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.