the Supreme Court, might not be resolved before Bush leaves office, especially if (as in past cases) the courts punt the case back to the political branches while saying, in effect, “Don't bother us again until you have tried harder to compromise.”

Given all this, unless congressional Democrats show more seriousness they seem unlikely to accomplish anything more than embarrassing an administration that already (at least in the case of Gonzales) seems beyond embarrassment.

The post Standoff appeared first on Stuart Taylor, Jr..

Hindsight shows that RFK turned out to be a pretty good AG in many ways. (Approving FBI wiretaps of Martin Luther King Jr. was not among his better ideas.) But as of 1961, his main qualification was that he was the president's brother.

The Justice Department, which employs 110,000 people, is entrusted with advising the president and other federal officials on the limits of their powers; safeguarding our civil liberties; evenhandedly enforcing laws on terrorism, national security, civil rights, the environment, white-collar crime, antitrust and narcotics; choosing judges; and running the FBI and the federal prison system.

Its prosecutors have “more control over life, liberty and reputation than any other person in America,” as then-Attorney General (and later Justice) Robert Jackson said in a famous 1940 speech to an assembly of U.S. attorneys.

Running this department is a big, big job that can be done well only by people with superior abilities and judgment, deep understanding of the law, and proven stature and independence. People who understand when to say no to a president eager to hear yes – and have the fortitude to make it stick. Especially when the president is a man who famously values loyalty above competence and tends to become peevish when challenged.

This is not to suggest that Justice should be run as a Federal Reserve-like independent agency unsullied by politics, as some have suggested. It is the president, not the attorney general, to whom the Constitution assigns the power and duty “to take care that the laws be faithfully executed.” And the president's inherently political policy agenda has always, inevitably, driven the Justice Department's broadly discretionary law enforcement agenda. Democratic administrations tend to shift more resources into environmental, civil rights and tax cases; Republicans tend to focus more on pornography, immigration offenses and voter fraud. That's all legitimate.

Nor is this to suggest that it is a bad thing to have a close friend of the president as attorney general. While an arm's-length relationship built on respect can work well – as with President Ford and Attorney General Edward Levi – a close and trusting friendship may work even better. Such a friendship increases the odds that the president would listen when, and if, the attorney general advises that some aspect of the White House policy agenda violates sound legal principles.

That's what happened when powerful denizens of the early Reagan White House and Republicans in Congress were enthusing over bills to strip the Supreme Court of jurisdiction over prayer, busing and abortion, and over “legislative vetoes” to rein in federal regulators. But these forces were headed off by the new attorney general, William French Smith, a senior partner in a big Los Angeles law firm, who had also been Reagan's personal lawyer and friend.

Smith surrounded himself with a high-powered team including Theodore Olson, who took over the elite Office of Legal Counsel, where career lawyers led by Larry Simms had been a center of opposition to jurisdiction-stripping and legislative vetoes. Olson built on this institutional intelligence with his own research and decided that all of these measures were unconstitutional and (in the case of legislative vetoes) bad for the presidency in the long run. Olson and other top officials convinced the attorney general. Smith then convinced President Reagan. And because Reagan took Smith's word to be the law, that settled the arguments. The Justice Department went on to persuade the Supreme Court to strike down legislative vetoes in the landmark 1983 Chadha decision.

On issues turning more on discretionary policy choices than on legal principle, on the other hand, the Smith team pushed sometimes-reluctant career lawyers to implement the president's agenda.

That's the way the system works when it's working best. The main ingredients are the exceptionally talented and dedicated career lawyers (such as Simms) in the Justice bureaucracy and a strong attorney general who respects and is respected by them as well as by the president.

But presidential friendship alone does not a good attorney general make. Nor does being a “loyal Bushie,” in the phrase popularized by Gonzales' now-fired chief of staff, Kyle Sampson. Gonzales is an up-from-poverty success story and a hardworking, likable guy. But he has never manifested outstanding ability or judgment. Nor has he ever shown himself capable of steering Bush away from actions of questionable legality or prudence. Indeed, the attorney general's embarrassing handling of the U.S. attorney firings has been altogether in character.

Gonzales was plucked by then-Gov. Bush of Texas from a big law firm where he was a relatively undistinguished partner. As the governor's counsel, he sent Bush superficial memos that cleared the way for executions of more than 50 death row inmates by dismissing their clemency petitions, while sometimes ignoring evidence of ineffective counsel, mitigating circumstances and even possible innocence. His 20-some judicial opinions as a Bush appointee on the Texas Supreme Court were unimpressive, as have been his public performances as White House counsel and attorney general. People outside the administration who have tried to engage him in serious discourse about complex issues sometimes come away shocked by the superficiality of his knowledge and the shallowness of his analysis.

As White House counsel from 2001 through 2004, Gonzales had his fingerprints on Bush's most grandiose and insupportable claims of power in the war on terrorism. These included Bush's claim of virtually unlimited power to imprison for years – incommunicado, without real judicial review – anyone in the world whom he labeled an “enemy combatant.”

Gonzales also implicitly approved the infamous August 1, 2002, Justice Department legal opinion asserting that Bush had the authority to abrogate federal criminal laws and treaty obligations and to order (if he chose) wholesale use of torture in wartime interrogations.

It was drafted by political appointees with major input from White House lawyers under Gonzales. But in his January 2005 Senate confirmation testimony, Gonzales uttered a batch of self-contradictory evasions about this legal opinion:

“I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the [Justice] Department…. I reject that opinion…. I am not prepared in this hearing to give you an answer [on its correctness]…. [I had] discussions [with Justice during the drafting process] to make sure that we got it right, [but it] really would politicize the work of the career professionals [who played no role] at the Department of Justice” to express a view on whether the opinion did get it right. Pathetic.

The extreme Bush-Gonzales claims of power and treatment of detainees have not strengthened but rather weakened the counterterrorism effort and the presidency: They have alienated potential allies abroad and so alarmed the Supreme Court that it has rebuffed Bush in all three big war-on-terror cases so far. A well-advised president could have won those cases.

As for the U.S. attorneys, there is a world of difference between firing such a political appointee for 1) being a Democrat; 2) failing to press the president's law enforcement agenda; 3) overstaying his or her welcome in a job that the White House wants for a political favorite; 4) prosecuting Republican lawmakers; or 5) failing to bring election fraud prosecutions against Democrats on a timetable designed to help Republicans at the polls.

The first three are standard operating procedure. The last two – if they happened – would be unethical and arguably illegal. A minimally competent attorney general would instantly appreciate the difference. Did Gonzales? Perhaps. But the succession of misleading and contradictory statements from him and his aides – which may further weaken the presidency by fueling congressional demands for testimony by White House officials – inspire no confidence. Nor do Gonzales' comments (as reported by Newsweek) to three senators who visited his office to discuss the matter: “Why do I have to prove anything to you?” And “everyone [fired] was in the bottom tier.” In fact, some had glowing performance evaluations.

When the president and the Senate choose Gonzales' successors, they need to do better. Much better.

The post Under Fire appeared first on Stuart Taylor, Jr..

Through various mixes of factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics, some reporters insinuate that Alito is a slippery character who will say whatever senators want to hear, especially by "distancing himself" from past statements that (these reporters imply) show him to be a conservative ideologue.

I focus here not on the consistently mindless liberal hysteria of The New York Times’ editorial page. Nor on such egregious factual errors as the assertion on C-SPAN, by Stephen Henderson of Knight Ridder Newspapers, that in a study of Alito’s more than 300 judicial opinions, "we didn’t find a single case in which Judge Alito sided with African-Americans … [who were] alleging racial bias." This, Henderson added, is "rather remarkable."

What is remarkable is that any reporter could have overlooked the at least seven cases in which Alito has sided with African-Americans alleging racial bias. Also remarkable is the illiterate statistical analysis and loaded language used by Henderson and Howard Mintz in a 2,652-word article published (in whole or in part) by some 18 newspapers. It makes the misleading claim that in 15 years as a judge, Alito has sought "to weave a conservative legal agenda into the fabric of the nation’s laws," including "a standard higher than the Supreme Court requires" for proving job discrimination.

The systematic slanting – conscious or unconscious – of this and other news reports has helped fuel a disingenuous campaign by liberal groups and senators to caricature Alito as a conservative ideologue.

In fact, this is a judge who – while surely too conservative for the taste of liberal ideologues – is widely admired by liberals, moderates, and conservatives who know him well as fair-minded, committed to apolitical judging, and wedded to no ideological agenda other than restraint in the exercise of judicial power.

Here are some other examples of slanted reports about Alito:

A Dec. 3 Washington Post front-pager by Charles Babington stressed Alito’s supposed effort to "distance himself" from two 1985 documents in which he had asserted that (among other things) "I am and always have been a conservative" and "the Constitution does not protect a right to an abortion." Babington added that this distancing "may expose him to accusations of insincerity or irresolution, advocates said."

Indeed. Articles such as Babington’s have fueled a clamor about Alito’s supposed "credibility gap" by liberal groups and attack-dog senators like Edward Kennedy of Massachusetts. Liberal editorialists and columnists have joined in.

Such suggestions of insincerity are not based on anything that Alito has said. They are based on characterizations by reporters of what senators say Alito has said in private meetings with them. Needless to say, some of these senators are spinning their own agendas.

One who seemed to play it straight was California Democrat Dianne Feinstein, a good bet to vote against Alito. She reported that Alito had told her: "First of all, it was different then…. I was an advocate seeking a … political job. And that was 1985. I’m now a judge…. I’m not an advocate; I don’t give heed to my personal views. What I do is interpret the law." Added Feinstein: "I believe he was very sincere."

Feinstein did not say that Alito had implied that his 1985 application had been anything other than a sincere expression of his beliefs at the time.

Alito also told senators that the 1985 documents are less relevant than his 15-year record of apolitical judging and respect for precedents – especially precedents that (like Roe v. Wade) have been reaffirmed repeatedly since 1985. Nothing "insincere or irresolute" about that.

The Dec. 3 Babington article stressed that Alito had written in 1985 that he was " ‘particularly proud’ of fighting affirmative-action programs." But Alito had not used the words "affirmative action." He had expressed pride in opposing "racial and ethnic quotas." (Babington noted this in a second reference, without making it clear that this was all that Alito had said.)

The distinction is important. The vast majority of Americans share Alito’s opposition to quotas. By falsely suggesting that Alito had condemned all forms of "affirmative action" – a broader and more benign-sounding phrase – Babington added a we-don’t-like-him spin.

In a Dec. 1 Washington Post front-pager, Amy Goldstein and Jo Becker found it remarkable that Alito had "referred to a doctor who performs (abortions) as an ‘abortionist’ and railed against a … decision that had struck down an ordinance that he said was ‘designed to preclude the mindless dumping of aborted fetuses into garbage piles.’ "

But some abortion doctors call themselves abortionists. Alito’s memo used "abortionists" once, while referring to such specialists as "doctors" or "physicians" some 15 times. And in the words of Edward Whelan, head of the conservative Ethics and Public Policy Center: "If we can refer to a doctor who does podiatry as a podiatrist and a doctor who does cardiology as a cardiologist, why can’t we refer to a doctor who does abortions as an abortionist?"

"Railed against" is, of course, a phrase often used to imply ranting and raving – the antithesis of the thoughtful analysis in the Alito memo. And that colorful quote about "mindless dumping of aborted fetuses"? Those were not Alito’s words, as the reporters asserted. He was dutifully quoting the city’s explanation of its own ordinance.

A Dec. 5 New York Times front-pager by David Kirkpatrick focused on how "Judge Alito has often invoked his father’s legacy to help deflect questions from skeptical Democrats." Portions of the article can be read as reflecting well on Alito. But it also contains strange and utterly unsupported insinuations that Alito is perhaps being insincere in touting his father as a role model – even that he may have fabricated stories about his father to make himself look good.

"Still," Kirkpatrick writes, "some colleagues and friends of the elder Mr. Alito, who died in 1987, said they had never heard some of the stories his son has recounted," including a story that his father had "in college once defended a black basketball player from discrimination on the team."

I read this as implying that Alito, to pad his racial-sensitivity resumé, had perhaps made the whole thing up. So I was surprised to find that Kirkpatrick had dug up hard evidence that this story was true. The evidence is a 1935 editorial in the campus newspaper denouncing the college for benching the black player for a game with a segregated teachers college. Alito’s father was editor-in-chief of the newspaper.

A Dec. 6 Boston Globe front-pager by Michael Kranish breathlessly reported that Alito was noted as "present" when the 12-judge U.S. Court of Appeals for the 3rd Circuit declined to rehear a three-judge panel’s decision in the case of one Larry Kopp, in 1992.

Why is this front-page news? Well, reports Kranish, Alito had signed Kopp’s bank fraud indictment five years before, as U.S. attorney for New Jersey. And on taking the bench, he had promised not to participate in the case. So if he participated, he broke his promise!

One problem: It seems quite unlikely that Alito did participate. Most petitions for rehearing simply die automatically without a vote in the 3rd Circuit, because usually no judge requests a vote. And court clerks often mark judges "present" at such sessions whether they vote or not, or are recused.

Meanwhile, lest this column be dismissed as pro-Bush propaganda, I hereby associate myself with a comment by Walter Murphy, the distinguished constitutional scholar who was Alito’s thesis adviser at Princeton University:

"I confess surprise that a man so dreadfully intellectually and morally challenged as George W. Bush would want a person as intellectually gifted, independent, and morally principled as Sam Alito on the bench."

The post Trashing Alito appeared first on Stuart Taylor, Jr..

The claims that Alito is a "far-right activist" are laughable, except to far-left activists. He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty and fairness.

The American people will figure this out. Any effort to filibuster Alito seems likely to fail, and likely to backfire against Democrats. So, the Senate will confirm him by 60-40, give or take five votes, I’d wager. Most of the no votes (and, alas, many of the yes votes) will reflect political posturing and herd instincts rather than careful analysis.

Once installed in Justice O’Connor’s seat, Alito will be an exceptional justice. His rulings will probably be congenial to the broad middle of the electorate. He will be to the right of O’Connor – that is, the O’Connor of recent years, who has been markedly more liberal than she was before 1991 or so. Alito will probably be to the left of Antonin Scalia, albeit with less of a libertarian streak. He will be well to the left of Clarence Thomas, and far more respectful of precedent.

Alito will try as hard as anyone – and far harder than O’Connor – to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

The notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas. But Alito’s opinions show that he takes the ideal of judicial restraint very seriously. Both conservative and liberal colleagues confirm this.

On abortion, Alito will probably give elected officials somewhat more power to impose restrictions, especially on late-term abortions, than has the post-1991 O’Connor. But I very much doubt that he will ever overrule Roe v. Wade or uphold any major barrier to early abortions. On religion, he will probably support greater freedom for minority sects and be more receptive to government sponsorship of nondenominational religious symbols.

He will probably make no effort to unravel established gay rights and will defer to the democratic process on whether to legalize gay marriage. On criminal justice, the former prosecutor will bring the court more expertise than anyone since Earl Warren, without Warren’s passion for expanding defendants’ rights. Some of Alito’s 300-plus opinions sound outrageous when taken out of their factual context. And some strike me as probably erroneous. But I have not come across a single one that can plausibly be called extreme or unreasoned.

To correct a few of the more egregious misrepresentations:

The Brady Center to Prevent Gun Violence has called Alito "Machine Gun Sammy" and has asserted that he "favors legal machine guns."

This is a lie. It is purportedly based upon a 1996 dissent in which Alito argued for striking down a federal law that bans private possession of machine guns. In fact, this dissent shows only that Alito favors scrupulous adherence to Supreme Court precedent.

Alito argued that under a major 1995 high court decision involving similar facts, the machine-gun ban was not a valid exercise of Congress’ power to "regulate (interstate) commerce" unless and until Congress took the trouble to show that purely intrastate possession of machine guns had a substantial effect on interstate commerce.

The majority disagreed. But this disagreement was rather inconsequential, because Alito stressed that to make the machine-gun ban valid, Congress need only dot its i’s and cross its t’s by documenting an effect on interstate commerce.

Charles Babington of The Washington Post and others have spoken of Alito’s "opposition to the Family and Medical Leave Act."

False. Alito did not oppose that law in any way. Rather, he ruled in 2000 that the logic of recent Supreme Court precedents barring damage lawsuits against states under the federal age and disability discrimination laws also extended to the Family and Medical Leave Act. A Clinton appointee and a Johnson appointee joined Alito’s unanimous opinion, and most other appeals courts agreed.

The Supreme Court implicitly rejected this interpretation of its precedents in a similar case in 2003. But that "unexpected" decision, as Linda Greenhouse called it in The New York Times, represented a reversal of direction, especially on O’Connor’s part. Alito had been more faithful to the court’s precedents than the court itself had.

Countless academics and reporters have divined an itch to overrule Roe from a 1991 Alito dissent in which he would have upheld Pennsylvania’s requirement that a woman notify her husband before having an abortion, unless she feared violence (among other exceptions).

In fact, this dissent contained not a word of hostility to Roe or to abortion rights. Nor do Alito’s other opinions, two of which upheld abortion rights. In 1995, he voted to invalidate some Pennsylvania restrictions on Medicaid-funded abortions for women who said that they were victims of rape or incest or that their lives were in danger. And in 2000, he voted to strike down Pennsylvania’s ban on the grisly procedure known as "partial-birth" abortion. Alito, holding this result to be required by a very recent Supreme Court precedent, did not hint at his personal views.

The same was true of the 1991 dissent. Alito disclaimed any suggestion that the spousal-notification requirement was (or was not) good policy, other than to say that it would do little good or harm, because it "would be widely evaded and infrequently enforced." He ruled the provision valid under his debatable but carefully reasoned interpretation of six prior, somewhat ambiguous O’Connor opinions.

As of 1991, O’Connor had sharply and repeatedly criticized Roe as overly broad, arguing that the court should uphold state regulations that "may inhibit abortions to some degree" unless they involved "absolute obstacles or severe limitations."

The Pennsylvania regulation involved neither, Alito argued. It did not require spousal consent. And while inhibiting abortions to some degree, it had not been shown likely to have a "severe" effect on many, if any, women.

O’Connor was to adopt a different view on appeal, in 1992. In the 5-4 decision in Planned Parenthood v. Casey, she co-authored an opinion striking down the same Pennsylvania provision. But as O’Connor herself obliquely acknowledged, this result was not easily reconciled with her own previous opinions. She made no claim that the spousal-notice provision in Casey was a "severe limitation." Rather, she held that it was a "substantial obstacle" – and that under the revised O’Connor doctrine, substantial obstacles were now unconstitutional.

Casey did not show that Alito had misread O’Connor’s prior opinions. It showed that once again, the leftward drifting, notoriously unpredictable O’Connor had changed her mind.

The Leadership Conference on Civil Rights calls Alito a "judicial activist with a record hostile to civil rights."

Nonsense. Alito was hardly "hostile to civil rights" in 2000, when he dissented from a decision that used a two-year statute of limitations to close the courthouse doors to a former AT&T employee’s claim that he had been fired because of his race. And Alito wasn’t hostile in 2003, when he overruled state courts and upheld a black death-row prisoner’s right to seek a new trial based on evidence of racist comments after the verdict by one of the jurors. Or in 2004, when he ruled in favor of a New Jersey boy who had been denied a transfer to another school after being cruelly and repeatedly harassed by classmates because of his effeminacy and perceived homosexuality.

It’s true that Alito has been readier than many judges to deny jury trials to civil-rights plaintiffs whose claims he considers weak. And some responsible critics argue that in his zeal to protect employers from unwarranted lawsuits, Alito may have stretched the law to make it unduly hard for victims of discrimination to prove their cases. The Senate should explore this.

It also should explore liberal analysts’ concerns that in split decisions, Alito has taken the conservative side so consistently as to suggest ideological rigidity. The Senate should figure out whether Alito has been more consistently conservative than, say, Justice Ruth Bader Ginsburg has been consistently liberal. And it should remember that the vote to confirm Ginsburg was 96-3.

The post Alito is Neither Far Right Nor Activist appeared first on Stuart Taylor, Jr..

Just as liberal activist judges have driven millions of moderates into the Republican fold, conservative activist judges could drive them back out. Karl Rove must know this. So must Bush.

After all, didn’t Bush once cite Antonin Scalia and Clarence Thomas as his model justices? And haven’t they both voted to overrule Roe v. Wade? To uphold laws making homosexual acts criminal? To outlaw government use of racial preferences? To allow state-sponsored school prayers (at least at graduations and football games)? To require states to subsidize religious instruction (at least in some contexts)? To overrule Miranda v. Arizona? To strike down many federal laws as violating states’ rights?

Well, yes – but. Bush surely has committed himself to naming to the Court conservatives who would not invent new constitutional rights. But some conservative jurists are far less radical, and far more deferential to established precedents, than others. And if you imagine that Bush wants to pack the Court with Scalia/Thomas clones determined to sweep aside Roe and a raft of other liberal precedents, ask yourself this: What would that do to Republicans’ hope of securing their fragile majority status, and to Bush’s legacy?

The answer is that just as liberal activist judges have driven millions of moderates into the Republican fold, conservative activist judges could drive them back out. Karl Rove must know this. So must Bush.

Take the abortion issue. In a September 2004 National Annenberg Election Survey, 55 percent of respondents answered, "Oppose" and 39 percent said, "Favor" when asked, "Do you personally favor laws making it more difficult for a woman to get an abortion?" In a January 2003 CNN/USA Today/Gallup poll, 53 percent of respondents said that Roe v. Wade was "a good thing" for the country, compared with 30 percent who said it was a "bad thing." In other recent polls, respondents opposed "tougher restrictions on abortion" by 50 to 43 percent; 50 percent responded, "Pro-choice" and 43 percent answered, "Pro-life" when asked whether they were "pro-choice or pro-life on abortion"; and 61 percent of "Catholic likely voters" agreed "strongly" or "somewhat" that "it should be legal for a woman to have an abortion," while 38 percent disagreed.

To be sure, opinion polls also show that majorities favor somewhat stricter restrictions on abortion than Roe would allow. But it seems pretty clear that headlines such as "Bush Court Overrules Roe v. Wade" would be a disaster for the Republican Party. And its candidates would then have to choose between alienating most voters by mounting a futile push to outlaw abortion (which the Court would not do) and alienating the most loyal Republican voting bloc by not doing so.

Most, if not all, conservative legal thinkers believe that the justices’ sudden voiding of the abortion laws of all 50 states in 1973 was an indefensible usurpation of legislative power with no basis in the Constitution. (In 1973, even most liberal, pro-choice scholars considered Roe indefensible, or at best, unwise.) But since then, the justices – including two Reagan appointees and one George H.W. Bush appointee – have repeatedly and emphatically reaffirmed Roe. This, plus the substantial public acceptance of Roe, has led some in the conservative legal network to say privately that it is probably too late in the day to overrule Roe. Even the passionate foe of abortion John Ashcroft accepted Roe as "the settled law of the land" in his January 2001 testimony seeking confirmation to be attorney general.

And remember: Any Bush effort to engineer the overturning of Roe would succeed only if two of the six pro-Roe justices (as well as ailing Chief Justice William Rehnquist, who has consistently voted to overrule Roe) step down; if Bush can identify three nominees who would vote to overrule; and if all three can survive ferocious Democratic attacks and Senate filibusters.

The radical-right Bush justices that liberal groups fear would also be out of step with public opinion, probably outnumbered on the Court on other big issues, and in some cases, out of line with Bush’s own stated positions. Specifically:

Although most voters agree with Bush’s opposition to court-imposed legalization of gay marriage, any decision by Bush-appointed justices to allow imprisonment for homosexual acts – by overruling last year’s 6-3 decision in Lawrence v. Texas – would be seen as intolerant and would hurt Republicans at the polls.

Although conservative justices have generally sought to restrict use of racial preferences, any decision broadly banning them – by overruling last year’s 5-4 decision in Grutter v. Bollinger – would contradict the statements supporting Grutter by both Bush and his current nominee for attorney general (and justice-in-waiting) Alberto Gonzales. A decision overruling Grutter might also jeopardize Republican gains among Hispanic voters.

Although most conservative legal thinkers believe that the justices have gone too far toward purging religion from the public square, Thomas is the only justice in the past two decades to suggest anything as radical as overturning the Court’s 42-year-old ban on organized prayer in public school classrooms.

Although Scalia and Thomas voted in February to require states that subsidize secular study at the college level to do the same for students preparing for the ministry, they lost, 7-2, with Rehnquist writing the majority opinion in Locke v. Davey.

Though Scalia and Thomas similarly voted in 2000 to overrule Miranda, they lost 7-2 in that case (Dickerson v. U.S.) too, with Rehnquist again writing the opinion. Respondents approved the decision by a whopping 86 to 11 percent in a Newsweek poll.

Although Thomas has suggested that he would push states’ rights to the point of dismantling many major federal regulatory laws, no other justice has joined him, and only Scalia has displayed an appetite for doing much more than nibbling around the edges of the vast federal regulatory apparatus. Bush has given no indication that he wants to engineer a dramatic shift toward states’ rights, and he probably could not, even if he tried.

Finally, Bush’s claims to be a believer in "judicial restraint" would be undercut if Bush-appointed justices were to sweep away all acts of Congress that impose liabilities on states, or to use property rights to cripple environmental laws, or to impose a flat ban on legislative use of racial preferences, or to launch a wholesale attack on established precedents. The essence of judicial activism is an immodest eagerness either to strike down democratically enacted laws by stretching the Constitution or to overturn Supreme Court precedents that have become settled law.

The tricky problem for Bush – and for Senate Democrats – is the near-

impossibility of knowing which, if any, liberal precedents a prospective justice would overrule, let alone what he or she would do when faced with now-

obscure issues that may take center stage in decades to come. "You shoot an arrow into a far-distant future when you appoint a justice, and not the man himself can tell you what he will think about some of the problems that he will face," in the words of the late constitutional scholar Alexander Bickel.

Liberals worry that the Bush team is secretly quizzing candidates to make sure they would overrule Roe v. Wade. I suspect that Bush may secretly hope his nominees will not overrule Roe. But whatever Bush wants, I believe Bradford Berenson, who worked in the White House counsel’s office from 2001 to 2003, when he says, "In our conversations with prospective nominees to the federal bench at all levels, we never discussed this subject, not only out of virtue but also out of fear of being accused of applying a litmus test."

The ethical taboo against privately asking nominees how they would decide specific issues is a bit anachronistic in an era when the justices set a broad array of major national policies and when confirmation proceedings have come to resemble election campaigns. But the taboo remains almost as strong as when Abraham Lincoln said, "We cannot ask a man what he will do [on the Court], and if we should, and he should answer us, we should despise him for it." Lincoln added, "Therefore, we must take a man whose opinions are known." But very few Supreme Court prospects have made their opinions known on such questions as whether Roe should be overruled.

All things considered, it seems to me unlikely that we will see a Bush Court radically changing the law on abortion, gay rights, race, religion or states’ rights. I do worry that Bush might pick people who are predisposed to bow to his own claims of near-absolute presidential power to override constitutional liberties in the name of fighting terrorism. If the president does that, the Senate should bar the door.

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