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The LiberalOasis Blog
The daily view from the oasis

November 11, 2005 PERMALINK
Course Correction on Alito?
(posted Nov. 11 1 AM ET)

Earlier this week, LiberalOasis said we're losing the Alito fight and if those leading the fight did not make a serious course correction, we would lose.

Now, it looks like we’re seeing a course correction.

The AP reports that the liberal civil rights groups have had it with the unhelpful comments coming from Senate Dems, and are stepping up their activity:

Liberal groups are planning a new effort against Supreme Court nominee Samuel Alito after seeing some Senate Democrats virtually dismiss the possibility of a filibuster and praise the New Jersey jurist in the two weeks since his nomination.

"Next week, the press, the American people will begin to hear a very different story about his record, his experiences, some of the judgments he's made," said Nan Aron, president of the liberal Alliance for Justice...

... Aron said nominees normally get a honeymoon period from the Senate during which they garner praise, but she expects a turnaround after a "major educational process" next week...

... "It's now clear given the context of this nomination there is no one worse," Aron said. "This nominee, who has anchored the extremist position on the 3rd U.S. Circuit Court of Appeals, is someone whose ideology does present a real problem and real questions."

Meanwhile, Senate Dems are putting Alito on the defensive regarding his conflict of interest problems.

On Wed., all 8 Dems on the Judiciary Cmte pressed Alito for more info about the now infamous Vanguard case, which Alito ruled on despite promising the Senate in 1990 that he would recuse himself from any Vanguard case.

Yesterday, after GOP Sen. Arlen Specter also pushed Alito to respond to the concerns, Alito did. And he changed his story.

The original story was that his court’s computer system failed to remind him to recuse himself, an explanation that never washed because he is ultimately responsible for keeping his own promise.

Now, in a letter to Specter, Alito has a new story: that he arbitrarily concluded his initial promise was no longer operative because it was “unduly restrictive.”

AmericaBlog best sums up the larger relevance:

How can any Senator trust a single thing Alito now says during his confirmation?

Sure, Alito said the other day that he has "great respect" for the precedent of Roe v. Wade.

But just wait until after he's confirmed, overturns Roe, then tells us he was just being "unduly restrictive" when he mentioned that "great respect" thing.

So, after several days of being beat by both the White House spin team as well as some friendly fire, we’re picking up a little traction just as the civil rights community is gearing up for a major offensive.

While things are looking up, we should all keep in mind that this is not just about Alito.

It does not do us much good if we defeat Alito on a technicality, and then allow Bush the opportunity to sneak through a different right-wing nominee.

We need to win this fight in a manner that discredits the entire conservative judicial activist movement.

It’s not just Alito’s word that cannot be trusted. Clarence Thomas mouthed the same words about respecting precedent, and then disrespected the Roe precedent one year later.

Why? Because conservative judicial activists cannot tell the truth about their judicial philosophy and get confirmed, because the public would reject them.

That’s why we need judges with clear records of impartiality.

Not blank slate stealth candidates. Not judges with right-wing records who experience phony “confirmation conversions.”

And we should keep fighting until we get one.

QUICK HIT

LO vs. Flavia

You can listen to the Alito debate between LO Exec. Ed. Bill Scher and Flavia Colgan, which aired yesterday on Sirius satellite radio’s “The Young Turks,” at this link.

November 10, 2005 PERMALINK
The Man Who Never Went Away Comes Back
(posted Nov. 10 1 AM ET)

As Ahmad Chalabi met with Condi Rice yesterday (meetings with Cheney and Rumsfeld are on tap), Slate offered this analysis of Iraq-US relations:

U.S. officials are in a pragmatic mood. They may not trust Chalabi, but he may be the best they can get—dealing with democracies is funny that way.

Oh that’s right. Iraq is one of those “democracies.”

If we’re dealing with Chalabi, it must be because he’s the popularly elected representative of the Iraqi people, not because he was our pet pol flown into Iraq by the Pentagon.

Or maybe, Slate needs a clue.

Back in January, after the first Iraqi “election,” the one where no voter knew who they were voting for, (as opposed to last month’s constitution vote where no one could be sure the constitution wouldn’t be changed afterwards) LiberalOasis wrote:

They gave CIA-buddy Iyad Allawi, who has his own slate in the elections, a leg up by maneuvering to appoint him interim prime minister.

And the neocons managed (by luck, design or both) to pull off the bankshot that LiberalOasis speculated about back in May:

Giving Ahmed Chalabi some anti-American sheen by driving a public wedge between him and White House, easing his transition to being a prominent member of the Sistani-endorsed slate.

In turn, the US has old friends on two rival slates, the two expected to win the most votes. Very convenient.

We’ve learned since from The New Yorker that the Bushies did try to rig the election for the Allawi slate, but in the words of a UN official, “you did not rig it well enough.”

But now the Chalabi insurance policy appears to be paying off, as he’s being spun once again as a possible prime minister. Reuters reports:

...while he lacks mass appeal in Iraq, U.S. experts say he could emerge as a possible compromise candidate for prime minister in a coalition government.

Newsflash: when someone who “lacks mass appeal” can “emerge” as a prime minister, that’s a hint that you’re not dealing with a democracy.

And propping up a phony democracy is not the way to win the hearts and minds of the Arab/Muslim world and end the terrorist threat.

It’s only a way to feed the threat.

November 9, 2005 PERMALINK
Desperate Leak Gambit Backfires
(posted Nov. 9 1:30 AM ET)

So the GOP leadership has called for a congressional investigation into a possible leak of classified info regarding our network of secret prisons, something which they never bothered to do for Valerie Plame Wilson.

Obviously, they thought they saw an opportunity to go on the offense, and put Dems on the defense.

But it hasn’t worked out quite as they hoped.

For one thing, GOP Sen. Trent Lott was pointing the finger at his fellow GOP Senate colleagues, because the classified info was shared in a GOP caucus meeting the day before the original W. Post prison story.

(Though as The Ginger Man notes, it can’t be possible for a Senator or a Senate aide to be the main source. The story cites “current and former intelligence officials and diplomats from three continents.” It also suggests that “senior U.S. officials” confirmed the story while asking the W. Post to suppress key aspects.)

For another thing, some GOPers were criticizing Frist and Hastert for calling for an investigation. Sen. Lindsey Graham said, “Talk about not seeing the forest for the trees. The real story is those jails.”

That touches upon the central point, why these leaks are not the same.

When the info is classified in order to cover up an illegality, leaking it can be an honorable way to end the illegal behavior (depending on the ramifications).

When the info is classified for good reason, leaking it to intimidate and smear people is treasonous.

Now, depending on the law is interpreted and executed, both types of leaks can be illegal. And both types probably violate security clearance agreements.

In turn, anyone leaking for honorable purposes, still must be prepared to face consequences, as is the case for any act of civil disobedience.

But should Americans feel obligated to have the same amount of disgust for the Plame leakers and the secret prison leakers? Hell no.

Frist and Hastert pathetically charge that “such an egregious disclosure could have long-term and far-reaching damaging and dangerous consequences, and will imperil our efforts to protect the American people and our homeland from terrorist attacks.”

It is not the “disclosure” that imperils us.

It is the secret prisons themselves that undermine our moral authority and make it impossible to rally the world to our cause.

Our disgust is properly directed to the architects of the secret prison network, and those political leaders that try to rationalize and protect its existence.

November 8, 2005 PERMALINK
We're Losing
How We Can Change Course and Defeat Alito
(posted Nov. 8 12:45 AM ET)

It’s been a week since Sam Alito was nominated. How’re we doing?

We’re losing.

We have not lost (lest any right-wingers or mainstream media pundits try to take the above out of context) but a serious course correction is needed if we are to win, and save the swing vote of the Court.

Right-wing blogger Patterico’s recent post (LiberalOasis chooses not to link) rings sadly true:

Once again, we [right-wing] bloggers have gotten all geared up for nothing.

I really thought Judge Alito was going to get slammed hard by the left ... I really thought an Alito confirmation would be an uphill battle.

But I’m starting to think we have the same situation we had with Justice Roberts: a lot of talk ... but in the end, no real opposition to speak of.

Why does it not feel like there is a real opposition?

The first 24 hours were good. Leading Dems signaled disapproval. Liberal groups quickly opposed. The media treated the pick as ideological and controversial.

Since then, the White House spin effort has chipped away at that “controversial” perception, dispatching alleged liberals to attest to Alito’s reasonableness, and garnering positive media coverage.

The Senate Dem messaging has become muddled, with more emphasis on waiting until the hearings than on Alito’s right-wing opinions, and far too much taking Alito at his word after one-on-one meetings.

And the first anti-Alito ad, from People For The American Way, is a well-meaning misfire.

While the pro-Alito forces are generating news stories painting Alito as tempered and respectful of precedent, the new ad calls Alito “far right” but doesn’t give any substantive reason to back that up.

In other words, the anti-Alito ad is three steps behind the pro-Alito spin.

Possibly on the bright side, PFAW says there will be:

....more ads in the coming weeks, reminding Americans of the critical role the Supreme Court plays in our daily lives – safeguarding our liberties, guaranteeing privacy and reproductive choice for women, keeping our air and water clean, upholding health and safety standards for workers, and insuring equal rights and access to justice for every American.

Hopefully those ads will do more than just remind Americans of those issues, but starkly describe how Alito is a direct threat to them.

Hopefully they will offer more than tired buzzwords (like "radical right") and give enough substance so people will be compelled to take a stand.

Hopefully they will also undermine Alito’s credibility, citing his unethical behavior over the Vanguard case and the contradiction between his husband notification ruling and his alleged support of privacy rights -- so he cannot double-talk his way through the hearings.

Hopefully they will use Sen. Coburn’s remarks about Alito legislating from the bench, to counter GOP spin that Alito is not a conservative judicial activist.

And hopefully the ads will be up as soon as possible, before the notion that Alito is mainstream becomes conventional wisdom, making the hearings a Robertsesque routine matter.

Like with Roberts, there will be no 11th hour scandal, and there will be no obviously controversial comments made at the witness table.

Therefore, if Alito is in good shape going into the hearings, he’ll be a lock coming out of the hearings.

Without a stepped-up effort on our part, now, that’s what will happen.

And with the Senate Dem messaging very possibly chronically hopeless, with the Alito story fading from the front pages, and, frankly, with the blogosphere’s focus diffuse, the ad buys are more important than ever.

An expanded ad effort is the necessary course correction.

Large ad buys that bring back the sense that a real fight is in the offing, and renew the liberal movement’s focus.

And ads that dramatically push specific issues relevant to regular Americans, and highlight Alito’s opinions -- which will drive media coverage and put the pro-Alito forces on the defensive.

So even if PFAW’s first ad is imperfect, the best thing you can do right now is fill their coffers, and help make their future ad buys as big as possible.

Bush may be at 35%, but that doesn’t mean anything if it doesn’t stop him from handing the Supreme Court to the corporate lobby and the fringe fundamentalist leaders.

All 35% means is that Bush has to work harder to earn his victories.

He is working hard on Alito. So far, we’re not working hard enough.

November 7, 2005 PERMALINK
The Sunday Talkshow Breakdown
A weekly feature of LiberalOasis
(posted Nov. 7 12 AM ET)

Yesterday, we saw the beginnings of a coordinated Dem message regarding Alito’s judicial philosophy.

We saw a GOP Senator inadvertently give us a helping hand.

And we saw Sen. Joe Biden kill all the momentum those two developments might have sparked.

Sens. Dick Durbin and Ted Kennedy sought to raise awareness of some of the issues at stake that affect regular Americans, and would be adversely impacted by a Court shift to the Right.

On NBC’s Meet The Press, Kennedy said:

...the people that were so enthusiastic about knocking down Miers are so enthusiastic for this nominee.

We have to find out: Why are they so enthusiastic this time and what do they know that we don't know?...

...There are some important areas that I'm concerned about.

His decision about the strip-searching of a 10-year-old girl that was basically rejected by the court.

His decision on the Family and Medical Leave which is so important to workers who are trying to make a judgment between the child that they love and the job that they need.

That position was over turned by the Supreme Court.

And also decisions with regards to disabilities rights, where a young person needed a chair to be able to participate in a class and he rejected those rights.

And on CBS’ Face The Nation, Durbin hit similar points:

What's at stake here with this Bush nominee is whether or not we are going to put a person on the Supreme Court who is sensitive to the most basic and important responsibility of the court: protecting our rights and freedoms.

And I want to make certain, before I cast my vote, that I understand about Judge Alito.

Some of the opinions that he's handed down are controversial decisions.

Deciding that the Family and Medical Leave Act did not apply to state employees.

Authorizing a strip search in a situation involving a mother and her 10-year-old daughter.

Questions involving the rights of privacy.

All of these are absolutely essential questions we need to ask.

Futhermore, on MTP, host Tim Russert and right-wing Sen. Tom Coburn called attention to Alito’s willingness to prevent our democratically elected representatives from passing laws that protect rights and promote the common good:

RUSSERT: This is from Jim Brady, White House press secretary for Ronald Reagan who was shot in the assassination attempt:

"Judge Samuel Alito's dissent in U.S. v. Rybar ...argued that federal restrictions on machine gun possession amounted to an unconstitutional of congressional power under the Commerce Clause. ...his opinion attempted to erect arbitrary hurdles to congressional efforts to reduce the availability of machine guns to the criminal element."...

... Do you believe that Congress has the right to restrict the sale and transfer of machine guns, or do you think that Judge Alito's correct that Congress should not be interfering in that?

COBURN: No, I think we probably have the right to do it. But I don't think a judge has the right to make that decision...

...and that brings us back to the whole point.

Those aren't decisions judges should be making. Those are decisions that legislators should be making...

RUSSERT: So Judge Alito was wrong?

COBURN: Sure.

RUSSERT: And he was legislating.

COBURN: Sure.

RUSSERT: So conservative jurists, or strict constructionists, can also legislate.

COBURN: Well, I'm not sure that's what he is yet. You've assumed that...

RUSSERT: I'm not making any judgment...

COBURN: Well, you just said, "A strict constructionist can legislate." I'm sure that we all can, and nobody's pure in any way.

But I would hope that whatever judge is on the Supreme Court or on the circuit courts or on the appellate branches looks back at the base of what we need to be about, and that's interpreting law and not going beyond that.

Coburn, of course, is mainly interested in Congress and state legislatures being able to pass laws that would violate the Constitution by taking away rights, on issues such as discrimination and reproductive freedom.

But he is somewhat separating himself from most other conservative judicial activists, who simply want Congress to be able to pass the laws they like and not be able to pass laws they don’t like.

And his comments, qualified as they may be, help us make the case that Alito is part of the conservative judicial activist movement.

Despite these notable comments from Kennedy, Durbin and Coburn – attention today will likely not be focused on these substantive aspects of Alito’s judicial record.

But instead, the media will likely zero in on this exchange with Biden and ABC’s George Stephanopoulos:

STEPHANOPOULOS: Will Democrats commit to giving [Alito an] up or down vote? ...

BIDEN: My instinct is that we should commit.

Biden didn’t say he would definitely support Alito and not filibuster, but by giving a signal that he would, instead of talking up Alito’s right-wing rulings, he foolishly harmed the Dems ability to properly frame the Alito debate.

The AP headline raced across the wires -- “Biden: Alito Filibuster Seems Unlikely” -- helping to foster a perception that there won’t be a real fight, which can color future media coverage.

One dumb comment isn’t the whole ballgame, but there isn’t a whole lot of room for error in a tough fight such as this.

QUICK HIT

Ruth Bader Ginsburg Was Not An Activist Judge

For months, conservatives have tried to get Dems to roll over for their judges, claiming that GOPers all voted for that crazy left-wing judge Ruth Bader Ginsburg.

That talking point was back yesterday.

Though back in July, LiberalOasis noted on “The Majority Report” that talking point was bunk.

While Ginsburg was a liberal activist in the 1970s, throughout the 1980s, she was a non-ideological judge, and had a huge paper trail of opinions to prove it.

Which is exactly why GOP Sen. Orrin Hatch recommended her to Bill Clinton.

Finally, someone else bothered to mention this, NPR’s Nina Totenberg, on MTP:

RUSSERT: ...Republicans will point out, however, as I did with Senator Kennedy, as well, and journalists and other observers of the court, Ruth Bader Ginsburg and Stephen Breyer-- they're liberal philosophies, Breyer working for Kennedy; Ginsburg general counsel for the ACLU.

And yet Republicans overwhelmingly voted to allow them to go on the court.

...

TOTENBERG: [Ginsburg had] been a judge, I think, for 12 years.

She'd been, actually, a pretty conservative liberal judge, if you can be such a thing.

And President Clinton decided he didn't want to have a big fight. And he went to Orrin Hatch and he said, "Who would you endorse? Who can you get through?"

And he gave him two names: Ruth Bader Ginsburg and Stephen Breyer.

And in successive years, that's who Clinton nominated.

The Blog Wire
Tracking the liberal blogosphere

FindLaw's John Dean: "Having read the indictment against Libby, I am inclined to believe more will be issued. In fact, I will be stunned if no one else is indicted ... the person who should be tossing and turning at night ... is the Vice President of the United States" (via firedoglake)

The Washington Note: "STOP HIM: Ahmed Chalabi Planning to Speak at American Enterprise Institute"

Talking Points Memo: "Finally, some good reporting on the Niger-Uranium-Italy story."

Salon: Al Gore on global warming, "With Hurricane Katrina, the melting of the Arctic ice cap and careless ecological mayhem, we, too, are entering a period of consequences. This is a moral moment."

Think Progress: "During his tenure on 3rd Circuit many of Samuel Alito’s opinions have been roundly criticized by other judges ... not for being conservative, but for being unfaithful to the law."

TalkLeft: "the White House Political Affairs office [has] a contact list for journalists [with] people who may not share Alito's views but who support his nomination."

MyDD: Daschle Says The Senate Was Lied To On Iraq

Eric Umansky: "The Washington Post's extraordinary piece on the secret prisons declined to name names ... Human Rights Watch is about to name names. Two European countries are apparently hosting CIA prisons: Poland and Romania" (via War and Piece)

Save Morning Sedition has a petition to stop one of Air America's funniest and underpromoted shows for getting the ax

The Carpetbagger Report: Dean's DNC Progress

The Right Honorable Samuel A. Alito, Jr.: "Some of you may have heard the rantings from my many critics that, just because I once said it was okay for a particular police officer to strip-search a particular 10-year old girl, that I am in favor of strip-searching all 10-year old girls ... I do not in fact believe this. What I do believe in is strip-mining ten year-old girls ... I heartily encourage our top industrialists to find a way to mine these girls for their precious elements."

Anonymous Liberal: Rep. Conyers calls on Bush to take "no pardons" pledge (via Mark Kleiman)

Raw Story: "Bolton's chief of staff gave information on outed agent to Libby, lawyers involved in leak case say"

Bitch Ph.D.: "Alito has demonstrated very clearly that, when it comes to restricting the right to challenge a law, he is very narrow about who has that right; but when it comes to restricting the rights of groups of people, he is very broad."

Shakespeare's Sister: "[Alito is] a disingenuous activist conservative judge who will (quite likely) determinedly chip away at Roe until the precedent is impotent."

The Washington Note: "Harry Reid, giving NO NOTICE to Senator Frist, has just kicked the Republican leadership and the White House in the rear -- and has done the nation a great service by making sure that our public attention is still focused on the mismanagement and serious abuses of the national security circumstances of the United States."

Hullabaloo: "So Harry Reid has called for the long awaited Phase II investigation into the Iraq debacle and they are going into a closed secret session to discuss it. The Republicans are squealing like pigs in a slaughter house."

Progress Report: Alito The Judicial Activist

Nathan Newman: "Alito ... will be a consistent vote against workers rights ... he is so hostile even to the basic right of workers to have a day in court, much less interpreting the law in their favor."

Faithful Progressive: Judge Alito Legislated from the Bench in Anti-Family Leave Case

The American Street: "Democrats should start floating the idea that as soon as we regain control of Congress and the Presidency, we will proceed to restore balance the Court by adding two new justices if the Judicial filibuster is abrogated"

Mad Kane's Alito limericks

The New Republic's The Plank: "Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring 'Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.' His lack of deference to Congress is unsettling." (via Eschaton)

Is That Legal?: "Into my hands just fell a copy of the "talking points" that the White House started circulating this morning ... it reveals what the White House thinks Sam Alito's greatest weaknesses are."

Alliance For Justice: a comprehensive 24-page PDF dossier of Alito's judicial record

Save The Court: Sign the Stop Alito petition

Think Progress: Samuel Alito's America

Legal Momentum: PDF with Alito's record on women's rights and civil rights

ACSBlog: Who is Samuel Alito?

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