George Will on Prohibition

From last week's Washington Post column:

Although whiskey often was a safer drink than water, Americans, particularly men, drank too much. Women's Prohibition sentiments fueled the movement for women's rights -- rights to hold property independent of drunken husbands; to divorce those husbands; to vote for politicians who would close saloons. So the United States Brewers' Association officially opposed women's suffrage.

Women campaigning for sobriety did not intend to give rise to the income tax, plea bargaining, a nationwide crime syndicate, Las Vegas, NASCAR (country boys outrunning government agents), a redefined role for the federal government and a privacy right -- the "right to be let alone" -- that eventually was extended to abortion rights. But they did.

By 1900, per capita consumption of alcohol was similar to today's, but mere temperance was insufficient for the likes of Carrie Nation. She was "six feet tall, with the biceps of a stevedore, the face of a prison warden, and the persistence of a toothache," and she wanted Prohibition. It was produced by the sophisticated tenacity of the Anti-Saloon League, which at its peak was spending the equivalent of 50 million of today's dollars annually. Okrent calls it "the mightiest pressure group in the nation's history." It even prevented redistricting after the 1920 Census, the first census to reveal that America's urban -- and most wet -- population was a majority.

Before the 18th Amendment could make drink illegal, the 16th Amendment had to make the income tax legal. It was needed because by 1910 alcohol taxes were 30 percent of federal revenue.

Workmen's compensation laws gave employers an interest in abstemious workers. Writes Okrent, Asa Candler, founder of the Coca-Cola Co., saw "opportunity on the other side of the dry rainbow." World War I anti-German fever fueled the desire to punish brewers with names such as Busch, Pabst, Blatz and Schlitz. And President Woodrow Wilson's progressivism became a wartime justification for what Okrent calls "the federal government's sudden leap into countless aspects of American life," including drink.

And so Prohibition came. Sort of. Briefly.

Senate Posts Elena Kagan's Answers to Written Questions

You can read them on the Senate Judiciary Committee website (ht Senatus blog). IMHO Senator Coburn scored a point with his question about pro bono legal work:

[SEN. COBURN:]I believe each profession has an obligation to serve the less fortunate. I take that belief personally and apply it in my career as a physician. While I am not a lawyer, I do know the legal profession encourages and actively promotes, as does my medical profession, pro bono services. In fact, Rule 6.1 of the ABA Model Rules of Professional Conduct, which governs the behavior of attorneys, states “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.” It goes on to note the various ways that responsibility should be fulfilled, stating the lawyer should provide those services to “persons of limited means or charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means.”

Comment 1 of Rule 6.1 reinforces the importance of pro bono services when it states, “[e]very lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay...” Comment 9 goes even further by stating, “[b]ecause the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer.”

Based on the Model Rules and your comments in the committee-required questionnaire for your nomination as solicitor general, which merely notes Harvard Law School’s institution of a tuition-free third year and loan forgiveness for students engaged in public service, I am concerned by your personal lack of pro bono legal services.

a. In your Supreme Court questionnaire, you note that you have “served on the boards of numerous non-profit organizations” and “promoted public service and pro bono work” while Dean at Harvard. But, you “did not engage in any individual representation of clients.” In fact, your pro bono work appears to be far less than prior Supreme Court nominees, despite some of those nominees’ restrictions on providing these services due to their careers as judges. Both Chief Justice John Roberts and Harriet Miers listed extensive pro bono activities, including representing indigent clients, in their questionnaires. Even Justices Sotomayor and Alito, who had spent most of their careers as judges and were prohibited from representing clients in pro bono work, had more meaningful volunteer work for the underprivileged and indigent.

i. Since graduating from law school, have you ever volunteered your time for pro bono legal services that would qualify you to fulfill the yearly requirements of Rule 6.1 of the Model Rules of Professional Conduct? Why or why not?

Response:
My pro bono work as a lawyer is listed in my questionnaire response except that I may have done some pro bono work at Williams and Connolly that I do not now recall. My general practice as both a government lawyer and an academic was not to represent individual clients (whether for pay or pro bono). I do not know whether my efforts to expand pro bono opportunities as Dean of Harvard Law School or my service on the boards of several organizations devoted to representation of needy persons falls within Rule 6.1.

[SEN. COBURN:]ii.Please list the cases or clients you have participated in or in which you have represented a client pro bono.

Response:
Please see above.

Document of the Week: Chief FOIA Officer Report FY09 Central Intelligence Agency March 15, 2010

The CIA recently posted its report by a secret author on its handling of Freedom of Information Act requests for 2009. It makes for interesting reading.

In section one, part one, the CIA admits that it has released declassified documents to students at a private military day and boarding high-school located in Culver, Indiana for a symposium it called "Creating Global Intelligence: the Creation of the US Intelligence Community and the Lessons for the 21st Century." While it must have been fun for the high-schoolers, and nice for the school, one has to wonder how such a private event at a private military school, located out in the country, could be classified as a contribution to "the presumption of openness." (I'm guessing someone at the CIA knew someone connected to Culver Military Academy). I don't think that even the producers of Team America: World Police would have thought of this.

Chief FOIA Officer Report
FY09
Central Intelligence Agency
March 15, 2010

I. Steps Taken to Apply the Presumption of Openness
1. Describe below the steps your agency has taken to ensure that the
presumption [of openness] is being applied to all decisions involving
the FOIA. This section should include a discussion of the range of
steps taken by your agency to apply this presumption. From
publicizing the President’s FOIA Memorandum and Attorney
General’s FOIA Guidelines and providing training on them, to
implementing the presumption in response to FOIA requests and
administrative appeals, with examples or statistics illustrating your
agency’s action in making discretionary releases of records or partial
releases when full disclosure is not possible.

Both the President’s FOIA Memorandum and the Attorney General’s FOIA
Guidelines were widely circulated and discussed with all individuals involved
in the FOIA process. The Central Intelligence Agency (CIA) has worked
diligently to release information to the public that no longer requires
protecting, including discretionary releases not mandated under FOIA.

Under the CIA’s Historical Review Program, several discretionary collections
on historically significant topics were released to the public in FY09. These
collections included (date of release in parentheses):

• Office of Scientific Intelligence (10/08)
• Polish Martial Law (12/08)
• Vietnam Histories (3/09)
• Air America: Upholding the Airmen’s Bond (4/09)
• Founding Documents of the Intelligence Community (5/09)

These discretionary releases provided official acknowledgement of
previously undisclosed information. For example, in the case of the Polish
Martial Law documents, the documents provided insight into the
contributions of Colonel Ryszard Kuklinski to U.S. policymakers’
understanding of the events leading up to the imposition of martial law in
Poland. In the case of the Air America documents, the CIA acknowledged
for the first time the role that Air America pilots played in the search and
rescue of airmen during the Vietnam conflict.

The CIA also partnered with Culver Academy, a private school in Indiana
during a year long effort to place declassified documents into the classroom
for hands-on study in the classroom. The CIA released the Founding
Documents of the Intelligence Community, 833 documents primarily from
the late 1940’s through the 1950’s. The documents provide specific
procedural and implementing guidance for the establishment of the CIA and
more broadly, the Intelligence Community. Historians from the CIA’s Center
for the Study of Intelligence Historians, the National Security Agency, and
Villanova University conducted in-class learning experiences with the
students showing them how to use the primary sources and also providing the
background framework and events that shaped the documents. The Capstone
of the project was a symposium entitled Creating Global Intelligence: the
Creation of the US Intelligence Community and the Lessons for the 21st
Century.

In section one, part two, the CIA states that it released 363 records in full and 918 records in part, in response to FOIA requests. This is compared to the previous years totals of 237 and 532, respectively. Thus, the CIA concludes: "The data show that more documents were released in full or in part in FY09 in comparison to 2008." This data is almost meaningless, because it consists only of raw numbers, rather than percentages of requests answered. How many requests were made as opposed to answered in the two years discussed? They don't say, we don't know, and so cannot make any claim as to relative trends in this regard. The information has been kept secret, in such a way as to negate the validity of the claim, except as technically responsive to the question. Perhaps some high school students at Culver Military Academy could explain principles of statistical analysis to the CIA FOIA officer?

2. Report whether your Agency shows an increase in the number of
requests where records have been released in full or where records
have been released in part when compared with those numbers in
previous year’s Annual FOIA Report.

In FY09, the CIA released 363 records in full and 918 records in part as
compared to FY08 when 237 records were released in full and 532 records
were released in part. The data show that more documents were released in
full or in part in FY09 in comparison to 2008.

In section two, sections one and two, the CIA first admits that it didn't have a functioning IT system in 2008 to track FOIA requests, then describes the new system in such vague terms as to be almost meaningless. I couldn't find one hard fact, statistic, or number to analyze. A non-answer. Again, the CIA FOIA officer might benefit from a refresher course in English composition at Culver Military Academy.

II. Steps Taken to Ensure that Your Agency has an Effective System for
Responding to Requests
1. Describe here the steps your agency has taken to ensure that the
system for responding to requests is effective and efficient.
2. This section should include a discussion of how your agency has
addressed the key roles played by the broad spectrum of agency
personnel who work with FOIA professional in responding to
requests, including, in particular, steps taken to ensure that FOIA
professionals have sufficient IT support.

1. In FY08 we replaced an outdated case management system with a new--
more efficient--system compatible with modern technology platforms. We
continue to assess and modify the current system in order to make it as
efficient and effective as possible. We also automated capturing, forwarding,
and tracking requestor phone calls to our public FOIA phone number in order
to respond to these requests effectively and efficiently.

2. The FOIA program office involves IT support in every aspect of the
FOIA/PA process and has partnered with it to further advance the common
goal to use technology to improve responsiveness. IT support personnel are
located within close proximity of the FOIA program office, fostering greater
interaction and support, and are proactive in their trouble-shooting efforts and
looking ahead for system enhancements.

III. Steps Taken to Increase Proactive Disclosures
1. Describe here the steps your agency has taken to increase the amount
of material that is available on your agency website, including
providing examples of proactive disclosures that have been made
since the issuance of the new FOIA guidelines.

In addition to posting documents from closed FOIA cases each month, the
electronic FOIA Reading Room website also hosts documents released
through the discretionary Historical Review Program (see Section I above for
details). Web site statistics show that many visitors to the CIA FOIA Reading
Room website are most interested in these historically significant document
releases. New additions since the memo and guidelines include a
downloadable version of the previously released Family Jewels collection and
Warsaw Pact documents.

Part three actually contains a concrete fact. It's nice to know that some old documents have been put online. However, re-releasing already publicly available "Family Jewels" doesn't strike one as the same thing as making new material available under FOIA. If something has been made public once, it can't be made public again, even if it is now "downloadable". Perhaps Culver Military Academy offers courses in Logic?

IV. Steps Taken to Greater Utilize Technology
1. Does your agency currently receive requests electronically? No.
2. If not, what are the current impediments to your agency establishing a
mechanism to receive requests electronically?

CIA is evaluating the security, counterintelligence, and resource issues
associated with the implementation of electronic FOIA submissions.
Currently, resources are devoted to automating the processing, tracking,
and required reporting of FOIA requests. Emphasis on back-end
processing has contributed to improved response time to requesters as
noted in our FY09 FOIA Annual Report.

3. Does your agency track requests electronically? Yes.
4. If not, what are the current impediments to your agency utilizing a
system to track requests electronically? Not applicable.
5. Does your agency use technology to process requests? Yes.
6. If not, what are the current impediments to your agency utilizing
technology to process requests? Not applicable.
7. Does your agency utilize technology to prepare your agency Annual
FOIA Report? Yes.
8. If not, what are the current impediments to your agency utilizing
technology in preparing your Annual FOIA Report? Not applicable.

Part Four seems to be the most interesting of all. While almost every government agency and business in the USA does business by email and on websites, the CIA does not receive requests electronically. While this may be justifiable somehow or other, there is no explanation given. The only answer I can think of is that it makes it harder to submit a request. They just don't want to hear from the public. But of course, I didn't go to Culver Military Academy. Perhaps they have a better explanation. Although I'd reckon some kids in the Culver Military Academy IT department might figure how to set up an email FOIA request service on a secure website.

V. Steps Taken to Reduce Backlogs and Improve Timeliness in Responding
to Requests
1. If you have a backlog, report whether your backlog is decreasing.
That reduction should be measured both in terms of numbers of
backlogged requests and administrative appeals that remain pending
at the end of the fiscal year, and in terms of the age of those requests
and appeals.

Note: Privacy Act Cases were not included in CIA’s FY08 data but were
included and reported in FY09. As reported in the FOIA Annual Reports,

CIA’s backlog is decreasing -- from 940 cases in FY08 to 592 in FY09. The
median number of days to process simple and complex cases decreased
(detailed below in Section 3), and we closed the four oldest pending FOIA
cases and the three oldest appeals cases. At the end of FY09, the oldest
FOIA/PA and administrative appeals cases were dated 10/7/1998 and
4/26/1995 compared to FY08’s oldest FOIA and administrative appeals cases
of 5/1/1992* and 3/1/1993, respectively.

2. If there has not been a reduction in the backlog, describe why that has
occurred and what steps your agency is taking to bring about a
reduction. Not applicable.

3. Describe the steps that your agency is taking to improve the timeliness
in responding to requests and to administrative appeals.

Throughout the fiscal year, CIA placed concerted efforts into streamlining
processes to improve timeliness. In FY09, the median number of days to
process simple and complex cases decreased from 28 to 15 and 68 to 51 days
respectively. For administrative appeals, the median number of days
decreased from 161 to 112 days. CIA also implemented several refinements
to its automated case management system to better address workflow and
other system issues as well as to add key data collection capabilities relative to
statistical reporting for the FOIA Annual Report.

*FY08’s Annual FOIA Report should have recorded this date as 7/7/1989.

Well, let's look at the bottom line: the oldest requests in 2009 dated from 1995 instead of 1992. That's to say, you only needed to wait for 14 years for an answer in 2009, rather than 16 years in 2008, for the CIA to process your FOIA request.

IMHO, this type of answer makes a mockery of FOIA--as well as a mockery of the CIA, the headquarters of which features the words of John 8:32 carved in stone, at the insistence of Allen Dulles, its first director:

"And ye shall know the truth, and the truth shall make you free."

A Newly Discovered Poem by Paul Lawrence Dunbar

(NOT 2 Live Crew...)

Andrew McCarthy: Kagan's Sharia Finance History Disqualifies Her for Supreme Court

From National Review Online:

Kagan and other apologists for SCF (Sharia Compliant Finance) would absolve themselves from the real-world consequences of their allegedly well-intentioned diversity fetish. But legitimizing any aspect of sharia is the endorsement of all of it. Moreover, there is no cut-and-dried separation of sharia brutality from the tidy, white-collar world of financial transactions.

To pull off the SCF chicanery, financial institutions hire as advisers Islamic clerics who are expert in Muslim jurisprudence — there being, again, no separation between divine edicts and the secular law in Islam. It is those clerics, many of them Islamists, who decide what transactions are permissible. And very often, to purge the taint, prohibited interest payments are diverted to Islamic “charities.” It all sounds wonderful . . . except for what they don’t tell you: The major schools of Islamic jurisprudence teach that support for violent jihad is a legitimate form of charitable giving.

Indeed, as the Middle East Forum’s Raymond Ibrahim observes, the Koran actually prioritizes the need to fund jihad over the need to fight it. (See, e.g., Sura 9:41: “Go forth, light-armed and heavy-armed, and strive with your wealth and your lives in the way of Allah!”) In a canonical hadith, Mohammed confers on the financial backer the same glorious status as the mujahid fighter: “He who equips a raider so he can wage jihad in Allah’s path . . . is himself a raider.”

SCF is thus the Islamist triple-play: It elbows sharia’s way into our legal system, from whence it can expand its influence; it institutionalizes financial jihad; and it pressures true Muslim moderates to shun Western practices. It is, furthermore, unabashedly anti-capitalist — another reason the Left likes it so much. As Frank Gaffney points out, the economic meltdown in late 2008 was taken by SCF proponents as “proof of the inherent corruption of capitalism” and the need to replace it with the asserted virtues of sharia.

But let’s put all that aside. Let’s pretend that there were some way you could compartmentalize sharia, some way you could even slice and dice SCF to facilitate market access without all the unsavory fallout. There would still be the matter of Elena Kagan’s bizarre moral universe.

The U.S. military is an unparalleled force for good in the world. Kagan has said as much, but she claims, straight-faced, that it is just this “extraordinary service” to our society that makes DADT “more not less repugnant” — the bathwater that requires throwing out the baby.

But let’s compare the U.S. military with sharia. Sharia is the cause of indescribable suffering in the world: for homosexuals, women, non-Muslims, and Muslims who wish to embrace the West. Yet for Kagan, sharia’s repugnance is irrelevant. Like opposition to DADT and support for abortion, the engagement of Islamists, the embrace of their case against American capitalism, is a progressive cause célèbre. So count Ms. Kagan in. She’ll worry about logic and sharia victims like Sakineh Ashtiani later — if ever.

Sheer political willfulness is an unattractive quality. In a Supreme Court candidate, it ought to be disqualifying.

African-American Legal Groups Have Not Endorsed Kagan

From the Washington Informer:

...two key legal groups have so far refrained from endorsing the former Harvard law dean amid questions about whether she would be a strong civil rights advocate on the court.

That split underscores the complexities of a civil rights community eager – some say over eager – to support the nation’s first African-American president and some highly-respected legal organizations that are in a much better position to evaluate the appointment of Kagan to fill the seat vacated by Justice John Paul Stevens, a reliable liberal vote on the sharply-divided Supreme Court.

Mavis T. Thompson, president of the National Bar Association, the largest organization of Black lawyers and judges, said the group gave Kagan only a lukewarm rating because of concerns about her positions on crack-cocaine sentencing disparities and her record on diversity at Harvard.
Although Kagan is clearly qualified to join the court, Thompson said, “We hope Ms. Kagan’s views on civil rights and equal justice will become apparent during the confirmation hearings. To date, the NBA has withheld its endorsement due to insufficient information to ensure that Ms. Kagan’s views are consistent with the core missions of the organization.”

Barbara R. Arwine, executive director of the Lawyers’ Committee for Civil Rights Under the Law, said her organization voted not to take a position on Kagan.

“There isn’t a judicial record to review, indicating her views on critical civil rights matters,” she told the Washington Post. “And otherwise, the civil rights record that exists is thin and mixed.”

Judicial Crisis Network: The Case Against Kagan

You can read a JCN opposition brief to the Kagan nomination, in PDF format, at this link.

Washington Times: Elena Kagan v The Bill of Rights

From today's Washington Times:

In short: Yes, Congress has the constitutional right to make you eat your fruits and veggies. Forget freedom; if the government chooses to be coercive, the government can coerce.

Ms. Kagan hemmed and hawed about whether the Constitution should be interpreted in the context of natural rights as described in the Declaration of Independence. Mr. Coburn asserted "that we have certain God-given, inalienable rights that aren't given in the Constitution, that they're ours, ours alone, and that the government doesn't give those to us." The best Ms. Kagan could do in reply was to provide a jumbled double-negative: "I'm not saying I do not believe that there are rights preexisting the Constitution and the laws, but ..."

Indeed, Ms. Kagan's record indicates that she doubts the Constitution serves preexisting rights. She has spoken of government "redistribut[ing] expression" and of "dol[ing] out" speech rights "as favors." On economics, she wrote, "corporate wealth derives from privileges bestowed on corporations by the government. ... Individual wealth also derives from government action."

Ms. Kagan seems to think the federal government is responsible for just about anything and has the power to dictate just about everything in the realm of speech or economics. It's not a set of beliefs fit for a Supreme Court justice.

Charles Crawford on US-Russian Spy Swap

From his blogoir:

Are we about to see a major 'spy swap'?

"Why waste time on all those tedious legal processes and prisons? We get our spies back, and so do you."

Hard for me at least to see why the Russians would want to do this unless the illegals/sleepers rounded up in the USA were likely to spill so many operational beans during their looming long years on trial and then in prison that it is worth Moscow eating great slabs of humble pie to end the agony asap.

Maybe the Americans likewise feel that in fact so many KGB/SVR beans have been spilled already that they can afford to be magnanimous.

However, look at the world from the point of view of the hapless Russian spies.

They have been living agreeable and comfortable lives in leafy US suburbs. Now they face abrupt repatriation to Russia, where they will be regarded as failures and losers for ever.

Plus they face sustained and stressful interrogations from the SVR as the Russian agencies try to find out where it all went wrong - and what they have confessed about Russian operations and methodology.

Gulp. Political asylum bid, anyone?

The more you look at it, the more this looks like a five-star triumph for the Americans in general and the FBI in particular.

Frank Gaffney: Kagan Koshered Shariah Compliant Finance at Harvard

From The Washington Times:

Worse yet, Dean Kagan had an even more direct connection to the Saudis' Shariah-recruitment efforts at Harvard. She personally officiated in 2003 over the establishment of an Islamic Finance Project at the law school. The project's purpose is to promote what is better known as Shariah-compliant finance (SCF) by enlisting in its service some of the nation's most promising law students.

Consequently, it is absolutely appropriate for senators to explore Ms. Kagan's attitude toward Shariah - an anti-constitutional, supremacist legal doctrine that is a threat not only to homosexuals, but also to our civil liberties and society more generally.

hariah-compliant finance dates back to the 1940s, when it was invented by leading figures in the Muslim Brotherhood. This international organization has as its stated mission "destroying Western civilization from within ... by its own miserable hand." SCF is designed to further these seditious purposes by: legitimating Shariah in non-Muslim societies; compelling non-Shariah-adherent Muslims to use SCF rather than conventional financial products (in particular, arrangements that involve charging or paying interest); and diverting funds through techniques known as "zakat" (tithing) and "purification" to support jihad. In fact, one of the driving forces behind the SCF industry, Qatari Sheik Yusuf al-Qaradawi, has called SCF-generated zakat "jihad with money."

Ms. Kagan's Islamic Finance Project also has played a prominent role in encouraging the U.S. government to endorse Shariah-compliant finance. Notably, a founding adviser to the project, Harvard professor Samuel Hays III, conducted a "seminar for the policy community" in November 2008. It was sponsored by a former Goldman-Sachs-executive-turned-assistant-treasury-secretary, Neel Kashkari, who at the time was responsible for the Troubled Asset Relief Program (TARP). The signal thus sent could not have been clearer, either to Mr. Kashkari's colleagues in government or to those in the financial sector: At a moment when the very viability of major banks and investing institutions critically depended on this individual's favor, it would be advisable to embrace Shariah-compliant finance.

USA Today reported that Kagan was paid by Goldman Sachs for her services:

WASHINGTON — A top prospect for the Supreme Court was a paid member of an advisory panel for the embattled investment firm Goldman Sachs, federal financial disclosures show.

Solicitor General Elena Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show.

A spokesman for Goldman Sachs did not respond to requests for comment Monday.

Radio Netherlands on Dutch World Cup Win

The Dutch broadcaster calls it Orange Madness. (Full disclosure, I'm rooting for Holland, too...)

John McCain Says "No" to Kagan Nomination

From USA Today:

McCain's reason: The restrictions Kagan put on military recruiters when she was dean at Harvard Law School. "She unmistakably discouraged Harvard students from considering a career in the military," writes the senator, a decorated Navy veteran who spent more than five years in a Vietnamese prison camp.

During her confirmation hearing, Kagan said she did so because she felt the military's "don't ask, don't tell" policy, which allows gays to serve only if they keep their sexual preferences secret. Kagan said that violated Harvard's anti-discrimination policy.

McCain isn't buying her argument, for reasons you can read in his column.

Sen. Johnny Isakson (R-GA) has joined McCain in opposition to Kagan.

Martin Schram: Journolist Scandal Damages Washington Post's Integrity

From Scripps News Service:

Weigel had previously also joined another blog, a debate-and-chat group called "Journolist" that was formed by another Post blogger, Ezra Klein. Its members were limited to liberals or leftish centrists -- conservatives were banned. There Weigel cut loose -- opining such frat-chat yuks as: Matt Drudge would do well to "set himself on fire," Rush Limbaugh should die of a heart attack and so on. (Apparently assuming remarks to lots of journalists would stay off the record (Mr. Weigel, meet a fellow humorist, Gen. McChrystal.) Weigel's wee-giggles were collected and outed in the conservative media. Weigel resigned from the Post; but that is not the point here. The integrity of The Washington Post is.

BTW, when I was working on the PBS issue, years ago, I was repeatedly told that it was impossible to classify journalists as "liberal" or "conservative." Furthermore, it was wrong to do so, because it could lead to blacklisting...

So, how come it apparently was OK for Journolist to classify reporters as "liberal" (or further left) and to blacklist those who were conservative? In other words, I'm still waiting for someone to explain why the 400 members of Journalist weren't practicing McCarthyism, themselves.

BTW, I'd wager Breitbart never gets his list of Journolist members, nor the archives of listserv. It would be the end of the career of the person who turned it over. That's worth more than 100K to any journalist who wants to work again.

They'd be blacklisted, and they know it.

NiceDeb: Republican Senators Taking Dive for Kagan

NiceDeb doesn't understand why Republicans don't stop the Kagan nomination.

It makes no sense. The woman has no judicial experience, she’s clearly a radical with a judicial philosophy hostile to the Constitution, she’s manipulated science to further her extreme position abortion, and worst of all she’s young and healthy, which means we’ll be dealing with her destructive views for the next 30 years….

And what are our Republican Senators doing? Rolling over and playing dead.

Maybe it has something to do with the $476 million she raised from fat cats for Harvard Law School? After seeing Republicans defend BP and Wall Street, I guess that could explain it...

UK CRU FOIA Secrecy Enabled Climategate Fraud

From The Guardian (UK) report on Muir Russell's investigation of the Climate Research Unit at the University of East Anglia:

The report is far from being a whitewash. And nor does it justify the claim of university vice-chancellor Sir Edward Action that it is a "complete exoneration". In particular it backs critics who see in the emails a widespread effort to suppress public knowledge about their activities and to sideline bloggers who want to access their data and do their own analysis.

Most seriously, it finds "evidence that emails might have been deleted in order to make them unavailable should a subsequent request be made for them [under Freedom of information law]". Yet, extraordinarily, it emerged during questioning that Muir Russell and his team never asked Jones or his colleagues whether they had actually done this.

Secrecy was the order of the day at CRU. "We find that there has been a consistent pattern of failing to display the proper degree of openness," says the report. That criticism applied not just to Jones and his team at CRU. It applied equally to the university itself, which may have been embarrassed to find itself in the dock as much as the scientists on whom it asked Sir Muir to sit in judgment.

The university "failed to recognise not only the significance of statutory requirements" -- FOI law in particular – and "also the risk to the reputation of the university and indeed the credibility of UK climate science" from the affair.

Kate O'Beirne: "I Would Vote No" on Kagan

The Washington editor of National Review votes "No." From NewsBusters:

KATE O'BEIRNE: I would vote no, and unlike Margaret because the fundamental reason I am voting no is because my deep respect for the Constitution. So I wouldn't even try to vote twice like Margaret. I would only vote once. And It is not because she is not qualified even though she hasn't been a judge. I don't think you have to had been a judge. She has enough of a background in federal and constitutional law. She certainly is an extremely likable person. But, it is wholly permissible for the Senate in their advise and consent role to see somebody as Elena Kagan, and everything in her background tells me this is the case, she is going to be a liberal on the bench. She is going to, I think, fall into the liberal mistake of wanting laws to reach certain results and go there whether or not the Constitution permits it.

Conservative Website Launches "Stop Kagan Campaign"

Joseph Farah's World Net Daily has announced a campaign to block Elena Kagan's Supreme Court nomination. Farah posted this protest letter (which he plans to deliver by FedEx to Senate offices):

Defeat the nomination of Elena Kagan to the U.S. Supreme Court by lobbying every member of the U.S. Senate. It's as easy as a click of the mouse. The "Stop Kagan Campaign" is designed to impress senators with a heavy volume of mail over a sustained period of time -- the kind of campaign generated by previous WND efforts. All messages are delivered by Fed Ex to ensure they get to their destination and for added impact.

Here's the letter that will be sent, individually addressed, to each senator above your name:

Dear Senator:

In a few months, the American people will have a chance to speak at the polls again. Almost every analyst and every public opinion survey suggests the electorate is angry about the direction of the country. I strongly urge you not to show contempt for the will of the people and the Constitution by confirming the Supreme Court nomination of Elena Kagan.

Kagan is not what Americans want and she is not what the country needs.

At a time when federal central control is strangling the American economy, she calls for more regulatory authority, not just in Washington, but for the president himself.

At a time when American security is facing internal and external threats and our nation is still engaged in two foreign wars simultaneously, she advocates banning military recruitment on campuses because of her compulsion to see open homosexual behavior flaunted in the ranks.

At a time when Americans have been stripped of their ability to write their own laws protecting the lives of the unborn, she advocates the creation of task forces to investigate and prosecute peaceful pro-life activities.

At a time when Americans are recognizing the unique blessings of their Constitution, she advocates the consideration of foreign laws in shaping Supreme Court rulings.

For all of these reasons and more we will surely learn about in the days ahead, please reject the nomination of Elena Kagan.

Sincerely,

Your Name Here.

There's also a Stop Kagan Facebook Page sponsored by Americans United for Life.

Barry Rubin on the Obama-Netanyahu Summit

(White House photo by Pete Souzs)
 From the Gloria Center (Israel) website (ht) Martin Peretz):

Continuing to freeze construction on settlements will give Netanyahu a domestic problem but he can hold his coalition together, if necessary by adjusting it. Parties are constrained from walking out of the government because if elections were to be held Netanyahu would win in a landslide partly at their expense.

Another thing Netanyahu wants is for Obama to escalate pressure on Iran regarding that country's nuclear weapons' drive. The new sanctions, thanks to Congress, are going to hurt Iran and undermine support for the regime there. Not enough, of course, to stop the program. Still, when Iran does get nuclear weapons, Israel will need the United States to take a strong stand in containing Tehran.

Does Israel's government trust Obama? Of course not. Israel's government and Israelis in general are under no illusions about Obama's view of their country, his willingness to battle revolutionary Islamists, or his general reliability and toughness.

For example, last October the Obama Administration, through the State Department, did endorse the "settlement bloc" commitment, but then appeared to have forgotten about it. The U.S. government also broke its promises over the settlement freeze (accepting Jerusalem's exclusion and then howling about it a few months later) and regarding the nonproliferation conference (pledging to oppose any reference to Israel's nuclear weapons and then going back on that point).

There is also clarity about the possibility of Obama turning to a much tougher stance on Israel after the congressional elections are over. Yet with a plummeting popularity at home and lots of domestic problems, perhaps Obama will have more on his mind than playing Middle East peacemaker.

The Palestinian Authority is so uneager for a peace agreement that anything said by Israel on the subject is most unlikely ever to be implemented. And it seems that the Obama Administration has at least some sense that it isn't going to get an Israel-Palestinian peace agreement so it doesn't want to look foolish in making this a high priority and then failing.

Thus, Israel's strategy is as follows: try very hard to get along with the administration, seek to keep it happy, and avoid confrontation without making any major irreversible concessions or taking serious risks. Have no illusions, but keep the U.S. government focused on Iran as much as possible.

The next Congress will be more likely to constrain the president and who knows what will happen in future. A building freeze might be ended on strong grounds the next time. It is quite possible that Iran, Syria, and other radical forces will so assault the United States and trample on its interests that Obama will be forced to alter course. And there's always the 2012 presidential election.

REASON Magazine: Kagan Would Ban Pamphlets

Jacob Sullum writes:

Kagan's comments on the question of whether the First Amendment allows Congress to ban books under the guise of campaign finance reform were no more reassuring:

What we did in the Citizens United case was to defend the statute as it was written, which applied to all electioneering materials, with the single exception of books, which we told the court were not the kind of classic electioneering materials that posed the concerns that Congress had found to be posed by all electioneering materials of a kind of classic kind. Books are different. Books—you know, nobody uses books in order to campaign.

That claim is more than a little dubious, given all the biographies, manifestos, and public policy books that candidates and their supporters have produced over the years. More to the point, the distinction that Kagan drew between books, which maybe cannot be banned, and "pamphlets," which definitely can, is constitutionally untenable. As Hatch put it, "Do you believe that the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page?"

Charles Crawford on David Horowitz on Christopher Hitchens

From Charles Crawford's Blogoir:

In my eccentric Left phase as a student I got very depressed by a popular book by a young David Horowitz, a prominent American Leftist who railed at great length (460 pages) against the iniquities of Amerika and its unforgiving anti-communist foreign policy machinations.

Not only was the USA surrounding the peace-loving USSR with military bases. It had corporations bent on world domination. Aaargh.

The book was called The Free World Colossus.

David Horowitz went on to fall out in a major way with his senior New Left friends, disillusioned and revolted by their lies, hypocrisy and casual violence.

He now keeps very busy tracking Leftist propaganda and trickiness in US universities and far beyond, with these days a special added focus on Left cosiness with Islamist extremism. All of which makes him a cult hate figure for campus radicals.

The interesting thing about Horowitz is is almost exhausting frankness about his former beliefs and why he had such a dramatic change of mind. He has written extensively on the subject, including on how his family life and personal relationships shaped his early Marxist politics. He pores over the way emotions and ideas play into each other. See his many works here at Amazon.

Which is why I commend this superb essay by him over at NRO, in which he tries to analyse the beliefs of Christopher Hitchens, another prolific eccentric belligerent militant atheist Leftist who in one way or the other has fallen out with many former comrades.

First, this is a beautifully written piece of work.

Second, it is generously done, on both the intellectual and human level.

Third, it is very smart as only a piece by someone who has brooded deeply on politics and life from most points of the political spectrum can be. It takes great events of our times and explores how political and private reactions to them run into all sorts of contradictions and hypocrisies.

Magnificent. Must-read if you are interested in ideas.

Pam Geller: 7 Republican Senators Can Block Kagan Without Filibuster

From Atlas Shrugs:

For any SCOTUS nominee to be moved out of the Senate Judiciary Committee for a vote in the full Senate, at least ONE member of the minority party on the committee must vote in the affirmative.

In other words, if all seven Republican Senators on the committee vote against Kagan's confirmation, then she will not be confirmed.

It's just that simple.

Please contact all seven Republican Senators on the Judiciary Committee (and especially Sen. Kyl) to let them know that you oppose Kagan's confirmation. (Much thanks to Kagan for the info)

If enough people contact these Senators, they will pay attention to us.

The fate of our country is in YOUR hands.

Here are the seven Senators to contact:

Graham, Lindsey - (R - SC)
290 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-5972
Web Form: http://lgraham.senate.gov/public/index.cfm?FuseAction=contact.emailsenatorgraham

Sessions, Jeff - (R - AL)
335 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-4124
Web Form: http://sessions.senate.gov/public/index.cfm?FuseAction=ConstituentServices.ContactMe

Hatch, Orrin G. - (R - UT)
104 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-5251
Web Form: http://hatch.senate.gov/public/index.cfm?FuseAction=Offices.Contact

Grassley, Chuck - (R - IA)
135 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-3744
Web Form: http://grassley.senate.gov/contact.cfm

Kyl, Jon - (R - AZ)
730 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-4521
Web Form: http://kyl.senate.gov/contact.cfm

Cornyn, John - (R - TX)
517 HART SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-2934
Web Form: http://cornyn.senate.gov/public/index.cfm?p=ContactForm

Coburn, Tom - (R - OK)
172 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510
(202) 224-5754
Web Form: http://coburn.senate.gov/public/?p=ContactForm

UPDATE: The Hotline website has posted a running "whip count" of votes on the Kagan nomination.

SF Chronicle: Elena Kagan's "Vapid, Hollow" Gesture

Debra J. Saunders writes:

But let's be clear about Kagan. She says she reveres the very people whom she sought to treat as second class, while she rubbed elbows with powerful Democrats (and Republicans) who pushed the policy she found to be unjust.

Then when the policy was bad for her career, she trumpeted the many ways that she worked to get around it - why recruitment even went up.

Think about it. This was the cause that the cautious Kagan embraced, she signed an amicus brief on the issue, she put Harvard Law School on the line - all for a vapid, hollow gesture. But if she wins a spot on the big bench, where she doesn't need to win votes or to persuade nonbelievers, it won't be a charade anymore.

Daniel Pipes: Stop Erasing History from the Internet!

From DanielPipes.org:

Here's a pet peeve: Through eight years of the two George W. Bush administrations, I linked hundreds of times to White House and Department of State documents, plus less frequently to other U.S. government departments and agencies. I made efforts to link to original documents (and not news articles, much less blogs) because, having earned a Ph.D. in history, I value primary sources.

I assumed during those years that the documents, being part of the U.S. government's permanent record, would remain available so long as the government and the internet were functioning – in other words, a long time.

I assumed wrong. On coming to office, the Obama administration in an instant removed thousands (millions?) of pages, abruptly making dead and useless all those links to the prior administration's work. Latterly I learned that the Bush administration pulled this same trick against its Clinton predecessor.

This appalls me both as a historian and as someone who writes on the internet. How could they do this? The government surely has copies of those files and pages (indeed, http://georgewbush-whitehouse.archives.gov/ appears to contain the complete contents of the Bush White House years); it should promptly reinstate them immediataely to their original URLs. (June 25, 2010)

Washington Examiner: Red-State Democrats Should Oppose Kagan

Here's why the Examiner says conserviate Democrats should oppose the Supreme Court nominee:

...she failed to dispel concerns on three constitutional issues that will doubtless come before the Court many times, on which Kagan is on the wrong side of the American people.

First, the scope of government power. Regarding the limits of federal power to regulate interstate commerce, Kagan refused to say whether a law requiring every American to eat three servings of vegetables a day would be unconstitutional.

That’s a shocking answer, given that any conservative (or even moderate) lawyer worth his salt (no pun intended) could quickly explain how such a law is beyond anything ever upheld by the High Court. This means she would vote to uphold the Obamacare individual mandate when it reaches the Court.

Her government-power views extend to free speech. Kagan essentially said she was just following orders when she argued last fall in the Citizens United case that the feds should be able to throw into prison for five years people from any group distributing pamphlets criticizing federal candidates within 60 days of an election.
So on one hand, government has unlimited power to tell you how to live your life. On the other, government can make it a felony for you to criticize its leaders during elections. Together, these make a mockery of the concept of limited government.

Second, national security. Kagan never explained away why she said it was “unfortunate” that a particular law would block foreign terrorists held by our military in places like Afghanistan’s Bagram Air Force Base from petitioning a civilian U.S. federal judge from ordering their release. That betrays an invasive view of judicial power to override national-security decisions and micromanage our military’s wartime efforts.

And third, Kagan opposes the Second Amendment right to own a gun. As I’ve previously written, she said she’s “not sympathetic” to those who argue that they have a right to a gun in their home for self-defense, she was immersed in Bill Clinton’s gun-control efforts, and she declined to file a brief supporting the Second Amendment in this year’s historic gun-rights case, McDonald v. Chicago.

Social Media is Good for You!

According to Clay Shirky, in a Guardian (UK) interview about his new book, Cognitive Surplus: Creativity and Generosity in a Connected Age(ht Charles Crawford):

His predictions for the fate of print media organisations have proved unnervingly accurate; 2009 would be a bloodbath for newspapers, he warned – and so it came to pass. Dozens of American newspapers closed last year, while several others, such as the Christian Science Monitor, moved their entire operation online. The business model of the traditional print newspaper, according to Shirky, is doomed; the monopoly on news it has enjoyed ever since the invention of the printing press has become an industrial dodo. Rupert Murdoch has just begun charging for online access to the Times – and Shirky is confident the experiment will fail.

"Everyone's waiting to see what will happen with the paywall – it's the big question. But I think it will underperform. On a purely financial calculation, I don't think the numbers add up." But then, interestingly, he goes on, "Here's what worries me about the paywall. When we talk about newspapers, we talk about them being critical for informing the public; we never say they're critical for informing their customers. We assume that the value of the news ramifies outwards from the readership to society as a whole. OK, I buy that. But what Murdoch is signing up to do is to prevent that value from escaping. He wants to only inform his customers, he doesn't want his stories to be shared and circulated widely. In fact, his ability to charge for the paywall is going to come down to his ability to lock the public out of the conversation convened by the Times."

This criticism echoes the sentiment of Shirky's new book, Cognitive Surplus; Creativity and Generosity in a Connected Age. The book argues that the popularity of online social media trumps all our old assumptions about the superiority of professional content, and the primacy of financial motivation. It proves, Shirky argues, that people are more creative and generous than we had ever imagined, and would rather use their free time participating in amateur online activities such as Wikipedia – for no financial reward – because they satisfy the primal human urge for creativity and connectedness. Just as the invention of the printing press transformed society, the internet's capacity for "an unlimited amount of zero-cost reproduction of any digital item by anyone who owns a computer" has removed the barrier to universal participation, and revealed that human beings would rather be creating and sharing than passively consuming what a privileged elite think they should watch. Instead of lamenting the silliness of a lot of social online media, we should be thrilled by the spontaneous collective campaigns and social activism also emerging. The potential civic value of all this hitherto untapped energy is nothing less, Shirky concludes, than revolutionary.

James Warner: Elena Kagan Unfit for Supreme Court

From The American Thinker:

On June 30, in her confirmation hearings, Solicitor General Elena Kagan gave a response which gives me pause about her fitness to serve on the Supreme Court. Senator Tom Coburn, Republican of Oklahoma, asked her view of the natural right to self-defense. She responded, hesitantly, that she didn't have a view of natural rights, independent of the Constitution. But natural rights, independent of the Constitution, form the very fabric of it. Let me explain.

The US Supreme Court, the court to which Elena Kagan aspires, said in Ex Parte Grossman, 267 US 87, 108 (1925), "The language of the Constitution cannot be interpreted safely except by reference to the common law and British institutions as they were when the instrument was framed and adopted." All of the men who wrote the Constitution, up until the time of the Declaration of Independence, had considered themselves Englishmen. The law by which they were governed was, in addition to the statutes enacted by colonial legislatures, the British common law. Beginning in 1765, William Blackstone published the first volume of his magisterial work, Commentaries on the Laws of England. The fourth and final volume was published in 1769, the same year as the first American edition. This edition includes a list of subscribers who purchased it in advance of its publication. This list includes several attorneys who sat in the Constitutional convention. The Founders were intimately familiar with the common law.

Blackstone writes of the British "Bill of Rights" which was passed early in the first parliament of William and Mary following the "Glorious Revolution," the revolt which led to the expulsion of the last Stuart monarch, James II. He explains that the Bill of Rights was not an act to grant rights to Englishmen, but an act which Parliament believed was to restore natural rights which had been usurped by the Stuart dynasty. The British Bill of Rights included the right to bear arms for self-defense.

Blackstone wrote that there were three absolute rights which were recognized by the common law as being natural rights: personal security, personal liberty, and private property. These rights were protected by certain auxiliary rights which included 1) the powers of Parliament, 2) limitation on the prerogative powers of the King, 3) access to the courts for justice, 4) the right to petition the King for redress of grievances, and 5) the right to keep and bear arms. The auxiliary rights were necessary, he said, to protect the absolute rights which no government could lawfully abridge.

Given what the Supreme Court precedent has already said, these rights are not "outside of the Constitution" as was suggested by Elena Kagan. Further, Blackstone was not the only influence on the framers.

Donald Lutz, writing in the American Political Science Review in 1984, listed all the British and European thinkers cited by the framers 16 times or more between 1760 and 1805. Blackstone, as I recall, was number five on the list. The list included a number of thinkers who wrote in favor of the existence of natural rights, including the natural right to self-defense, including Baron Montesquieu (#1), John Locke (#3), Cesare Beccaria (#6), Hugo Grotius (#10) and Marcus Tullius Cicero (#11).

Finally, the Constitution could not have been written unless we were an independent nation at the time we wrote it. The life of the Constitution rests upon the validity of the Declaration of Independence. Recall that the author of the Declaration states that the authority by which we declared our independence from Great Britain was "the Laws of Nature and of Nature's God." Thus, the very Constitution which Kagan would be called upon to judge depends upon a natural right which is independent of it.

The most fundamental question for any judge is why laws exist at all. Surely, laws exist to protect the personal security, personal liberty, and private property of those subject to them. This must mean that the rights to these, as Blackstone observed, exist independent of the laws written to protect them. Otherwise any manner of laws could be written, such as a law to tell us what foods we should eat and in what proportions.

To say that she has no view on natural rights means either she does not understand the origin and meaning of the Constitution or she is in fundamental disagreement with both. In either case, she does not belong on the Supreme Court.

David Horowitz on Christopher Hitchens Hitch-22

He says the author of god is Not Great reveals his blind spots about Marxism and the anti-Israel Left, but other than that...From National Review Online:

Hitchens’s blindness in these matters is the most troubling of the confusions to which uncompleted second thoughts have led him and are a source of no pleasure for me. On the contrary, that my friend should be so unjust and incoherent in matters so important not only to others but to himself is both a misfortune and personal source of distress. Yet these reactionary glances do not eclipse that brilliance or the role he has played in the battle against the totalitarianism we confront today. In recognizing, however belatedly, the virtues of his adopted homeland, and in defending individual freedom against forces that are determined to crush it, my friend Hitchens has performed a worthy and necessary service, one that the Commander would have appreciated, and we should all be grateful for that.

Happy 4th of July! The Declaration of Independence, on YouTube

Austin Hay Resigns After 55 Years of Civil Service

Austin Hay's a member of my club (The Arts Club of Washington, DC), as well as perhaps the longest-serving Federal employee in Washington, as well as an actor with a long career as a movie extra. The Washington Post paid him tribute in the Style Section:

Hay deposits himself into slot E63-447 in a honeycomb of cubicles on an upper floor of the southeast wing of the building. He used to have his own office in the old department headquarters. He used to make informational and training films for the Army at a studio in Astoria, N.Y., where he hired Henry Fonda and Paul Newman for guest spots, where he gave Dick Cavett his first on-camera job, where he befriended an up-and-coming Walter Cronkite.

He moved to the District in 1973 to work for the Federal Highway Administration, for which he traveled the nation's arteries as a producer-director to capture the sprawling progress on film.

Kelly's success pulled Hay toward stage and screen, but the competitive life of a full-time actor wasn't for him. He wanted a solid career that would allow room for his passions: a movie now and then, painting, playing piano, active membership in many organizations such as the Arts Club of Washington, the Cosmos Club and the National Press Club.

"As the years go by, it's unbelievable how things accumulate," Hay says, sitting at his desk, surrounded by emptied file shelves, 11 boxes of this and that, paintings used in his documentary "Highways of History," a bouquet of deflating "Happy Retirement" balloons that sway in the air conditioning. Nearby is a large, yellow trash bin for discarding the less-meaningful etcetera of an office life. There's a stack of DVDs of movies he has appeared in through Central Casting.

He's the pallbearer who says "What about Chauncey Gardiner?" in the closing scene of "Being There" in 1979. He's Tom Selleck's confidante in "Her Alibi" in 1989. He's the speaker of the House behind Jeff Bridges during his climactic address to Congress in "The Contender" in 2000.

Hay likes how his life has been italicized by glittery moments and chance encounters. He stayed at his job because he enjoyed it, because it anchored him. He's leaving now because some of his friends have died and "life is going by" and he wants to savor it fully. Tomorrow, he'll sleep in. He'll paint. He'll catch up with friends. He'll make travel plans.

Happy Trails, Austin!

Kagan Failed Senate Judiciary Committee Hearing

Which is why I agree with Ann Althouse, that no major news organization or website has posted a transcript. Had she not embarrassed her supporters with her Uriah Heepish "modesty" and inability to admit that her memo in her own handwriting reflected her thoughts, her inability to rule out legislating vegetable portions, her failure to imagine a role for a justice in weighing the spirit of the law against the letter of the law, her strange way to express her love for the US military by banning official recruiting at the career center, etc. you might have been able to read her testimony for free in the so-called "newspaper of record."

But you can't--and that tells a tale of shame. The mainstream media is embarrassed that their "smart" Dean of Harvard Law School was clearly outwitted...by senators from Alabama and Oklahoma! Which is why Senators Specter, McConnell and Hatch are no longer afraid to oppose her nomination. If the Republicans buy ads over the 4th of July weekend, they might be able to defeat her nomination by peeling off a handful of pro-life, pro-gun, pro-dinner without vegetables senators...especially now that Rush Limbaugh has called for a filibuster.

On the other hand, you can still pay to read Senate Judiciary Committee transcripts, on the Federal News Service website: http://www.fednews.com/transcript.htm?id=20100701t3886.

Turns out that hearings aren't always a sham...

UPDATE: I'm not the only one to think she "failed"...Here's an interview with Sen. Sessions from CBS News, titled: "Sessions: Kagan Failed Her Own Test."

Happy Fourth of July Weekend!

Document of the Week: 2007 Freedom of Information Act, as Amended

A new feature of this blog, "Document of the Week." Each week, I'll take a look at an excerpt from a US Government document available on the internet, analyze it, and try to explain what it means. Today's document is the 2007 Freedom of Information Act, as amended by the US Congress.

Here's the text under discussion, a definition of a representative of the news media in section (4)(A)(ii):

In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term ‘news’ means information that is about current events or that would be of current interest to the public. Examples of news- media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘news’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.

What does this mean, from the point of view of this news disseminator? Let's walk through the language, line by line...

1.In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.

IMHO, key concepts are:

"ANY person or entity" means even a robot, or electronic news aggregator, could qualify as a representative of the news media. In our age, machines might do a better job than people of notifying readers of stories. Less personal bias.

"...that gathers information of POTENTIAL interest to a SEGMENT of the public" means that the information does not have to have interest at the present time, only someday. Further, the audience need not be the entire world, only an interested sub-section. And the segment could be pretty small, I would think. If Bill Gates reads my blog's favorable review of some new blogging software, he might buy the company, as he did with PowerPoint. I'd argue a segment might be one person who could act on the information, after all...one can talk to another...and as we saw in the Helen Thomas YouTube case--millions.

"uses its editorial skills to turn the raw material into a distinct work" in my opinion would even include a clipping service, such as every government agency uses--because the selection of which items to include, and in which order to place them is the most basic of editorial skills, that is, knowing what to cut and what to publish, and arranging them in order of importance to catch the eye of the reader. For example, take a look at Reader's Digest or Vital Speeches or the Utne Reader. Even the US Postal Service Daily News Digest contains different articles from that of the US Department of Transportation. Indeed, articles are selected by different criteria, by different editors. So, the process of selection and arrangement for publication is all that is needed to turn something into a distinct work. This is also true in the fine arts, as with collage. It is what editors--as opposed to writers--do.

"...and distributes that work to an audience." Again, I would say an audience of one is an audience. You'd have to persuade me that there is any logic to any other requirement. Because, again, once one person knows--if, unlike the "Journolist" 400 they are not sworn to secrecy--the potential is there for everyone to know about it. As we found out, when one "Journolist" member leaked some emails about Matt Drudge written by David Weigel on the internet.

2. We'll skip the examples, because, as stated, they are "not all-inclusive." In fact, I'd say they are only the most obvious, and IMHO 20th Century rather than 21st Century. I'd say for example, that MATT DRUDGE is a news media entity, in that his website is a medium through which news is transmitted...often into the very newsrooms of those in the "not all-inclusive" list. Of course, so was BENJAMIN FRANKLIN. Which is pretty much what the next line means.

3. "...such alternative media shall be considered to be news-media entities." Indeed, the alternative media probably are better disseminators than the old-line media. Do you think you would have ever heard about Monica Lewinsky if it hadn't been for MATT DRUDGE?

4. The next line is close to my heart: "A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity." This means, in my case, that although I am not paid and they are not responsible for the material on the site, I in a sense work for Google--because Blogger (my host) is owned by Google. I expect publication through Google. Most of my hits come from Google searches. And I can demonstrate this, with Google Analytics.

5. "A publication contract would present a solid basis for such an expectation..."In fact, a publication contract means little. All this shows is that the authors of the clause have an unreasonable deference for publishers. Today, anyone can be a publisher over the internet, through print-on-demand, or by using companies such as xLibris.

In fact, a number of self-published works have become classics--even best-sellers. Here's a list, from SimonTeaKettle's Famous Authors, of notable self-published books:

Remembrance of things Past, by Marcel Proust

Ulysses, by James Joyce

The Adventures of Peter Rabbit, by Beatrix Potter

A Time to Kill, by John Grisham

The Wealthy Barber, by David Chilton

The Bridges of Madison County

What Color is Your Parachute

In Search of Excellence by Tom Peters

The Celestine Prophecy by James Redfield

The Elements of Style by William Strunk, Jr. (and his student E. B. White)

When I Am an Old Woman I Shall Wear Purple

Life’s Little Instruction Book

Robert’s Rules of Order

Self-published authors:

Deepak Chopra

Gertrude Stein

Zane Grey

Upton Sinclair

Carl Sandburg

Ezra Pound

Mark Twain

Edgar Rice Burroughs

Stephen Crane

Bernard Shaw

Anais Nin

Thomas Paine

Virginia Wolff

e.e. Cummings

Edgar Allen Poe

Rudyard Kipling

Henry David Thoreau

Benjamin Franklin

Walt Whitman

Alexandre Dumas

William E.B. DuBois

Beatrix Potter

And books rejected by publishers:

Pearl S. Buck - The Good Earth - 14 times

Norman Mailer - The Naked and the Dead - 12 times

Patrick Dennis- Auntie Mame - 15 times
George Orwell - Animal Farm

Richard Bach - Jonathan Livingston Seagull - 20 times

Joseph Heller - Catch-22 - 22 times (!)

Mary Higgins Clark - first short story - 40 times

Alex Haley - before Roots - 200 rejections

Robert Persig - Zen and the Art of Motorcycle Maintenance - 121 times

John Grisham - A Time to Kill - 15 publishers and 30 agents (he ended up publishing it himself)

Chicken Soup for the Soul - 33 times

Dr. Seuss - 24 times

Louis L'Amour - 200 rejections

Jack London - 600 before his first story

John Creasy - 774 rejections before selling his first story. He went on to write 564 books, using fourteen names.

Jerzy Kosinski - 13 agents and 14 publishers rejected his best-selling novel when he submitted it under a different name, including Random House, which had originally published it.
Diary of Anne Frank

I would add James Joyce's Dubliners to the list of books rejected by publishers...

All a publication contract tells you is what someone has been paid. I wouldn't submit one, when I made a FOIA request for the book I'm currently writing, because it's like submitting your pay stub--too personally embarrassing and none of their business! I affirmed I had a contract, that should have been enough. Which is why the second clause is important: "...the Government may also consider the past publication record of the requester in making such a determination." IMHO, this is better than nothing--but what if it your FIRST book? Or, your FIRST documentary film? Why should established writers have a preference under law that unknowns, who have incentives to seek scoops with more vigor, don't?

As Frank Rich pointed out in the Sunday New York Times, it is outsiders who have consistently been able to deliver the most powerful news stories:

"Politico theorized that Hastings had pulled off his impertinent coup because he was a freelance journalist rather than a beat reporter, and so could risk “burning bridges by publishing many of McChrystal’s remarks.”

That sentence was edited out of the article — in a routine updating, said Politico — after the blogger Andrew Sullivan highlighted it as a devastating indictment of a Washington media elite too cozy with and protective of its sources to report the unvarnished news. In any event, Politico had the big picture right. It’s the Hastings-esque outsiders with no fear of burning bridges who have often uncovered the epochal stories missed by those with high-level access..."

Bottom Line: FOIA, as amended, expands the definition of the news media, but not far enough.

Hatch Opposes Kagan Nomination

He told the AP he'll vote against the Solicitor General.

Hmmmmmmmm....contra Kagan's published opinion in this regard, maybe Senate hearings make a difference, after all?

Ryan Crocker on Iraq

From The National Interest:

It is vital that this engagement continue. Iraq is not yesterday’s war.

Strategic patience is often in short supply in this country. It is not a new problem for us, and it is not limited to Iraq. My time in the Foreign Service, from Lebanon in the early 1980s to Iraq twenty-five years later, was in many respects service in a long war. Dates such as 4/18 and 10/23—the bombings of the U.S. embassy and Marine Corps barracks in Beirut in 1983—were seared into my memory well before 9/11. I learned a few lessons along the way. One is we need to be careful about what we get into. It is a complex, volatile region with long experience in dealing with outside interventions—our adversaries often do not organize for the war until some point after we think we have already won it. But a second lesson is that we need to be even more careful about what we propose to get out of. Disengagement can have greater consequences than intervention.

Our withdrawal from Lebanon in 1984 was a victory for Syria and Iran who created and used Hezbollah against us with devastating consequences. They drew conclusions about our staying power, and when I stepped off the helicopter in Baghdad on a warm night in March 2007 as the new American ambassador, I had the eerie feeling that I was back in Lebanon a quarter of a century earlier. Iran and Syria had again combined efforts against us, this time supporting Jaish al-Mahdi and al-Qaeda instead of Hezbollah (in fact, Hezbollah trainers were working with Jaish al-Mahdi).

The surge confounded their expectations—we stepped forward instead of back. But they almost succeeded. When then–commander of U.S. forces in Iraq General David Petraeus and I testified before Congress in September 2007, the surge was starting to make a difference. But Americans, and much of Congress, were tired of the war. A major theme in our testimony was that we needed to consider that the costs of disengaging from Iraq could be far greater than those of continued involvement. Al-Qaeda would have had a base on Arab soil from which to plan operations throughout the region—and beyond. Iran and Syria would have won a major victory over the United States, fundamentally realigning the entire area with very grave consequences for the security of our allies, as well as our own. We continue to pay for our loss in Lebanon more than a quarter of a century ago. The costs of defeat in Iraq would have been exponentially higher.

Specter Denounces Kagan Nomination

According to the San Francsico Chronicle:

"So far it's been a winning hand, but it's not been good for the country, the court or the Constitution, and certainly not the Congress," said Sen. Arlen Specter, D-Pa., who opposed Kagan's confirmation as solicitor general 16 months ago when he was the committee's ranking Republican.

Specter, who may again oppose Kagan, said Thursday that the nominee uttered "pure prepared pabulum that comes right out of the White House murder boards." He said he was particularly upset because, in a 1995 law review article, Kagan lambasted the confirmation process as "vapid" because of the lack of specificity in nominees' answers.

Veterans Testify Against Kagan Nomination

From Politics Daily:

Army Capt. Flagg Youngblood, USA (Ret.), a Yale graduate, voiced the strongest objections to Kagan's appointment, calling her oversight of the separate-but-equal access for recruiters at Harvard Law "a total disregard for the rule of law" and an "unlawful brand of segregation."

"Imagine Dean Kagan on the lunch counter," Youngblood told the senators, comparing military recruiters to African- Americans during the Civil Rights movement. "What she said to the military in effect was, 'You're welcome here, but would you be so kind as to use the back door by the garbage? You don't mind eating in the kitchen, do you?'"

Army Capt. Pete Hegseth, an Iraq War veteran who attends Harvard's Kennedy School of Government, said Kagan treated the military "like second-class citizens" when she continued limiting recruiters' access to the career services office.

"Her actions undercut the military's ability to fight and win wars overseas," Hegseth said. He also lamented the fact that Kagan, whom he considers anti-military, is slated to replace Justice John Paul Stevens, the last remaining veteran on the high court.

Hegseth also said Kagan's supporters are wrong to point to Harvard Law's increased numbers in the military as a good reflection on Kagan's time as dean. "It increased in spite of Ms. Kagan, not because of her," he said.

Finally, Thomas Moe, an Air Force veteran and POW in Vietnam, said Kagan's disregard for the Solomon Amendment should disqualify her from consideration for the court. "As a citizen, I cannot support the nomination of a justice who can pick and choose the laws they wish to follow," he said.

NY Times: NRA Opposes Kagan Nomination

The New York Times reports that the NRA has come out against Kagan:

WASHINGTON — The National Rifle Association said on Thursday that it would oppose the confirmation of Elena Kagan to the Supreme Court, and would publicize how senators vote on her nomination. The move could drive down support for her among senators from states where gun rights are at issue.

“Unfortunately, Ms. Kagan’s record on the Second Amendment gives us no confidence that if confirmed to the court, she will faithfully defend the fundamental, individual right to keep and bear arms of law-abiding Americans,” the association’s leadership wrote on Thursday in a letter to the chairman and the ranking Republican member of the Senate Judiciary Committee.

The so-called N.R.A. score — the group’s evaluation of candidates, often cited in political campaigns — rates politicians on their friendliness to the group’s agenda, and became an issue in the Supreme Court confirmation last year of Justice Sonia Sotomayor. She was confirmed on a largely party-line vote of 68 to 31.

Senator Orrin G. Hatch, Republican of Utah, who voted against Justice Sotomayor and who typically votes in line with the rifle association’s positions, said in an interview Wednesday that if the association decided to track votes on Ms. Kagan, it would not influence his vote.

Asked if the group’s opposition would hurt Ms. Kagan more generally with Republicans, though, Mr. Hatch said, “It wouldn’t help.”

Curiously, in its own endorsement today, the New York Times damned Kagan with faint praise: "We hope Ms. Kagan was being candid. Frankly, we had expected somewhat more from her, considering her 1995 article disparaging the hearings process as a 'vapid and hollow charade.' "

SEC Settles with Fired Investigator

The Washington Post reports that the SEC has paid fired investigator Gary Aguirre $755,000 to end his wrongful termination lawsuit, stemming from his cancelled probe of Pequot Capital fraud allegations in 2006.

Aguirre accused the agency of botching a probe into the prominent hedge fund Pequot Capital Management, saying the SEC was overlooking clear signs he uncovered that the firm traded in shares of Microsoft based on insider information. Aguirre also accused the agency of firing him after he pushed, unsuccessfully, to interview Morgan Stanley's then chief executive, John Mack, as part of the Pequot probe. Aguirre argued that the agency didn't want to interview the Wall Street giant because of his "political clout."

The agency fired Aguirre for insubordination and closed the case on Pequot.

But Aguirre's protests led to two internal investigations by the SEC's inspector general into the handling of the Pequot matter and a scathing Senate report that found that the agency bungled the probe and improperly fired Aguirre. Internal documents show the agency's efforts to discredit Aguirre included discussion of a "basket case" strategy that made him seem like a longtime agency gadfly. The former enforcement lawyer, meanwhile, pursued a private legal claim for wrongful termination.

Recently, the agency changed its tune on two counts.

After new evidence came to light in the Pequot case, the SEC opened a new probe and last month settled insider-trading charges with the firm. Pequot and its chief executive, Arthur Samberg, agreed to pay $28 million to settle SEC charges that the firm traded shares of Microsoft based on insider information.

And Tuesday, the SEC agreed to a settlement, finalized by the Merit Systems Protection Board, to pay Aguirre four years and 10 months of salary and attorney's fees in exchange for Aguirre dismissing his claims.

"I think it's fair to the public that the SEC pays for my work over the past four years and ten months, since it generated $28 million to the U.S. Treasury," Aguirre said. "But it's a shame the team I worked with at the SEC did not get to complete the Pequot investigation. The filing of the case in 2005 or 2006, before the financial crisis, would have been exactly what Wall Street elite needed to hear at the perfect moment: The SEC goes after big fish, too."

Since Chris Cox was chairman of the SEC at this time, and the firing of an investigator must have created a hostile environment for those seeking to root out fraud, perhaps someone might take a closer look at Cox's role in Aguirre's firing, as well as his responsibility for the collapse of the US financial system in a climate of widespread fraud and abuse?

Andrew Breitbart on Journolist

Andrew Breitbart responds to Andrew Sullivan's ataack on his offer of $100,000 for the complete Journolist archive (ht Media Matters for America):

I was not invited to participate in that list for obvious reasons. I am not bound by those rules. Unless you are going to tell me that in the future, journalists are forever bound not to report information that others have agreed would remain private, you are holding me to a standard that no one else in the media would ever agree to. Such a standard would allow corporate, government and military malfeasance to flourish and would certainly prevent stories like the Risen and Lichtblau exposes in the New York Times from ever being published; even though the programs were top-secret, the Times was not bound by any privacy agreement.

Why was Mickey Kaus not excoriated for breaking the sacred JournoList bond when he posted a series of leaked emails that showed collusion against not-liberal-enough New Republic editor Marty Peretz for his crime of sticking up for Israel?

Kausfiles has obtained a copy of one JournoList discussion, focusing on New Republic editor-in-chief Martin Peretz (for whom I once worked.) This is not a parody! It’s the real thing. I don’t know whether or not it is representative. I’ve edited it only to remove potentially defamatory passages–those cuts are marked–and left out various boilerplate links and commands embedded in the thread, such as “Print” and “Report this message.” … I won’t add my own commentary, at least for now. Find your own lede! … Reminder to JournoList organizer E. Klein, who likes to take it private: All communications are on the record. …

Most information of value is held by people that don’t want it to be public. Not that anyone asked, but I would never divulge information discovered that was not pertinent to my stated mission, which is to point out the collusion between the political left and a journalist class that improbably claims there is no such thing as media bias and who dismiss those who accuse the media of having a left wing agenda as paranoid conspiracy theorists.

I would never divulge an individual’s sexual secrets. I did not learn that rule in journalism school, I learned that from my conscience. Something that I have come to realize is lacking in those journalists who claim out of one side of their mouth that they are objective reporters, but then seek the privacy of clubs, cliques and listservs, etc., to fight back against those that would challenge their false “objective order.”

When the talking points of the press match up with each other to the degree that they have in recent years,when the lexicon is virtually identical, when major stories are collectively ignored and the minor ones are collectively inflated, everyone notices.

IMHO, after reading the published excerpts, what went on on Journolist sounds suspiciously like "Two Minutes Hate" in Orwell's novel 1984. In Kaus's case study, Marty Peretz became a new Emmanuel Goldstein...In Weigel's instance, it was Drudge.

TPM: Right-Wing Rallies Against Kagan

According to Talking Points Memo.

Washington Times: Kagan Fails Ethics Test for Supreme Court

From The Washington Times:

Elena Kagan has failed the ethical standards necessary for service on the Supreme Court. She also has shown herself to be an apologist not just for legalized abortion, but for legalized partial-birth abortion - a gruesome form of infanticide opposed by up to 75 percent of the American public. In yesterday's Senate Judiciary Committee hearings, Ms. Kagan utterly failed in her attempts to explain away her unethical actions on behalf of an immoral policy. After these revelations, no senator claiming to be a moderate should be able to support Ms. Kagan.

Sen. Sessions: Kagan Not Qualified for Supreme Court

He told National Review Online that she was not honest in her testimony to the Senate Judiciary Committee:

Washington, D.C. — After wrapping up the third day of Elena Kagan’s confirmation hearings, Sen. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, tells National Review Online that he has “growing concerns” with President Obama’s Supreme Court nominee. “This nominee needs to address several very serious questions about the accuracy of her testimony, about whether she lets her personal agendas drive what she does,” Sessions says.

“She does not have the rigor or clarity of mind that you look for in a justice on the Supreme Court,” Sessions says. “She is personable, people-oriented, and conciliatory, yet she lacks a strict, legal approach. You want a mind on the court. She’s charming, delightful, and personable, but I don’t see that there.”

Sessions points to Kagan’s handling of the military’s “don’t ask, don’t tell” law while solicitor general as a major problem area. He wonders why she did not take action on two cases in which “don’t ask, don’t tell” was challenged. Kagan, for her part, defended her decisions, saying she acted “consistently with the responsibility” to “vigorously defend all statutes.”

Sessions is not convinced. “I have become more troubled after today,” he says. “On really tough matters, she becomes very political and acts less in a principled, lawful manner and more in a manipulative, political manner. That’s not what you need on the Supreme Court.” (More about this exchange from Ed Whelan here.)

Sessions adds that Kagan’s responses about her association with a controversial partial-birth-abortion memo (which Shannen W. Coffin wrote about here) “are another example” of the “nominee’s troubles.”

“That document seems to indicate pretty clearly that she got panic stricken when the president got ready to sign the partial-birth-abortion bill,” Sessions says. “She went into high-speed action to talk him out of it.”

Ann Althouse: Kagan Being Given A "Pass"

From Ann Althouse's blog:

I think it's more likely, in fact, that Kagan is being given a pass, and that the Senators from both parties have their reasons for giving her a pass. It's related to the unavailability of a transcript, I'm guessing.