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.