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What if There Were a Law AGAINST Domestic Spying?

Nice catch at Kos from the transcripts of the Gonzales domestic surveillance hearings:

BIDEN: The truth is, there is no definition of when we're going to know whether we've won, because Al Qaida, as the president points out, has mutated into many other organizations that are not directly dealing with bin Laden and are free agents themselves.

BIDEN: Is that correct?

GONZALES: It is certainly true that there are a number of terrorist groups who share many of the same objectives of Al Qaida in terms of destroying America.

BIDEN: So as long as any of them are there, I assume you would assert you have this plenary authority.

GONZALES: Well, Senator, obviously if Congress were to take some kind of action, and say the president no longer has the authority to engage in electronic surveillance of the enemy, then I think that would put us into the third part of Justice Jackson's three-part test, and that would present a much harder question as to whether or not the president has the authority. [emph added]

If only, if only! Why oh why has Congress never seen fit to take such action? I bet if they did, it might look like this:

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information ^[2a]; targeting foreign powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) ^[4] or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.^[5]

The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court^[6], and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence. ^[7]

Since 50 U.S.C § 1802 (a)(1)(A) of this act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation therefor; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments. ^[8] Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties ^[10a] and civil liabilities. ^[11a]

Man, wouldn't it be great to have had a law like that? Then all this confusion over domestic surveillance being illegal, might have been avoided. Opportunity missed, I guess.

Maybe today Gonzales will explain why terrorist plots involving an overseas call are too important to bother with fundaments of civil liberty and privacy--but plots between two US persons calling each other a block apart  aren't worth bothering with--because people might get upset. Again, I'm glad no one's upset now, and that the administration doesn't want to worry us and get our blood pressure going. Thanks, Al!

--TJ

 

On the Precipice of a Coup

There's always something worth talking about going on in the world, but lately it feels like these are momentous times. There's a sense that American political society is balancing on a ledge, looking either to regain its former posture, or topple completely. Broad themes of democracy and authority and formal tension between the branches are at issue, with what seem like lasting effects at stake.

And so we have the two major parties in America: one in full control, albeit under suspicious terms and continuous allegations of scandal; and one that has been, for much of the last five years, unsure of whether it should open its mouth. It was awfully funny that Bush asked Condi for a bathroom pass, but the sad reality is that Democrats have spent much of their minority status discussing between themselves how firmly to ask for the key to the john. Hell, for all I know the Republicans have commandeered all the ground level bathrooms in the House and make the Democrats use the 3rd floor, and so they literally have to ask. They run the building with that kind of hand.

So now we sit at the juncture of several large questions:

• Can the President do essentially whatever he wants in the name of "fighting terror?"
• Are we going to do anything about the corruptive culture surrounding fundraising and lobbying?
• Was there a conspiracy to leak Valerie Plame's name, and is the White House guilty of crimes?
• Is the leadership of the Republican Party in both houses going to fall to ethics breaches?
• And is a guy quite reasonably expected to give Bush a pass on most of this stuff, going to get a lifetime E Ride ticket on the SupremeCourtterhorn?

In this tabeau sits the minority party, admittedly high-functioning eunuchs at best, but potentially well capable of taking control of these issues and shifting the public debate. There's no doubt the Republicans are staggered a little bit, unable to advance any of the President's pet legislation and the continued cloud of legal developments in ongoing scandals. And so there's a void of momentum, one that is waiting for a movement to seize it.

What's the problem? Peter Daou has an excellent piece that does a nice job trying to exonerate them, but really in its implications it shouts "the Democrats are pussies." Simply put, they can't break through the developed memes from the GOP that are uncritically repeated by the largest traditional media outlets. Which--and as I say, I agree with Daou's thesis about poor journalism being a block to successful message outreach--is a wimpy copout. For goodness sakes! Speak up, but speak up clearly and with one voice. You don't get the benefit of being heard handed to you; you have to say things worth hearing.

The western flanks of the Left have been doing their part to hector the media into playing the game more fairly, stunning establishment stalwarts like the Washington Post and Chris Matthews with blogswarms and boycotts. It helped that they were right, but the effect has been to shock the traditional media into recognizing that they are being watched, and the results are getting noticed and called out.

For weeks nigh on months, the progressive community has been pushing for active declarations of opposition from the opposition party. "Pick your battles, and this isn't one," the DLC kept saying. Heck, even Paul Begala went on the Colbert Report to tell Democrats to wake the frig up. Some new candidates for Congress are getting the message and are using it. Responding to attacks reprinted by Ohio media on Paul Hackett's favorable stance towards gay marriage, Hackett stood and revalidated his position:

“I said it. I meant it. I stand behind it. Equal justice under the law for all regardless of who they are and how they were born is fundamental to our American spirit and our American freedoms. Any person or group that argues that the law should not apply equally to all Americans is, frankly, un-American.”

“The Republican Party has been hijacked by religious fanatics, who are out of touch with mainstream America. Think of the recent comments by Pat Robertson – a religious fanatic by any measure – that the United States should assassinate a democratically elected leader in Venezuela, and that Ariel Sharon’s stroke was divine punishment because Sharon wished to trade land for peace.”

“Since the Republican Party has been utterly unable to stand for something positive, they have created an atmosphere of fear and intimidation, and have pandered to religious fanatics not to vote for something they believe in, but to vote against their fellow Americans with whom they disagree. Those among us who would use religion and politics to divide rather than unite Americans should be ashamed.”

Ouch. And today, finally, there was a sign, a rumbling really, that something might happen. Massachusett's two Senators decided they'd had enough, and if the leadership wasn't going to organize any kind of movement or statement on the lifetime appointment of Samuel Alito, they would:

Yesterday, Senator Ted Kennedy and I told our colleagues that we supported a filibuster of Judge Alito’s nomination for the Supreme Court. And we weren’t alone. But the bottom line is that it takes more than two or three people to filibuster successfully. It’s not “Mr. Smith Goes to Washington.” If you want to stop Judge Alito from becoming Justice Alito, use your own email list and organize. We can’t just preach to our own choir. We need to prove to everyone – from our friends and neighbors to our fellow Senators – that the American people know Judge Alito will take our country in the wrong direction, and they expect something to be done about it.

Late? Very likely. Politically motivated? Not improbably. A somewhat melodramatic fit of Quixotic politics? Absolutely. But god bless if it wasn't a sign.

I wasn't kidding when I said Quixotic--three have already come out in favor of Alito (West Virginia's Byrd included, on the same day a wealthy challenger entered the race against him), and three more had hinted their opposition to a filibuster besides. Rumors have flown since then at the sites of the usual suspects, including one indicating that Salazar was reconsidering, one that said similar things about Landrieu, that Reid would support but not whip the caucus. However, Dick Durbin has spent the last two nights spreading the word that it's dead, and most recently Daniel Akaka has cited his opposition to filibuster. And in an additional rumor, Barack Obama is apparently strongly urging colleagues not to filibuster on strategic grounds. [cannot vouch for this source...ed]

Mixed messages, to be sure. Which is essentially the same crime the Democrats have committed for 5 years. There is all weekend to see how the temperature changes, and voice mail boxes can fill while constituent buzz builds...but either way, these feel like momentous times.

--TJ

Wyden To Vote No on Alito

Once hornswoggled, twice shy I guess:

After days of hearings before the Senate and a meeting this week in my office with Judge Alito, I cannot reconcile the seemingly moderate and amiable jurist of the past few weeks with his two decade record of federal service.  At this time when the country so desperately needs a judge who will approach issues with a sense of neutrality, Judge Alito leaves me unconvinced that he will bring an impartial viewpoint to the nation’s highest court.

In my lifetime, it has never been more critical for aPresident to select a nominee to the Supreme Court who possesses the desire and inclination to transcend personal beliefs, to approach issues with legal neutrality, and to heal the wounds that cut our society so deeply.  The departing Justice Sandra Day O’Connor possesses these skills; Judge Alito’s record strongly suggests that he does not.  If appointed to the Court, I fear that Judge Alito’s beliefs will color his approach and pre-ordain his outcomes on a variety of critical issues certain to come before the Court in the coming years.  These decisions would only accelerate the growing polarization that America faces today – between red and blue states, between the affluent and the poor, and between races and religions.   

I met with Judge Alito on Wednesday and found him to be very amiable and of the highest intellect.  We discussed a variety of issues, including the scope of executive power, the recent NSA wiretapping revelations, the role of legal precedent, end of life care, and thevconstitutionality of presidential signing statements.  Since that meeting, my staff and I have reviewed his responses in the context of his ample record on the federal bench and in the Executive Branch.  It is my conclusion that Judge Alito’s record portends a view on the power of the President that would undermine our proven and constitutionally-mandated system of checks and balances.  His measurable record and answers to my questions suggest that, on the question of a woman’s right to choose, he will have an open mind only with respect to the degree to which he is willing to recognize more than three decades of precedent.  His record demonstrates a dangerous and narrow interpretation of the Commerce Clause, which could lead to results that would threaten the health and safety of all Americans.  And his record of standing with large, corporate polluters who fouled our air, poisoned our waters, and then don’t want to pay for it could be disastrous for generations to come.

I was unsuccessful in prying out of Wyden's staff, whether he would consider a filibuster, or whether the "Roberts experience" colored his decision on Alito at all. Cagey staffers!

--TJ

Alito's Problem: He's a Dick

Disclaimers out of the way: yes, that's a childish way to cheapen the process of filling a seat on the United States Supreme Court. Certainly as a sitting judge and by all accounts a learned jurist, Samuel Alito commands respect for his legal expertise. Reducing the arguments against Alito into a schoolyard attack is an unfair way to avoid lodging substantive, compelling arguments against his confirmation.

But as Joe Biden pointed out for Chris Matthews tonight, confirmation hearings are nearing pure uselessness, as far as compelling substantive commentary on the law goes. The GOP likes to blame Ginsburg's artful but grandmotherly stern dismissal of questions for the avoidant way nominees conduct themselves; the Democrats point at Robert Bork, who ironically came up in the hearings as a role model for Alito. And for Alito to give such high praise to Bork as a nominee--forcing him to backtrack when one of Bork's comments contradicted what Alito tried to represent as his own view--let's just say talking about how great Bob Bork is, wasn't on the suggested topiclist at Alito's murder boards before the hearings.

Matthews forced Biden to admit that the Senate could not escape blame for what they'd created: a nominee who tells the honest truth has no shot; the artfully dodging candidate gets a lot of clucked tongues and wagged fingers, but he gets the robe. And that's what Alito's trying to do, giving rather bizarre restatements of the question as his answer, instead of actually coming anywhere close to answering it.

Which brings me to Alito's problem so far in this hearing: he's not especially good at the dance steps required of him. Ginsburg, Bork, Roberts, Alito--they all have the chops. They wouldn't be there otherwise. But primarily, to succeed in the hearing you have to feed the Senator sawdust and make him think he's eating Krispy Kreme.

Roberts was entirely inscrutable, appearing courtly, reasoned and totally at ease with his answers and in fact his entire judicial philosophy. When a lot of progressives and liberal advocacy groups saw Roberts make the rounds of Senate offices after his nomination, I think they knew he was in unless they found a body. He was charming, deferential, properly awed but quietly confident. The White House knew that in the public arena of the hearing, Roberts would kill like Pryor on Sunset Strip.

Clearly, by the time they got to picking Alito, the inner circle was scrambling for something that would pass, and couldn't let style considerations take prominence. As a result, we get someone who seems to have a faint smirk 90% of the time and talks, quite frankly as I said, like a dick. It came to me gradually, but by lunchtime today I was convinced that this guy had a real presentational problem. The same evasions and hedges about stare decisis and emanations of penumbras that Roberts brushed away with genial ease, became potential beads of sweat on Alito's wide pate. It was like watching George Costanza testify.

Not having internet access for big chunks of the day, it took a while to see that I wasn't the only one who thought so. First Lyn at Evergreen Politics puts it a little more nicely:

I graduated from the University of Washington in 1970 two years ahead of Sam Alito's graduation from Princeton.  What really tipped me to the guy, besides his non-verbals, was what he said was when he talked about the people I hung out with in college and afterwards. He said he went 12 miles down the road from where he'd grown up and this is what he saw:

It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.

Well, I was on campus during that time and I was amongst those people he distains who were "behaving irresponsibly" according to Alito.  I certainly was not priviledged, putting myself through school instead.  I'm not proud of every single thing I did during those years but I learned so much and I began to see how important it was to understand what was going on for people different from me and I learned to stand up for ideas.  I learned about how important it was for me to see myself as an independent woman.  I listened to black people talk, sometimes with great dignity, sometimes great anger about their lives.  I marched against the war.  I helped shut down the University for a few days (or was it weeks, I can't remember) because we thought people should know we didn't think it could be 'life as usual'.

I was going to say "and then later, Digby has much the same sentiment," but it turns out not to have been later at all...it was at exactly the same time, last night at 7:20pm.  Digby's ear turned up at the very same section of Alito's speech, and frames it quite correctly, I think--the guy's simply insecure about and resentful of the baby boomers who thought he was square as a kid:

This is the same guy who wanted to keep women out of Princeton. Presumably, they wouldn't have "felt comfortable" there. But that's not what made that statement so revealing. It's this notion of smart and privileged people "behaving irresponsibly."

I think it's fairly certain that he's not talking about branding frat boys' asses or getting drunk and stealing Christmas Trees. He's talking about anti-war protestors, feminists etc. And like so many campus conservatives of that era, he sounds like he's still carrying around a boatload of resentment toward them.

Roberts apparently came out of all that unscathed. Confident in his own abilities and social prowess, he didn't appear to have this puny, pinched view of liberalism as a threat to decency and morality. (He may have it, but it didn't show --- or he was smart enough to hide it in his hearings.) Alito is one of those other guys.

Now, if Dick Cheney can make a full career out of being a cranky, evil looking doomsayer with the charm of laundry soap, Sam Alito can certainly make it to SCOTUS with his surly angst. But it's something to consider as the country takes next week to think about who they saw in the hearings...and then calls in the verdict to their Senator's office. If he loses enough public mojo to embolden a fillibuster or--God forbid--turn a moderate Republican or two, it won't be because he let the cops strip search a 10-year-0ld. It will because he acted like a dick.

--TJ

Urging the Senate to Restore Habeas Corpus

In a fairly underplayed but vastly important ideological battle for the meaning and purpose of the US Constitution, competing amendments from Sens Graham and Bingaman regarding the application of habeas corpus law to detainees held at Guantanamo are being debated.  As Obsidian Wings explains and advises in strong detail, it might be very wise for the future of the country to make sure Senators of conscience opt for Bingaman's protection of habeas corpus. It establishes the principle that all persons arrested by the government shall have the right to defend themselves by hearing the charges and relying on counsel. The counsel part isn't so much in jeopardy at the moment, but getting charges brought or granting release without them is.

I've seen a fair bit of blogvacacy so far, and rightly so--but I don't want to sign on wholly with that camp, because to the extent that the appeals ask us to suffer the plight of the innocent Gitmoites, I think it not only misses the point but fails as a rhetorical answer to Wyden, who clearly isn't voting with the idea of the detainees as Richard Pryor and Gene Wilder in Stir Crazy. The reason this vote against habeas corpus is an affront that needs to immediately be reversed is that it needs to be reversed period, whether Charlie Manson is on the other end or not.

This is a Nazis-in-Skokie kind of deal. A Klan-in-Idaho event. We don't have principles established in the Constitution that we need to follow for just the innocent people, or the people we like. I mean look--I'd easily grant 60%, 70,%, even 80% of the cats in Gitmo who had no direct linkage to terrorism. But that leaves several dozen truly antisocial dudes, minimum. Complicating matters, they are dudes with barely a brand name to identify them, much less a country--but they mean us no less harm than a nation's soldiers in traditional war.

But those are the very people who must be insured to receive our common legal protections. Why? Because we had supposedly figured out that the other way--a kangaroo system of justice manipulated for political and its own antisocial ends--was total bullshit. We, for want of a less cheesy metaphor, are supposed to be the superhero who refuses to beat the living crap out of his arch villian, choosing instead to allow Danno to book him (but perhaps using more than a couple of Maui cops to keep an eye on him.) We're not that anymore, and people are noticing.

As you contemplate us losing our way (or like our friends at Wall Street Journal, who may need a kind reminder), here are some descriptions and pictures of the waterboarding process. Decide for yourself whether you think taking someone to the brink of painful asphyxiation is torture, or just a gentle truth aid. (Tip to the TIME-bound Andrew Sullivan for the last two. Whatever else you say about Andrew, he still carries a modern European's distaste for state brutality.)

--TJ

Jew Helps Christian Bash Mormon Judge!

Goldy at Horse's Ass (the Friend of Abraham in our story) is currently helping carry the load at Jesus' General while the Christian Soldier has temporarily headed Onward. In a display of ecumenical good feelin's that would make Billy Graham proud, Corporal Goldstein has chosen to poke his crooked staff into the belly of Utah judge Walter Steed, who was recently dismissed for the minor but manly offense of having three wives. In Goldy's letter to Steed, however, his respect for Steed's studliness runneth over like a cup of chicken soup:

Any judge who can lay down the law at a home with three wives -- sisters no less -- is exactly the kind of judge America needs to reign in the scourge of petty drug offenses that threatens to tear asunder our nation's moral fiber. And any man who can satisfy three women in marital bliss, occasionally simultaneously, and in various divine positions, is a role model for us all. You Sir, are obviously a man of extraordinary strength and vigor, who surely hides beneath his judicial robes a monument to God's everlasting glory more solid and enduring than Justice Roy Moore's 3-foot-high, 5,300 pound granite tribute to the Ten Commandments.

That kind of high comedy is enough to get anyone rescued from a 40-year desert walkabout! As for the judge, Bob Dole is on Line 1...

--TJ

Awfully Presumptive On Alito, AP

By the headline "Gang of 14 Fractures Over Alito," I expected a discussion of the new unsurety surrounding both the idea of a fillibuster and the nuclear option in response to it. Do Democrats have the 41 to sustain a filibuster, when Senators like Pryor, Nebraska Nelson and Tim Johnson have all spoken moderately and cautiously praiseworthy of Alito? And if they do, does a clearly weakened Republican coalition that really did not prefer a vote on the nuclear option six months ago, want to try again in the current political climate?

Somewhere along the line however, somebody told the AP that 51 votes were the Lock of the Week for the nuclear option (despite 51 never having been counted or verified on the record):

The unity of the seven Democrats and the seven Republicans in the "Gang of 14" was all that halted a major filibuster fight between GOP leader Bill Frist and Democratic leader Harry Reid earlier this year over Bush's lower court nominees.

The centrist Democrats plan to urge their GOP colleagues to withhold judgment, since Alito's nomination is not even officially at the Senate yet. The defection of even two members of the group — which decided earlier in the year to support filibusters only in "extraordinary circumstances" — would virtually ensure that Frist, R-Tenn., would win a showdown. [emph mine]

In short, WTF? Did we all so quickly forget last April?

[According to a WaPo/ABC News Poll,] by a 2 to 1 ratio, the public rejected easing Senate rules in a way that would make it harder for Democratic senators to prevent final action on Bush's nominees. Even many Republicans were reluctant to abandon current Senate confirmation procedures: Nearly half opposed any rule changes, joining eight in 10 Democrats and seven in 10 political independents, the poll found.

It is certainly fair to consider the Democrats' circumstance weakened by Graham and DeWine making clear they would bolt the agreement if Alito were filibustered, and by moderate Democrats questioning their will to do so. But it's entirely irresponsible to simply declare that their defection puts Alito's confirmation on the brink of fait accompli. Not pointing out that the Go14 compromise caused a sigh of relief on both sides of the aisle lest the vote actually have to be cast and choices made, is a serious omission of political conditions affecting any upcoming vote.

Is this like a lobbyist writing a bill that a compliant Congressperson can put their name on and claim as their own? Did the GOP just pass this article on to Jesse Holland and have it run verbatim? That's the only circumstance that would excuse such poorly reasoned analysis--and of course that would expose a more serious problem: willful distortion of the state of the Senate right now. If Bill Frist can get so thoroughly face-slapped in front of all his colleagues over Phase II of the Iraq hearings, Mark Schmitt is quite correct to wonder: how can he outwit Harry Reid on the nuclear option?

--TJ

Alito Violated Previous Pledge as Nominee

The Seattle Times today ran an article that I haven't seen until late tonight: Samuel Alito had an opinion of his stricken in 2003, causing the case to be reheard, because he was heavily invested in the defending company. In fact, Alito ruled in favor of the Vanguard family of investment companies, who had anywhere from $400,000 to $1mil of Alito's money when he let them block access to a deceased customer's account. Now that's what you call a conflict of interest.

But more disturbing IMO, and much more relevant for any upcoming hearings, is that Alito had specifically pledged--in writing--at his appellate court nominee hearings that he would most definitely recuse himself from any cases involving Vanguard. The White House was quick to offer an innocuous explanation:

White House spokeswoman Dana Perino said Alito had become involved in the case because a "computer screening program" at the 3rd Circuit had failed to pick up the potential conflict. She said that "as soon as the matter was brought to [Alito's] attention" by Maharaj's motion, he wrote a letter to Scirica requesting the verdict be withdrawn and the case presented to a new panel.

OK, so a computer was designated to uphold Alito's committment to impartiality. Well, maybe it was only a holding company of Vanguard's, and Alito simply didn't recognize the Kevin Bacon-like linkages necessary to tie it back to his investment portfolio:

The case, as presented to the appellate court, specifically names Vanguard Group, Vanguard Fiduciary Trust and Vanguard's Morgan Growth Fund as some of the litigants. The motion complaining about Alito's involvement, citing Alito's financial-disclosure statement for 2002, said he owned shares in 17 Vanguard funds at the time of his ruling, with a total value between $390,000 and $975,000.

Ohhhh....THAT Vanguard Funds! Right...the money and whatnot. Sure, and here's their name at least three times on the first page of this  case file I'm reading.  OK, my bad.

There are always discussions of conflict of interest among judges, which is reasonable since judges are allowed to own stock and have powerful friends. But rarely do you see such an open disregard for avoiding the hint of impropriety, a standard which any truly ethical person holds himself to above simply avoiding impropriety itself. And what does one make of any promises or sincere gestures byAlito during his SCOTUS hearing? Is there any reason to take him seriously, even if he writes it down?

--TJ

Bush Pulls Miers; Dems Didn't Hate Her Enough

Citing "a near-treasonous capacity for deference and open-mindedness," President Bush this morning acknowledged the withdrawal of Harriet Miers, his best friend from down the hall and choice for Supreme Court justice. The President was critical of Senate Democrats. "It's a sad day in Washington when a national party cannot be expected to do their duty and sternly oppose us," Bush said. "I tried my best to work against them in the true spirit of demagoguery, but I was continually thwarted by threats of acceptance and a rumored bipartisan vote in her favor. I could not allow Harriet to go through that kind of embarrassing spectacle of approval."

Miers' nomination ran into trouble the day it was announced, when it was leaked that Senate Minority Leader Harry Reid had in fact helped suggest her to the President as a good choice. "We knew they had no scruples," a White House aide said, "but we were caught flat-footed when that came out. We were unprepared for the hailstorm of graciousness from the Minority Leader's office. Senator Reid hasn't been as reliable of a mouth-frothing opponent as we might like, but we have done our best to reach across the aisle and incite divisiveness on the other side. This time we came up a little short."

Citing an array of comments designed to "undermine disfavor for the nominee," White House officials blamed Senate Democrats and allied groups for keeping their powder dry on Miers. "It's impossible to have the kind of battle royale a Supreme Court nominee deserves, when the opposition makes damaging statements like 'let's give her a fair shake' and 'why not wait until the hearings to judge her.' The American people deserved worse, and I think they'll be upset that they didn't get it." Officials cited a lack of embarrassing comments from groups such as MoveOn.org and People for the American Way, as a possible reason for the lack of excitement among Republicans. "When they're not whining, we get suspicious," said one staffer.

The President and his staff will attempt to regroup over the next few days and consider their options for a replacement nominee. Officials privately acknowledge the process may be a difficult one; they had counted on Miers being a lightning rod of liberal criticism. Staffers indicated Attorney General Alberto Gonzales was a possible choice, although a risky one, given the failure of Democrats to fillibuster his current appointment--a signal worrying some that Gonzales might also fail to cause the desired levels of indignant sputtering felt necessary to reassure conservatives. "What if they like him too?" a senior official speculated. "Dobson will go batshit."

--TJ

Measure 37: The Week That Was

By now, if you were interested in the story to begin with, you know that Measure 37--Oregon's citizen revolt against the supremacy of land-use planning--was overturned in Marion County a little over a week ago. Citing five separate conflicts with state and federal constitutions, Judge Mary James was near-total in her agreement with 1000 Friends of Oregon and a coalition of farming interests.

I have been following the case fairly closely, although the timing of the decision caught me a bit by surprise. And I don't think in the leadup to the decision that I ever heard a relatively objective expert confidently say, "This is gonna go down." So the emphatic way in which 37 was overturned has sparked a flurry of response from all sides, as well as litigants in current M37 claims.  [I won't pull them all out of context and reprint them here, but they are sprinkled throughout the links I'm citing.]

By Tuesday, counties and claimants were trying to assess the current and future status of their deliberations:

"They're all asking, 'What does this mean?' " said Mike Brandt, planning director in Yamhill County. "And the typical answer was, 'I don't know.' "
James' ruling stamps out all Measure 37 building opportunities unless construction crews are already legally at work, the consensus goes.
Measure 37 supporters can ask James to allow claims to go forward during the appeals process. Such a decision is unlikely, putting the measure on hold until the Oregon Supreme Court decides its fate.
"Like so much else under Measure 37, there will be degrees of uncertainty until then," Shetterly said.

Everything is on hold in the short term until the judge rules on whether to grant an injunction on making the ruling effective immediately. The sides argued their cases on Friday, and The O noted that a denial of the injunction is expected. Which means everything grinds to a halt until the Appeals Court rules or grants an injunction.

For a measure that passed with such strong statewide support, is there a revolt amongst the masses? Are people in the streets  wielding torches and pitchforks (and levels and carpenter nails and blueprints?)  Depending on what you think of the O's selection bias when it comes to letters to the editor,  there may be a couple torches, but also a number of supportive voices. The most entertaining was a torch song:

In her decision on Measure 37, Marion County Circuit Judge Mary James wrote, "A government cannot be forced to choose between exercising its plenary power to regulate for public welfare, health or safety, or paying private parties to comply with the law." And, "Because Measure 37 currently imposes limitations on the government's exercise of plenary power to regulate land use in Oregon, it is unconstitutional."

Limitations on government is what it's all about. Has Judge James read The Federalist Papers? Has she heard the term "limited government"?

It took 30 years of pain before the people spoke in two different elections, but the black-robed tyrants still have not gotten the message. They would bond the people who want to be free.

They favor a socialist collective, which is what the Land Conservation and Development Commission is, versus people making their own choices. They would put the decisions in the hands of unelected bureaucrats to service their agendas while they give lip service to the environment, at the expense of landowners.

PRESTON DREW Vice president Citizens' Alliance for Property Rights Enumclaw, Wash. www.proprights.org [emph mine, wingnuttery his]

So what now? I should mention that the day after the decision, The O came up with an idea that try as I might, really sounds horrible: have the Bowlinator call a special session. Doesn't that sound like a capital idea? Bringing back Karen Minnis for another joyous session? Yecch. The last thing this issue needs is more partisanship. The House will make something barely weaker than the current version; the Senate will draft something different, and neither the twain shall meet.  The Hillsboro Argus couldn't resist saying "I told you so" on Thursday. Literally:

The judge also cited trashing legislative laws on land use. So as counties all over the state scratch their collective heads and wonder just where this is all going to end up, don't say we didn't tell you so.

After it ends up in the Oregon Supreme Court, it will get tossed back to the Legislature. Taking on the life of a resurrected ghost, it will become a political hot potato and could put a Republican in the governor's office for the first time since the rocks cooled after the Vortex Concert. Where's Tom McCall when you need him?

I'm not sure I'm buying the electoral rhetoric, just given the state of things politically in Oregon and the rest of the country, but they're right that adding the Legislature is just going to add another layer to the problem--at least in the fashion of a highlighted session to address the problem.

The Portland Tribune and the Statesman-Journal both have hopeful outlooks from the decision, offering the useful advice that this is an opportunity to take a broad look at land use policy. The Trib wants to vest faith in "The Big Look," a task force first due to report to the Legislature in 2007. But the SJ gives an ex-OSU professor a chance to offer the most concrete set of ideas, thank God,  to help bridge the gap in rhetoric:

The first one deals with building a home on existing parcels. If a local unit of government allowed the creation of a legal parcel, then let people build a home on it, provided they can get a septic permit, find water and meet all of the other zoning restrictions. There are many parcels out there right now that were purchased with the intent to build a home and, because of a zoning change, it no longer can be justified. My advice to the Legislature; Just do it! It will not impact the rural areas as much as you think.

Next, provide landowners with tools that will let them keep their land in farming and at the same time fend off the very lucrative temptation to sell for development. One of the most noted of these tools is called Transfer of Development Rights. It offers a financial mechanism for landowners to sell the development rights to their property and realize the value of that development while keeping their property in its current use. Currently, 37 states have laws enabling TDRs. By now, it is not an experiment.

I urge everyone who is interested to read over the ruling cited above. Once you move quickly past the procedural stuff described in the beginning, the ruling is pretty clearly set out and explained, violation by violation. For a counter that is certainly not objective but at least seems to get the argument being made by James, the Oregonians who are not one of your 1000 Friends but who are in fact In Action offer one here. Assuming that the memo was crafted by Kelly Clark, you can assume many of these same assessments of James' ruling will be cornerstones of the app
eal(s).

Update 10/26 12AM--
There's a good column by Russell Sadler at Blue Oregon, followed by a fairly lively debate over the principles of the ruling, and who may participate in that debate. Also also--damned if I can find it at the cesspit that is OregonLive, but today's  morning print edition noted that Judge James denied the state petition to enjoin repeal of Measure 37 as appeals proceed. So any counties that were still processing may soon opt to stop, given that it would seem we are talking months, minimum. Score one feebly for The O; they called that one right.

--TJ